Legal Aspect of Environmental Permitting in the Emergency Response Environment (2015) / Chapter Skim
Currently Skimming:
Pages 30-56
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 30... ...
30 response decision made by the action agency where human life is at stake."314 If listed species or critical habitat has been adversely affected by response actions, the action agency must, "as soon as practicable after the emergency is under control" initiate formal consultation.315 Thus, "emergency consultation…is not a substitute for required consultation under [Section 7] ."316 In some circumstances, the resulting biological opinion may not provide reasonable and prudent alternatives to avoid jeopardy or critical habitat impacts, simply because such alternatives may no longer be available.
|
From page 31... ...
31 mental Policy Act (NEPA) 326 and of the permitting and enforcement powers provided by various statutes.
|
From page 32... ...
32 Table 1. Description of agency staff.
|
From page 33... ...
33 B Lead/Coordinating Agencies Title II of NEPA established the Council on Environmental Quality (CEQ)
|
From page 34... ...
34 ral events.343 FHWA determined that unusually heavy expenses are those that exceed a repair expense threshold of $700,000.344 The maximum assistance amount is $100 million per catastrophic event per state,345 although this threshold is sometimes raised under extraordinary circumstances.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 predisaster conditions.348 For the first 180 days after the disaster, the federal pro rata share is normally 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 undertaken under ER is made through the NEPA development process.351 MAP-21 amended 23 C.F.R.
|
From page 35... ...
35 assistance and coordinate federal response.365 FEMA's core missions include preparedness, protection, response, recovery, and mitigation.366 FEMA's assistance is separated into the three categories of Individual Assistance, Public Assistance (PA) , and Hazard Mitigation Assistance.367 The current legal digest focuses on public transportation infrastructure, which mainly involves the PA program.
|
From page 36... ...
36 historic properties.386 The parties to this agreement include FEMA, State Historical Preservation Officer (SHPO) , Vermont Emergency Management, and the Advisory Council on Historic Preservation.387 Although invited, the Stockbridge-Munsee Tribe did not wish to be a signatory to the agreement, and must therefore be consulted on affected projects.388 This agreement allows FEMA to act on the collective behalf of agencies to fulfill all Section 106 responsibilities.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.
|
From page 37... ...
37 FHWA has delegated its Section 106 review authority to MnDOT's Cultural Resources Unit (CRU) .399 Although FHWA remains legally responsible, federally-funded projects are instead submitted to MnDOT for review, and MnDOT subsequently makes all Section 106 determinations on behalf of FHWA.400 Thus, if MnDOT determines that no historic properties are implicated, 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 undertaken by MnDOT.
|
From page 38... ...
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 hierarchy 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 performance goals were listed in terms of FHWA approval lead times.424 MoDOT utilizes the Corps general permit (GP) for emergency flood-related type activities, GP41.425 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 floodrelated fill or excavation and other associated flood-protection and repair work.428 The permit allows post-construction notification, thus eliminating the lead time associated with preconstruction notification.429 For example, GP-41 has been used to repair bridges, highway embankments, and stream banks, and to build temporary 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.
|
From page 39... ...
39 requests.441 Another reason was the frequency of contact between the two agencies on regular projects and meetings.442 SEMA also highlighted MoDOT's diligence in responding to SEMA requests as a reason for the strong work relationship between the two agencies.443 c. The Oregon Department of Transportation. -- Two best practices reported by Oregon Department of Transportation (ODOT)
|
From page 40... ...
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 Transportation. -- California Department of Transportation's (Caltrans)
|
From page 41... ...
41 pense eligibility.484 Thus the local experience with emergency environmental compliance is captured via the state agencies that assist with their applications 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 resources to design properly and comply with environmental 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 coordinating agency such as the state DNR.
|
From page 42... ...
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 associated with environmental laws and regulations prohibits the detailed discussion of each individual agency; however, brief discussions of certain agencies may help to illustrate jurisdiction, statutory authority, typical procedures, and enforcement mechanisms.
|
From page 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)
|
From page 44... ...
44 According to Missouri DNR staff, strong relationships 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 relationship 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 obstacles 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.
|
From page 45... ...
45 Table 2. Summary of emergency projects.
|
From page 46... ...
46 land for construction staging in exchange for park improvements, without the need to iron out a formal 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 preliminary 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 rebuilt the I-35W bridge using approximately the same alignment and left the operations unchanged, although the bridge was widened slightly to allow for future expansion, e.g., light rail.563 The bridge approach and nearby interchange improvements were excluded from the scope of the project.564 By maintaining the similarity of the new bridge, the ESA Section 7 consultation proceeded quickly, as the impacts on threatened 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 general 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.
|
From page 47... ...
47 mostly unchanged, save for a shift to raise clearance 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 relationships with environmental agencies over the long term, the established trust and familiarity resulted in quick and transparent actions in consultation and the issuance of permits.586 One example of how such relationships aided the permitting process involved the manner in which the Florida Department of Environmental Protection (FDEP)
|
From page 48... ...
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 project were due to reconstruction and staging only.610 Using an existing memorandum of agreement 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 surrounding environs.612 The Corps waived the permitting requirement for construction in navigable waters.613 A CWA Section 404 permit was required due to dredging.614 The Corps approved a request to delay the permit request until after the recovery and demolition of the bridge, and granted an emergency 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 verbal 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.
|
From page 49... ...
49 Springs.633 The Bay St. Louis Bridge connected the cities of Bay St.
|
From page 50... ...
50 agreement was finalized on March 11, 2011, between 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 procedures to address the emergency, and later followed-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 locations of archaeological sites.665 These helpful processes were employed both pre-event and postevent.
|
From page 51... ...
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 communication with the public ultimately fostered public trust and support for a replacement bridge.683 Despite the fact that state emergency declarations 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 including normal review, permitting, and contracting.685 A NEPA process for a project of similar complexity could take up to 5 years.686 To accelerate 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 timelines.691 As a result, permits were issued to allow project bidding to 5 months following bridge closure.692 VTrans committed to the use of an independent onsite environmental monitor who tracked erosion, sediment control, water handling, and concrete curing/dewatering.693 FHWA also increased its in-house construction and environmental inspections.694 Alternative contracting techniques were explored to accelerate recovery. Design-build was 682 N.Y.
|
From page 52... ...
52 (TxDOT) relationship with the Corps and Fish & Wildlife, as well as the urgency of the projects, the permitting and consultation processes were expedited.709 TxDOT consulted informally with Fish & Wildlife for the removal of trees.710 TxDOT utilized the Corps' nationwide permit 3 (NWP-3)
|
From page 53... ...
53 cance of Vermont's bridges, resulted in the successful 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, destroying almost a third of the city, causing 161 fatalities and 1,371 injuries, and damaging over 2,000 buildings, including a major regional hospital.737 The Joplin tornado was the single deadliest tornado in the United States since 1947.738 The governor of Missouri issued several executive orders as a result of the tornado and its associated storms, declaring and extending a state of emergency.739 The president also issued a major disaster 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 debris.
|
From page 54... ...
54 to traffic.756 On September 15, the president declared 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 existing understandings and agreements.758 Good interagency working relationships existed based on regular coordination meetings and previous ad hoc projects.759 Emergency consultation processes were adopted.
|
From page 55... ...
55 the various roles in environmental compliance: lead, applicant, and cooperating. The agencies covered all 50 states, as well as the District of Columbia.
|
From page 56... ...
56 Figure 1. Reasons for successful emergency environmental compliance.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.