EHP and Other Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4563
Applicant	Creola
Appeal Type	Second
PA ID#	097-18304-00
PW ID#	PW 34
Date Signed	2022-09-12T16:00:00

Summary Paragraph

Between September 14-16, 2020, Hurricane Sally caused strong winds and torrential rains resulting in extensive damage throughout Alabama.  The Applicant performed vegetative debris removal citywide between September 16, 2020 and January 18, 2021, utilizing force account labor, force account equipment, and contracts for its debris removal operations, which included hauling and burning of debris.  On May 5, 2021, FEMA issued a Determination Memorandum stating that the Applicant did not obtain a burn permit until after the debris removal operation and subsequent burning of debris had started.  The Applicant also failed to allow FEMA the required opportunity to coordinate and consult with the Choctaw Nation, the impacted Indian Tribal Government, as Executive Order 13175 mandates.  The Applicant appealed this determination, arguing that it had obtained a permit from the applicable state agency and that the burn site was not historic land, so no EHP compliance was necessary.  FEMA denied the appeal, finding the debris removal work performed by the Applicant ineligible for federal reimbursement as the Applicant burned vegetative debris on a site with historic, ancestral interest to the Choctaw Nation before FEMA had an opportunity to consult with interested parties.  FEMA found this put the Agency in a position of noncompliance with section 106 of the National Historic Preservation Act (NHPA).  The Applicant submits its second appeal, relying on arguments from the first appeal. 

Authorities and Second Appeals

• Stafford Act §§ 316, 403, 407.
• 2 C.F.R. § 200.300.
• 36 C.F.R. §§ 800.3-800.5.
• 44 C.F.R. §§ 26.223(a)(1), 206.224(a).
• PAPPG, at 141-142.

Headnotes

• NHPA § 106 and its implementing regulations impose consultation procedures for federally funded projects with potential to affect historic properties.  When an applicant initiates or completes work on a project before FEMA is able to conduct the necessary EHP compliance review, it jeopardizes Public Assistance (PA) funding for the project.
  • The Applicant did not afford FEMA an opportunity to complete the EHP review prior to commencing the debris removal work, and FEMA could not ensure compliance with section 106 of the NHPA.

Conclusion

The Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work on the project, and FEMA could not ensure compliance with section 106 of the NHPA.  Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

Between September 14 -16, 2020, Hurricane Sally caused strong winds and torrential rains resulting in extensive damage throughout Alabama.[1]  The City of Creola (Applicant), in Mobile County, performed vegetative debris removal citywide between September 16, 2020 and January 18, 2021.  The Applicant requested $20,487.50 in Public Assistance (PA) funding for the debris removal, which included burning debris in a burn pit and involved the use of a backhoe to disturb the ground up to 3 feet deep in a 50-foot by 50-foot area around the site.  FEMA subsequently requested information from the Applicant regarding GPS coordinates, location names, and dates of debris burning.  In response, the Applicant provided the GPS coordinates of the burn site, work dates, and a work schedule of its employees. 

In its Environmental and Historic Preservation (EHP) review, FEMA found that the project did not comply with the section 106 consultation requirements of the National Historic Preservation Act (NHPA), because work took place before interested stakeholders could be consulted and the work was not covered by the Alabama Programmatic Agreement.[2]  The project’s Record of Environmental Consideration states that “[a]fter-the-fact consultation was considered and determined not to be possible because as of [January 19, 2021] the Choctaw Nation of Oklahoma, who has ancestral lands and interest in projects within Mobile County, is no longer accepting after-the-face consultations.”[3]

On May 5, 2021, FEMA issued a Determination Memorandum denying the request for $20,487.50.  FEMA stated that the Applicant did not obtain a burn permit until after the debris removal operation and subsequent burning of the debris had started.[4]  Additionally, the Applicant did not allow FEMA the opportunity to coordinate and consult with the Advisory Council on Historic Preservation and the Choctaw Nation, the impacted Indian Tribal Government, as mandated by the NHPA and Executive Order 13175, Consultation and Coordination with Indian Tribal Governments.

First Appeal

On June 28, 2021, the Applicant appealed the decision, and provided a timeline of the events leading up to the debris removal.  The Applicant stated it acquired the title to the real property where the burn took place by deed dated December 31, 2003.  Nothing in this deed reflected any historical, environmental, or archeological significance to the property.  The area had undergone various cycles of construction and was operated as a dirt pit by previous owners.  The Applicant noted that while FEMA designated the burn site as a historical location (which the Applicant did not concede), disturbance occurred years before it ever acquired the property.  As such, the Applicant argued the property in question does not meet the legal definition of historic property.[5] 

On June 29, 2021, the Alabama Emergency Management Agency (Recipient) forwarded the Applicant’s appeal letter along with supporting documentation, requesting FEMA review all the documentation and issue a decision regarding the appeal.

