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

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57 Though the focus of this legal digest is on rea- sons for successful environmental compliance, a few interesting pieces of information were also gleaned from the survey in regards to challenges to compliance. Question 5 inquired on the greatest challenge to emergency environmental compli- ance. The most frequent responses included lack of clarity on environmental requirements (62 per- cent), delays in obtaining permits (52 percent), and lack of coordination among agencies (48 per- cent). Question 7 inquired about laws and regula- tions with which compliance during emergencies is difficult. Only the following two choices were selected by a majority of respondents: park lands (e.g., Section 4f) and wildlife (e.g., ESA). Both were selected by approximately 70 percent of re- spondents. In summary, the Web survey was intended to identify national trends, and to confirm issues that arose during the detailed interviews con- ducted for this legal digest. Due to limited re- sources, detailed interviews were not conducted for every state and agency. The survey results confirmed that the best practices conveyed during the conducted interviews or identified in the lit- erature were indeed recognized and utilized by many agencies and states throughout the nation. IV. IDENTIFICATION OF TECHNIQUES AND STRATEGIES TO EXPEDITE RECOVERY This section identifies several best practices for expediting recovery while complying with existing environmental laws and regulations. The section does not comprise a comprehensive list of all available techniques and strategies; rather, it in- cludes some of the most popular best practices. The popularity of these practices was confirmed by the national survey described in Section III.F of this digest. This list is not intended to be used as a comparative study between states, as each state is faced with different quantities and types of environmental resources, types of disasters, state environmental statutes, and public attitudes toward environmental resources. A. Pre-Disaster Planning for emergency environmental compli- ance provides many benefits. It results in the abil- ity to implement actions, policies, and processes that were developed ahead of time to influence emergency recovery, and it contributes to a unity of effort.781 Two critical pre-disaster issues that support the various techniques and strategies for 781 Homeland Security, supra note 339, at 71. expediting recovery include agency relationships and preexisting procedures. The techniques and strategies for expediting recovery are tied closely to one another. Though each technique is covered in a separate section in this report, these tech- niques often work in conjunction with one an- other. For example, the section on building agency relationships is tied to formal pre-existing proce- dures, since formal agreements do not usually materialize when good working relationships are absent. 1. Relationships with Other Agencies a. Establishment of Relationships and Trust with Other Agencies.—The establishment of rela- tionships and trust with other agencies is a criti- cal element for expediting recovery. This issue repeatedly surfaced in interviews, in written ac- counts of disaster relief, and in the results of the national survey conducted for this digest.782 When trust exists, agency staff members are more com- fortable with using timesaving informal commu- nications in lieu of formal agreements and written correspondence.783 Written agreements typically require a significant investment of time and effort to be negotiated and finalized. Positive preexist- ing relationships may help to avoid the hardline interpretations of laws and regulations that can result from a lack of trust and the fear of potential abuses of process.784 Such relationships lessen the potential for territoriality, resulting in better out- comes for the public at large. The National Re- sponse Framework (NRF) uses the term “engaged partnership” to describe one of its five key princi- ples of operation for national response.785 The NRF describes characteristics of the engaged partnership concept as having shared goals, align- ing capabilities, planning together in times of calm, and responding together effectively in times of need.786 Under the theme of agency relationships, the Federal Emergency Management Agency (FEMA) emphasizes the importance of “unity of effort through unified command.”787 This means agen- cies have a clear understanding and respect for 782 Allen, supra note 535; Weaver, supra note 444; Johnson, supra note 361; Ketcham, supra note 429; Volpe, supra note 333, at 10, 21; Schmutzler, supra note 391. 783 Volpe, supra note 396, at 10. 784 Johnson, supra note 361. 785 Homeland Security, supra note 339, at 8. 786 Id. at 9. 787 Id. at 10.

58 the roles and responsibilities of each agency.788 The elements of unified command include a single set of objectives, using a collective approach, im- proving coordination, understanding joint priori- ties and restrictions, respect for an agency’s legal authority, and optimizing joint efforts. Each of these elements require that strong relationships have already been developed. It is important to establish strong interagency relationships at both the working level and the executive level.789 The executive level sets the agency tone for interagency cooperation. Good higher-level relationships can help to resolve lower-level disputes and avoid straining relation- ships. For example, the good interpersonal rela- tionship between the directors of the New York State Department of Transportation and the Ver- mont Agency of Transportation helped to resolve staff disagreements quickly over the telephone on the Crown Point Bridge reconstruction.790 The American Association of State Highway and Transportation Officials (AASHTO) offers guidance in the form of helpful steps for building and maintaining relationships with other agen- cies at all levels.791 Although many of these steps are intuitive, they form a good checklist of practi- cal actions. One step is to avoid trust killers of commitment and promise failures and the denial of mistakes.792 A second step is to build agency qualifications and expertise, thus demonstrating an ability to take on additional tasks. One illus- tration of this step is to hire a staff that is highly qualified in particular environmental areas, and to operate a diverse staff with expertise in all relevant environmental areas. Another method is to demonstrate commitment to environmental stewardship by considering environmental as- pects equitably from the onset of any process, in- stead of at the backend.793 One example is the in- clusion of environmental compliance, monitoring, 788 Volpe, supra note 396, at 17. 789 Johnson, supra note 361. 790 N.Y. State Dep’t of Transp., supra note 667, at 10, 16. 791 Am. Ass’n of State Highway & Transp. Officials, Center for Environmental Excellence, How to Go About Building Trust, http://environment.transportation.org/ documents/programmatic_agreement_toolkit/trust.html (last visited May 27, 2013). 792 Id. 793 Telephone Interview with Mark Eberlein, Re- gional 10 Envtl. Officer, Federal Emergency Mgmt. Agency (Apr. 1, 2013). and reporting protocols within an agency.794 Since local communities are typically limited in terms of their staff expertise, it is important that state agencies assist in developing a more environmen- tally aware local culture. An agency’s use of a proactive approach demonstrates a commitment to long-term environmental stewardship. Such an approach anticipates hazards and decreases vul- nerability to disasters and cascade failures.795 Agency expertise can also be improved technologi- cally, to the betterment of all sister agencies. For example, the Florida Environmental Screening Tool allows for the quick identification of envi- ronmental resources, and has helped to improve relationships among agencies.796 A third step in building and maintaining inter- agency relationships involves careful communica- tion between agencies. One aspect of this step is the expression of appreciation, both formally and informally—for example, a written thank you let- ter to agency staff and the staff supervisor. Con- versely, this step also involves clearly explaining and resolving any problems to ensure no lingering miscommunication exists. Such miscommunica- tion can build suspicion and erode trust. Another step is for agencies to develop a better under- standing of other agencies. One way to achieve this goal is to participate in staff exchanges, or to fund or cofund agency staff positions. For exam- ple, the Minnesota Department of Transportation funds and houses a staff member who is techni- cally a Minnesota Department of Natural Re- sources employee; this staff member is frequently involved in disaster and emergency management situations, and has established a process to en- sure that DNR permits are issued in very short order.797 A final step is the creation of opportunities for agency staff to meet and develop professional re- lationships. The best way to promote this step is to create and encourage regular opportunities for agency interaction.798 Relationships often develop naturally due to specific long-term projects or general project development.799 For such projects, face-to-face meetings are encouraged in lieu of telephone and email correspondence. Site visits and field trips provide opportunities for staff to 794 Am. Ass’n of State Highway & Transp. Officials, supra note 791. 795 Moody, supra note 780. 796 Kendall & DeTizio, supra note 484, at 7. 797 Clarkowski, supra note 398. 798 Volpe, supra note 396, at 4. 799 Johnson, supra note 361.

