Applicants, as well as their staff and their contractors, may not be aware of the extent of EHP requirements and how to successfully implement them to FEMA’s satisfaction. Applicants tend to rely on FEMA communications without the benefit of state level staff helping to interpret EHP requirements, as normal state operations are typically overwhelmed after a natural disaster. More frequent and larger disasters in each passing year strain FEMA’s Public Assistance Program resources, thereby exacerbating this situation.
Figure 1: Source: Congressional Research Service (CRS) analysis of data provided by FEMA Office of Congressional and Legislative Affairs, https://www.everycrsreport.com/reports/R46749.html, April 2021
While EHP procedures are only one small element of Public Assistance, any improvement in efficiency can help. Here I take a closer look at some of the typical problems applicants may face and offer several possible solutions to help comply with federal EHP requirements.
Challenge: FEMA EHP review occurs too late in the national model workflow process. FEMA announced implementation of a new Public Assistance delivery national model in September 2017, the same month that Hurricanes Irma and Maria hit the U.S. Virgin Islands and Puerto Rico. In November 2017, the General Accounting Office issued a study analyzing the complexities of the new delivery model and opportunities to improve its implementation.
The EHP review does not occur until step 13 (out of 20) at the beginning of Phase 4 of the delivery model. This is problematic because applicants are not able to consider EHP constraints as they plan repair activities and consider alternatives to avoid, minimize, or mitigate EHP constraints. If EHP constraints are not identified until step 13, the project gets “kicked back” to address those constraints. Having to go through the earlier steps again is a waste of time and money. For example, if a chain link fence were damaged, the scope and cost would be developed to replace it. But if EHP finds the area is sensitive for archaeological sites, the project could be “kicked back” to ensure the fence poles are replaced within their original footprint and conditions may be placed on staging areas. Such information would have proved useful to guide the initial development of the scope and cost.
Solution: While the position of FEMA EHP review in the national workflow is fixed in the process, the FEMA Public Assistance Program and Policy Guide is clear that EHP reviews may be concurrent “where possible and appropriate.” In addition, FEMA’s online course IS-253.A: Overview of FEMA’s Environmental and Historic Preservation Review states: “FEMA’s EHP review and compliance activities should be initiated early in the project life cycle and not be treated as a separate process.”
Applicants should be able to reach out to the Recipient EHP team during these early stages to learn if there are any reasonably determinable EHP constraints for a project. For example, the Recipient EHP team often has access to extensive GIS data that can reveal EHP constraints within minutes, based on the coordinates of a project’s location. Applicants should take this information into account to inform the scope and cost. When a project reaches FEMA EHP for review, there will be fewer surprises that kick the project back through the workflow process again.
Challenge: Documentation of EHP “special conditions” is difficult to find in FEMA’s Grants Portal. This lack of clarity increases the risk of de-obligation of funds. FEMA EHP reviews all projects and documents in a Record of Environmental Consideration (REC), a series of conditions required for compliance with federal environmental laws and regulations, including but not limited to the National Environmental Policy Act, Endangered Species Act, National Historic Preservation Act, and executive orders for wetlands and floodplains. Standard conditions apply universally to all projects, but a range of “special conditions” are applied uniquely and differ for each project. For example, one project may have restrictions if construction occurs during nesting months for an endangered bird species, while another project may have restrictions for the managing, handling, and disposing of hazardous asbestos and lead materials.
The REC is available in Grants Portal, FEMA’s online grants management system, but multiple versions make it difficult for an applicant to find the most recent applicable version. The “special conditions” are buried deep within the REC, requiring the applicant to scroll through multiple pages. And they can appear redundant and confusing because FEMA’s software doesn’t delete “disregarded” conditions but follows them with actively required conditions. This is problematic because funds may be spent unnecessarily on “disregarded” conditions and funds are at risk to be de-obligated at closeout because of a lack of EHP compliance. This lack of clarity is further compounded in cases when an applicant or its contractors are not experienced with the compliance process and requirements for federal environmental laws and regulations.
Solution: During the recipient final review process step, applicants should receive a simplified summary of the REC to bring clarity and minimize confusion during obligation and close-out. FEMA’s most recent REC should be attached to the Recipient EHP summary review for future reference. The applicable EHP requirements should be front-and-center to make it easier for applicants to track progress with EHP compliance. The Recipient EHP review report could be attached as a bid document for the contractors to know what EHP conditions must be complied with when they prepare their bid and conduct the work.
EHP subject matter experts (SMEs) should also develop tips and tools for additional clarity and to create a path to success for the applicant. These should go beyond federal EHP laws and regulations and also include guidance for compliance with state EHP laws and regulations.
Challenge: Applicants have little or no experience with how to demonstrate compliance with federal environmental laws, regulations, and FEMA’s requirements for EHP “special conditions” required at closeout. In the REC for each project, FEMA EHP provides detailed information on what EHP special conditions require compliance by applicants but provides no instructions on how to demonstrate compliance in a manner FEMA will accept at closeout. This lack of clear guidance (yet high expectations) increases the risk that FEMA will de-obligate a project at closeout. This is further compounded when a state lacks institutional knowledge about FEMA’s process and documentation retention requirements because it has not been subject to a major disaster for some number of years.
Solution: Recipient EHP SMEs should develop guidance and tips and tools to assist applicants on how to comply with FEMA EHP’s special conditions and how to demonstrate completed compliance. The guidance may be embedded in the Recipient’s EHP review document when specific to a condition, or in the Recipient’s transparency portal website if it contains broader guidance that is less specific to a particular project.
