EHP and Other Compliance

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From August 26 through September 5, 2011, Hurricane Irene caused damage throughout the state of New York.^[1] The New York State Office of Parks, Recreation and Historic Preservation (Applicant) stated that heavy rains and rushing water washed away the embankment along the Lower Awosting Carriageway (Facility) at Minnewaska State Park. Specifically, the Applicant noted that flooding eroded the hillside embankment, destroyed two headwalls, and dislodged 100 linear feet of reinforced concrete pipe culvert. The Applicant requested $344,215.80 in Public Assistance (PA) funding for repairs and hazard mitigation to the Facility.

The Facility is part of a network of trails and roads built between 1870 and 1929 in Ulster County and is an eligible resource for listing in the National Register of Historic Places.^[2] The Applicant’s requested scope of work (SOW) included a Hazard Mitigation Proposal (HMP) to replace the concrete pipe with a larger precast concrete box culvert, lower the road profile, and move the crossing to facilitate a low water crossing. On March 10, 2015, FEMA prepared Project Worksheet (PW) 9256 to document the requested costs.[3] FEMA advised that the project would be subject to all FEMA-required reviews, including Environmental and Historic Preservation (EHP) reviews, which may affect final funding for this project. 

On April 8, 2016, FEMA issued a Request for Information (RFI), seeking technical studies, specifications, clarification of the proposed culvert, and U.S. Army Corps of Engineers (USACE) and New York State Department of Environmental Conservation (NYSDEC) permits. FEMA did not receive a response to the RFI, and therefore removed $35,541.00 for HMP costs from the PW. Subsequently, FEMA initiated an EHP review and determined the Applicant completed work on May 3, 2012, before the Agency could consult with necessary officials and interested parties as required under section 106 of the National Historic Preservation Act (NHPA).[4] 

FEMA determined that because the project was completed prior to FEMA’s review and approval, there was no way to accurately determine the level of disturbance that occurred at the Facility. FEMA initiated an after-the-fact Section 106 consultation on March 27, 2017, with the New York State Historic Preservation Office (SHPO) and the New York State Division of Homeland Security and Emergency Services (Recipient).[5] FEMA determined the project’s SOW likely necessitated archaeological monitoring and proposed a geotechnical investigation in an effort to determine the level of disturbance from previous work and natural erosion on the Facility as well as a clearer picture of whether natural soils were impacted during construction.^[6]

On April 11, 2022, FEMA issued an RFI requesting the status of the geotechnical investigation and USACE and NYSDEC permits and/or documentation demonstrating compliance with the Clean Water Act (CWA). The Applicant responded on May 9, 2022, stating that FEMA omitted important information when it submitted the request for section 106 consultation on March 27, 2017 such as: (1) the soil for the Facility had been replaced in 2009 after a previous disaster, so all the work was being performed on fill; (2) the declared incident had eroded 3,000 cubic yards of soil; (3) the project included more than the replacement of a culvert; and (4) the extent or location of the “new ground disturbance.” Additionally, the Applicant claimed it never received FEMA’s request to perform a geotechnical investigation.[7] The Applicant recommended moving forward with obligating the project by either a re-evaluation of the need for an archaeological investigation or a memorandum of agreement (MOA) laying out the archeological procedures to be followed.^[8] 

On September 26, 2022, FEMA issued a determination letter denying all requested funding.[9] FEMA explained it could not determine the effect for NHPA without fully understanding the degree of ground disturbance at the Facility and could not execute an MOA since there was not enough information to make a determination of adverse effect. Additionally, FEMA found the Applicant had not demonstrated CWA compliance by providing permits or a statement of compliance with a Nationwide Permit (NWP).

First Appeal

In a letter dated November 28, 2022, the Applicant submitted a first appeal, requesting $344,215.80 for the repair work and the HMP; it noted that costs may increase further depending on the archaeological testing mandated by FEMA. The Applicant argued that the Advisory Council on Historic Preservation’s (ACHP) regulations allowed for concluding a review with a Programmatic Agreement where effects could not be determined prior to the project’s approval. The Applicant claimed that the SHPO offered to draft such an agreement and reopen the consultation process based on its understanding that there was no potential for intact archaeological resources in the area of repair and that the investigations required by FEMA were not warranted. Additionally, the Applicant argued FEMA did not follow its own procedures in that it did not approve or obligate a PW for the project as required by Title 44 of the Code of Federal Regulations (C.F.R.) §§ 206.202(a) and (d)(1)(i). On January 26, 2023, the Recipient submitted the Applicant’s appeal along with a letter in support of the Applicant’s request.

