National Academies Press: OpenBook

Legal Aspect of Environmental Permitting in the Emergency Response Environment (2015)

Chapter: III. Model Surveys of Governments at the Various Levels for Actions and Processes

« Previous: II. Applicable Legal Requirements For Environmental Review of Transportation Projects
Page 30
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 30
Page 31
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 31
Page 32
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 32
Page 33
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 33
Page 34
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 34
Page 35
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 35
Page 36
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 36
Page 37
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 37
Page 38
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 38
Page 39
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 39
Page 40
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 40
Page 41
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 41
Page 42
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 42
Page 43
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 43
Page 44
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 44
Page 45
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 45
Page 46
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 46
Page 47
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 47
Page 48
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 48
Page 49
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 49
Page 50
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 50
Page 51
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 51
Page 52
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 52
Page 53
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 53
Page 54
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 54
Page 55
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 55
Page 56
Suggested Citation:"III. Model Surveys of Governments at the Various Levels for Actions and Processes." National Academies of Sciences, Engineering, and Medicine. 2015. Legal Aspect of Environmental Permitting in the Emergency Response Environment. Washington, DC: The National Academies Press. doi: 10.17226/22186.
×
Page 56

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

30 response decision made by the action agency where human life is at stake.”314 If listed species or critical habitat has been ad- versely affected by response actions, the action agency must, “as soon as practicable after the emergency is under control” initiate formal con- sultation.315 Thus, “emergency consultation…is not a substitute for required consultation under [Section 7].”316 In some circumstances, the result- ing biological opinion may not provide reasonable and prudent alternatives to avoid jeopardy or critical habitat impacts, simply because such al- ternatives may no longer be available. Fish & Wildlife does consider, however, whether “some further action can restore or enhance the species below the jeopardy threshold,”317 and may include such measures as reasonable and prudent alter- natives in the biological opinion. Thus, in some case, the emergency consultation procedures may result in a de facto exemption from the require- ments of Section 7(a)(2). The handbook describes an “emergency” as a “situation involving an act of God, disasters, casu- alties, national defense or security emergencies, etc., and includes response activities that must be taken to prevent imminent loss of human life or property. Predictable events…do not qualify as emergencies…unless there is a significant unex- pected human health risk.”318 Limited judicial au- thority concurs with this understanding of when the emergency consultation procedures may be applicable.319 It is the action agency’s responsibil- ity to determine whether an emergency is present, and Fish & Wildlife may rely on the action agency’s representations in concurring or dis- agreeing with that determination.320 e. Section 106 of the National Historic Preserva- tion Act.—The Advisory Council has promulgated an emergency regulation that exempts from Sec- tion 106 requirements: “immediate rescue and 314 Id. 315 Id. at 8-4. 316 Forest Service Employees for Environmental Eth- ics v. U.S. Forest Service, 397 F. Supp. 2d 1241, 1256 (D. Mont. 2005). 317 Id. at 8-1. 318 Id. at 8-1. 319 See Friends of Merrymeeting Bay v. U.S. Dep’t of Commerce, 810 F. Supp. 2d 320, 328 (D. Me. 2011); Washington Toxics Coalition v. U.S. Dep’t of Interior, 457 F. Supp. 2d 1158, 1195 (W.D. Wash. 2006); Forest Service Employees, 397 F. Supp. 2d at 1257. 320 See Friends of Merrymeeting Bay, 819 F. Supp. 2d at 328–29. salvage operations conducted to preserve life or property.”321 Other response operations associated with a disaster or emergency declared by the president, a tribal government, or the governor of a state, may be subject to procedures that serve as alternatives to ordinary Section 106 processes. The regulation encourages agencies to develop such alternative procedures in consultation with SHPOs and the Council and, if approved by the Council, may be used in lieu of the standard pro- cedures.322 Neither FHWA nor FEMA has devel- oped such procedures. Alternatively, the regulation provides that an agency may comply with Section 106 by either following a programmatic agreement that con- tains specific provisions governing historic prop- erties in emergency situations or notifying and soliciting comment from the Council, the SHPO, and tribal organizations that may view affected properties as religiously or culturally signifi- cant.323 FEMA and FHWA have entered into a number of programmatic agreements, though not all of the FHWA agreements include emergency provisions.324 The alternatives provided by the Council’s regulation are fairly limited in scope. In addition to being limited to declared emergencies, they are available only for undertakings that are implemented within 30 days of a disaster declara- tion, although requests for extensions may be made to the Council.325 III. MODEL SURVEYS OF GOVERNMENTS AT THE VARIOUS LEVELS FOR ACTIONS AND PROCESSES A. Background on Agencies in the Environmental Compliance Process Environmental review processes usually in- volve three categories of agencies: applicant, lead, and cooperating agencies. This is true of both the planning requirements of the National Environ- 321 36 C.F.R. § 800.12(d). 322 Id. § 800.12(a). 323 Id. § 800.12(b). 324 FHWA’s programmatic agreements may be viewed in the AASHTO library, see Fed. Highway Admin., Resource Center Environment Team, http:// www.fhwa.dot.gov/resourcecenter/teams/environment/ resource_dir.cfm (last visited Feb. 11, 2013). It is re- ported that FEMA has entered into more than 30 statewide programmatic agreements that include emer- gency provisions. See Maldonado, supra note 274, at 239. 325 36 C.F.R. § 800.12(d).

31 mental Policy Act (NEPA)326 and of the permitting and enforcement powers provided by various stat- utes. Generally speaking, an applicant agency is the party that must comply with environmental processes while planning, designing, or construct- ing. The lead or coordinating agency is responsi- ble for coordinating the environmental review process.327 A third category of agencies is the co- operating agency, or an agency with jurisdiction by law or which has expertise in a particular envi- ronmental area.328 These categories are not mutu- ally exclusive; a single agency may fulfill multiple roles. For agency representation, the approach was to conduct a detailed analysis of applicant and lead agencies. This detailed analysis was comple- mented with a general analysis of all agencies, including cooperating agencies. This approach ensured that cooperating agency experience was captured via the lead and applicant agencies, without devoting excessive effort to any particular cooperating agency or statute. The detailed analy- sis involved in-person interviews, telephone inter- views, email correspondence, and the review of documents. The general analysis was based on a national Web survey. Table 1 shows the 33 agency staff members that assisted with this project via interviews, emails, or as document authors. This table also serves to acknowledge the contributions provided by these individuals. Additional staff members also provided documentation and other information. Table 1 shows a mixture of lead and applicant agencies at the federal and state levels. Instead of interviewing local agencies directly, experience at the local level was captured by the examination of state agencies that assisted with the disaster applications of local agencies. The staff members represented all regions of the United States. Some staff members had ex- perience with multiple agencies or states. For example, Jomar Maldonado was previously with FEMA, and Darlene Weaver was previously with Arizona DOT. 326 National Environmental Policy Act, 42 U.S.C. §§ 4321–4347 (2012). 327 40 C.F.R. § 1501.5 (2014). 328 40 C.F.R. § 1501.6 (2014).

32 Table 1. Description of agency staff. Agency Role Level Contacts FHWA Lead Fed. • Envtl. Tech. Serv., Manager, Lamar Smith • Envtl. Tech. Serv., Ecology, William Van Peeters • Envtl. Tech. Serv., Lead Specialist, Rodney Vaughn • Envtl. Tech. Serv., 4(f), Section 106, Daniel Johnson • Envtl. Tech. Serv., Environmental Program • Envtl. Tech. Serv., Ecologist, Kevin Moody • Office of Chief Counsel, Jomar Maldonado • Pennsylvania Division, Keith Lynch • Florida Division, Cathy Kendall, Nahir De Tizio • North Dakota Division, Mark Schrader • New York Division, Melissa Toni • Former Division Adm’r in N.J., Ga., Del., Charles Nemmers FEMA Lead Fed. • Envtl. Planning Office, Director, Angela Gladwell • Region X (AK, ID, OR, WA) Envtl. Officer, Mark Eberlein • Region I (CT, ME, MA, NH, RI, VT) Dep. Envtl. Officer, Lydia Kachadoorian • Vt. Joint Field Office, Envtl. Advisor, Peter Thomas • Vt. Joint Field Office, Historic Preservation, Sharla Azizi Mo. SEMA Lead State • Floodplain Management Officer, Dale Schmutzler Mo. DOT App. State • Envtl. & Historic Preservation Manager, Gayle Unruh • Archeology Field Director, Mike Meinkoth • Wetland Coordinator, Buck Brooks Mo. DNR Res. State • Emergency Response Chief, Brian Allen Minn. DOT App. State • Director and Chief Envtl. Officer, Lynn Clarkowski • Envtl. Documentation, Jason Alcott • Historian/Archaeologist, Cultural, Kristen Zschomler • Dep’t. of Natural Resources Liaison, Peter Leete Or. DOT App. State • NEPA Program Manager, Darlene Weaver Tex. DOT App. State • Director of Envtl. Affairs, Carlos Swonke • Envtl. Affairs Division, Technical Serv., Jim Barta Caltrans App. State • Envtl. Analysis, Districts 4 and 7, Jeremy Ketchum La. DOTD App. State • Envtl. Eng. Administrator, Noel Ardoin Mo. DOT App. Local • Local Assistance, Daniel Salisbury The Corps Coop. Fed. • St. Louis Regulatory Branch, Mo. Section, Jennifer Brown

33 B. Lead/Coordinating Agencies Title II of NEPA established the Council on Environmental Quality (CEQ).329 CEQ creates regulations and procedures for implementing NEPA, and provides guidance for federal agency decisionmaking.330 FHWA, the Federal Transit Administration, the Federal Aviation Administra- tion, and the Federal Railroad Administration are agencies that fall under the United States De- partment of Transportation (USDOT) and follow similar rules for environmental analysis and re- view.331 For conciseness, this digest uses FHWA as the primary example to illustrate USDOT agency practices. In terms of environmental com- pliance for most transportation facilities, FHWA (or its sister agencies) and FEMA are the two pri- mary lead agencies involved in emergency recov- ery. The type of transportation facility affected determines which agency coordinates the envi- ronmental review and the distribution of emer- gency relief funds. FHWA administers the Emer- gency Relief (ER) program, which applies only to federal-aid highways.332 Federal-aid highways are defined as highways on the federal-aid highway system, and all other public roads not classified as local roads or rural minor collectors. The federal- aid highway system is comprised of the National Highway System and the Dwight D. Eisenhower National System of Interstate and Defense High- ways (the “Interstate System”).333 Though this legal digest does not explicitly cover facilities on federal lands that are not federal-aid highways, environmental compliance processes that are similar to those that apply to federal-aid high- ways also apply to such facilities. The FHWA ER Manual documents the federal policies and proce- 329 42 U.S.C. § 4342 (2000). 330 42 U.S.C. § 4342-4344 (2000). 331 In fact, FTA’s regulations for environmental im- pacts procedures in 49 C.F.R. § 622 cross reference 23 C.F.R. § 771, which is also followed by FHWA. FRA’s procedures are listed in Fed. Reg. 64, 101 (May 26, 1999), which mentions an effort to develop joint envi- ronmental regulations covering the four DOT admini- strations of FHWA, FTA, FRA, and USCS. FAA’s envi- ronmental procedures are listed in Order 5050.4B (April 28, 2006). In addition, the Surface Transporta- tion Board, which has jurisdiction over rail transactions and certain trucking and freight matters, lists its envi- ronmental procedures in 49 C.F.R. § 1105 (2013). 332 Fed. Highway Admin., Emergency Relief Manual (Federal-Aid Highways) 1, Office of Program Admin. (2013). 333 23 C.F.R. 470.103(4) (2011). dures for state and local governments.334 FEMA coordinates the Public Assistance (PA) program for transportation facilities that are neither fed- eral-aid highways nor roads on federal lands.335 The Stafford Act authorizes the president to pro- vide major disaster and emergency assistance through FEMA, including assistance for infra- structure recovery.336 An emergency declaration is used to lessen or avert the threat of a major disas- ter, while a major disaster declaration results in broader authority, including long-term recov- ery.337 Though the two lead agencies of FHWA and FEMA focus on different portions of the transpor- tation network, they are expected to support each other in emergency response.338 ER and PA are emphasized in this legal digest, since they are the two major programs that exist for infrastructure recovery and exemplify federal environmental compliance processes. Other fed- eral and state programs exist that provide disas- ter assistance and invoke environmental review. Such programs might not involve the Department of Homeland Security (DHS) or a presidential dec- laration of a major disaster or emergency.339 In addition to federal assistance, states can also util- ize the Emergency Management Assistance Com- pact (EMAC) or mutual aid between states.340 Since environmental compliance issues with EMAC resemble those of ER and PA, they are not discussed separately here. 1. FHWA The ER program is authorized under 23 U.S.C. §125 to repair or reconstruct highways, roads, and trails that have suffered serious damage due to wide area disasters or external catastrophic fail- ures. The ER Manual explains that ER funds sup- plement state resources to pay for unusually heavy expenses resulting from extraordinary con- ditions.341 Such failures are required to have been produced by external causes.342 Extraordinary conditions differ from recurring or seasonal natu- 334 Fed. Highway Admin., supra note 332. 335 Id. 336 42 U.S.C. § 5121–5207 (2000). 337 42 U.S.C. § 5122 (2000). 338 Keith Lynch, Introduction: The EQ “Disaster Is- sue,” THE ENVIRONMENTAL QUARTERLY, October 11, 2011, at 3. 339 Homeland Security, National Response Frame- work 24, 40 (2008). 340 Pub. L. No. 104-321 (1996). 341 Fed. Highway Admin., supra note 332, at 1. 342 Id.

