Implementing the National Environmental Policy Act (NEPA) for Disaster Response, Recovery, and Mitigation Projects
National Environmental Policy Act (NEPA)
for Disaster Response, Recovery,
and Mitigation Projects
September 8, 2008
Analyst in Environmental Policy
Resources, Science, and Industry Division
Implementing the National Environmental Policy Act
(NEPA) for Disaster Response, Recovery,
and Mitigation Projects
In the aftermath of a major disaster, communities may need to rebuild, replace,
or possibly even relocate a multitude of structures. When recovery activities take
place on such a potentially large scale, compliance with any of a number of local,
state, and federal laws or regulations may apply. For example, when older buildings
must be repaired or demolished, provisions of the National Historic Preservation Act
(NHPA) may need to be considered. If rebuilding will take place in a floodplain,
provisions of Executive Order 11988 on Floodplain Management may apply.
When federal agencies make decisions, such as funding applicant-proposed
actions, the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. § 4321
et seq.) applies. For example, when federal funding is provided for disaster-related
activities, applicants for those funds may be required to assess the environmental
impacts of their proposed action. As commonly implemented, NEPA’s
environmental review requirements are used as a vehicle to identify any other
environmental requirements that may apply to a project as well. This use of NEPA
as an “umbrella” statute can lead to confusion. For example, before an applicant can
commit or expend funds under the Department of Housing and Urban Development’s
(HUD’s) Community Development Block Grant (CDBG) program, the applicant
must complete an environmental review of the project. A required element of that
review is the applicant’s certification that compliance criteria applicable to historic
preservation, floodplain management, endangered species, air quality, and farmland
protection have been considered. This review is required not only to meet NEPA
obligations, but also to ensure that the project being funded does not violate
applicable environmental law. From the applicant’s perspective, this may blur the
distinction between what is required under NEPA and what is required under separate
compliance requirements identified within the context of the NEPA process.
For many federal actions undertaken in response to emergencies or major
disasters, NEPA’s environmental review requirements are exempted under provisions
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford
Act). (The Stafford Act does not, however, exempt such projects from other
applicable environmental requirements.) In the past, some Members of Congress
have been interested in the NEPA process as it applies to disaster-related projects.
This interest has been driven, in part, by federal grant applicants who have been
confused about both their role in the NEPA process and what the law requires.
To address issues associated with the NEPA process, this report discusses
NEPA as it applies to projects for which federal funding to recover from or prepare
for a disaster has been requested by local, tribal, or state grant applicants.
Specifically, the report provides an overview of the NEPA process as it applies to
such projects, identifies the types of projects (categorized by federal funding source)
likely to require environmental review, and delineates the types of projects for which
no or minimal environmental review is required (i.e., those for which statutory or
regulatory exemptions apply) and those likely to require more in-depth review.
In troduction ......................................................1
Overview of the NEPA Process.......................................2
NEPA as an Umbrella Statute....................................3
NEPA Issues Relevant to Disaster-Related Projects.......................5
Disaster-Related Projects Potentially Subject to NEPA................5
Agency and Applicant Roles.....................................7
Categories of Action...........................................8
Projects Requiring an EA or EIS.............................11
Alternative Compliance Arrangements........................12
List of Tables
Table 1. Projects and Funding Sources.................................6
National Environmental Policy Act (NEPA)
for Disaster Response, Recovery,
and Mitigation Projects
The federal government administers various programs to assist individuals and
communities in responding to, recovering from, and preparing for disasters. For
example, after a disaster, some level of federal assistance may be available to rebuild
damaged bridges or roads, demolish and dispose of damaged buildings, rebuild
schools or hospitals, or rebuild damaged levees. Such projects often have at least
some impact on the environment, and hence may be required to comply with any of
a number of local, tribal, state, or federal environmental laws — including
requirements of the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C.
§ 4321 et seq.).
Among other provisions, NEPA requires federal agencies to assess the potential
environmental impacts of a proposed action before proceeding. Exempted from
NEPA’s requirements are emergency response actions under provisions of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act, 42
U.S.C. §§ 5121-5206). These exempted activities include providing essential relief
to victims and implementing protective measures necessary to reduce immediate
threats to life, property, and public health and safety. NEPA’s environmental review
requirements may, however, be applicable to long-term recovery projects, such as the
modification, mitigation, or expansion of existing structures or the relocation of
certain structures located in a floodplain.