Challenge: FEMA requires extremely detailed records for debris removal (Category A) and emergency protective measures (Category B). When a major disaster hits (e.g., Hurricane Maria), electrical power may be out for extended periods of time, making it impossible to maintain electronic records. As state and local staff are busy responding to the disaster and ensuring public safety, it is common that records are insufficient during the immediate aftermath. Years may pass before FEMA questions the extent of recordkeeping, and the workers with institutional knowledge who were hired to help with disaster response are no longer available to answer questions.
Solution: Additional flexibility and negotiation are crucial when requesting documentation as well as in determining what documentation FEMA will allow. Here are three examples of when this may occur:
- If an electrical line is damaged. Instead of asking for the individual numbers on transformers that were replaced and disposed, FEMA could just ask for the type(s) of transformer and the total number replaced and disposed.
- In proving property ownership. Instead of repeating a request for a deed that may not be easily retrievable after a disaster, FEMA could accept other forms of ownership.
- In documenting prior condition. Instead of requesting detailed photographs of a historic building and maintenance logs taken immediately before a disaster that simply may not exist, FEMA could accept older photographs and certified conditions assessments.
Challenge: For EHP special conditions incurred “after the fact,” it can be several years before FEMA concludes its review process and obligates funds for repairs. If a building is not recognized as eligible for the National Register of Historic Places (National Register) and needs to be put back into use, the applicant may do some immediate repairs to make it safe. If FEMA EHP does not document compliance measures until very late in the process, an applicant may have unintentionally made repairs that are out of EHP compliance. For example, repairing windows in or cladding on a building constructed in the 1970s, only to learn late in the process that FEMA EHP determines the subject building to be eligible for the National Register. The repairs could result in an adverse effect finding under Section 106 of the National Historic Preservation Act, thereby risking de-obligation of funds.
Solution: Determine National Register eligibility of a building over 45 years of age much earlier in the process, even right after the damage inventory is completed. Applicants do not need to have a fully developed scope of work to evaluate whether a damaged building is eligible for the National Register or not.
The standard project review generally follows the typical four-step Section 106 process: initiating consultation with appropriate parties; identifying and evaluating whether any affected properties are listed on or eligible for the National Register; assessing whether listed/eligible properties are affected; and avoiding, minimizing, or mitigating adverse effects on listed/eligible properties. As a result, the scope for repairs will be better informed by understanding the building’s eligibility for the National Register and preserve its qualifying characteristics.
The applicability of the programmatic allowances would be unchanged even if a building is determined eligible for the National Register because they are based on repair activities not designation status. If the building over 45 years of age is determined not eligible for the National Register, an applicant can develop the scope and cost without addressing historic preservation concerns—thereby saving time in future EHP reviews.
Challenge: Sometimes FEMA groups multiple damages into one project. But if just one damage is considered ineligible for Public Assistance (e.g., it is located in a floodplain), the EHP reviews are held up for all the other damages in a project, even if they are eligible for Public Assistance.
Solution: The EHP review should be done for all damages regardless of eligibility. This would allow all costs to comply with EHP laws and regulations, be known early in the process, and inform the scope of work to ensure repairs conform with EHP requirements. If one or more damages cannot be resolved, they could be negotiated out of that project such that all the other damages could move forward.
Challenge: Right after a disaster, applicants develop a damage inventory and identify critical facilities. This allows an applicant to identify the most important damaged cultural resources, and stabilization and protection measures should be authorized by FEMA. Otherwise, cultural and historic treasures can be lost while deterioration sets in, as was the case for several properties in Puerto Rico. Casa Klumb, a mid-century masterpiece on a University of Puerto Rico campus, was destroyed by an explosion of unknown origin. Fortin de San Geronimo, one of San Juan’s first lines of defense, was destabilized during intense wave action during Hurricane Maria. A crack, at first only detectable by infrared, has continued to expand and could result in more damage. Central High School in San Juan had ornate plaster ceilings fall down with the passage of time after they became wet during Hurricane Maria, and repairs still have not been approved.
Solution: In the immediate aftermath of a disaster, FEMA or the Recipient should reach out to the State Historic Preservation Officer (SHPO) and obtain a list of the most significant historic buildings/structures and archaeological sites known to have been damaged. They should then prepare an immediate analysis of how to stabilize those resources from further deterioration. In Puerto Rico, for example, the National Park Service sent experts in historic preservation on “mission assignment” soon after Hurricane Maria. Their job was to assess damages and develop reports and cost estimates to make appropriate repairs to the buildings/structures and archaeological sites selected by the SHPO. Such reports could be funded by FEMA and acted on as soon as they are prepared (with owner permission). There should be a way to expedite the typical approval process for a select list of historic and archaeological treasures because they are shared by the entire community and all efforts should be made to preserve them. It makes economic sense as well, as the cost of repairs increases if deterioration advances unchecked.
These proposed remedies are intended as suggestions for how FEMA could improve the way it conveys federal EHP requirements to applicants seeking federal funding after a natural disaster. They are not intended to diminish EHP compliance in any way, but rather are intended to improve how EHP requirements are being communicated to applicants so they can be implemented properly. By adopting these recommendations, FEMA’s EHP responsibilities would be clearly articulated to applicants in a timely way, thereby ensuring they are included in project planning and implemented properly.