34 ral events.343 FHWA determined that unusually heavy expenses are those that exceed a repair ex- pense threshold of $700,000.344 The maximum assistance amount is $100 million per catastro- phic event per state,345 although this threshold is sometimes raised under extraordinary circum- stances.346 Emergency relief is divided into the categories of emergency and permanent repairs.347 Emergency or immediate repairs restore essential traffic, minimize damage, and protect facilities, while permanent repairs return the facility to pre- disaster conditions.348 For the first 180 days after the disaster, the federal pro rata share is nor- mally 100 percent for emergency repairs.349 For permanent restoration work, the federal share is typically 90 percent for Interstate highways and 80 percent for other highways.350 The emergency recovery project decision under- taken under ER is made through the NEPA de- velopment process.351 MAP-21 amended 23 C.F.R. 777(c)(9) to categorically exclude recovery projects that are kept to the existing right-of-way and are commenced within two years.352 These projects must substantially conform to preexisting design, function, and location.353 Betterment projects could receive ER funding, but may not meet the requirements of categorical exclusion.354 For such projects, advanced coordination with resource agencies is encouraged, especially in the case of sensitive or high-value resources.355 For projects that do not fit under CE, an environmental as- sessment (EA) or an environmental impact state- ment (EIS) is prepared by the applicant agency.356 FHWA reviews environmental documents and issues decisions in the form of a finding of no sig- nificant impact (FONSI) or a requirement for an EIS in the case of EA, or, a record of decision 343 Id. at 17. 344 Id. at 2. 345 23 U.S.C. § 125(d)(1) (2013). 346 E.g., Press release, Colo. Office of Emergency Mgmt., Gov. Hickenlooper Announces Flood Recovery Progress Oct. 23, 2013. 347 Fed. Highway Admin., supra note 332, at 3. 348 Id. at 3. 349 Id. at 46. 350 Id. at 47. 351 Id. at 58–59. 352 Id. at 58. 353 Id. 354 Id. at 58–59. 355 Id. at 58. 356 23 C.F.R. §§ 771.119, 771.123-125 (2014). (ROD) in the case of EIS.357 Throughout the NEPA process, FHWA may work with the applicant agency to develop a consultation plan with par- ticipating agencies, create an environmental re- view schedule, and determine the methodology and analysis detail.358 FHWA takes on multiple roles in the environ- mental compliance process for emergencies. FHWA has the responsibility of administering ER funds and determining funding eligibility, includ- ing environmental compliance as a prerequisite for funding.359 Thus, FHWA has an oversight role. FHWA also supports states and other agencies with applications, recovery project design, and reconstruction by providing technical expertise, one aspect of which being environmental compli- ance.360 Therefore, FHWA also adopts the role of providing resources and facilitation. One FHWA staff member characterized one of FHWA’s roles as “interpreter.”361 Because agencies use different terminology, FHWA can help to facilitate inter- agency communication, such as between the ap- plicant agency and environmental resource agen- cies.362 Since local FHWA divisions have built long-term relationships with their state DOT counterparts, they have a better starting point for communicating environmental concerns related to recovery projects than do resource agencies.363 In emergencies, FHWA is also tasked with the role of coordinating between the transportation industry, state and local governments, other federal agen- cies, or even international organizations.364 2. FEMA The Stafford Act supplies the statutory author- ity for FEMA to provide disaster and emergency 357 23 C.F.R. §§ 771.119, 771.123-125 (2014). 358 Fed. Highway Admin., Environmental Review Process Checklist, http://environment.fhwa.dot.gov/ strmlng/sec602_checklist.asp (last visited Jan. 30, 2014). 359 Fed. Highway Admin., supra note 332, at 58–59. 360 U.S. Dep’t of Transp., DOT 1900.9. Department of Transportation Emergency Management Policies and Programs 20 (2000). 361 Telephone Interview with Daniel Johnson, Envtl. Program Specialist, Fed. Highway Admin. (Nov. 25, 2013). 362 Id. 363 Id. 364 U.S. Dep’t of Transp., Department of Transporta- tion Emergency Management Policies and Programs DOT1900.9, at 7, 9 (2000).

35 assistance and coordinate federal response.365 FEMA’s core missions include preparedness, pro- tection, response, recovery, and mitigation.366 FEMA’s assistance is separated into the three categories of Individual Assistance, Public Assis- tance (PA), and Hazard Mitigation Assistance.367 The current legal digest focuses on public trans- portation infrastructure, which mainly involves the PA program. In distributing federal funds through PA, FEMA is charged with ensuring en- vironmental compliance prior to funding.368 In order for FEMA to assist in local emergency response, the governor of the affected state or ter- ritory must make a request through the regional FEMA office for a presidential major disaster dec- laration.369 FEMA analyzes the declaration re- quest and verifies that the severity and magni- tude of the necessary response is beyond a state’s resources.370 Similar to FHWA, FEMA uses the NEPA review process to address many other envi- ronmental laws and regulations.371 However, even when some actions have been excluded from NEPA review, there may still be potential envi- ronmental impacts that require additional review for compliance with other environmental laws or regulations.372 FEMA can utilize statutory exclu- sions (STATEX) to exempt certain activities from NEPA review.373 A notable excluded activity is a project that substantially limits the repair, resto- ration, and replacement of facilities to their pre- disaster footprint, function, and size.374 In follow- ing the normal NEPA process, FEMA can utilize CEs, which involves types of actions that result in little or no individual and cumulative environ- mental impact.375 FEMA compiled a list of such actions in 44 C.F.R. § 10.8(d) based on its experi- 365 42 U.S.C. § 5121-5206 (1988). 366 Fed. Emergency Mgmt. Agency, Publication 1, at 17 (2010). 367 Fed. Emergency Mgmt. Agency, A Guide to the Disaster Declaration Process and Federal Disaster As- sistance 2 (2011). 368 Fed. Emergency Mgmt. Agency, Public Assistance Guide 127 (2007). 369 42 U.S.C. § 5170(a) (1988). 370 Fed. Emergency Mgmt. Agency, The Federal Emergency Management Agency 36 (2010); Fed. Emer- gency Mgmt. Agency, supra note 367, at 2. 371 Fed. Emergency Mgmt. Agency, supra note 368, at 128. 372 Id. at 129. 373 42 U.S.C. § 5159 (2007). 374 42 U.S.C. § 5172 (2007). 375 44 C.F.R. § 10.8(d) (2014). ence. Examples of such actions include minor im- provements or minor hazard mitigation measures at existing facilities.376 FEMA assists with the EA process and the development of environmental impact statements, if needed.377 It reviews all documents and prepares necessary findings, such as findings of no significant impact in the case of an EA, or a record of decision for an environ- mental impact statement.378 FEMA maintains the NEPA administrative record, including the final decisions.379 FEMA regulations also allow for the regional administrator to take emergency actions with significant environmental impact by notify- ing the environmental officer for consultation with CEQ.380 An example of FEMA’s role in assisting with emergency environmental compliance is the in- formal interagency cooperative agreement devel- oped in FEMA Region I following Hurricane Irene in 2011.381 FEMA Region I covers the New Eng- land states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.382 FEMA’s Environmental and Historic Preservation Section of the Vermont Joint Field Office worked with the Vermont Agency of Transportation’s His- toric and Archaeological Resources Unit and the State Historic Preservation Office to craft an in- formal agreement to facilitate the repair of critical historic bridges.383 This agreement covered the repair of 189 bridges, 18 of which were listed on the National Register of Historic Places.384 FEMA used its lead agency role to facilitate collaboration among agencies.385 FEMA’s Region I also assisted with the devel- opment of a formal programmatic agreement that covered emergency undertakings that could affect 376 Id. 377 44 C.F.R. § 10.5 (2014). 378 Id. 379 Id. 380 44 C.F.R. § 10.13 (2014). 381 Email from Lydia Kachadoorian, Deputy Reg’l Env. Officer Fed. Emergency Mgmt. Agency Region I, to Carlos Sun, Associate Professor, University of Missouri (March 27, 2013, 9:53 CST) (on file with author); Peter Thomas et al., Jousting with Bridges 6 (Fed. Emergency Mgmt. Agency 2013). 382 Fed. Emergency Mgmt. Agency, Region I: CT, ME, MA, NH, RI, VT, http://www.fema.gov/region-i-ct- me-ma-nh-ri-vt (last visited Feb. 3, 2014). 383 Kachadoorian, supra note 381. 384 Thomas et al., supra note 381, at 32. 385 Kachadoorian, supra note 381.

36 historic properties.386 The parties to this agree- ment include FEMA, State Historical Preserva- tion Officer (SHPO), Vermont Emergency Man- agement, and the Advisory Council on Historic Preservation.387 Although invited, the Stock- bridge-Munsee Tribe did not wish to be a signa- tory to the agreement, and must therefore be con- sulted on affected projects.388 This agreement allows FEMA to act on the collective behalf of agencies to fulfill all Section 106 responsibili- ties.389 The agreement also detailed timeframes for reviews under different scenarios, with the result that FEMA could assume another agency’s concurrence if the agreed upon time period had elapsed.390 a. SEMA.—The State Emergency Management Agency (SEMA) is the state counterpart to FEMA. SEMA will not be described in detail as SEMA is similar to FEMA in many respects in terms of its role in coordinating environmental review. Missouri SEMA will be used to illustrate SEMA’s role in environmental compliance. Though inde- pendent, Missouri SEMA interacts the most with other SEMAs in FEMA Region VII which includes the states of Nebraska, Iowa, Kansas, and Mis- souri.391 In Missouri, SEMA is situated within the department of public safety and is tasked with coordinating response, recovery, planning, and mitigation for emergencies as well as assisting with the National Flood Insurance Program.392 Thus SEMA oversees environmental compliance when SEMA funds are used for recovery. SEMA’s permitting authority is based on a state executive order.393 Even though waivers or exceptions are not often issued, permitting can be expedited for emergencies.394 386 Programmatic Agreement Among the Fed. Emer- gency Mgmt. Agency, Vt. State Historic Preservation Officer, Vt. Emergency Mgmt. Division of the Dep’t of Public Safety, and the Advisory Council on Historic Preservation 1 (April 19, 2011) [hereinafter Vt. Section 106 PA]. 387 Id. 388 Id. at 2. 389 Id. at 3. 390 Id. at 6–7. 391 Telephone interview with Dale Schmutzler, Floodplain Mgmt. Officer, State Emergency Manage- ment Agency (Feb. 12, 2014). 392 MO. REV. STAT. § 44.020 (2007). 393 Mo. Exc. Order No. 98-03 (1998). 394 Schmutzler, supra note 391. C. Applicant Agencies 1. State Transportation Agencies As discussed previously, state transportation agencies may adopt multiple roles, depending on the state and the particular agency. A state DOT, for example, could be delegated some responsibil- ity for overseeing environmental compliance.395 A more common role filled by state DOTs is that of applicant agency, either directly or indirectly, via assistance to local agencies. The state DOT is the owner, operator, and maintainer of state trans- portation facilities; thus, it is often the applicant agency for the recovery of its own facilities. Each state DOT contains an environmental division which works with federal and state environmental agencies and has expertise in different environ- mental areas. a. The Minnesota Department of Transporta- tion.—Minnesota Department of Transportation (MnDOT) staff members were interviewed on ef- fective practices for successfully complying with environmental procedures for emergencies. These practices include the use of inventory tools, the delegation of FHWA duties, programmatic agree- ments, interagency staffing arrangements, strong interagency relationships, diverse staff expertise, and the use of innovative contracting methods. MnDOT and its sister agencies, such as the Minnesota DNR, maintain up-to-date inventories of environmental, historic, and archaeological re- sources using a Geographic Information Systems (GIS) database.396 As part of a historic bridge pro- grammatic agreement, MnDOT conducted a state- wide inventory of historic bridges.397 The avail- ability of accurate data leads to a faster and more reliable environmental compliance process. For example, the Section 106 review for the I-35W Bridge project was accelerated because known historic properties were readily available from MnDOT’s GIS database.398 395 For example, MAP-21, 23 U.S.C. § 327, allows the delegation of FHWA’s NEPA coordination role to states. 396 John A. Volpe, NAT’L TRANSP. SYS. CENTER, MEETING ENVIRONMENTAL REQUIREMENTS AFTER A BRIDGE COLLAPSE 17 (2008) [hereinafter Volpe]. 397 Email from Kristen Zschomler, Cultural Res. Unit Supervisor, Minn. Dep’t. of Transp., to Carlos C. Sun, Assoc. Professor, Univ. of Missouri (March 15, 2013, 10:36 CST) (on file with author). 398 Email from Lynn Clarkowski, Director and Chief Environmental Officer, Minn. Dep’t. of Transp., to Car- los C. Sun, Associate Professor, University of Missouri (March 15, 2013, 10:36 CST) (on file with author).