On November 20, 2023, the FEMA Region 2 Regional Administrator denied the appeal. FEMA found that the Applicant did not afford the Agency the opportunity to complete an EHP review prior to starting the work. Regarding the Applicant’s proposal to re-start the consultation process, FEMA noted that the Tribal Historic Preservation Offices (THPOs) decided not to continue with the process, and that consultation would be infeasible without their participation. Further, FEMA found the Applicant did not provide the necessary permitting documentation required to show compliance with the CWA.

Second Appeal

In a letter dated January 19, 2024, the Applicant submitted a second appeal, reiterating its previously raised arguments. The Applicant clarifies its contention that FEMA failed to follow its own procedures at 44 C.F.R. § 206.201(d)(1) because FEMA did not draft a PW that included the costs of the EHP requirement to perform a geotechnical investigation. The Applicant also provides documentation such as email correspondence, programmatic agreements, and MOAs to support its appeal. The Applicant claims that the emails document its interactions with USACE regarding permitting issues for the project and that USACE stated it did not need to be notified about the construction work because activities authorized by an NWP (specifically, NWP 3) do not require notification. On March 19, 2024, the Recipient transmitted the second appeal along with its letter in support of the Applicant. The Recipient claims that FEMA’s determination that consultation is infeasible without the THPO’s participation conflicts with the ACHP’s NHPA regulations,^[10] represents a new interpretation of the feasibility language in its Statewide Programmatic Agreement without input from other signatories, and constitutes a procedurally improper change in position from 2017 when FEMA was willing to go forward with consultation despite tribal concerns.

Discussion

FEMA may provide PA funding for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by a major disaster.^[11] FEMA must review each PA project to ensure the work complies with applicable Federal EHP laws, including section 106 of the NHPA and section 404 of the CWA, and their implementing regulations.^[12] Reviews for compliance with EHP laws must be completed before FEMA approves funding and before work is started since the review may identify steps to be taken or conditions to be met before the project can be implemented.[13] Section 106 of the NHPA requires FEMA to consider the effects a project will have on historic properties and provide the ACHP the opportunity to comment on the effects of the project.^[14] Also, section 106 of the NHPA and its implementing regulations at Title 36 of the C.F.R., Part 800, mandate that FEMA identify historic properties and cultural resources that may be affected by FEMA-funded activities, evaluate the impact of proposed work on the properties, and consult with the SHPO/THPO and other interested parties prior to the approval of any federal funds for the project.^[15] In some cases, FEMA may establish a programmatic agreement with the ACHP, SHPO, and/or the THPO at the beginning of the disaster recovery process to address projects potentially falling within the scope of the NHPA.^[16] Some uses for programmatic agreements are when effects on historic properties are similar and repetitive; when effects on historic properties cannot be fully determined prior to approval of an undertaking; and when nonfederal parties are delegated major decision-making responsibilities.^[17]  

Here, the Applicant completed the work before FEMA could conduct an EHP review. The New York Statewide Programmatic Agreement (Agreement) executed by FEMA, the State, and one or more Tribes, provided that where FEMA determined an applicant had initiated an undertaking without willful intent to avoid the requirements of the Agreement or section 106 of the NHPA, FEMA would determine if the undertaking would have required section 106 review.^[18] If so, FEMA was required to coordinate with the SHPO and participating Tribal Nations to determine if consultation was feasible.^[19] If after coordination with the SHPO, and appropriate Tribes, FEMA determined that a review was infeasible, FEMA would document the outcome and make a funding eligibility decision.^[20] In this project, FEMA determined a section 106 review would have been required to fund the project and followed procedures established in Section III(D)(3) of the Agreement to initiate an after-the-fact consultation for a section 106 review. After subsequently learning that the Applicant had not performed a geotechnical investigation^[21] of the area more than five years after FEMA proposed doing so to assess the potential impact to historic properties, and after considering further input and concerns from tribal representatives, FEMA determined the after-the-fact consultation would be infeasible.

Additionally, the Applicant did not provide the USACE and NYSDEC permits and/or documentation demonstrating CWA compliance that FEMA requested. Although the Applicant cites to correspondence with USACE pertaining to NWP 3 notification requirements, the correspondence does not confirm the Applicant met the conditions of the NWP and the Applicant has not explained how it applies to the work at issue here. Therefore, the Applicant has not demonstrated it complied with federal and state EHP laws.

Conclusion

The Applicant did not afford FEMA an opportunity to complete its EHP review prior to starting work. Additionally, the Applicant has not demonstrated it complied with federal and state EHP laws. Therefore, the appeal is denied.