59 spend meaningful time interacting with one an- other.800 Relationships also arise as a result of participation in regular regional or local emer- gency planning meetings such as regional emer- gency transportation coordination, homeland se- curity, wetlands mitigation, floodplains, or hazard management, as well as collaborating at the ground level in the case of disasters and on post- incident reviews.801 An informal method of rela- tionship building includes encouraging staff to participate in professional environmental organi- zations to facilitate the development of relation- ships outside of specific projects or issues.802 Ex- amples of environmental organizations include coalitions for the environment, conservation groups, and professional engineering organiza- tions. The sponsorship of environmental work- shops, seminars, and conferences can further fos- ter staff interaction.803 The larger the organization, the more effort that may be required in order to build interagency relationships, since opportunities for personal interaction could poten- tially decrease with the size of the agency.804 The Role of Management One theme that surfaced during multiple inter- views of department of transportation (DOT) staff was the importance of managerial leadership to- wards building strong interagency relation- ships.805 Management sets the tone for the man- ner in which agencies relate to one another.806 In practice, management is responsible for approving resources, including staff time, that will facilitate the development of long-term relationships and efforts, such as a programmatic agreement devel- opment. Interagency relationships suffer when members of the management do not expend re- sources to develop relationships. 800 Volpe, supra note 396, at 10. 801 Allen, supra note 535; Johnson, supra note 361; Unruh, supra note 418; Brooks, supra note 425; Mein- koth, supra note 434; Schmutzler, supra note 391. 802 Brooks, supra note 425. 803 Id. 804 Id. 805 Unruh, supra note 418; Johnson, supra note 361; Weaver, supra note 444. 806 Am. Ass’n of State Highway & Transp. Officials, Center for Environmental Excellence, Principles of De- veloping a PA, http://environment.transportation.org/ documents/programmatic_agreement_toolkit /developing.html (last visited May 27, 2013). When strong high-level relationships exist, in- teragency disagreements at the working level can be elevated and resolved at the higher levels. A good example of high-level cooperation is the bi- state Crown Point Bridge reconstruction. The di- rectors of NYSDOT and VTrans worked on a one- on-one basis, and often helped to resolve dis- agreements between their staff by speaking to each other over the telephone.807 Another example of effective high level interaction includes the cir- cle meetings that were conducted by senior agency representatives at the riverbank of the I-40 bridge.808 These senior representatives had the authority to make decisions at the project site.809 Conflict Resolution–Neutral Facilitator– Collaborative Problem Solving In some situations, the use of a facilitator can provide a fresh perspective, clarify misunder- standings, and promote collaborative problem solving. One common facilitator is the Federal Highway Administration’s (FHWA) Environ- mental Technical Service (ETS).810 Because FHWA has in-built relationships with state DOTs, it has a better starting point to address environmental issues. Some FHWA staff view their role as that of interpreter, realizing that dif- ferent agencies can speak different agency “lan- guages” when dealing with environmental is- sues.811 FHWA can act as an intermediary between federal and state agencies, or between federal agencies and contractors. For example, FHWA has, in the past, facilitated discussions between the Corps and the Pennsylvania De- partment of Transportation (PENNDOT) at a wet- lands contraction site.812 Regarding interagency disagreements over NEPA, the CEQ might take on the role of facilita- tor and mediator between agencies.813 Any federal agency may refer a disagreement over a major federal action to CEQ.814 CEQ may mediate the 807 N.Y. State Dep’t of Transp., supra note 667, at 10, 16. 808 Volpe, supra note 396, at 20. 809 Id. 810 Johnson, supra note 361; Fed. Highway Admin., Environmental Review Toolkit: Conflict Resolution, http://environment.fhwa.dot.gov/strmlng/es2conflict.asp (last visited Jan. 14, 2014). 811 Johnson, supra note 361. 812 Id. 813 42 U.S.C. § 4344(3) (2000). 814 40 C.F.R. § 1504 (2014).