37 FHWA has delegated its Section 106 review au- thority to MnDOT’s Cultural Resources Unit (CRU).399 Although FHWA remains legally re- sponsible, federally-funded projects are instead submitted to MnDOT for review, and MnDOT subsequently makes all Section 106 determina- tions on behalf of FHWA.400 Thus, if MnDOT de- termines that no historic properties are impli- cated, then the Section 106 review is complete.401 This eliminates the 30-day SHPO comment and consultation period.402 Such a situation applies to approximately 75 percent of the projects under- taken by MnDOT. MnDOT has also employed some interagency agreements, many of which ap- ply to emergency projects. The aforementioned Section 106 programmatic agreement between MnDOT, FHWA, SHPO, the Corps, and the Advi- sory Council is one example.403 Other examples include the various tribal agreements that have resulted in exempted tribal review for several classes of projects.404 MnDOT strengthened its relationship with the Minnesota DNR by funding a DNR staff position. While, technically, this staff member is a DNR employee, the staff member works only on DOT projects and permits, and has an office in MnDOT.405 The staff member is frequently in- volved in disaster and emergency relief, and works with DNR to ensure that permits are is- sued quickly.406 The staff member produced a best practices publication to assist MnDOT in obtain- ing general permits for public water works, stormwater discharge, and temporary appropria- tions.407 This publication included useful sugges- tions for species protection, hydraulic and hydro- logic design, in-water construction, and worksite sediment and erosion control.408 One reason for the reported high level of trust between oversight agencies and MnDOT is the diverse and respected team of environmental pro- 399 Kristen Zschomler, The Section 106 Process, Minn. Dep’t of Tranp. 2010 Envtl. Stewardship and Streamlining Workshop 4 (2010). 400 Id. 401 Zschomler, supra note 399. 402 Zschomler, supra note 399, at 13. 403 Id. 404 Id. 405 Zschomler, supra note 397. 406 Id. 407 Peter Leete, Best Practices for Meeting DNR General Public Waters Work Permit GP2004-0001 ii-iii (Dep’t of Natural Res. 2010). 408 Id. fessionals that are employed by MnDOT.409 Thus, the reason the SHPO agreed to an alternate Sec- tion 106 arrangement was due to the strong team of nine expert historians, architectural historians, and archaeologists that were members of CRU.410 The DNR staff position funded by MnDOT also exemplifies the level of trust and cooperation ex- isting between MnDOT and DNR.411 MnDOT employs innovative contracting meth- ods, such as design-build, to accelerate project delivery for recovery projects. MnDOT obtained legislative authority for design-build best value procurement in 2001, and has awarded over $1 billion in design-build projects since that time.412 One example of the use of design-build for emer- gencies included the design-build contract for re- construction of the I-35W Bridge.413 MnDOT util- ized FHWA’s final rule allowing MnDOT to award a design-build (D-B) contract, issuing notices to proceed with preliminary design work before the NEPA process was finished.414 b. The Missouri Department of Transporta- tion.—The Missouri Department of Transporta- tion’s (MoDOT) reported best practices include the use of interagency agreements, the use of regional permits, environmental staffing, and interagency relationships. MoDOT entered into a program- matic CE agreement with FHWA wherein Mo- DOT has the authority to classify certain types of projects as CE without having to submit to FHWA for classification.415 Several projects qualify under this agreement, including emergency repairs un- der ER.416 Certain CE projects affecting signifi- cant public areas or involving select federal stat- utes are not part of the agreement.417 MoDOT has utilized this agreement on emergency projects such as slide failures and bridge replacements.418 409 Zschomler, supra note 397. 410 Zschomler, supra note 397. 411 Clarkowski, supra note 398. 412 Minn. Dep’t of Transp., Design-Build, http://www. dot.state.mn.us/designbuild (last visited Feb. 2, 2014). 413 Volpe, supra note 396, at 17. 414 Id. 415 Mo. Dep’t of Transp. and Mo. Div. Fed. Highway Admin., Programmatic Categorical Exclusion 1 (June 6, 2003) [hereinafter MoDOT CE PA]. 416 Id. at 1-3. 417 Id. at 3. 418 Interview with Gayle Unruh, Environmental & Historic Preservation Manager, Mo. Dep’t. of Transp., in Jefferson City, Mo. (Feb. 20, 2013).

38 FHWA and MoDOT conduct a biennial review of the agreement to monitor its success.419 FHWA and MoDOT have also entered into a general partnering agreement on environmental issues.420 This agreement clearly delineates the roles and responsibilities of the two parties.421 Several ground rules are listed in the agreement, including a requirement for the timely relay of communications from stakeholders, the direction of district-level communications through MoDOT headquarters, and biannual meetings.422 A hierar- chy for conflict resolution starts with the MoDOT environmental manager and FHWA team leader and end with the MoDOT assistant chief engineer and FHWA division administrator.423 Target per- formance goals were listed in terms of FHWA ap- proval lead times.424 MoDOT utilizes the Corps general permit (GP) for emergency flood-related type activities, GP- 41.425 Such permits are developed regionally.426 In order to qualify for this permit, the governor or the president must issue a disaster declaration.427 Such a permit authorizes certain types of flood- related fill or excavation and other associated flood-protection and repair work.428 The permit allows post-construction notification, thus elimi- nating the lead time associated with pre- construction notification.429 For example, GP-41 has been used to repair bridges, highway em- bankments, and stream banks, and to build tem- porary roads.430 Such GPs are only used in approximately 8 of the 37 Corps districts in the contiguous United States.431 During the 2008 419 MoDOT CE PA, supra note 415, at 1. 420 Fed. Highway Admin. Mo. Division/Mo. Dep’t of Transp. Partnering Agreement 1-3 (Jan. 29, 2014) [hereinafter Partnering Agreement]. 421 Id. 422 Id. at 4. 423 Id. at 4-5. 424 Id. at 2-3, 5. 425 Email from Buck Brooks, Wetland Coordinator, Mo. Dep’t. of Transp., to Carlos C. Sun, Assoc. Profes- sor, Univ. of Missouri (Feb. 21, 2013, 9:25 CST) (on file with author). 426 Id. 427 Id. 428 Id. 429 Id. 430 U.S. Army Corps of Eng’rs, Public Notice Permit No. GP-41 (2008-2013). 431 Brooks, supra note 425. floods, many localized incidences of slide failure occurred, and GP-41 was used extensively.432 MoDOT reports that its strong team of envi- ronmental staff is a major reason for its success in terms of emergency environmental compliance. Many of MoDOT’s environmental staff possess graduate degrees in specialized environmental areas; this includes the environmental & historic preservation manager, archeology field director, and wetland coordinator.433 MoDOT maintains a core group of staff members who help to main- tain institutional knowledge and long-term inter- agency relationships. Many of the environmental area leads have worked at MoDOT for 16 to 19 years.434 One reason for the successful adoption of the CE programmatic agreement is FHWA’s respect for MoDOT’s environmental capabili- ties.435 MoDOT staff believes there are good working relationships between environmental agencies in Missouri and strong relationships at the upper management level, e.g., between the directors, chiefs, and chief engineers.436 The management sets the tone in terms of interagency cooperation. Relationships are fostered via regular and special meetings, such as water quality, wetlands, and stream permitting meetings.437 For example, MoDOT and the Missouri DNR co-sponsored a wetlands mitigation/banking meeting, inviting other agencies such as the Corps, MoDOT, EPA, and National Resource Conservation Service (NRCS).438 FHWA mentioned that the rapport be- tween FHWA and MoDOT was one reason for the adoption of the CE programmatic agreement.439 As mentioned previously, one reason for the good long-term relationships is MoDOT’s preservation of a strong core of experts for an extended period of time.440 The Corps mentioned two reasons for the good relationship between MoDOT and the Corps. One reason was MoDOT’s responsiveness to the Corps requirements and information 432 Id. 433 Unruh, supra note 418. 434 Telephone Interview with Michael Meinkoth, Ar- chaeology Field Dir., Mo. Dep’t of Transp. (Feb. 20, 2013). 435 MoDOT CE PA, supra note 415, at 1. 436 Unruh, supra note 418. 437 Brooks, supra note 425. 438 Id. 439 MoDOT CE PA, supra note 415, at 1. 440 Unruh, supra note 418.

39 requests.441 Another reason was the frequency of contact between the two agencies on regular pro- jects and meetings.442 SEMA also highlighted MoDOT’s diligence in responding to SEMA re- quests as a reason for the strong work relation- ship between the two agencies.443 c. The Oregon Department of Transportation.— Two best practices reported by Oregon Depart- ment of Transportation (ODOT) staff include an organization-wide emphasis on environmental stewardship and strong relationships with envi- ronmental stakeholders.444 This emphasis is de- rived from the high value that Oregon citizens place on environmental stewardship. The public is highly interested in the functions of ODOT, which has an impact on ODOT’s resources.445 The public is also highly engaged in ODOT activities via meetings, hearings, and commentary. The Oregon public is well versed in the political arena, and is active in engaging the state legislature and fed- eral representatives.446 Though public demands can be exorbitant on occasion, the final outcome is usually positive, with fewer “surprises” toward the end of the public process.447 Public sentiment is also reflected in ODOT’s leadership and staff- ing, and ODOT’s concern for environmental issues results in the agency going above and beyond ba- sic legal requirements.448 Environmental staff in specific areas strongly advocate for their respec- tive areas of expertise.449 One key to ODOT’s environmental compliance involves the strong relationships it has forged with other agencies and with the public.450 One reason for these strong relationships is the conti- nuity among ODOT’s environmental staff.451 A low staff turnover rate can be partially attributed to stability in the state’s growth rate, as well as strong management and leadership in environ- mental areas.452 441 Telephone interview with Jennifer Brown, St. Louis Div. Regulatory Branch, U.S. Army Corps of Engs. (Feb. 13, 2014). 442 Id. 443 Schmutzler, supra note 391. 444 Telephone Interview with Darlene Weaver, NEPA Program Manager, Or. Dep’t of Transp. (Jan. 7, 2014). 445 Id. 446 Id. 447 Id. 448 Id. 449 Weaver, supra note 444. 450 Id. 451 Id. 452 Id. d. The North Dakota Department of Transporta- tion.—North Dakota Department of Transporta- tion (NDDOT) has taken the following approaches to emergency environmental compliance. A pro- grammatic agreement was established between the Corps, Fish & Wildlife, FHWA, and NDDOT on defining NEPA requirements for emergency repairs.453 NDDOT funds one-and-a-half staff po- sitions at the Corps and Fish & Wildlife. The FHWA Division Office and NDDOT utilize infor- mal consultation procedures to expedite ESA454 compliance.455 NDDOT works with the SHPO on multiple emergency relief projects simultane- ously, thus expediting the review process.456 NDDOT also conducts archaeological surveys in high risk areas to discover potential locations ahead of time.457 e. The Florida Department of Transportation.— Florida Department of Transportation (FDOT) implemented a GIS-based environmental screen- ing tool that integrated multiple environmental resources and project data.458 This tool allows for the rapid identification of potential environmental resources.459 The use of design-build contracting was one reason for the rapid recovery following Hurricane Ivan.460 Design-build allowed flexibility in environmental permitting and mitigation, since design and construction were integrated.461 Previ- ously, the Florida Department of Environmental Protection (FDEP) and FDOT had a difficult rela- tionship stemming from differences in agency missions and processes.462 Over time, the relation- ship between FDOT and other environmental agencies, including FDEP, was improved through specific projects and a quarterly committee 453 Emergency Relief Programmatic Agreement be- tween the U.S. Army Corps of Engineers (USACE), the U.S. Fish and Wildlife Service (USFWS), the FHWA ND Division, and NDDOT (Mar. 31, 2011) [hereinafter N.D. ER PA]. 454 Endangered Species Act, 16 U.S.C. §§ 1531–1544 (2012). 455 Mark Schrader and Stephanie M. Stoermer, North Dakota’s Proactive Response to Emergencies & Disasters, THE ENVIRONMENTAL QUARTERLY, Oct. 11, 2011, at 12. 456 Id. 457 Id. 458 Fla. Dep’t of Transp., Efficient Transportation De- cision Making Manual 1-1, 1-2 (2013). 459 Id. at 6-1. 460 Volpe, supra note 396, at 14. 461 Id. 462 Id. at 13–14.