Most agencies have implemented NEPA as an “umbrella” statute. As such, it
forms a framework for the coordination or demonstration of compliance with any
study, review, or consultation required by any other environmental law. The use of
NEPA in this capacity has led to some confusion. The need to comply with a separate
environmental law such as the Clean Water Act (CWA), Endangered Species Act
(ESA), or National Historic Preservation Act (NHPA) may be identified within the
framework of the NEPA process, but NEPA itself is not the source of the obligation.
If, theoretically, the requirement to comply with NEPA were removed, compliance
with each applicable law would still be required.
In the past, there has been congressional interest in the NEPA implementation
process for disaster-related projects. This interest has been driven, in part, by federal
grant applicants who have been confused about both their role in the NEPA process
and what the law requires.
To address these issues, this report discusses the NEPA process as it applies to
projects for which federal funding to recover from or prepare for a disaster may be
requested by local, tribal, or state grant applicants. Specifically, the report provides
an overview of the NEPA process as it applies to such projects, identifies the types
of projects (categorized by the federal funding source) likely to require environmental
review, and delineates both the types of projects for which no or minimal
environmental review is required (those for which statutory or categorical exclusions
apply) and those that likely require more in-depth review.
This report focuses on the NEPA process as it applies to projects that require
grant applicants (i.e., state or local agencies) to provide certain information for their
grant requests to be considered eligible for potential approval. It does not address the
NEPA process as it applies to disaster-related projects that would likely involve
collection of the necessary environmental review documentation by the federal
agency responsible for the project (e.g., water resources projects undertaken by the
Army Corps of Engineers). Two agencies that provide a significant proportion of
applicant-requested funding for disaster-related projects are the Department of
Homeland Security’s Federal Emergency Management Agency (FEMA) and the
Department of Housing and Urban Development (HUD) — particularly under its
Community Development Block Grant (CDBG) program.1 Therefore, this report
primarily discusses the NEPA process as it applies to recovery and rebuilding
projects funded under those agency programs.
Overview of the NEPA Process
NEPA is a procedural statute with twin aims that require agencies to consider
the environmental impacts of their proposed actions and inform the public that
environmental concerns have been accounted for in the decision-making process. The
NEPA process involves the steps an agency must take to demonstrate that it has met
NEPA requires all federal agencies to consider the environmental impacts of
proposed federal actions before proceeding. Regulations that specify how agencies
must implement NEPA’s requirements were promulgated by the Council on
Environmental Quality (CEQ).2 CEQ regulations direct federal agencies to adopt and
enforce their own regulations and procedures implementing NEPA’s environmental
review requirements in a manner specific to typical classes of actions undertaken by
each agency. Two agencies that provide a significant proportion of funding for
disaster-related projects are FEMA and HUD. Their NEPA regulations can be found
1 For more information about the various grant programs available to assist local
governments with disaster recovery projects, see FEMA’s “Grants and Assistance Programs
for Governments” Web page at [http://www.fema.gov/government/grant/government.shtm]
and the “CDBG Disaster Recovery Assistance” Web page at [http://www.hud.gov/offices/
2 40 C.F.R. §§ 1500-1508.
at 44 C.F.R. § 10 (FEMA) and 24 C.F.R. 58 (HUD).3 NEPA regulations specify
environmental review requirements that must be met to demonstrate that potential
environmental impacts have, in fact, been considered.
Generally, the term “environmental review” refers to a requirement to show
evidence of formal consideration, evaluation, or analysis of the impacts of a proposed
federal action. Most often, the use of the term is in reference to the process of
complying with NEPA requirements. However, depending upon the project under
consideration, an environmental review may refer to the process of identifying any
environmental compliance requirements or exemptions, as applicable to a certain
As it has been interpreted, NEPA is a procedural statute that does not require
agencies to elevate environmental concerns above others. Instead, NEPA requires
only that an agency assess the potential environmental consequences of an action and
its alternatives before proceeding. If adverse environmental effects of a proposed
action are adequately identified and evaluated, the agency is not constrained by
NEPA from deciding whether other benefits outweigh the environmental costs and
moving forward with the action.
For more information about NEPA’s requirements, see CRS Report RL33152,
The National Environmental Policy Act: Background and Implementation, by Linda
NEPA as an Umbrella Statute
Any given disaster-related project may require compliance with a wide variety
of legal requirements enforceable by one or more agencies. For example, the
environmental impacts of a given project may trigger compliance with elements of
the Clean Air Act, Endangered Species Act of 1973, National Historic Preservation
Act, or Clean Water Act.