60 dispute, ask the agencies to further negotiate, hold public meetings and hearings to obtain more information, or submit to the president for ac- tion.815 Another example of a dispute resolution proc- ess is that adopted by the Florida Department of Transportation’s (FDOT) Efficient Transportation Decision Making (ETDM).816 ETDM outlines a clear progression through which dispute resolu- tion is elevated.817 The lowest level of dispute resolution occurs at the Environmental Technical Advisory Team (ETAT) level.818 ETAT is com- prised of representatives from the applicable Met- ropolitan Planning Organization or Tribal Plan- ning Organization (MPO/TPO), Native American Tribes, and state and federal agencies.819 The next level is the locally responsible agency head work- ing with FDOT’s district secretary.820 A white pa- per is generated and submitted as part of the local resolution. The dispute can be further elevated to the state level, involving statewide agency heads and, ultimately, the governor.821 Federal processes may be involved when state processes are unsuc- cessful. b. Peer Networking with Counterparts from Other States.—Though each state is unique in its treasury of environmental resources, public atti- tudes, state laws, and typical emergencies, net- working with peers from other states can some- times reveal ideas and practices that could be implemented locally. A primary motivation be- hind the publication and dissemination of the cur- rent legal digest is to encourage the adoption of best practices used by other agencies. For exam- ple, the Oregon DOT consulted with colleagues from Texas for advice surrounding the 2002 I-40 bridge reconstruction and debris removal.822 Likewise, MnDOT sought out their Oregon DOT colleagues for recommendations concerning the I- 815 U.S. Dep’t of Transp., U.S. Army Corps of Engs., U.S. Dep’t of Interior, U.S. Env. Protection Agency, U.S. Dep’t of Commerce, Advisory Council for Historic Pres., and U.S. Dep’t of Agric., Environmental Streamlining National Memorandum of Understanding (July, 1999) [hereinafter National MOU]. 816 Fla. Dep’t of Transp, Efficient Transportation Decision Making Overview 8 (2006). 817 Id. at 8-9. 818 Id. at 8-9. 819 Id. at 1-1. 820 Id. at 8-9. 821 Id. at 8-9. 822 Volpe, supra note 396, at 11. 35W bridge.823 In terms of contracting experience, the Mississippi DOT reached out to the Florida DOT for assistance administrating design-build contracts for reconstructing the US-90 Biloxi Bay and Bay St. Louis bridges.824 MoDOT often net- works with the neighboring states of Iowa and Nebraska, since those states face similar envi- ronmental issues.825 2. Staffing a. Shared Staff.—The funding of environmental resource agency positions is one method of im- proving interagency coordination. A “shared staff member” helps to bridge gaps between agencies by being embedded in another agency and thereby experiencing another agency’s culture, priorities, and challenges. Concurrently, the staff member also helps the adopted agency to consider changes that could lead to a closer working relationship. The practice of funding a shared staff member is currently employed in several states. For ex- ample, MnDOT funds a DNR employee who re- sides in the MnDOT office and works exclusively on MnDOT projects.826 North Dakota DOT funds one position at the Corps, and half of a position at Fish & Wildlife.827 Oklahoma DOT funds a Corps manager to oversee ODOT regulatory permit ap- plications for transportation projects.828 Arizona, North Carolina, and Ohio also maintain similar environmental agencies positions funded by their DOTs.829 b. Environmental Team Composition: Continu- ity and Consistency.—The development of strong interagency relationships is closely tied to the strength and continuity of agency staffing. An agency with frequent turnover at various levels of its environmental staffing faces a much greater challenge in building and maintaining inter- agency relationships. In addition, the lack of a critical mass in staffing results in a loss of institu- tional knowledge and the unnecessary reduplica- tion of previous efforts. The importance of staffing 823 Id. 824 Id. at 19. 825 Unruh, supra note 418. 826 Clarkowski, supra note 398. 827 Schrader, supra note 455, at 11. 828 Press Release, Nate Herring, Corps, Oklahoma Dep’t of Transp. Sign Agreement (Oct. 19, 2012) (on file with author). 829 Am. Assoc. of Highway and Transp. Officials, Primer on Contracting for the Twenty-First Century 17 (2006).

61 continuity surfaced in multiple interviews.830 FHWA staff experience indicated that states with strong environmental staff perform much better during emergencies.831 The interviews with state- level professionals reflected a similar sentiment. State agencies also perform more efficiently dur- ing emergencies when sister agencies possess con- tinuity in staffing.832 FEMA identified a main challenge to effective response as the high turnover of government offi- cials who are responsible for emergency re- sponse.833 Such turnover may occur at all levels of government, from elected or appointed officials, to career administrators, to staff members who per- form ground-level work during times of emer- gency response. As suggested by FHWA staff members and the NRF, it is essential for agencies to maintain a critical core in order to also main- tain continuity in their response capability.834 One Corps staff indicated that it takes between 5 to 10 years for a person to develop good relationships with other agencies, thus frequent turnovers dis- rupt the relationships building process.835 Employee turnover is one area of industrial and organizational psychology that has received much scholarly attention.836 Despite being an older reference, Cotton and Tuttle published a useful article on the subject of staff turnover us- ing a meta-analytical review of over 120 stud- ies.837 Meta-analysis is a statistical method for quantifying research results across multiple inde- pendent studies.838 Some of the statistically sig- nificant correlates of employment turnover that are relevant to this legal digest included external factors such as the perception of job alternatives, and work-related factors such as pay, job satisfac- 830 Weaver, supra note 444; Johnson, supra note 361; Allen, supra note 535; Unruh, supra note 352; Brooks, supra note 425; Meinkoth, supra note 434; Brown, supra note 441. 831 Johnson, supra note 361. 832 Weaver, supra note 444; Allen, supra note 535; Unruh, supra note 418. 833 Homeland Security, supra note 339, at 2. 834 Homeland Security, supra note 339, at 22; John- son, supra note 361; Moody, supra note 780. 835 Brown, supra note 441. 836 J. Cotton & J. Tuttle, Employee Turnover: A Meta- Analysis and Review with Implications for Research, ACAD. OF MGMT. REVIEW, Vol. 11, No. 1, 55, 55 (1986). 837 Id. 838 M. Egger et al., Meta-Analysis: Principles and Procedures, BRITISH MEDICAL J. Vol. 315, No. 7121, 1533, 1533 (1997). tion, satisfaction with turnover, organizational commitment, and role clarity.839 The common saying that “employees leave supervisors, not companies” illustrates the impor- tance of management and leadership in transpor- tation agencies.840 Several interviewees expressed the notion that strong environmental leadership helps to retain employees, while the opposite re- sults in high employee turnover.841 Another organ- izational issue is role clarity among agency envi- ronmental staff. For example, in Oregon, environmental stewardship is advocated through- out the Oregon DOT’s structure; thus, there exists unity in goal and purpose between the environ- mental compliance staff and the rest of the agency.842 Some correlates of turnover are difficult to in- fluence, or may be completely out of an agency’s control; one of these relates to the growth rate of the region and the availability of job alternatives. Some interviewees have commented that states with larger metropolitan regions or areas of rapid growth have witnessed greater turnover within their environmental staff.843 In larger communi- ties, agencies could perhaps offer incentives for staff retention, since the process of retraining and the loss of institutional knowledge and inter- agency relationships resulting from staff turnover could be costly to an agency. 3. Formal Pre-Existing Procedures Established with Other Agencies a. Memorandum of Agreement (MOA) and Pro- grammatic Agreements.— Preliminary Matters and Definitions It is important to differentiate between two types of memoranda employed in interagency co- ordination. A primary difference involves whether a memorandum is merely a memorialization of discussions or is intended to be a binding agree- ment.844 A memorandum of understanding (MOU) 839 Cotton & Tuttle, supra note 836, at 60. 840 D. ALLEN & P. BRYANT, MANAGING EMPLOYEE TURNOVER: DISPELLING MYTHS AND FOSTERING EVIDENCE-BASED RETENTION STRATEGIES 89 (Business Expert Press 2012). 841 Weaver, supra note 444; Unruh, supra note 418. 842 Weaver, supra note 444. 843 Id.; Unruh, supra note 418; Meinkoth, supra note 434. 844 Bridgeview Development Corp. v. Hooda Realty Inc., 145 A.D. 2d 457, 457 (1988).