40 meeting that addressed transportation-related issues.463 These relationships allowed the tailoring of permits to FDOT’s needs, and an improved permitting process.464 f. The California Department of Transporta- tion.—California Department of Transportation’s (Caltrans) reported best practices include flexible emergency environmental processes, alternate contracting processes, cultural and historic re- source databases, and assignment of USDOT NEPA review responsibilities. Emergency envi- ronmental processes and requirements exist for emergencies in California, including threat of fail- ure emergencies.465 Work is allowed to proceed concurrent to permit applications and informal consultations.466 This applies even in areas con- taining sensitive species or habitats.467 Highway repairs for emergencies caused by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide are statutorily ex- empt from the California Environmental Quality Act (CEQA)468 provided there is no expansion or widening and the project is initiated within 1 year of the damage occurring.469 However, the permis- sion to proceed does not guarantee eligibility for federal ER funding.470 Mitigation could be re- quired, although mitigation costs could be eligible for ER funds.471 Caltrans is authorized to use alternate con- tracting processes in lieu of the formal advertis- ing, bidding, and award process for emergency projects.472 Applicable projects can include bridges, highways, or dams for water facility fail- ures.473 Though environmental procedures are not waived, this flexibility in contracting may acceler- ate permitting and avoid a sequential contracting timeline. 463 Id. 464 Id. 465 CAL. CONTRACT CODE § 10122(a) (2012). 466 Cal. Dep’t of Transp. Div. of Env. Analysis, Emer- gency Projects Environmental Process and Require- ments 1 (2012). 467 Id. at 3. 468 California Environmental Quality Act, CAL. PUB. RES. §§ 21000-21177 (2012). 469 Id. at 2. 470 Id. at 1. 471 Id. 472 Deputy Directive DD-26-R2, Cal. Dep’t of Transp. 1 (July 31, 2009). 473 Id. Caltrans maintains databases of historic and cultural resources.474 Cultural resource informa- tion can be sensitive and is not shared publicly.475 The historic bridge inventory is available to the public online.476 California was also the only state to participate in the pilot NEPA assignment pro- gram under the Safe, Accountable, Flexible, Effi- cient Transportation Equity Act (SAFETEA- LU)477 and has continued the program under Mov- ing Ahead for Progress in the 21st Century (MAP- 21)478 legislation.479 Under a memorandum of un- derstanding (MOU) with FHWA, Caltrans was assigned USDOT’s responsibilities for environ- mental review under NEPA.480 2. The County/Local Level and Relationships with State DOTs Emergency response typically begins at the lo- cal level.481 Local leaders need to understand the perspectives of their local community on environ- mental issues, as these leaders know their com- munity best. A good example at the state level is that of Oregon, which is very active in public out- reach involving local communities.482 When the local community is engaged and informed ahead of time, there is less chance for the last minute derailment of recovery efforts. Because local com- munities may not have comprehensive expertise for handling emergencies, assistance from higher levels of government is often highly beneficial.483 Local communities often require assistance for understanding environmental requirements, fed- eral contracting procedures, and emergency ex- 474 Email from Jeremy Ketcham, Senior Envtl. Plan- ner, Cal. Dep’t of Transp., to Carlos Sun, Assoc. Profes- sor, University of Mo. (March 1, 2013, 5:16 CST) (on file with author). 475 Id. 476 Id. 477 Safe, Accountable, Flexible, Efficient Transporta- tion Equity Act: A Legacy for Users, Pub. L. No. 109-59 (2005). 478 MAP-21, Pub. L. No. 112-141 (2012). 479 Memorandum of Understanding Between the Fed. Highway Admin. and the Cal. Dep’t of Transp. Concern- ing the State of Cal’s Participation in the Project Deliv- ery Program Pursuant to 23 U.S.C. 327 1-3 (Oct. 1, 2012). 480 Id. at 1. 481 Homeland Security, supra note 339, at 15. 482 Weaver, supra note 444. 483 Homeland Security, supra note 339, at 16.

41 pense eligibility.484 Thus the local experience with emergency environmental compliance is captured via the state agencies that assist with their appli- cations such as state DOTs. Cooperating agency experience indicate that local communities who are not assisted by the state DOT fair much worse, because they are unfamiliar with agency expectations and procedures.485 In addition, local communities sometimes lack the financial re- sources to design properly and comply with envi- ronmental requirements.486 Though state DOTs often take on the applicant role, they may also adopt a coordinating role, may be delegated as the authority for environmental review, or may be intrinsically tied to another co- ordinating agency such as the state DNR. Since state DOTs follow similar environmental over- sight procedures, MoDOT is herein used as an example. MoDOT can be the administrator of funds for federally-funded local projects. As such, MoDOT furnishes information to assist the local applicant, as well as coordinates the environ- mental review and issues approvals.487 MoDOT assists the local community in complying with all applicable federal and state environmental laws.488 For NEPA, MoDOT reviews the local NEPA document, determines the NEPA classifica- tion, and notifies the local community of other permits and clearances that must be obtained.489 For example, MoDOT might ask the local commu- nity to submit a Categorical Exclusion 2 (CE2) form that describes likely but uncertain impacts and mitigation measures; to submit a preliminary Environmental Assessment (pEA) document and the necessary surveys; or to document social jus- tice issues.490 MoDOT then distributes the submit- ted documents to cooperating agencies for their review and comment, and coordinates the public review when applicable.491 MoDOT also works 484 Cathy Kendall & Nahir DeTizio, Emergency Re- sponse–Florida Action, THE ENVIRONMENTAL QUARTERLY, Oct. 11, 2011, at 5. 485 Brown, supra note 441. 486 Id. 487 Mo. Dep’t of Transp., EPG 136 Local Public Agency (LPA) Policy, 3 available at http://epg.modot.mo. gov/files/0/0e/136_Local_Public_Agency_Aug_11_2010. doc. 488 Id. at 60. 489 Id. at 43–44. 490 23 U.S.C. § 109(h) (2014); Exec. Order No. 13166 (2000). 491 Mo. Dep’t of Transp, supra note 487, at 47. closely with FHWA to obtain federal approval when necessary.492 In addition to NEPA, MoDOT assists and coor- dinates local compliance with a full range of envi- ronmental laws.493 In general, all local communi- ties require significant assistance from MoDOT, although a few communities who hire consultants well versed in environmental regulations fare slightly better.494 MoDOT could assist local com- munities in working with the Corps on stream crossing, channel modification, and wetlands;495 Missouri DNR on water quality;496 EPA/DNR on stormwater and erosion control;497 State Emer- gency Management Agency/FEMA on buyout lands; FEMA on floodplains and regulatory flood- ways;498 National Resources Conservation Service (NRCS) Office on farmland conversions;499 EPA/Metropolitan Planning Organization on air quality;500 FHWA on park lands;501 National Park Service on public outdoor recreation facilities;502 SHPO/DNR and local tribes on historic and ar- chaeological sites and historic bridges;503 Missouri Department of Conservation on threatened and endangered species;504 and EPA/DNR on hazard- ous waste.505 Cooperating agencies indicate that 492 Id. at 58. 493 Id. at 60-80 (paragraph 136.4.5). 494 Telephone interview with Dan Salisbury, Assis- tant Dist. Eng’r Joplin Area, Mo. Dep’t of Transp. (Feb. 12, 2014). 495 Clean Water Act Section 404, 33 U.S.C. § 1344 (2002). 496 Clean Water Act Section 401, 33 U.S.C. § 1341 (2002). 497 Clean Water Act, 33 U.S.C. §§ 1251–1387 (2013); National Pollutant Discharge Elimination System 33 U.S.C. § 1324 (2013). 498 Exec. Order No. 11988 (1977); 23 C.F.R. § 650 (2014). 499 Farmland Protection Policy Act, 7 U.S.C. §§ 4201– 4209 (2012). 500 Clean Air Act, 42 U.S.C. §§ 7401–7671 (2012); 23 C.F.R. § 450.104 (2014). 501 49 U.S.C. § 303 (2012). 502 Land and Water Conservation Fund Act 16 U.S.C. §§ 460l-4 to -11 (2013). 503 National Historic Preservation Act Section 106, 16 U.S.C. § 470f (2012). 504 Endangered Species Act, 16 U.S.C. §§ 1531–1544 (2013); Migratory Bird Treaty Act, 16 U.S.C. §§ 703– 712 (2012). 505 Comprehensive Environmental Response, Com- pensation, and Liability Act, 42 U.S.C. §§ 9601–9675 (2013).