Most individual agency NEPA procedures suggest that, for a given project,
compliance with all applicable environmental laws, executive orders, and other legal
requirements should be documented within the appropriate NEPA documentation.
This concept is referred to as the “NEPA umbrella.” As such, as previously noted,
NEPA forms a framework for the coordination and demonstration of compliance
with any study, review, or consultation required by other environmental laws. For
example, the need to comply with another environmental law, such as the Clean
Water Act, may be identified within the framework of the NEPA process, but NEPA
itself is not the source of the obligation. If, theoretically, the requirement to comply
with NEPA were removed, compliance with each applicable law would still be
3 Additional environmental review requirements, potentially applicable to CDBG projects,
are specified under 24 C.F.R. § 51(Environmental Criteria and Standards and 24 C.F.R. §
An example of the use of NEPA as an umbrella statute can be seen in FEMA’s
environmental review process. Because of the types of projects the agency is likely
to fund, and the high probability that historic properties may be affected in many
projects, FEMA’s NEPA process is referred to as an Environmental and Historic
Preservation (E&HP) Review. In its description of the E&HP process, FEMA states:
Federal environmental and historic preservation laws and Executive Orders
provide the basis and direction for the implementation of federal environmental
and historic preservation review requirements for FEMA-funded projects. These
laws and executive orders are aimed at protecting our nation’s water, air, coastal,
wildlife, land, agricultural, historical and cultural resources, as well as
minimizing potential adverse effects to children, low-income and minority
populations. Failure to comply with these laws could result in project delays and
denial of funding. FEMA through the Environmental and Historic Preservation
Program engages in a review process to ensure that FEMA funded activities4
comply with these laws.
Another example of the use of NEPA as an umbrella statute can be seen in the
HUD Office of Community Planning and Development environmental review
requirements applicable to CDBGs. Before a CDBG applicant can commit or expend
funds for a given project, an environmental review of the project must be conducted.
The environmental review record must, among other requirements, document
compliance with applicable statutes and authorities. To meet this requirement, HUD
regulations require the grantee to certify that it has considered compliance criteria
applicable to historic preservation, floodplain management and wetland protection,
coastal zone management, sole-source aquifers, endangered species, wild and scenic
rivers, air quality, farmland protection, HUD environmental standards, and
environmental justice.5 That does not mean that all of these compliance factors will
apply to a given project. The environmental review process is intended simply to
identify the compliance requirements that do apply and ensure that the applicant will
be compliant, as appropriate.
After Hurricane Katrina, some stakeholders cited NEPA as a significant
challenge to state efforts to disperse CDBG funds.6 The requirement to evaluate the
various compliance criteria listed above was cited specifically as the problem.
However, as stated previously, NEPA is not the source of these compliance
requirements. The NEPA process simply forms the framework within which
compliance with any applicable environmental law is identified. Still, this situation
illustrates the difficultly some stakeholders have in distinguishing between what is
required under NEPA and what may be required under other relevant environmental
laws. It illustrates the challenges that applicants face when trying to comply with the
range of requirements applicable to projects for which funding is sought.
4 Available on FEMA’s “Environmental & Historic Preservation Review” site at
[ h t t p : / / www.f e ma .gov/ p l a n/ e hp/ e hpr e vi e w/ i nde x.s ht m] .
5 24 C.F.R. § 58.5.
6 Hearing before Senate Committee on Banking, Housing and Urban Affairs, “Two Years
After the Storm: Housing Needs in the Gulf Coast,” Statement of Edgar A.G. Bright, III,
CMB President, Standard Mortgage Corporation Member of the Residential Board of
Governors of the Mortgage Bankers Association, September 25, 2007. Available online at
[http://banki ng.senate.gov/ public/index.cfm?FuseAction=Hearings .Home].
Also, the comprehensive reviews, documentation, and analysis sometimes
required by agencies such as the Army Corps of Engineers, the U.S. Fish and
Wildlife Service, the Coast Guard, and the Environmental Protection Agency (EPA),
as well as various state regulatory and review agencies (such as the office of a State
Historic Preservation Officer), may add to the perception that project delays are
related to the NEPA process. What may be perceived by the applicant as a NEPA-
related delay may actually stem from an agency’s need to complete a permit process
or analyses required under separate statutory authority (e.g., the Clean Water Act or
Endangered Species Act), over which the agency preparing the NEPA documentation
has no authority.