62 simply defines a general area of understanding and states common goals, while a memorandum of agreement (MOA) is legally binding, and could commit an agency to a transfer of funds.845 Thus, the emphasis of this legal digest is on the more formal MOA, but a MOU can also be useful in ex- pediting the environmental compliance process. MOAs are utilized when the effects of an un- dertaking are known, while programmatic agree- ments (PAs) are utilized when the effects are not fully known.846 The Transportation Equity Act for the 21st Century transportation reauthorization bill included an environmental streamlining sec- tion, Section 1309.847 Section 1309 encourages an early, coordinated review process which can be documented via a memorandum of understanding among the affected agencies. A national memo- randum of understanding was approved by seven agencies in July, 1999.848 These agencies included the USDOT, the Corps, the U.S. Department of the Interior, EPA, the U.S. Department of Com- merce, the American Council on Historic Preser- vation, and the U.S. Department of Agriculture. This memorandum encourages the use of pro- grammatic agreements and memoranda of under- standing for the reduction of project delays. Every Day Counts is an FHWA initiative launched in 2010 that seeks to shorten project delivery timelines through the use of innovative processes and technology.849 One of these innova- tive processes is to expand the use of PA. The FHWA desires to facilitate the use of PA among states, locally, at the industry level, and among the general public. In states that are unfamiliar with PAs, FHWA is even willing to take the lead in PA development.850 The FHWA Shortening Pro- 845 U.S. Army Corps of Engineers, Natural Resources Management Gateway, Memoranda of Understand- ing/Agreement, available at http://corpslakes.usace. army.mil/partners/moumoa.cfm (last visited May 26, 2013). 846 Am. Ass’n of State Highway & Transp. Officials, Center for Environmental Excellence, What is a Pro- grammatic Agreement?, http://environment. transportation.org/documents/programmatic_ agreement_toolkit/WhatIsPA.html (last visited May 26, 2013). 847 TEA-21, Pub. L. No. 105-178 (1998). 848 National MOU, supra note 813. 849 Fed. Highway Admin., Every Day Counts, About Every Day Counts, available at http://www.fhwa.dot.gov /everydaycounts/about/ (last visited May 30, 2013). 850 Fed. Highway Admin., Every Day Counts, Ex- panding Use of Programmatic Agreements, available at ject Delivery Toolkit includes a specific section on expanding the use of PA.851 A PA can be used in many environmental areas, and encompass differ- ent types of projects, such as the temporary stag- ing of debris in parks or the delegation of CE review.852 AASHTO is a nonprofit organization that represents the DOTs of the United States.853 Membership is composed of the heads of state DOTs.854 AASHTO’s efforts include educating the public and legislators, coordinating between DOTs and the Federal Government, setting na- tional transportation standards, and providing technical assistance to state DOTs.855 In providing technical assistance in the environmental arena, AASHTO has established the Center for Envi- ronmental Excellence. The goals of this center are to champion environmental stewardship and promote innovative methods for streamlining the environmental process in transportation.856 One resource produced by this center is the Program- matic Agreement Toolkit.857 This Toolkit describes the principles behind PAs, the steps for develop- ing agreements, drafting guidance, and a library of actual agreements. The Toolkit’s developer, the Statistical Research Incorporated (SRI) Founda- tion, is a historical preservation foundation; thus, http://www.fhwa.dot.gov/everydaycounts/projects/toolkit /programatic.cfm (last updated May 22, 2012). 851 Id. 852 Kendall & DeTizio, supra note 484, at 7. 853 Am. Assoc. of State Highway and Transp. Offi- cials, AASHTO>Organization, AASHTO Overview, available at http://www.transportation.org/Pages/ Organization.aspx (last visited May 26, 2013). 854 Am. Assoc. of State Highway and Transp. Offi- cials, AASHTO>States, AASHTO Members, available at http://www.transportation.org/Pages/States.aspx (last visited May 26, 2013). 855 Am. Assoc. of State Highway and Transp. Offi- cials, supra note 853. 856 Am. Assoc. of State Highway and Transp. Offi- cials, Center for Environmental Excellence, About the Center, http://environment.transportation.org/center/ about/ (last visited May 26, 2013). 857 Am. Assoc. of State Highway and Transp. Offi- cials, Center for Environmental Excellence, Program- matic Agreement Toolkit–A How to Guide, http://environment.transportation.org/center/products_ programs/programmatic_agreement.aspx/ (last visited May 26, 2013).