42 local cities and counties are much more difficult to work with when they do not take advantage of assistance provided by the state DOT.506 D. Resource Agencies and Entities The enormous number of resource agencies as- sociated with environmental laws and regulations prohibits the detailed discussion of each individ- ual agency; however, brief discussions of certain agencies may help to illustrate jurisdiction, statu- tory authority, typical procedures, and enforce- ment mechanisms. 1. U.S. Army Corps of Engineers The Corps regulates through the review and is- suance of permits and inspection for compliance. Permits related to the Rivers and Harbors Act include Section 10 permits covering construction, excavation, or the deposit of materials; Section 9 permits relating to dams and dikes; Section 13 permits covering refuse disposal; and Section 14 permits covering temporary occupation.507 CWA- related permits include Section 404 permits cover- ing the discharge of dredged or fill materials and Section 402 covering the discharge of all other pollutants.508 Permitting associated with the Ma- rine Protection, Research and Sanctuaries Act Section 103 involves the transportation of dredged material to be dumped in the ocean.509 Permit vio- lations could result in criminal, civil, and admin- istrative penalties.510 One technique for expediting emergency envi- ronmental permitting by the Corps is to accelerate the approval for recognized emergencies or to al- low informal arrangements such as a verbal au- thorization to proceed.511 Another useful tech- nique for emergency environmental compliance is the development of regional permits such as GP- 41. GP-41 is a general permit issued for the per- manent protection and/or repair of flood damaged 506 E.g., Brown, supra note 441. 507 Rivers and Harbors Appropriation Act of 1899, as amended, 33 U.S.C. §§ 401–418 (2000). 508 Clean Water Act, 33 U.S.C. §§ 1251–1387 (2002). 509 Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. §§ 1411, 1413 (2000). 510 U.S. Army Corps of Engs., Regulatory Jurisdic- tion Overview, http://www.usace.army.mil/Missions/ CivilWorks/RegulatoryProgramandPermits/juris_ info.aspx (last visited Feb. 6, 2014). 511 Brown, supra note 441. structures, land areas, and fills.512 This permit applies in the states of Kansas and Missouri. Such flood-related general permits are uncommon and used in only approximately 8 of the 37 Corps dis- tricts.513 2. U.S. Fish and Wildlife Service and NOAA- Fisheries Fish & Wildlife is responsible for the permit- ting and enforcement of several wildlife laws, in- cluding the ESA,514 the Marine Mammal Protec- tion Act,515 the Migratory Bird Treaty Act,516 the Wild Bird Conservation Act,517 and the Bald and Golden Eagle Protection Act.518 For example, Fish & Wildlife issues Section 10 incidental take per- mits for authorizing activities such as highway bridge construction.519 A requirement of the take permit is that an agency must develop a habitat conservation plan that specifies likely impacts and mitigation strategies.520 NOAA-Fisheries shares ESA and Marine Mammal Protection Act responsibilities with Fish & Wildlife.521 As of 2009, the list of endangered species in the United States included 411 animals and 600 plants, and the list of threatened species in the United States included 163 animals and 146 plants, for a total of 1,320 endangered and threatened species.522 In general, Fish & Wildlife is responsible for terres- trial and freshwater species, while NOAA- Fisheries is responsible for most marine and ana- 512 Public notice, U.S. Army Corps of Engs., Proposed Reissuance of Regional General Permit No. 41 (Dec. 21, 2012) (on file with author). 513 Brooks, supra note 425. 514 Endangered Species Act, 16 U.S.C. §§ 1531–1544 (2013). 515 Marine Mammal Protection Act, 16 U.S.C. §§ 1361–1423 (2013). 516 Migratory Bird Treaty Act, 16 U.S.C. §§ 703–712 (2012). 517 Wild Bird Conservation Act, 16 U.S.C. §§ 4901– 4916 (2013). 518 Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 (2012); see U.S. Fish and Wildlife Serv., Leaving a Lasting Legacy: Permits as a Conservation Tool 2, (2002), available at http://www.fws.gov/permits/legacy fs.pdf. 519 16 U.S.C. § 1539 (2013). 520 Id. 521 Nat’l Marine Fisheries Serv., ENDANGERED SPECIES BULLETIN, Vol. 34, No. 2, at 4 (2009). 522 Id. at 43.

43 dromous species.523 NOAA-Fisheries is responsible for 68 marine species.524 3. The Advisory Council on Historic Preservation/State Historic Preservation Officer The Advisory Council on Historic Preservation (Advisory Council) is an independent federal agency that advises the president and congress on historic preservation policy525 and issues regula- tions to implement National Historic Preservation Act Section 106.526 On rare occasions, the Advisory Council could be involved directly in resolving Section 106 disputes if the dispute was unsuccess- fully resolved at the state or tribal level.527 The SHPO is the state officer responsible for adminis- tering the responsibilities of NHPA.528 The SHPO consults with federal agencies during NRHP Sec- tion 106 review, reviews NRHP nominations, and maintains data on identified historic properties.529 4. Tribal Sovereign Nations Federally recognized Indian tribes possess na- tionhood status and retain inherent powers of self-government.530 A list of federally recognized tribes is published annually by the secretary of the interior in the Federal Register.531 A primary area requiring tribal consultation stems from Sec- tion 106 of the National Historical Preservation Act.532 Thus, any undertakings that may affect historic properties of religious and cultural sig- nificance require federal agencies to consult with the affected tribe.533 Tribes have the option to des- ignate a Tribal Historic Preservation Officer to assume any or all of the functions of a SHPO with respect to tribal land.534 523 Id. at 4. 524 Id. at 4. 525 16 § U.S.C. 470i-j (2013). 526 36 C.F.R. § 800.2(b) (2014). 527 Advisory Council on Historic Pres., About the ACHP: General Information, http://www.achp.gov/about achp.html (last visited Feb. 8, 2014). 528 16 U.S.C. § 470a(a) (2013). 529 16 U.S.C. § 470a(a) (2013). 530 U.S. CONST. art. 1, § 8 and treaties, statutes, and court decisions. 531 Fed. Reg. 78, 87 (May 6, 2013). 532 National Historic Preservation Act, 16 U.S.C. § 470f (2006). 533 National Historic Preservation Act, 16 U.S.C. § 470a(a) (2006). 534 16 U.S.C. § 470a(d) (2013). 5. Departments of Natural Resources A department of natural resources (DNR) is a type of state agency that relates to several envi- ronmental laws. A DNR therefore serves as an apt illustrative example of a state resource agency. The Missouri DNR, for example, encompasses a wide range of programs including soil and water conservation, water resources, air pollution, haz- ardous waste, land reclamation, solid waste, wa- ter protection, geological surveys, the SHPO, and energy resources.535 The actions typically taken by a state DNR in the event of a major emergency occur sequentially as follows. After a major emergency has occurred, the governor declares a state of emergency, and may request the president to declare a state of emergency.536 The DNR works with the governor and the State Emergency Management Agency (SEMA) to issue executive orders that will grant the DNR director the power and authority to waive certain statutory requirements.537 For ex- ample, the DNR could ask for a waiver in dealing with debris, such as easing landfill segregation restrictions or allowing open burning.538 In a state-declared emergency involving a single state, state agencies operate within their normal fund- ing streams, and there is typically no access to additional disaster funds.539 If a federal declara- tion occurs, then there is a split of funds that could include 75 percent federal and 25 percent state and local (or 90 percent federal and 10 per- cent state in severe cases, such as the Joplin tor- nado).540 In terms of state and local shares, the state might pick up the majority, as in 15 percent or 20 percent.541 Once federal funds come into play, the DNR takes on the role of issuing docu- ments ensuring that the state is in compliance with NEPA.542 The DNR may work with agencies such as FEMA, EPA, and the Corps in document- ing that federal and state statutes and regula- tions are followed when seeking reimburse- ment.543 535 Telephone Interview with Brian Allen, Emergency Response Chief, Mo. Dep’t of Natural Res. (June 7, 2013). 536 Id. 537 Id. 538 Id. 539 Id. 540 Id. 541 Allen, supra note 535. 542 Id. 543 Id.

44 According to Missouri DNR staff, strong rela- tionships exist between the state DNR and federal regional offices of various federal agencies, as well as between the DNR and its sister state agencies, such as the DOT.544 This strong working relation- ship is illustrated by the DNR’s openness to requesting assistance from such agencies.545 For example, the DNR would not hesitate to request mission assignments from other agencies for the management of a particular response, or to request other types of assistance.546 These strong relationships help to eliminate regulatory obsta- cles so that recovery can gain traction.547 E. Summary of Case Studies Table 2 summarizes the emergency projects or case studies that were reviewed for this project. These case studies involved 10 different states that were distributed geographically throughout the nation. The types of emergencies covered by the case studies included hurricanes, tornados, wildfires, floods, structural failures, and severe accidents. 544 Allen, supra note 535. 545 Id. 546 Id. 547 Id.

45 Table 2. Summary of emergency projects. Emergency Project Year State Main Agencies Bridge Failure I-35W Minneapolis Bridge 2007 MN MnDOT, FHWA Hurricane Ivan I-10 Escambia Bay Bridge 2004 FL FDOT, FHWA Barge Accident I-40 Arkansas River Bridge 2002 OK ODOT, FHWA Hurricane Katrina US-90 Biloxi Bay Bridge and St. Louis Bay Bridge 2005 MS MDOT, FHWA Floods Western North Dakota slide 2011 ND NDDOT, FHWA Bridge Cracking Crown Point Bridge 2009 NY, VT NYSDOT, VTrans Wildfires Bastrop road repair 2011 TX TxDOT, FHWA Hurricane Irene Windsor and Windham County bridges 2011 VT VTrans, FHWA, FEMA Joplin Tornado Intersection repair near hospital 2011 MO Joplin, MoDOT Floods Roads and bridges 2013 CO CDOT, FHWA 1. I-35W Bridge Collapse over the Mississippi River in Minneapolis, Minnesota Completed in 1967, the I-35W bridge was lo- cated near the I-94 junction in the heart of Minneapolis over the Mississippi River.548 It was the fourth busiest bridge in Minnesota.549 On Au- gust 1, 2007, a 1,000-foot-long deck truss of the eight-lane bridge collapsed.550 Approximately half of the deck truss fell into the river below.551 As a consequence, 111 vehicles fell, 145 people were injured, and 13 people were killed.552 At the time of the collapse, the bridge carried an average daily traffic of 141,000 vehicles, with 5,640 being heavy trucks.553 An emergency declaration was issued by the governor of Minnesota on August, 2, 2007.554 The 548 Nat. Transp. Safety Board, Highway Accident Re- port: Collapse of I-35W Highway Bridge 5 (2008). 549 Volpe, supra note 396, at 14. 550 Nat. Transp. Safety Board, supra note 548, at 1. 551 Id. 552 Id. 553 Id. at 6. 554 Minn. Emergency Exec. Order No. 07-09 (Aug. 2, 2007). president also issued an emergency declaration on August 21, 2007, mobilizing FEMA and au- thorizing the use of Stafford Emergency Assis- tance at 75 percent federal funding.555 The high public profile of the I-35W bridge and the declared state-of-emergency evidenced the importance and urgency of the ensuing recovery efforts. Nonethe- less, no waivers or exemptions from environ- mental permitting were issued accompanying the declarations.556 Excellent interagency relationships existing be- tween the Minnesota Department of Transporta- tion (MnDOT), environmental agencies, and other agencies helped to expedite reviews.557 The strong relationship between MnDOT and the Minnesota Department of Natural Resources (MNDNR) was the result of a long history of collaboration, as well as MnDOT’s unique staffing of an MNDNR employee.558 MnDOT also quickly agreed with the City of Minneapolis upon the use of nearby park- 555 Emergency Declaration FEMA-3278-EM (Aug. 1, 2007). 556 Volpe, supra note 396, at 14. 557 Id. at 10. 558 Id. at 10.

46 land for construction staging in exchange for park improvements, without the need to iron out a for- mal written agreement.559 MnDOT had employed design-build contracting since 2001, and utilized this contracting method to accelerate project delivery for the I-35W bridge.560 This method allowed for the overlapping of environmental review with contracting and pre- liminary design work.561 As a result, the project timeline was shorter than the sequential steps of traditional contracting.562 In terms of limiting project scope, MnDOT re- built the I-35W bridge using approximately the same alignment and left the operations un- changed, although the bridge was widened slightly to allow for future expansion, e.g., light rail.563 The bridge approach and nearby inter- change improvements were excluded from the scope of the project.564 By maintaining the similar- ity of the new bridge, the ESA Section 7 consulta- tion proceeded quickly, as the impacts on threat- ened or endangered species did not differ substantially from what occurred previously.565 The Minnesota DNR certified that an endangered mussel population would not be impacted.566 In terms of NEPA determination, this limited scope meant the project fit under CE.567 Reconstruction of the I-35W bridge required the dredging/filling of navigable waters under Section 404 of the CWA, which was satisfied by a permit issued by the United States Geological Survey (USGS) on behalf of the Corps.568 A gen- eral permit was adequate in this case because the disruption of the silt was deemed incidental to construction.569 Concerning impacts on navigation on the Mississippi River, USGS did not issue a permit until the final design was complete.570 For Section 402, governing stormwater discharge, a general permit was also adequate in this case.571 In terms of NHPA Section 106 compliance, the 559 Id. at 15. 560 Id. at 17. 561 Id. at 17. 562 Volpe, supra note 396, at 17. 563 Id. at 14. 564 Id. at 17. 565 Id. at 8. 566 Id. at 15. 567 Id. at 15. 568 Volpe, supra note 396, at 15. 569 Id. at 9. 570 Id. at 15. 571 Id. at 9. SHPO expedited its concurrence from 1 month to 4 days after MnDOT agreed to minimize impacts on a nearby historic rail yard.572 The SHPO quickly identified potential historic sites through the use of its up-to-date database.573 For the Na- tional Pollutant Discharge Elimination System, a general permit was issued quickly by the Minne- sota Pollution Control Agency, as there were no pollution discharge issues.574 In order to stream- line the NEPA public involvement process, MnDOT adopted practices such as weekly infor- mal meetings at the construction site.575 Due to the urgency of the emergency situation, the media and the public-at-large did not wish to deter the recovery effort.576 MnDOT complied with most environmental regulations and permitting re- quirements within 3 weeks of the collapse.577 The bridge was rebuilt, and was opened to traffic on September 18, 2008.578 2. Hurricane Ivan Destruction of I-10 over Escambia Bay Hurricane Ivan was a Category 3 hurricane that crossed southern Florida,579 destroying a sec- tion of the I-10 bridge over Escambia Bay on Sep- tember 16, 2004.580 This bridge provided critical east-west access to Pensacola, and was of national security interest.581 An increase in the capacity of I-10 was already in FDOT’s 20-year plan.582 How- ever, FDOT limited the scope of the recovery ef- fort by not altering the bridge’s approach capaci- ties.583 Thus, though one lane was added in each direction on the bridge itself, traffic levels re- mained the same, as the approach capacities re- mained the same.584 The alignment was also left 572 Id. at 10. 573 Id. at 16. 574 Volpe, supra note 396, at 15. 575 Id. at 9. 576 Id. 577 Id. at 14. 578 Press Release, Minnesota Dep’t of Transp., MnDOT Readies Roads for Opening of I-35W St. An- thony Falls Bridge (Sept. 16, 2008) (on file with author). 579 Nat. Oceanic and Atmospheric Administration, Hurricanes in History, http://www.nhc.noaa.gov/ outreach/history (last visited Jan. 22, 2014). 580 Volpe, supra note 396, at 11. 581 Dan Maxey, I-10 Escambia Bay Bridge, Fla. Insti- tute of Consulting Engineers/Fla. Dep’t of Transp. De- sign Conference (July 30, 2006). 582 Volpe, supra note 396, at 14. 583 Id. at 4. 584 Id.