NEPA Issues Relevant to Disaster-Related Projects
When a community is devastated by a disaster, it may be overwhelmed by the
number of projects that need to be undertaken. Generally, when a local, tribal, or state
agency participates in the NEPA process, it involves a project that has been planned
or, at least to some degree, anticipated. In the wake of a disaster, however, when
entire neighborhoods, towns, or regions may be substantially damaged and in need
of repair or reconstruction, agencies can quickly become overburdened by the task
of navigating applicable compliance requirements. Coupled with the potential
difficulty of determining the various federal funding sources available to recover
from or mitigate damages, local agencies responding to a disaster may become
confused about their environmental compliance obligations. If those obligations are
not met, funding will be slowed.
From the federal agency perspective, the commitment to assist in rebuilding
structures and facilities and restoring land must be done in a way that will result in
greater protection from future disasters. That is, federal agencies do not want to
spend money that may have to be spent again when another disaster strikes.
Elements of the NEPA process, such as the requirement to demonstrate flood-plain
management considerations, help federal agencies meet this goal.
To understand what is required of applicants, it is helpful to understand the
types of disaster-related projects associated with various funding sources and the
levels of environmental review that may be required for proposed projects.
Disaster-Related Projects Potentially Subject to NEPA
NEPA’s environmental review requirements apply to any project potentially
subject to federal control or responsibility. Such actions include projects and
programs entirely or partly funded, assisted, conducted, regulated, or approved by
federal agencies.7 With regard to disaster recovery, rebuilding, or mitigation projects,
NEPA applies if federal funds are used for a project or if federal-agency permitting
7 40 C.F.R. § 1508.18(a). Further, the term “federal agency” is defined as all agencies of the
federal government, but does not mean the Congress, the Judiciary, or the President (40
C.F.R. § 1508.12).
or other approvals are required.8 Table 1 summarizes several potential funding
sources for disaster-related projects, the types of projects potentially qualified for
those funds, and the agencies authorized to provide funding.
Table 1. Projects and Funding Sources
Funding Types ofaFunding
so urce projects agency
Hazard MitigationProjects that will reduce or eliminate the losses from futureFEMA
Grant Programdisasters, such as the acquisition of real property from willing
(HMGP)sellers and demolition or relocation of buildings to convert the
property to open space use; retrofitting of structures and facilities to
minimize damages from high winds, earthquake, flood, wildfire, or
other natural hazards; elevation of flood-prone structures;
development and initial implementation of vegetative management
programs; minor flood control projects; and localized flood control
projects designed specifically to protect critical facilities.
Public AssistanceProjects intended to help a community respond to and recover fromFEMA
(PA) Grantmajor disasters or emergencies declared by the President. Such
Programprojects include: debris removal; emergency protective measures;
and the repair, replacement, or restoration of disaster-damaged,
publicly owned facilities (such as roads, bridges, water control
facilities, utilities, and critical buildings and equipment) and the
facilities of certain private nonprofit organizations. Such projects
are likely exempt from NEPA.
Flood MitigationMeasures to reduce flood losses, such as elevation, acquisition, orFEMA
Assistance (FMA)relocation of National Flood Insurance Program (NFIP)-insured
Repetitive FloodProjects intended to reduce or eliminate claims under the NationalFEMA
Claims (RFC)Flood Insurance Program (NFIP), such as the acquisition of
grant programproperties, and either demolition or relocation of flood-prone
structures, where the property is deed restricted for open space uses
in perpetuity; building elevations; dry flood-proofing of
non-residential structures; and minor localized flood control
projects (funding limited to $1 million per project).
CommunityShort-term disaster relief, such as debris removal or the emergencyHUD
Developmentrestoration of essential services, such as water, sewer, electrical,
Block Grantand telecommunications; mitigation activities intended to lessen
(CDBG) programthe impact of a future disaster, such as the construction of levees to
protect against flooding, buildings designed to withstand
earthquakes, or the buy-out of properties prone to a recurrence of
disaster events; and long-term recovery activities, such as
Source: Table prepared by CRS based on an evaluation of federal funding sources available for
disaster response, recovery, and mitigation activities.
a. This list is not intended to be exhaustive. In particular, it identifies categories of projects that would
be initiated by local, state, or tribal agency grant applicants (as opposed to federal projects that may
be initiated a federal agency, such as a flood-control project developed by the Army Corps of
E ngi ne e r s) .