63 the Toolkit focuses on historic preservation exam- ples.858 The Toolkit discusses two categories of PA: 1) project-specific, and 2) procedural. The project- specific PA outlines parties’ actions and responsi- bilities for meeting environmental compliance for a specific project. The procedural PA is more gen- eral, and concerns a whole class of projects or re- sources.859 Thus, procedural PAs are useful when commonality exists between various resources, effects, or projects. The project-specific PA is typi- cally utilized only for large, complex, or controver- sial projects where a custom approach is required. Benefits of PA The USDOT explains that the major benefit of PA is that repetitive actions involved with envi- ronmental consultation, review, and compliance are handled on a program basis, instead of a case- by-case basis.860 The use of PA could produce many potential specific results. One potential re- sult is the delegation of duties in the compliance process. Thus, environmental review could be delegated from a federal or state agency to a state DOT, such as from FHWA to a state DOT, or from a state DNR to a state DOT. For example, the state DOT could take on the review of CE or wet- land permits. Thus, a state agency could coordi- nate directly with federal and other environ- mental agencies, eliminating the role of a federal agency such as FHWA. Despite the advantages of delegation, the reader is also alerted to its poten- tial consequences. The delegated party now has to perform the coordination role previously under- taken by an agency like FHWA; thus the party must possess the resources and relationships to ensure successful coordination. And because the state agency now steps into a federal agency’s shoes, there is the potential for an increase in ex- posure to litigation. Through MAP-21 legislation, an existing pilot delegation program was broad- ened to allow any state to assume FHWA’s role in the NEPA process.861 858 Statistical Research Inc. Found., SRIF History, http://www.srifoundation.org/history.html (last visited May 26, 2013). 859 Am. Assoc. of State Highway and Transp. Offi- cials, supra note 857. 860 Fed. Highway Admin., Expanding the Use of Pro- grammatic Agreements, Every Day Counts Initiative, http://www.fhwa.dot.gov/everydaycounts/projects/toolkit /programatic.cfm (last visited May 26, 2013). 861 23 U.S.C. § 327 (2013). Another benefit of PA is the acceptance of al- ternate standards of performance. As a result, programmatic biological assessments or opinions might be used in place of a separate Section 7 con- sultation for future projects. The shortening of timeframes allows agencies to proceed in a timely fashion and without the fear of a forced startover. Reasons timeframes may be reduced include en- hanced clarity and focus pertaining to roles and responsibilities, the standardization of procedures for coordination and compliance, and improved relationships among agencies.862 PA could also enable the participation of parties not involved in the normal process. Finally, PAs, when effective, could help to strengthen relationships with other agencies by improving work flow and staff morale.863 PA Development Existing literature presents several keys for developing PA. These keys are listed herein by rough order of importance. The first and most im- portant key is to develop relationships of trust and cooperation between all parties.864 Since PAs are developed before emergency situations arise, the nurturing of relationships occurs in absence of the urgency usually present during emergencies. One useful approach is to identify common ground so that all parties may benefit. The strategies de- tailed in Section IV.A.1, Relationship with Other Agencies, of the current document also apply here.865 A second key to developing PA is to focus on the true intent and purpose of environmental laws, rather than the process. Thus the focus transfers to the stewardship of valuable environ- mental resources. A third key that is especially applicable in less-established relationships is to “start small.” One technique is to find the sim- plest PA that is likely to be successful and to fol- low through to ensure its success. Another tech- nique is to limit the PA to a relatively short term, in order to limit risk and establish renewal crite- ria. Providing for monitoring opportunities and scheduling regular evaluation meetings are other useful techniques for limiting risk. A modest start can nevertheless pave the way for the future ex- pansion of the PA’s scope. A fourth key is to man- 862 Fed. Highway Admin., supra note 860. 863 Id. 864 Am. Ass’n of State Highway & Transp. Officials, supra note 791. 865 Am. Ass’n of State Highway & Transp. Officials, supra note 791.

64 age personalities. If major personality conflicts exist, then methods through which the effects of such conflict could be limited should be identified. For example, one strategy is to limit the necessary interactions between the concerned parties. A fifth key is to use a neutral party to aid in facili- tating PA development.866 Such a neutral party should not have a stake in the issues affecting the relevant parties. Ideally, the neutral party should be skilled in the areas of negotiation and media- tion. All parties should agree on the choice of the neutral party. A sixth key is to make the PA sev- erable, so that the failure of one aspect of the PA does not bring the whole agreement down. The final key is to involve the public in creating pro- ject-specific PAs; this key is generally not re- quired of procedural PAs, since there is no such legal requirement; the impact is on interagency resources. PA Examples The development of PA may involve significant staff resources and an extended timeframe. Even after a PA has been executed, there exists the need to renew the agreement and to educate any new personnel on its use.867 The following exam- ples illustrate the effort required for PA develop- ment. In Vermont, the creation of a Section 106 PA required one dedicated staff member each from both the Vermont Transportation Agency and the Vermont SHPO. From development to execution, the PA process lasted approximately 4 years.868 In Michigan, Michigan DOT staff mem- bers worked 10 hours per week for approximately 1 year to develop a PA on water resources.869 In Colorado, a Section 7 PA required two full-time Colorado DOT staff, private consultants, and a legal consultant. In Maryland, a Section 106 PA took 1.5 years to execute, but might have been accelerated had specific deadlines been set.870 PAs have been used successfully across all en- vironmental areas. These include Section 4(f) evaluation, Section 106 review, NEPA categorical exclusion documentation and approval, coastal zone management, culvert replacement, tribal consultation, historic properties, endangered spe- 866 Am. Ass’n of State Highway & Transp. Officials, supra note 791. 867 Moody, supra note 780. 868 Am. Ass’n of State Highway & Transp. Officials, supra note 806. 869 Id. 870 Id. cies, and wetlands.871 There are fewer examples of PAs that were developed specifically for use in emergencies. The following emergency PA is illustrative of elements of PA drafting. A PA entitled, “Programmatic Agreement among the Federal Emergency Management Agency, Vermont State Historic Preservation Officer (SHPO), Vermont Emergency Management Division of the Depart- ment of Public Safety (VEM), and the Advisory Council,” was finalized in 2011.872 Though the area pertaining to the PA is not presented explic- itly in the title, it is clear from the names of the parties that the PA focuses on Section 106 of NHPA. Recitals or background information are intro- duced with the word, “whereas.” The first para- graph presents the mission of FEMA.873 Para- graph two lists FEMA’s statutory authority in administering federal assistance in Vermont, in- cluding the Homeland Security Act, the Stafford Act, and various flood legislations.874 The third paragraph discusses the scope of the PA, which relates to undertakings and the resulting impacts on historic properties.875 Paragraph four outlines the process of federal FEMA assistance through the Vermont Emergency Management Division of the Department of Public Safety.876 The fifth and sixth paragraphs discuss the Stockbridge-Munsee Tribe.877 The tribe could potentially have been af- fected by the PA, but chose not to sign the PA. Paragraph seven describes the PA development process with the Advisory Council on Historic Preservation. The eighth and ninth paragraphs present statutory and Advisory Council regula- tory authority for the use of the PA and the re- sulting elimination of SHPO and Advisory Council review of certain routine activities.878 The section concludes with the statement that FEMA would fund subgrantees only following a review consis- tent with the PA. In summary, the recitals com- municated the general purpose of the lead agency, the statutory authority for the lead agency and the use of a PA, the specific focus of the PA on his- toric properties, and the relationship between the 871 Fed. Highway Admin., supra note 860. 872 Vt. Section 106 PA, supra note 386, at 1. 873 Id. 874 Id. 875 Id. 876 Id. 877 Id. at 1-2. 878 Vt. Section 106 PA, supra note 386, at 2-4.