47 mostly unchanged, save for a shift to raise clear- ance from 12 to 25 ft at the lowest point.585 FDOT’s limitation on scope enabled the recovery effort to be expedited while preparing the bridge for future road expansion. Because FDOT had developed good relation- ships with environmental agencies over the long term, the established trust and familiarity re- sulted in quick and transparent actions in consul- tation and the issuance of permits.586 One exam- ple of how such relationships aided the permitting process involved the manner in which the Florida Department of Environmental Protection (FDEP) assisted FDOT in tailoring its permit applications to enable the permits to be processed quickly.587 Another factor in achieving a successful environ- mental process was the use of the design-build (D- B) contracting method, as opposed to the tradi- tional design-bid-build method.588 D-B allowed the contractor to adopt a unified approach in design, construction, environmental permitting, and miti- gation development.589 The constructor was re- sponsible for all of the aforementioned tasks, and maintained flexibility in scheduling, coordinating, and implementing these tasks.590 The ESA consultation was smooth due to scope limitations.591 However, the demolition of piers using explosives necessitated monitoring and mitigation, while nets kept endangered West In- dian manatees and gulf sturgeons away from the construction activities.592 Concerning the NEPA process, the limited scope of the project resulted in a Type 2 categorical exclusion.593 Because there were no historic or archaeological sites near the project, the SHPO issued a letter concurring with the previous no negative impact assessment on November 18, 2004.594 Only a general permit from the Corps was re- quired to satisfy Section 404 since all silt disrup- tion was incidental.595 However, for Section 403, a general permit was not adequate, and FDOT worked with the Florida State Department of 585 Id. at 11–12. 586 Id. at 10. 587 Volpe, supra note 396, at 13–14. 588 Id. at 14. 589 Id. 590 Id. 591 Id. at 8. 592 Id. 593 Volpe, supra note 396, at 12. 594 Id. at 13. 595 Id. at 9. Environmental Quality (FDEQ) to offset the amount of increased stormwater discharged from the bridge.596 NOAA was consulted regarding compliance with the Coastal Zone Management Act, and it was determined that there was no negative impact on the coastal zone, and thus no need for mitigation.597 FDEP issued a consolidated wetland resource permit on May 18, 2005, requir- ing the monitoring of turbidity as a result of dredging and filling activities.598 A FDEP letter issued on June 9, 2005, satisfied EPA’s air quality requirements.599 By statute, FDOT had 1 year to obtain an easement from FDEP for building over submerged land owned by the state; this require- ment therefore did not delay the commencement of work.600 There was a delay in obtaining the United States Coast Guard (USCG) permit on navigable waters due to the arrival of Hurricane Katrina.601 Except for the USCG permit, other permits and approvals were obtained relatively quickly. The westbound lanes of the I-10 bridge were opened to two-way traffic less than 3 weeks following Ivan.602 3. Towboat Accident over the Arkansas River near Webbers Falls, Oklahoma On May 26, 2002, a towboat rammed a pier of the I-40 Bridge near Webbers Falls, Oklahoma, collapsing a 503-ft section of the bridge.603 The bridge, built in 1967, was over the Arkansas River—part of the McClellan-Kerr Arkansas River Navigation System (M-KARNS) operated by the Corps.604 The affected section of I-40 was a four-lane divided highway with an average daily traffic of 19,200 vehicles, with approximately 30 percent trucks.605 The I-40 section comprised part of the major east-west corridor between Memphis, Tennessee, and Oklahoma City, Oklahoma.606 596 FLA. ADMIN. CODE 62-25.040(3) (2006). 597 Volpe, supra note 396, at 9–10. 598 FLA. ADMIN. CODE 62-25.040(3). 599 Volpe, supra note 396, at 13. 600 Volpe, supra note 396, at 13. 601 Id. 602 I-10 Bridge That Was Destroyed by Hurricane Ivan Will Reopen Today, NW. FLA. DAILY NEWS, Oct. 5, 2004, at B2. 603 Nat. Transp. Safety Board, U.S. Towboat Robert Y. Love Allison with Interstate 40 Highway Bridge Near Webbers Falls, Oklahoma NTSB/HAR-04-/05 1 (2004). 604 Id. 605 Id. at 16, 19. 606 Volpe, supra note 396, at 19.

48 Some emergency procedures were used in the environmental compliance process, such as the temporary waiver of some permit requirements and public comment periods.607 Frequent site meetings involving high-level agency staff led to quick decisions onsite, without the need to consult with headquarters.608 The scope of the new project was limited by using the previous alignment and maintaining the same traffic capacity, despite an increase in pier size.609 Since no new right-of-way was implicated, the potential impacts of the pro- ject were due to reconstruction and staging only.610 Using an existing memorandum of agree- ment between the Oklahoma DOT and FHWA, FHWA classified the project as a CE, and gave ODOT the authority to restrict NEPA activities.611 The day after the collapse, FHWA, ODOT, and the Corps determined that reconstruction would have no significant impact on the project area and sur- rounding environs.612 The Corps waived the per- mitting requirement for construction in navigable waters.613 A CWA Section 404 permit was required due to dredging.614 The Corps approved a request to de- lay the permit request until after the recovery and demolition of the bridge, and granted an emer- gency authorization.615 General permits from the Corps were issued for CWA Section 403.616 Though several protected species inhabited the project site, only the American Burying Beetle required protection during construction.617 The Corps required ODOT to minimize the impact to the beetle’s habitat, and Fish & Wildlife gave ver- bal approval to reconstruction.618 Both the Cherokee Nation and the Corps owned land at the bridge ends.619 A portion of the land contained a Fish & Wildlife refuge.620 ODOT desired to use Cherokee-owned river banks for 607 Id. at 20. 608 Id. at 10. 609 Id. at 20. 610 Id. 611 Volpe, supra note 396, at 20. 612 Id. 613 Id. 614 Id. 615 Id. 616 Volpe, supra note 396, at 8. 617 Id. at 20. 618 Id. at 20–21. 619 Id. at 19. 620 Id. staging construction.621 The agency had deter- mined that the project would have no negative impacts on historic or cultural resources.622 The Cherokee Nation waived the normal consultation requirements and concurred within 2 days, on the condition that the river banks be returned to their previous state.623 The SHPO also waived its man- datory 30-day review period, concurring within 1 day.624 The bridge was reopened 65 days following the incident.625 4. Hurricane Katrina Destruction of the Gulf Coast and U.S.-90 According to NOAA, Hurricane Katrina was one of the strongest Gulf storms of the past 100 years, causing widespread devastation along the central Gulf Coast, especially in the states of Lou- isiana, Alabama, and Mississippi.626 Katrina ar- rived at the Gulf Coast on August 29, 2005, and produced initial wind speeds of over 140 mph, with a precipitation rate of over 1 in. per hour for three consecutive hours.627 There were widespread disruptions to travel due to flooded roadways, de- bris on roadways, or destroyed bridges.628 In Mis- sissippi, damage occurred to I-10, I-110, and US- 90.629 US-90 is a major route along the Gulf Coast, running from Florida to Texas.630 Over 90 percent of structures near the Mississippi coast were de- stroyed, including the US-90 Biloxi Bay and US- 90 Bay St. Louis bridges.631 The Mississippi DOT (MDOT) had made it a priority to focus on the re- covery of the US-90 bridges.632 The four-lane Bi- loxi Bay Bridge was constructed in 1962 and con- nected the Mississippi cities of Biloxi and Ocean 621 Volpe, supra note 396, at 7. 622 Id. at 20. 623 Id. at 21. 624 Id. at 21. 625 Id. at 20. 626 Anne Waple, Hurricane Katrina, NOAA’s Na- tional Climatic Data Center 1 (2005). 627 Id. at 5. 628 Id. at 6. 629 Kent Dussom & Mark McConnell, Design-Build Program in Mississippi–Summary of Lessons Learned, KYTC/FHWA/ACEC-KY Partnering Conference (2011). 630 Michael Kunzelman, U.S. 90 Reveals Hard Times Left by Katrina, THE WASHINGTON POST, May 19, 2006. 631 Volpe, supra note 396, at 17. 632 Dusson & McConnell, supra note 629.

49 Springs.633 The Bay St. Louis Bridge connected the cities of Bay St. Louis and Pass Christian.634 The environmental compliance process for both bridges was similar.635 According to federal ad- ministrative regulations, requests for deviations from regular procedures can be made in emergen- cies.636 Some informal procedures, such as verbal agreements, were used to expedite permitting, with FHWA’s assistance.637 Regarding NEPA, MDOT was required to conduct an environmental assessment for the Biloxi Bay Bridge, and FHWA issued a finding of no significant impact (FONSI).638 The Bay St. Louis Bridge fell under a categorical exclusion.639 Protected species near the bridges included gulf sturgeon, sea turtles, and marine mammals. The Mississippi Sound was a critical habitat for gulf sturgeon.640 ESA emergency consultations with Fish & Wildlife and NOAA-Fisheries went smoothly due to the limiting of the scope for both projects.641 NOAA-Fisheries required that fill be returned to its original location when dredging.642 Permits were obtained from the Corps for dredge and fill in navigable waters.643 For the Biloxi Bay Bridge, the Corps followed emergency procedures, thus reducing public notice requirements and shrinking the permit lead time from 6 months to 6 weeks.644 Only general permits from the Corps were required for CWA Sections 402 and 404. NOAA concurred that there was no negative im- pact on the coast zone. Unfortunately, Katrina had destroyed most of the historic properties near both bridges, as well as the bridges themselves; thus, the SHPO concurred that the projects had no negative impact on historic properties.645 Because D-B enabling legislation had been en- acted relatively recently in Mississippi, in 2004, MDOT reached out to the Florida DOT for help 633 Volpe, supra note 396, at 17. 634 Bay St. Louis Bridge Reopens Last Two Lanes, NEW ORLEANS CITYBUSINESS, Jan. 5, 2008. 635 Volpe, supra note 396, at 17. 636 23 C.F.R. § 771.131 (2013). 637 Volpe, supra note 396, at 18. 638 Id. at 10. 639 Id. at 18. 640 Id. 641 Id. at 8, 18. 642 Id. at 18. 643 Volpe, supra note 396, at 18. 644 Id. 645 Id. with administering D-B.646 D-B allowed the inte- gration of environmental compliance into design and construction; thus, work proceeded before all permits were obtained.647 D-B resulted in projects taking just over 2 years.648 In contrast, the se- quential steps of design, bidding, and construc- tion, characteristic of the conventional design-bid- build (D-B-B) process, were estimated at 3 to 4 years.649 D-B also offered flexibility for making changes in construction and associated changes in permits.650 However, D-B’s swiftness raised con- cerns from some agencies that it was difficult to assess and protect wildlife.651 The new Biloxi Bay Bridge was reopened to traffic on November 1, 2007, and was fully complete on April 16, 2008.652 The new Bay St. Louis Bridge was fully reopened on January 4, 2008.653 5. North Dakota Floods of 2011 Despite the frequent occurrence of flooding in North Dakota, the 2011 Missouri River flood was historic by various measures. The flood began in February and continued for 10 months.654 Flood- ing caused the evacuation of 28 neighborhoods, notably in Minot, where over 4,000 homes and businesses and 12,000 residents were displaced.655 The Corps was forced to open the Lake Sa- kakawea spillway gates for the first time.656 Be- cause of the magnitude of the disaster, the usual FEMA cost share of 75 percent was enlarged to 90 percent.657 The governor declared a statewide emergency on February 10, and a statewide flood disaster on May 10.658 The president approved a major disaster declaration on May 10 that was subsequently amended multiple times to include additional counties. NDDOT and FHWA employed many processes for environmental compliance. A programmatic 646 Dusson & McConnell, supra note 629. 647 Id. 648 Id. 649 Id. 650 Volpe, supra note 396, at 18. 651 Id. at 19. 652 Biloxi Bay Bridge to Open Thursday, NEW ORLEANS CITYBUSINESS, Oct. 28, 2007. 653 Id. 654 N.D. Dep’t of Emergency Servs., 2011 Flood Re- port: Response and Recovery 15 (2011). 655 Id. 656 Id. 657 Id. 658 Id.