8 If a project is undertaken purely by using city or state funds and it requires no federal
authorization or permit, NEPA’s environmental review requirements do not apply. However,
depending on the nature of the project, compliance with other environmental laws may be
required. Also, some cities and states have their own NEPA-like requirements.
For more information about these categories of projects, see CRS Report
RL33330, Community Development Block Grant Funds in Disaster Relief and
Recovery, by Eugene Boyd and Oscar R. Gonzales, and CRS Report RL34537,
FEMA’s Pre-Disaster Mitigation Program: Overview and Issues, by Francis X.
Agency and Applicant Roles
Generally, there are three entities that play a significant role in the NEPA
process for disaster-related projects: the lead agency, which is responsible for
preparing the NEPA documentation;9 cooperating agencies, which may be any local,
tribal, state, or federal agencies that have jurisdiction by law or special expertise
regarding any environmental impact involved in a proposal;10 and the project
applicant (which may also be referred to as a responsible entity or grantee under
different agency requirements), such as local, tribal, or state entities requesting
For disaster-related projects, the lead agency coordinates environmental reviews
for projects funded under that agency’s programs. For example, FEMA would be the
lead agency for debris removal operations involving Public Assistance (PA) Grant
funds. In a disaster-stricken area, it is possible that multiple funding sources may be
available for a single project. If more than one federal agency proposes or is involved
in the same action, the agencies must determine which agency will serve as the lead
and which will serve as cooperating agencies. If there is disagreement among
agencies involved, factors including the magnitude of each agency’s involvement and
project approval/disapproval authority determine the designation of the lead agency.
A cooperating agency is one that has jurisdiction by law or special expertise
regarding any environmental impact involved in a proposal.11 It may be local, tribal,
state, or federal agencies from which the lead agency will need technical assistance.
For example, depending on the impacts associated with a given project, the following
agencies may serve as cooperating agencies to develop appropriate NEPA
!The Environmental Protection Agency — to address air quality,
water quality, and hazardous waste standards.
!Advisory Council on Historic Preservation and/or state or tribal
historic preservation officer — to ensure that provisions of the
National Historic Preservation Act are addressed.
!The Army Corps of Engineers — to ensure that any U.S. water or
wetland impacts are identified, avoided or minimized, and
mitigation resolved, among other potential requirements.
9 40 C.F.R. § 1508.16.
10 40 C.F.R. § 1508.5.
11 40 C.F.R. § 1508.5.
!The U.S. Fish and Wildlife Service — to evaluate projects to ensure
that threatened and endangered species are identified, any impacts
avoided or minimized, and mitigation resolved.
!The U.S. Department of Agriculture — to ensure that impacts to
farmlands are considered.
Although the lead agency (such as FEMA or HUD) may be ultimately
responsible for ensuring that NEPA documentation is complete, the project applicant
plays a significant role in the NEPA process associated with disaster-related projects.
The project applicant, such as a state or local agency, will likely be required to
develop substantive portions of the environmental document, while the lead agency
is responsible for its scope and overall content. For example, project applicants are
required to provide information to support FEMA’s Environmental and Historic
Preservation compliance process. Funds will not be awarded, and the applicant may
not initiate the project, until FEMA has completed its environmental review.
Therefore, it is in the applicant’s interest to gather and present all information
necessary to assist the funding agency with meeting its environmental review
Categories of Action
Determining whether NEPA applies is generally not a complicated process.
Determining what level of review is required for a project (i.e., whether its
environmental impacts are significant) may not be as clear, and must be determined
on a case-by-case basis. When determining NEPA’s applicability, disaster-related
projects will fall into one of the following categories:
!Statutory exemptions — applicable to certain FEMA-funded
projects authorized under the Stafford Act.
!Categorical exclusions — applicable to actions that normally do not
individually or cumulatively have a significant effect on the human
environment and that the agency has determined from past
experience have no significant impact.
!Environmental Impact Statements (EISs) — when the action will
potentially have a significant environmental impact.
!Environmental Assessments (EAs) — when the significance of
environmental impacts is uncertain and must be determined.