65 parties and any third parties that could be af- fected by the PA. A list of stipulations follows. Stipulations in this context refer to any items in the PA that forms a material article of the PA. The first sec- tion of stipulations defines the PA’s scope of appli- cability; this includes the valid time interval, the specific resource affected (i.e., National Register of Historical Places eligible properties), the appli- cable action (i.e., FEMA direct or assigned under- takings), any exemptions such as salvage and per- sonal property, the relationship to related processes, and other miscellaneous articles. The second section includes the roles and responsibili- ties of each of the signatory parties. Examples of responsibilities include staffing qualifications, reporting requirements, delegation authority, agency responsiveness, notice obligations, and coordination needs. Examples of roles include lead, consultee, delegator, grantee, sub-grantee liaison, and mediator. The final section lists im- portant timelines for emergencies, recovery activi- ties, and all programs. Upon the expiration of a specific timeframe, a concurrence from the con- sulting agency is assumed. The remainder of the PA divides actions into four major subsections. They include initial coor- dination, project review, public participation, and other considerations. The initial coordination sub- section outlines the set of actions immediately following the declaration of a disaster, such as required notifications and joint actions. Joint ac- tions include a listing of areas containing uniden- tified historic properties, the identification of NRHP non-integrity properties, and direction for local communities on staging and landfill sites. The project review subsection presents expedited emergency review processes, programmatic re- view allowances, and standard project review pro- cedures. The next subsection emphasizes the value of public participation and the need for identifying interested parties relative to affected resources. Other miscellaneous considerations include changes in the scope of work and unex- pected discoveries. The PA concludes with the execution of the agreement by all relevant agency heads. The appendices include background mate- rial and the important list of specific program- matic allowances not requiring SHPO and Advi- sory Council review. The length and detail of this PA illustrates the significant effort required for developing such a PA. The PA entitled, The Emergency Relief Pro- grammatic Agreement between the US Army Corps of Engineers, US Fish and Wildlife Service, Fed- eral Highway Administration, and North Dakota Department of Transportation, streamlined the NEPA process by defining the requirements for different types of emergency repairs. The recitals explained the jurisdictions and environmental responsibilities of the parties. The title and recit- als clearly focused the scope of this PA on federal ER. An important stipulation stated that prior FHWA approval was not required for emergency repairs and preliminary engineering.879 The envi- ronmental classification of emergency work was separated into three categories of CE. Category One involved little or no environmental impacts, and was limited to restoration to pre-existing con- ditions.880 Such projects do not require any addi- tional data submittal to FHWA, except for a de- tailed damage inspection report.881 Repair examples include temporary traffic control, em- bankments and fill, temporary structures or by- passes, and debris or slide removal.882 Category Two applies to projects where impacts are minor and require no further NEPA review.883 Such pro- jects include slight additions to pre-existing condi- tions such as adding riprap, minor upgrades in pipe size, and projects that require ESA or Section 106 review. Category Three requires documented NEPA evaluation, and could involve major altera- tions or betterments.884 A project must follow the Corps nationwide permit 3 guidelines.885 This pro- grammatic agreement streamlined the processes for ER projects that fall under NEPA CE, and clarified ER eligibility requirements.886 b. Use of General Permits.—The development of regional general permits is one way of facilitating emergency recovery for common types of regional disasters. For example, the Corps is divided into various divisions and districts, and the local divi- sion and district is authorized to issue regional permits.887 For the five Corps districts of Kansas City, St. Louis, Rock Island, Little Rock, and Memphis, the General Permit No. 41 allows the permanent protection and/or repair of flood dam- aged structures, land areas, and fills.888 These dis- 879 23 C.F.R. 668.109(a)(1) (2013). 880 N.D. ER PA, supra note 453, at 5. 881 Id. 882 Id. 883 Id. at 6. 884 Id. at 7. 885 Id. at 7-8. 886 N.D. ER PA, supra note 453, at 1-8. 887 33 C.F.R. Part 320–330 (2014). 888 Brooks, supra note 425.

66 tricts are affected by the flooding from the Missis- sippi River and tributaries. Another example is the Louisiana DNR General Permit No. 29 that authorizes emergency repairs and cleanup activi- ties such as emergency dredging or filling, or re- furbishment of roads.889 General Permit No. 29 was applicable to 19 coastal parishes in Louisi- ana.890 4. Up-to-Date Inventories, Information, and Tools Two general types of information that assist agencies in emergency environmental compliance are procedural and environmental resource data. Procedural information is valuable to agency staff members who are not well-versed in emergency recovery. In addition to the information itself, there is a need for information to be easily acces- sible. Convenient ways for procedural information to be made available include websites and pre- event email reminders. Such electronic informa- tion could always be duplicated in hardcopy form in case there are severe disruptions to telecom- munications following a disaster. Because agency staff gain valuable experience through lessons learned from previous disasters, such knowledge could be incorporated into emergency manuals and other guidance documents. For example, FDOT maintains a webpage dedicated to the les- sons learned from previous hurricane events;891 this webpage provides areas of listed species, guidance on debris staging, contracting recom- mendations, and important contacts.892 Some of the webpage information is also sent to state and local emergency partners prior to hurricane events. FHWA Florida Division’s supplemental guidance to the Federal ER Manual is another useful example of a web resource.893 Environmental resource data that is up-to-date and readily available helps to expedite the envi- ronmental review process. Time is saved when an applicant agency identifies relevant environ- mental resources for the review agency.894 The I- 40 bridge reconstruction is one example of the use of up-to-date data. The Oklahoma DOT, SHPO, and state archaeologist had maintained current inventories of natural, cultural, and historic re- 889 La. Dep’t of Natural Res., Coastal Use General Permit No. 29 (CUP-GP-29) Consistency Determination 1-2 (May 12, 2006). 890 Id. 891 N.D. ER PA, supra note 453, at 7. 892 Id. at 6. 893 Id. at 6. 894 Eberlein, supra note 793. sources for the I-40 bridge site.895 Thus, resource agencies had access to existing data to enable quick decisions concerning permits and approv- als.896 Since the use of electronic media such as web- pages is common, the current digest emphasizes more advanced informational tools, such as GIS and other related tools. A GIS is a relational da- tabase that links maps with tabular informa- tion.897 Software tools such as GIS-based data- bases and predictive statistical models facilitate the process of locating potential environmental resources. The maintenance of up-to-date invento- ries of environmental resources results in an ac- curate assessment of potential environmental im- pacts.898 This accurate upfront assessment prevents surprises and costly delays throughout the project development stages. These inventories also accelerate the review process, since they minimize the need to undertake time-consuming field surveys, and provide agencies with the in- formation necessary to issue rulings.899 a. MnDOT GIS-Based Statewide Archaeological Predictive Model.—The Minnesota Statewide Ar- chaeological Predictive Model (Mn/Model) is a GIS-based tool that facilitates the identification of potential archaeological and historical sites.900 Mn/Model began in 1995 as part of the environ- mental streamlining associated with ISTEA.901 Mn/Model is part data management and part pre- dictive model for pre-construction archaeology.902 The data is updated periodically by the SHPO, and there is ongoing work to develop a statewide web submittal portal for more frequent and effi- cient updating of archaeological and standing structures.903 The predictive portion refers to the process whereby environmental variables such as elevation, geomorphology, and hydrography are used to predict possible archaeological site loca- 895 Volpe, supra note 396, at 21. 896 Id. 897 Minn. Dep’t of Transp., Minnesota Statewide Ar- chaeological Predictive Model: Geographic Information System, http://www.dot.state.mn.us/mnmodel/gis.html (last visited Jan. 20, 2014). 898 Volpe, supra note 396, at 4. 899 Id. at 11. 900 Minn. Dep’t of Transp., Minnesota Statewide Ar- chaeological Predictive Model: Geographic Information System, http://www.dot.state.mn.us/mnmodel/gis.html (last visited Jan. 20, 2014). 901 Id. 902 Zschomler, supra note 397. 903 Id.