On March 29, 2022, the FEMA Region IV Regional Administrator (RA) denied the appeal, finding the debris removal work performed by the Applicant burned vegetative debris on a site with historic, ancestral interest to the Choctaw Nation before FEMA had an opportunity to consult with interested parties, therefore putting FEMA in a position of noncompliance with section 106 of the NHPA and Executive Order 13175.[6]  FEMA also determined that this undertaking had the potential to destroy archeological resources of cultural significance to the Choctaw Nation, thus, possibly creating an adverse effect to historic properties

Second Appeal

The Applicant’s second appeal letter dated May 23, 2022, reiterates its prior arguments from the first appeal.  The Applicant also states that, according to the implementing regulations for the NHPA, it is not too late for FEMA to conduct a section 106 review during the administrative appeal process, and that it anticipates cooperation from the Choctaw Nation.  The Applicant concludes its letter stating that PA funding is being denied based on the failure to instigate a section 106 review, and not on the merits of whether this property is actually historic property.

 

Discussion

FEMA is authorized to provide PA funding for debris removal when it is in the public interest because it is necessary to eliminate immediate threats to lives, public health and safety, or ensure economic recovery, as a result of the disaster.[7]  An applicant needs to make every effort to afford FEMA the opportunity to perform environmental and historic preservation (EHP) reviews prior to starting any work that has potential to impact the environment or historic properties.[8]  FEMA must review each PA project to ensure the work complies with applicable federal EHP laws, including section 106 of the NHPA, and their implementing regulations.[9]  For projects receiving federal assistance, section 106 of the NHPA requires FEMA to consider the effects a proposed project will have on historic properties prior to approving federal funds and to consult with the Advisory Council on Historic Preservation and potentially affected tribes in this process so that they have the opportunity to comment on the effects of the project.[10]  If an applicant starts work on a project prior to FEMA’s completion of the EHP review, it jeopardizes PA funding for the entire project.[11]

The Applicant commenced and completed the vegetative debris removal and burning without affording FEMA the opportunity to perform its required EHP review.  If the removal and burning of debris are activities with the potential to affect historic properties, FEMA is required to identify in consultation with the State Historic Preservation Officer (SHPO) and/or the Tribal Historic Preservation Officer (THPO) whether any properties exist within the area of potential effect and, if they do, collaboratively determine the effect of the debris removal on identified properties.[12]  FEMA determined the proposed project had the potential to cause adverse effects on historic property, because the Applicant burned vegetative debris on a site where the Choctaw Nation had ancestral lands, and this project had the potential to destroy archaeological resources of cultural significance.[13]  Though the Applicant raised the possibility of an after-the-fact section 106 review, it did not provide any documentation confirming that necessary stakeholders would participate in this process.  Without consideration from interested parties to support the after-the-fact review, FEMA could not ensure compliance with section 106 of the NHPA.   

 

Conclusion

The Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work on the project, and FEMA could not ensure compliance with section 106 of the NHPA.  Therefore, the appeal is denied.

 

 

[1] This resulted in a major disaster declaration on September 20, 2020. 

[2] FEMA Record of Environmental Consideration (REC), Project Worksheet 34, Creola, at 1 (Mar. 16, 2021).

[3] Id.  In communications with the Government Relations Strategist for the Choctaw Nation of Oklahoma, the Applicant requested that the Nation prepare a letter to FEMA granting permissions to do an after-the-fact review, if it did choose to grant such permissions.  Email from City Clerk for City of Creola, to Senior Fed. Gov’t Rel. Strategist, Choctaw Nation of Okla. (Apr. 14, 2021).  In response, the Strategist expressed his beliefs that the Nation would try to help out “all they best that they can.” Email from Senior Fed. Gov’t Rel. Strategist, Choctaw Nation of Okla., to City Clerk for City of Creola (Apr. 29, 2021).

[4] The Applicant later addressed its failure to obtain a burn permit from the Alabama Department of Environmental Management (ADEM) prior to commencing work, by providing a letter from ADEM confirming that the Applicant had not violated any of its rules, and that there was a previous broad authorization by ADEM allowing burning of vegetative waste without its pre-approval during natural disasters. Letter from Dir., ADEM, to Representative, FEMA (Feb. 4, 2021). (FEMA then noted in the REC to disregard prior permit concerns).

[5] Letter from Atty. for City of Creola, to Ala. Emergency Mgmt. Agency, at 7 (Jun. 28, 2021) (referencing Title 36 Code of Federal Regulations § 800.16(l)(1) and (2) of the implementing regulations for the National Historic Preservation Act).

[6] As a result of the ADEM approval letter provided by the Applicant on appeal, FEMA continued with its environmental and historic preservation compliance review and did not base its determination on the Applicant’s failure to obtain a burn permit.

[7] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403, 407, 42 United States Code (U.S.C.) § 5170b, 5173 (2018); Title 44 Code of Federal Regulations §§ 206.223(a)(1), 206.224(a) (2018).

[8] Public Assistance Program and Policy Guide, FP-104-009, at 141 (Jun. 1, 2020) [hereinafter PAPPG].

[9] Id.

[10] Id. at 142, 221; see also Title 36 Code of Federal Regulations (36 C.F.R.) §§ 800.1, 800.2(a)(4), (c)(2), 800.3(a), (b) (2020); FEMA Second Appeal Analysis, City of Milford, FEMA-4023-DR-CT, at 7 (May 18, 2018).

[11] Id. at 141; see also Title 2 Code of Federal Regulations § 200.300 (2020).

[12] 36 C.F.R. §§ 800.3-800.5.

[13] Id. § 800.3; see also FEMA Record of Environmental Consideration (REC), Project Worksheet 34, Creola, at 1 (Mar. 16, 2021).