Environmental & Historical Laws

The following statutes, Executive Orders (EOs), and regulations establish requirements to protect the environment and preserve the Nation’s historic and prehistoric resources. FEMA must review each Public Assistance (PA) project to ensure the work complies with applicable Federal environmental and historic preservation (EHP) laws, their implementing regulations, and applicable EOs.

National Historic Preservation Act

Section 106 of the National Historic Preservation Act (NHPA) requires FEMA to consider the effects a project will have on historic properties and provide the Advisory Council on Historic Preservation the opportunity to comment on the effects of the project.373 Historic properties include buildings or groups of buildings (districts), structures, objects, landscapes, archaeological sites, and traditional cultural properties included in, or eligible for inclusion in, the National Register of Historic Places.374

National Environmental Policy Act

Section 102 of the National Environmental Policy Act (NEPA) requires Federal agencies to integrate environmental values into their decision-making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions.375 The White House Council on Environmental Quality publishes its NEPA regulations in Title 40 of the Code of Federal Regulations (CFR) Parts 1500–1508. The U.S. Department of Homeland Security publishes NEPA requirements and provides a specific decision-making process that FEMA must follow before funding a project. The process ensures consideration of environmental consequences of the project and informs the general public.

Endangered Species Act

Section 7 of the Endangered Species Act (ESA) requires Federal agencies to use their authorities to conserve federally listed threatened and endangered species (listed species) and critical habitats. FEMA must consult with the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration Fisheries, also known as the National Marine Fisheries Service (NMFS), to ensure that proposed projects will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat for listed species.

Clean Water Act

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants in the waters of the United States (e.g., rivers and streams, lakes and ponds, coastlines, wetlands, estuaries). The CWA makes it unlawful to discharge any pollutant from a specific source into navigable waters without the appropriate CWA permits from the U.S. Army Corps of Engineers (USACE) or State regulatory agency.

Clean Air Act

The Clean Air Act (CAA) protects the Nation’s air through the reduction of smog and atmospheric pollution. Except for activities in non-attainment areas (defined as those areas that do not meet national standards for air quality and, therefore, require more rigorous compliance measures), air quality compliance often requires certain measures be implemented, such as dust abatement, vehicle emissions control, fuel storage, and distribution procedures.378

Coastal Barrier Resources Act

The Coastal Barrier Resources Act (CBRA)379 established the John H. Chafee Coastal Barrier Resources System (CBRS), which consists of relatively undeveloped coastal barriers along the Atlantic, Gulf, and Great Lakes coasts. CBRA minimizes adverse impacts to these areas by restricting Federal assistance that encourages development within the CBRS. USFWS publishes maps designating these areas.380 FEMA must consult with USFWS prior to providing PA funding for work within the CBRS.381

Migratory Bird Treaty Act

The Migratory Bird Treaty Act makes it unlawful to pursue, hunt, take, capture, kill, or sell migratory birds listed in the statute without a waiver from USFWS.382 FEMA consults with USFWS regarding projects likely to trigger compliance with this Act.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) established a framework for Federal, State, Territorial, and local cooperation for controlling the management of hazardous and non- hazardous solid waste. The U.S. Environmental Protection Agency’s (EPA’s) role is to establish minimum regulatory standards, usually implemented by the States, and to provide technical assistance. RCRA requires the safe disposal of waste materials, promotes the recycling of waste materials, and encourages cooperation with local agencies.

Coastal Zone Management Act

The Coastal Zone Management Act (CZMA) provides for the management of the Nation’s coastal resources. The CZMA establishes a voluntary partnership between the Federal Government and coastal and great lakes States and Territories. It requires participating States to develop State coastal zone management plans. PA projects located in, or near, established coastal zone management areas must be consistent with the enforceable policies of the State’s federally approved coastal zone management plan.384 Before approving a project in a coastal zone management area, FEMA consults with the State agency overseeing the implementation of the CZMA plan to ensure the project is consistent with the plan’s provisions.

Farmland Protection Policy Act

The Farmland Protection Policy Act minimizes the extent to which Federal programs contribute to the conversion of prime or unique farmland, or land of statewide or local importance, to non- agricultural uses and to ensure that Federal programs are administered in a manner that, to the extent practicable, will be compatible with State, Territorial, local, and private programs and policies to protect farmland. The Farmland Protection Policy Act and U.S. Department of Agriculture (USDA) implementing procedures require FEMA to evaluate projects for adverse effects to such farmland and to consider alternative actions that could avoid adverse effects. For projects that have the potential to affect such farmland, FEMA must consult with the USDA Natural Resources Conservation Service (NRCS) to identify potential impacts to that farmland.

Fish and Wildlife Coordination Act

The Fish and Wildlife Coordination Act protects fish and wildlife when Federal actions result in the control or modification of a natural stream or body of water. The Fish and Wildlife Coordination Act requires Federal agencies to determine whether a proposed action will result in the control or modification of a body of water. Projects involving the control or modification of any water body require Federal agencies to consult with USFWS and NMFS (as appropriate) and State wildlife agencies to develop measures to protect, develop, and improve fish and wildlife conditions.

Wild and Scenic Rivers Act

The Wild and Scenic Rivers Act preserves the free-flowing State of rivers that are listed in the National Wild and Scenic Rivers System (System) or are under study for inclusion in the System because of their scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values. If a proposed project is located on a river included in the System, FEMA must review it for compliance with the Wild and Scenic Rivers Act and consult with the managing agency for the affected designated river.387

Magnuson-Stevens Fishery Conservation and Management Act

The Magnuson-Stevens Fishery Conservation and Management Act is the primary law for managing and maintaining sustainable fisheries in waters of the United States. The Magnuson- Stevens Fishery Conservation and Management Act protects essential fish habitat, which includes the waters and substrate necessary to maintain healthy fisheries. FEMA must consult with NMFS when any proposed PA project could have an adverse effect on essential fish habitat.

Executive Order 11988, Floodplain Management

EO 11988, Floodplain Management, requires Federal agencies to minimize or avoid activity that adversely affects floodplains. It requires Federal agencies to use a systematic decision-making process to evaluate the potential effects of projects located in, or affecting, floodplains; document each step of the process; and involve the public in the decision-making process. This process is designed to:

• Reduce flood loss risks;

• Minimize the impacts of floods on human safety, health, and welfare; and

• Restore and preserve the natural and beneficial functions of floodplains.

FEMA publishes its implementing regulations for EO 11988 in 44 CFR Part 9, Floodplain Management and Protection of the Wetlands. These regulations set forth the policy, procedures, and responsibilities to implement and enforce the EO, including the decision-making process, which is referred to as the 8-step process.389

Executive Order 11990, Protection of Wetlands

EO 11990, Protection of Wetlands, requires Federal agencies to minimize or avoid activity that adversely affects wetlands and to encourage the preservation and enhancement of the beneficial functions of wetlands. To meet these objectives, EO 11990 requires Federal agencies to use a systematic decision-making process to evaluate the potential effects of projects in, or affecting, wetlands; document each step of the process; and involve the public in the decision-making process.

FEMA publishes its implementing regulations for EO 11990, Protection of Wetlands in 44 CFR Part 9, Floodplain Management and Protection of the Wetlands. These regulations set forth the policy, procedures, and responsibilities to implement and enforce the EO, including the decision- making process, which is referred to as the 8-step process.

Executive Order 12898, Environmental Justice

EO 12898, Environmental Justice, requires Federal agencies to identify and address any disproportionately high and adverse human health or environmental effects on minority and low- income populations as a result of their actions.