67 tions.904 For example, variables such as “distance to water” and “height above surroundings” are predictive variables, since archaeological research has shown that hunter-gatherers concentrated their activities near bodies of water and on land- forms such as river terraces and beach ridges.905 Two different statistical models are used: one for surface sites and another for deeply buried ar- chaeological sites.906 The potential benefits of the Mn/Model include accessibility, efficiency, accu- racy, and ease of use.907 Mn/Model is highly acces- sible, since each cultural resources project man- ager has access to the GIS system. MnDOT is also sharing the use of Mn/Model with qualified fed- eral and state agencies.908 The substantial time savings accrued from the use of Mn/Model for locating historical properties increases staff efficiency. Accuracy in locating his- torical/archaeological sites is important in order to reduce the risk of missing sites, with resulting complications that could slow or derail recovery efforts. The graphical nature of a GIS entails that a project site map could contain all associated his- torical/archaeological data. The aforementioned benefits are especially useful during emergency recovery. An example of how such a database ex- pedites permitting was discussed in the I-35W bridge case in Part III.E of the current digest.909 b. Florida’s GIS-Based, Internet-Accessible En- vironmental Screening Tool.—FDOT’s Efficient Transportation Decision Making (ETDM) devel- oped a GIS-based tool called the Environmental Screening Tool (EST).910 The genesis of EST was a multiagency summit in 2000, where participants identified good decision making data as a key fea- ture in revamping the transportation planning process in Florida.911 The EST tool was further 904 Minn. Dep’t of Transp., supra note 900. 905 Id. 906 Minn. Dep’t of Transp., Minnesota Statewide Ar- chaeological Predictive Model: Geomorphology, http://www.dot.state.mn.us/mnmodel/geomorphology (last visited Jan. 20, 2014). 907 Zschomler, supra note 397. 908 Minn. Dep’t of Transp., Minnesota Statewide Ar- chaeological Predictive Model: Implementation, http://www.dot.state.mn.us/mnmodel/implementation (last visited Jan. 20, 2014). 909 Volpe, supra note 396, at 16. 910 Fla. Dep’t of Transp., supra note 458, at 1-1, 1-2. 911 Id. at 2-3. supported by streamlining provisions in TEA-21912 and MAP-21.913 EST is an internet-accessible GIS system that integrates different types of environmental resources and project data and quickly identifies natural and human impacts of proposed pro- jects.914 Project data include characteristics such as mode, length, cost, termini, functional classifi- cation, traffic, and urbanization.915 Community data covers community history, values, demo- graphics, infrastructure, and socioeconomic status.916 In terms of environmental resources, EST includes data layers such as aesthetic effects, air quality, coastal and marine, contamination, farmlands, floodplains, historical/archaeological sites, noise, and recreation areas.917 The GIS- based tool enables the automatic identification of potential environmental resources within a fixed distance of between 100 ft to 1 mi.918 In order to maintain data accuracy, several en- tities are charged with the responsibility of keep- ing various data components up-to-date via Agency Operating Agreements.919 For example, the FDOT ETDM coordinator tracks transporta- tion project data, the MPO coordinator tracks long range transportation plan projects, the FDOT community liaison tracks community data, and an Environmental Technical Advisory Team tracks agency resource data.920 EST is available for im- mediate online access to staff who are working on projects and permits from all applicable agen- cies.921 For example, FDOT used EST to identify debris staging areas that would avoid affecting sensitive environmental resources.922 912 TEA-21, Pub. L. No. 105-178 (1998). 913 MAP-21, Pub. L. No. 112-141 (2012). 914 Fla. Dep’t of Transp., Efficient Transportation De- cision Making Overview 7 (2006). 915 Fla. Dep’t of Transp., supra note 458, at 6-3, 6-4. 916 Id. at 6-4. 917 Fla. Dep’t of Transp., Efficient Transportation De- cision Making: Web Application Frequently Asked Ques- tions, available at https://etdmpub.fla-etat.org/est/ (last visited July 30, 2013). 918 Fla. Dep’t of Transp., supra note 458, at 6-1. 919 Id. at 6-8. 920 Id. at 6-3. 921 Kendall & DeTizio, supra note 484, at 6-7. 922 Id. at 7.