50 agreement was finalized on March 11, 2011, be- tween the Corps, Fish & Wildlife, FHWA, and NDDOT.659 This agreement presented streamlined processes for three categories of NEPA CE, and clarified other aspects of emergency relief such as funding eligibility requirements and timing.660 NDDOT-funded staff at the Corps and Fish & Wildlife were helpful in expediting consultations and requests from NDDOT.661 On ESA, NDDOT and FHWA utilized informal consultation proce- dures to address the emergency, and later fol- lowed-up with formal procedures.662 NDDOT and NDSHPO discussed multiple emergency relief projects simultaneously to save time.663 NDDOT used tribal monitors who represented the North Dakota Tribal Consultation Committee during meetings with NDSHPO.664 NDDOT’s proactive archaeological surveys provided the current loca- tions of archaeological sites.665 These helpful proc- esses were employed both pre-event and post- event. 6. Crown Point Bridge Sudden Closure The Crown Point Bridge or Lake Champlain Bridge is a 2,000-ft bridge connecting Crown Point, New York, with Chimney Point, Vermont, across the 112-mi-long Lake Champlain.666 The bridge is one of only three crossings over the lake, and is a vital economic and public safety link between the bi-state communities, as hospitals and fire departments are shared by these commu- nities.667 Approximately 4,000 vehicles per day travel across the bridge.668 The bi-state nature of the bridge necessitated that the Vermont Agency 659 Emergency Relief Programmatic Agreement Be- tween the U.S. Army Corps of Eng’rs, the U.S. Fish & Wildlife Serv., the Fed. Highway Admin. N.D. Div., and N.D. Dep’t of Transp. (Mar. 31, 2011) (on file with au- thor). 660 Id. 661 Schrader, supra note 455, at 11. 662 Id. 663 Id. 664 Id. 665 Id. 666 Arthur Yannotti, Acting Deputy Chief Eng’r, N.Y. State Dep’t of Transp., Lake Champlain Bridge– Decision for Closure and Response to a Crisis, Bridge Eng’g Distinguished Speaker Series at the State Univ. of N.Y. (April 18, 2011). 667 N.Y. State Dep’t of Transp., The Lake Champlain Bridge Emergency Replacement Project 3-4 (2012). 668 Scott Waldman, Lake Champlain Bridge Set to Open, TIMES UNION, Nov. 4, 2011. of Transportation (VTrans) and the New York State Department of Transportation operate as a team.669 The Crown Point Bridge was opened on August 26, 1929, and underwent major rehabilitation in 1991.670 A bi-state rehabilitation study in 2009 discovered that the bridge was in a much worse condition than had been anticipated.671 The condi- tions were significantly worse than what had been found by a 2005 inspection.672 The risk of catas- trophic bridge failure led to the closure of the bridge on October 16, 2009, with no advance warning to the public.673 A tremendous public out- cry called for a quick response and for the bridge to retain the same location.674 On October 20, 2009, the Vermont Secretary of Transportation declared an emergency, and on the next day, the governor of New York declared a state disaster emergency.675 The bridge environs were rich in archaeological and historic resources including the site of Native American activity dating to 5,000 B.C., several forts from the 1700s, and a pre-Revolutionary War tavern that had become a museum.676 A Sec- tion 106 programmatic agreement was executed in record time, and included protection for the site’s archaeological and historic resources, as well as a commemoration of the previous bridge.677 A public advisory committee (PAC) was formed to represent the various perspectives and inter- ests of the public.678 An intensive, 6-day public involvement process was adopted as part of a 30- day public comment period.679 In addition, 3,000 online surveys were reviewed.680 The design team reacted quickly to public input, and adjusted ma- terials and information quickly, while sometimes working on weekends.681 In fact, an extra design alternative based on public comments was devel- 669 Yannotti, supra note 666. 670 Id. 671 Id. 672 Id. 673 Id. 674 Id. 675 N.Y. State Dep’t of Transp., supra note 667, at 4. 676 Yannotti, supra note 666. 677 N.Y. State Dep’t of Transp., supra note 667, at 7. 678 Yannotti, supra note 666. 679 Id. 680 N.Y. State Dep’t of Transp., supra note 667, at 9. 681 Yannotti, supra note 666.

51 oped and ultimately selected.682 Whereas there had been initial public outcry surrounding the bridge’s sudden closure, as well as voiced passion for rehabilitating the historic bridge, robust com- munication with the public ultimately fostered public trust and support for a replacement bridge.683 Despite the fact that state emergency declara- tions were issued, the recovery project did not fall under federal ER because ferries were provided as temporary transportation.684 Thus, the project was required to meet typical project requirements in- cluding normal review, permitting, and contract- ing.685 A NEPA process for a project of similar complexity could take up to 5 years.686 To acceler- ate the process by using CE, the alignment of the bridge was maintained at previous levels.687 The NEPA process was completed in 4 months.688 The regional agency relationships have a long history of mutual respect and trust stemming from a lack of past permit compliance issues.689 FHWA arranged a regulatory agency summit in January 2010, during which all relevant federal and state agencies participated, including the US Coast Guard, the Corps, and Fish & Wildlife.690 At this summit, the agencies reached agreement on permitting requirements, processes, and time- lines.691 As a result, permits were issued to allow project bidding to 5 months following bridge clo- sure.692 VTrans committed to the use of an inde- pendent onsite environmental monitor who tracked erosion, sediment control, water handling, and concrete curing/dewatering.693 FHWA also increased its in-house construction and environ- mental inspections.694 Alternative contracting techniques were ex- plored to accelerate recovery. Design-build was 682 N.Y. State Dep’t of Transp., supra note 667, at 14. 683 Id. at 9, 14. 684 Id. at 9. 685 Id. 686 Id. 687 Yannotti, supra note 666. 688 N.Y. State Dep’t of Transp., supra note 667, at 9. 689 Melissa Toni, Collaboration Success for the Crown Point Bridge Replacement Project, THE ENVIRONMENTAL QUARTERLY. Oct. 11, 2011, at 15. 690 Yannotti, supra note 666. 691 Id. 692 Toni, supra note 689, at 15. 693 Id. 694 Id. dismissed because it was not allowed under law.695 A dynamic design-bid-build process was instead utilized.696 This process allowed for the overlap of linear functions such as planning, design, permit- ting, and construction.697 A construction contract was awarded 7.5 months following the closure of the old bridge.698 The bridge was reopened on No- vember 7, 2011.699 7. Texas Bastrop Fires The Bastrop County fire was the single most devastating wildfire occurring in Texas in the last decade, destroying over 1,000 homes and over 100,000 acres.700 The Bastrop County fire was only one of more than 180 fires that engulfed Texas at that time.701 The conditions for fire in- volved extended drought followed by severe winds from Tropical Storm Lee.702 Exacerbating the problem were the resulting floods, worsened by the loss of ground cover vegetation.703 The fire damaged road pavements, culverts, and landscap- ing.704 There was also the potential danger of fire- damaged trees collapsing on roadways.705 Some repairs were conducted on state high- ways using state funds, thereby not implicating federal laws and regulations.706 Two major envi- ronmental concerns associated with road and landscaping repairs included the endangered Houston Toad and culverts involving United States waters.707 Though the fires were not di- rectly linked to Houston Toad mortality, critical habitats were located in the Bastrop region.708 Due to the Texas Department of Transportation’s 695 Yannotti, supra note 666. 696 N.Y. State Dep’t of Transp., supra note 667, at 3-4. 697 N.Y. State Dep’t of Transp., supra note 667, at 7. 698 Yannotti, supra note 666. 699 Scott Waldman, Lake Champlain Bridge Set to Open, TIMES UNION, Nov. 4, 2011. 700 Jim Vertuno & Michael Graczyk, Bastrop Wild- fires Destroy 1,000-Plus Homes, ASSOCIATED PRESS, Sept. 6, 2011; Matt Peckham, Disastrous Texas Wildfire Now Worst in State’s History, TIME NEWSFEED, Sept. 6, 2011. 701 Vertuno & Graczyk, supra note 700. 702 Peckham, supra note 700. 703 James Barta, Bastrop Wildfire and Aftermath 1 (Tex. Dep’t of Transp. Env. Affairs 2013). 704 Id. 705 Id. 706 Id. 707 Id. 708 Id.

52 (TxDOT) relationship with the Corps and Fish & Wildlife, as well as the urgency of the projects, the permitting and consultation processes were expe- dited.709 TxDOT consulted informally with Fish & Wildlife for the removal of trees.710 TxDOT util- ized the Corps’ nationwide permit 3 (NWP-3) for repairing culverts in federal jurisdictional wa- ters.711 NWP-3 authorizes repairs of structures authorized by 33 C.F.R. § 330.3, including minor deviations in a structure’s configuration or filled area and minimum stream channel modifica- tions.712 As part of the NWP-3 application, a con- currence letter was obtained from Fish & Wildlife to validate that mandatory management practices to protect the Houston Toad were followed.713 8. Hurricane Irene and Vermont’s Historic Bridges On August 28, 2011, Hurricane Irene tore through the East Coast, including Vermont, and produced over 7 in. of precipitation.714 Record lev- els of flooding, along with the movement of debris and scouring, caused extensive damage to trans- portation infrastructure, especially bridges.715 Bridges were damaged principally on abutments and superstructures, but some bridges were en- tirely washed out.716 It became critical to repair such bridges, since entire communities were cut off.717 The president issued a major disaster decla- ration for the state of Vermont on September 1, 2011.718 Damaged bridges considered for FEMA funding included many different types and classifica- tions.719 Most bridges contained vehicular traffic, although there were a few railroad and pedestrian bridges.720 A common theme of many of these bridges was some level of historical significance.721 Eighteen bridges were listed on the NRHP.722 Be- 709 Barta, supra note 703, at 1. 710 Id. 711 Id. 712 U.S. Army Corps of Eng’rs, 2012 Nationwide Per- mits, Conditions, District Engineer’s Decision, Further Information, and Definitions 4 (2012). 713 Barta, supra note 703, at 1. 714 Thomas et al., supra note 381, at 1. 715 Id. 716 Id. at 22. 717 Id. at 1. 718 Id. at 6. 719 Id. 720 Thomas et al., supra note 381, at 6, 20. 721 Id. at 6. 722 Id. at 22, 26, 28. cause Vermont citizens place a high value on the natural landscape, bridges had often been built to conform to the natural landscape.723 Thus, bridge design often adopted local characteristics, rather than contemporary design trends.724 Bridges are one of the most photographed cultural and his- toric icons in Vermont.725 Therefore, a primary environmental concern for the repair of the bridges in question was compliance with Section 106.726 An informal interagency agreement was devel- oped “on-the-fly” between FEMA’s Environmental and Historic Preservation Section of the Vermont Joint Field Office, VTrans Historic and Archaeo- logical Resources Unit, and the SHPO.727 This agreement was based on a previous programmatic agreement that developed the Vermont Historic Bridge Program.728 The program developed pres- ervation plans for several types of bridges, and was participated in by many communities.729 Un- der the Program, VTrans was the lead agency; it coordinated with FEMA, conducted archaeological surveys, and prepared determination of effect documents.730 VTrans’s front-end work expedited FEMA’s own studies and consultation with the SHPO.731 The informal agreement utilized the same efficiencies. There exists an ongoing effort to formalize the informal procedures.732 To expedite repairs, the majority of projects consisted of inkind repairs utilizing the existing footprint and types of materials.733 For example, a rusticated stone-colored stain was used on the pier of Rail Bridge 501 to match the granite abut- ments.734 Some bridges were listed on the NRHP, and care was taken to conform to the Secretary of the Interior’s standards for reconstruction so that these bridges could remain on the NRHP.735 The effective cooperation among the various agencies involved, and respect for the historical signifi- 723 Id. at 8. 724 Id. at 9. 725 Id. at 6. 726 Kachadoorian, supra note 381. 727 Id. 728 Thomas et al., supra note 381, at 6. 729 Id. 730 Id. at 6–7. 731 Id. at 7. 732 Kachadoorian, supra note 381. 733 Thomas et al., supra note 381, at 27. 734 Id. at 37. 735 Id. at 29.