68 B. Post-Disaster 1. Informal Agreement The use of informal agreements and procedures is related to the pre-disaster techniques of estab- lishing strong interagency relationships and de- veloping formal agreements. Good relationships and trust are required for informal agreements, since such agreements are not memorialized. Formal agreements provide a template to guide informal, ad hoc agreements. An example of an informal agreement was discussed in Section III.E.8 entitled, Hurricane Irene and Vermont’s Historical Bridges. FEMA and VTrans used an existing programmatic agreement on historic bridges as a model for an informal agreement for Irene recovery.923 This informal agreement was developed on-the-fly via in-person, telephone, and email correspondence.924 Under this agreement, FEMA utilized VTrans’s front-end work on de- termination of effects to accelerate compliance with Section 106.925 2. Project Planning and Development a. Limiting Project Scope to Prior Right-of-Way, Alignment, and Capacity.—Limiting the scope of projects to the existing right-of-way, alignment, and capacity results in several benefits.926 One benefit is the avoidance of new environmental im- pacts and related conflicts.927 Another benefit is the improvement of eligibility for emergency fund- ing for all components of the project. A third bene- fit is a quick ESA Section 7 consultation with the Fish & Wildlife, since the impact on threatened or endangered species would remain similar.928 How- ever, there is still the concern that reconstruction activities could impact wildlife. A fourth benefit concerns the streamlining of the NEPA process. First, there is usually no need to consider alterna- tives, as the previous alignment is maintained.929 Second, a limited scope increases the likelihood that a project could be classified as a CE.930 Many of the case studies discussed in Part III, Section E, of the current digest utilized this technique. Examples include the I-35W bridge, Hurricane 923 Thomas et al., supra note 381, at 6. 924 Kachadoorian, supra note 381. 925 Thomas et al., supra note 381, at 6-7. 926 Volpe, supra note 396, at 4. 927 Id. 928 Id. at 9. 929 Id. at 7. 930 42 U.S.C. § 5172 (2007). Ivan/I-10, and the Arkansas Towboat Accident repairs. b. Contracting Mechanisms.—Federal funding eligibility is contingent upon the satisfaction of competitive bidding requirements.931 Some con- tracting methods such as D-B, design-sequencing, abbreviated plans, shortened advertising, cost- plus-time bidding, and early contractor involve- ment could help to improve the environmental compliance process and/or to accelerate projects for emergency recovery.932 For example, the D-B method of project delivery shortens the traditional design-bid-build process by combining the sepa- rate sequential steps of design, bid, and construc- tion.933 The unification of these steps entails that environmental issues are handled consistently throughout the design and construction stages. This unification also allows for more creativity in devising mitigation strategies, since both design and construction are in play during the planning and permitting phases.934 For D-B to be effective, the contractor must possess expertise in environ- mental compliance. Since applicant agencies have sometimes developed strong relationships with coordinating and cooperating agencies, it could be of benefit to leverage these relationships, rather than relying solely on contractors.935 One example of the use of D-B is the recon- struction of I-10 following Hurricane Ivan. FDOT utilized D-B to concurrently design, obtain per- mits, and develop environmental mitigation.936 Another example is the reconstruction of the I-35W bridge in Minnesota following its col- lapse.937 FHWA’s rules on D-B allow DOTs to use D-B as an optional alternative to traditional con- tracting for qualifying projects, including the award of D-B contracts prior to the completion of NEPA.938 Because statutory authority for D-B var- ies significantly across states, the reader is cau- 931 ROBERT S. KIRK, CONG. RESEARCH SERV., EMERGENCY RELIEF OF DISASTER DAMAGED ROADS AND TRANSIT SYSTEMS 5 (Jan. 28, 2014). 932 Am. Assoc. of Highway and Transp. Officials, su- pra note 829, at 15, 17; Kirk, supra note 948, at 5. 933 Fed. Highway Admin., Design-Build Effectiveness Study: Final Report i, xi, II-9 (2006). 934 Id. at II-9. 935 Unruh, supra note 418. 936 Volpe, supra note 396, at 10. 937 Id. at 17. 938 23 C.F.R. § § 627, 635, 636, 637, 710 (2007).

69 tioned to examine state statutes for limits on au- thority.939 c. Exemptions, Waivers, and Emergency Proce- dures.—Environmental laws are mostly statutory in nature, meaning Congress enacts specific stat- utes to address various aspects of environmental protection and conservation. Since Congress itself makes a determination of values in enacting legis- lation, the concept of legal necessity does not ap- ply, even for emergencies.940 Thus, agencies must rely on emergency provisions from laws and regu- lations, rather than the common law doctrine of necessity. Various federal statutes have limited emergency provisions that waive certain envi- ronmental compliance duties and exempt certain categories of actions. Since the CEQ issues guid- ance for implementing NEPA, the majority of fed- eral agencies’ emergency NEPA procedures follow CEQ guidance.941 However, individual statutes could also contain specific emergency provisions. There could also be state provisions for waivers of state law. In Missouri for example, the Gover- nor has certain statutory emergency powers.942 These powers include the power to waive statu- tory requirements or administrative rules regard- ing areas such as professional licensing, depart- ment of health business, and finance and banking, but the waiving of state environmental laws and regulations is not mentioned explicitly in Missouri Revised Statutes § 44.100.1.943 Instead, the Gov- ernor may order the suspension of any functions or duties of administrative agencies in emergen- cies under § 44.110. The potential exists that emergency provisions between state and federal statutes could conflict.944 Furthermore, the envi- ronmental requirements from federal laws and regulations are not perfectly aligned, some being very limited in scope.945 939 N. Smith, 50-State Survey of Transportation Agency Design-Build Authority, Nossaman, LLP (April 4, 2011). 940 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). 941 Jomar Maldonado, Navigating the Emergency Provisions of Federal Environmental Planning Re- quirements, ENVTL. PRAC. Vol. 12, Iss. 3 1, 3 (2010). 942 MO. REV. STAT. § 44.100.1 (2008). 943 Id. 944 Telephone Interview with Jomar Maldonado, Sen- ior Attorney Advisor, Fed. Highway Admin. (Feb. 19, 2013). 945 Maldonado, supra note 941, at 1. In response to Hurricane Dennis, the Florida Fish and Wildlife Conservation Commission is- sued an exception letter to expedite certain recov- ery activities.946 This letter was issued in response to an emergency order issued by the Florida De- partment of Environmental Protection.947 The let- ter authorized recovery activities near sea turtle nesting beaches that would normally be forbidden during the nesting season.948 To comply with the letter, an agency is required to follow best management practices such as the surveying and marking of nests, and the avoidance of such nests during activities.949 In addition to exemptions and waivers, emer- gency procedures could be employed that result in alternate procedures. The Corps, for example, ex- pedited permit issuance after Hurricane Rita by allowing alternate permitting procedures such as general permits and letters of permission.950 The alternate procedures involved the immediate tele- phone contact with the Corps Galveston District or EPA, whoever had the jurisdiction, and follow- up documentation.951 This documentation in- cluded the location and description of work, cause of the emergency, urgency of work, schedule, and summary of resource agency coordination.952 Simi- larly, the Corps also allowed emergency permit procedures after Hurricane Katrina.953 The proce- dures were coordinated with EPA, Fish & Wild- life, FEMA, CEQ, Mississippi and Louisiana De- partments of Environmental Quality, Louisiana Department of Natural Resources, and Missis- sippi State Historic Preservation Office.954 The reduced preconstruction procedures include the submission of the responsible party name, brief description of work, and work area map.955 The postconstruction documentation includes the 946 Fla. Fish & Wildlife Conservation Comm’n, RE: Emergency Response to Hurricane Dennis (July 13, 2005). 947 Id. 948 Id. 949 Id. 950 U.S. Army Corps of Eng’rs., Emergency Proce- dures U.S. Army Corps of Engineers Permits Regula- tory Branch Galveston District (Sept. 27, 2005). 951 Id. 952 Id. 953 U.S. Army Corps of Eng’rs., Emergency Permit Procedures for the States of Louisiana and Mississippi Within the Boundaries of the Mississippi Valley Divi- sion CEMVD-PD-KM (Sept. 3, 2005). 954 Id. 955 Id.