53 cance of Vermont’s bridges, resulted in the suc- cessful repair and preservation of 189 bridges.736 9. The Joplin Missouri Tornado On May 22, 2011, a three-quarter-mile-wide EF-5 tornado tore through Joplin, Missouri, de- stroying almost a third of the city, causing 161 fatalities and 1,371 injuries, and damaging over 2,000 buildings, including a major regional hospi- tal.737 The Joplin tornado was the single deadliest tornado in the United States since 1947.738 The governor of Missouri issued several executive or- ders as a result of the tornado and its associated storms, declaring and extending a state of emer- gency.739 The president also issued a major disas- ter declaration covering several Missouri counties, which was later amended to include the Joplin event.740 One overwhelming aspect of the Joplin tornado was the disposal of waste and management of de- bris. The Missouri DNR coordinated early with EPA on hazardous waste management.741 This was also a rare occasion in which MoDOT worked directly with EPA in the aftermath of an emer- gency.742 The DNR worked with the State Emer- gency Management Agency (SEMA), establishing several streamlined processes for the clearing of sites for critical infrastructure and obtaining per- mits to support debris management for recov- ery.743 Such processes waived certain require- ments for the segregation of multiple waste streams and allowed open burning.744 The Joplin case also illustrates an occasion on which FEMA ceded the lead role to FHWA on a non-federal aid facility in order to expedite local recovery. A specific example was the deployment of traffic signals and temporary trailers near a 736 Id. at 38. 737 A. G. Sulzberger & Brian Stelter, A Rush to Pro- tect Patients, Then Bloody Chaos, N.Y. TIMES, May 23, 2011, at A1; Fed. Emergency Mgmt. Agency, The Re- sponse to the 2011 Joplin, Missouri, Tornado Lessons Learned Study 3 (Dec. 20, 2011). 738 Id. 739 Mo. Exec. Order No. 11-10 (May 24, 2011). 740 Fed. Emergency Mgmt. Agency, FEMA-DR-1980 (May 23, 2011). 741 Mo. Dep’t of Natural Res., Disaster Coordination Efforts Following May 22, 2011 Joplin Tornado, http://www.dnr.mo.gov/disaster2011joplin.htm (last visited Feb. 6, 2014). 742 Unruh, supra note 418. 743 Mo. Dep’t of Natural Res., supra note 741. 744 Allen, supra note 535. hospital.745 Though the project was funded by FEMA, FHWA took the lead so that an existing NEPA programmatic agreement with MODOT could be used to expedite the approvals.746 One reported reason for the successful recovery in Joplin was good working relationships among all agencies involved, such as the Missouri DNR, MoDOT, FHWA, and EPA’s Region VII.747 For ex- ample, MoDOT recognized that they were not the lead agency and willingly fulfilled their team role by responding to the directions given by the emer- gency commander.748 Thus MoDOT specialized in their role in managing the transportation infra- structure, thus freeing up law enforcement from traffic control and other DOT duties.749 Strong relationships were developed over time at regular emergency planning meetings and during previ- ous incidents, such as at CERCLA-type inci- dents.750 The relationships also resulted from the continuity in staff of the various agencies.751 For example, the DNR’s chief of emergency response worked for 22 years at DNR, and half of DNR’s emergency response staff had tenures of at least 10 years.752 10. The 2013 Colorado Floods From September 11 to September 16, 2013, catastrophic floods in Colorado caused the closure of numerous highways and bridges, cutting off communities throughout the state.753 The flooding drastically affected rivers, altering courses and causing waters to move around bridges and over existing roads.754 More than 200 mi of roadway and 50 bridges were destroyed or damaged.755 For example, sections of Highways 7 and 287 col- lapsed, and sections of I-25 and I-70 were closed 745 Unruh, supra note 418. 746 Id. 747 Allen, supra note 535. 748 Salisbury, supra note 494. 749 Id. 750 Allen, supra note 535. 751 Id. 752 Id. 753 Press Release, Fed. Highway Admin., U.S. Trans- portation Secretary Foxx Announces $5 Million in “Quick Release” Emergency Relief Funds for Colorado (Sept. 13, 2013) (on file with author). 754 Telephone Interview with Rodney Vaughn, Lead Program Specialist, Fed. Highway Admin. (Nov. 27, 2013). 755 Fed. Highway Admin., NEPA Process for the Sep- tember 2013 Flood Event 1 (Nov. 14, 2013).

54 to traffic.756 On September 15, the president de- clared the floods a major disaster and mobilized FEMA for emergency recovery operations.757 Shortly after the floods, relevant agencies such as the Colorado DOT (CDOT), FHWA, SHPO, the Corps, and Fish & Wildlife worked to clarify exist- ing understandings and agreements.758 Good in- teragency working relationships existed based on regular coordination meetings and previous ad hoc projects.759 Emergency consultation processes were adopted. CDOT consulted with Fish & Wild- life, implementing recommended conservation measures and documenting project impacts after- the-fact.760 The Preble’s Meadow Jumping Mouse, Ute Ladies’-Tresses Orchid, and Colorado Butter- fly Plant comprised species that were potentially affected.761 A programmatic agreement between the Advisory Council, SHPO, CDOT, and FHWA was utilized.762 This agreement contained special procedures for emergency situations which al- lowed CDOT to conduct emergency repairs prior to completing Section 106 reviews.763 The Advi- sory Council and SHPO also extended the time frame for emergency repairs beyond the normal 30 days.764 The Corps nationwide permits 3 and 14 were used to facilitate recovery affecting U.S. waters.765 Nationwide permit 3 concerns the re- pair, rehabilitation, or replacement of structure or fill where only minor deviations from the original exist.766 Nationwide permit 14 concerns the con- struction, expansion, modification, or improve- ment of linear transportation projects, and tempo- rary structures, fills, and work.767 FHWA rules provide that a CE applies for a disaster or emergency recovery under certain con- ditions, such as when repairs occur within the existing right-of-way and substantially conform to 756 Id. 757 Press release, The White House, President Obama Signs Colorado Disaster Declaration (Sept. 15, 2013) (on file with author). 758 Vaughn, supra note 754. 759 Id. 760 Fed. Highway Admin., supra note 755, at 2. 761 Id. at 2. 762 Id. at 2–3. 763 Id. 764 Id. 765 Vaughn, supra note 754. 766 U.S. Army Corps of Eng’rs, 2012 Nationwide Per- mits, Conditions, District Engineer’s Decision, Further Information, and Definitions 4 (2012), at 4–5. 767 Id. at 9–10. preexisting design, function, and location.768 This classification applies to both emergency and per- manent repairs.769 Whenever possible, recovery projects utilized the existing alignment in order to attain CE classification.770 A CE programmatic agreement between CDOT and FHWA was util- ized when there were only minor degrees of right- of-way changes from the original design.771 Under this agreement, eligible projects were deemed ap- proved by FHWA, and did not require further FHWA NEPA approval or FHWA’s signature on CDOT’s CE form.772 When the river changed course, however, a different alignment was neces- sary, thus requiring normal environmental proc- esses.773 In some cases, permanent work was per- formed alongside emergency work, thus reducing follow-on permanent repairs.774 Such works were undertaken as emergency actions, and utilized streamlined emergency consultation processes.775 The category of work or the cost share reim- bursement was unchanged for these hybrid pro- jects.776 For permanent repairs that required FHWA approval, similar projects were combined, and a batch approval process was utilized to streamline the process.777 By October 23, 77 per- cent of the damaged roads were reopened.778 Per- manent recovery is ongoing. F. Web Survey For this legal digest, a national Web survey complemented indepth interviews and analysis by identifying national trends. The survey was de- veloped from a review of best practices for emer- gency environmental compliance. The Web survey was sent to 164 environmental experts in agencies at various levels of government, including state and federal agencies. These agencies represented 768 23 C.F.R. § 771.117(c)(9) (2013). 769 Id. 770 Vaughn, supra note 754. 771 Id. 772 Programmatic Agreement for the Review and Ap- proval of Certain NEPA Categorically Excluded Transp. Projects Between the Fed. Highway Admin., Colo. Divi- sion, and the Colo. Dep’t of Transp. 1 (Aug. 4, 2011). 773 Vaughn, supra note 754. 774 Fed. Highway Admin., supra note 755, at 1–2. 775 Id. 776 Id. 777 Id. at 3. 778 Press Release, Colo. Office of Emergency Mgmt., Gov. Hickenlooper Announces Flood Recovery Progress, Additional Counties Eligible for FEMA Assistance (Oct. 23, 2013) (on file with author).

55 the various roles in environmental compliance: lead, applicant, and cooperating. The agencies covered all 50 states, as well as the District of Co- lumbia. The survey included demographic and organizational information, as well as an oppor- tunity for respondents to describe examples of successful emergency compliance. The answers to the question, “Reasons for suc- cessful environmental compliance/permitting in emergencies,” are shown in Figure 1. Figure 1 shows that the majority of respondents selected the practices of good interagency relationships, the use of categorical exclusions, urgency due to the emergency, waivers and exceptions, and effec- tive staffing. The top two practices were far and away the most popular, being selected by over 85 percent of the respondents. These survey results were consistent with the perspectives presented during interviews. Many interviewees discussed the importance of strong interagency relation- ships and the building of trust over time.779 Many also mentioned the manner in which repair pro- jects were scoped so as to fall under NEPA CE.780 One surprising result was that the use of formal pre-existing procedures, such as programmatic agreements, was not selected by many respon- dents. This was surprising, since most interview- ees mentioned the benefits of such agreements and federal agencies and national organizations promote their use. One possible explanation is that some respondents chose the answer, “use of categorical exclusions,” even when there were programmatic agreements involved with the re- view of CE. 779 Allen, supra note 535; Weaver, supra note 444; Johnson, supra note 361; Ketcham, supra note 474. 780 Weaver, supra note 444; Telephone Interview with Kevin Moody, Ecologist, Fed. Highway Admin. (Nov. 27, 2013); Unruh, supra note 418.

56 Figure 1. Reasons for successful emergency environmental compliance. Cross tabulation is the derivation of frequency of response by respondent subcategories. Figure 2 displays the cross tabulation of the top reasons for successful environmental compliance by agency role. Since few responses were received for the cooperating agency category, only lead and applicant agency responses are shown in Figure 2. The responses between lead and applicant agencies appeared to be similar. The top two selections of good interagency relationships and the use of categorical exclusions were far and away the most popular choices. The largest difference was a 24 percent greater response from lead agencies regarding the selection of limiting project scope. Figure 2. Cross tabulation of top reasons for success.

Next: IV. Identification of Techniques and Strategies to Expedite Recovery »
Legal Aspect of Environmental Permitting in the Emergency Response Environment Get This Book
×
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest 64: Legal Aspect of Environmental Permitting in the Emergency Response Environment explores processes used by governmental entities to attain compliance with environmental laws and regulations in emergencies.

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  6. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  7. ×

    View our suggested citation for this chapter.

    « Back Next »
  8. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!