The requirement to produce an EIS is probably the most familiar element of
NEPA compliance. However, actions requiring an EIS account for a small percentage
of all federal actions proposed in a given year — and generally none of those
associated with disaster response and recovery. For example, with regard to FEMA-
funded projects, statutorily exempt and categorically excluded projects account for
approximately 99% of actions undertaken annually.12 Further, from 2000 through
When a project that involves potentially significant effects is implemented under
emergency conditions, alternative compliance arrangements may be considered when
determining how an environmental review may be carried out. These alternative
arrangements and the various categories of action potentially subject to NEPA are
Statutory Exemptions. In responding to emergencies and major disasters,
existing provisions of the Stafford Act statutorily exempt certain FEMA-funded
activities from NEPA. Statutory exclusions generally apply to actions that are
emergency in nature or are necessary for the preservation of life and property. They
apply to most Public Assistance actions funded by FEMA, but do not apply to hazard
mitigation, flood mitigation, unmet needs projects, or FEMA grant programs.
Specifically, response actions excluded from NEPA by the Stafford Act (at 42 U.S.C.
§ 5159) include the following:
!General federal assistance — such as the utilization of personnel,
equipment, supplies, technical and advisory services in support of
disaster assistance. (See actions specified under 42 U.S.C. § 5170a.)
!Essential federal assistance — including actions to meet immediate
threats to life and property resulting from a major disaster, such as:
the use of federal resources (e.g., equipment, supplies, and facilities),
medicine, food, and other consumables; and work and services to
save lives and protect property (e.g., debris removal, search and
rescue, clearance of roads, demolition of unsafe structures, warning
of further risks and hazards). (See actions specified under 42 U.S.C
!Repair, restoration, and replacement of damaged buildings —
generally, this means restoring the facility to the same function,
capacity, and footprint. (See actions specified under 42 U.S.C. §
!Debris removal — exempt debris removal activities include
clearance of debris and wreckage resulting from a major disaster
from publicly and privately owned lands and waters after a major
disaster (long-term debris removal activities, such as decisions on
landfill locations, may not be exempt from NEPA). (See actions
specified under 42 U.S.C. § 5173.)
!Federal emergency assistance — such as the utilization of personnel,
equipment, supplies, technical and advisory services in support of
disaster assistance; and assistance in support of medicine, food, and
12 See FEMA’s Coordinating Environmental and Historic Preservation Compliance training
materials, “Module 2, Lesson 2: FEMA Exclusions Under NEPA,” p. 1, January 2004,
available online at [http://www.training.fema.gov/EMIWeb/IS/IS253lst.asp].
13 The total number of EISs filed annually, by agency, is posted by CEQ at [http://ceq.hss.
other consumable supplies and emergency assistance. (See actions
specified under 42 U.S.C. § 5192.)
It is important to understand that, as with actions categorically excluded
(discussed below), an action statutorily excluded from NEPA is not exempt from the
requirements of other environmental statutes. FEMA would still be responsible for
complying with all other applicable local, state, tribal, and federal laws and
regulations relating to health, safety, and the environment.14 This could encompass
federal environmental statutes including, among others, the Clean Air Act, Clean
Water Act, Endangered Species Act, National Historic Preservation Act, Resource
Conservation and Recovery Act, Coastal Zone Management Act, and the Coastal
Barrier Resources Act.
Also, these exemptions are specific to designated FEMA-funded activities
authorized under the Stafford Act. Similar statutory exemptions do not exist for
HUD-funded programs such as CDBG disaster assistance. In fact, under the CDBG
funding program, states are allowed to seek waivers of certain program requirements,
except those related to environmental review (and fair housing, nondiscrimination,
and labor standards).
Categorical Exclusions. If a project is of a type that falls within an
established category of activities the agency has previously determined to have no
significant environmental impacts, it is categorically excluded from the requirement
to prepare an EA or EIS. Sometimes such actions are referred to as being
categorically excluded or exempt from NEPA. However, NEPA does apply to such
actions; they are excluded only from the requirement to prepare an EA or EIS.
Individual agencies are required to specifically list, in their respective NEPA15
regulations, those projects likely to be considered categorical exclusions. For
example, FEMA has identified, among others, the following actions as generally
classifiable as categorical exclusions: upgrades to codes and standards, removal of
structures after addressing historic preservation needs, and minor improvements or
minor hazard mitigation measures at existing facilities, such as placing riprap at a
culvert outlet to control erosion.16 An example of a HUD-identified categorical
exclusion is the “acquisition, repair, improvement, reconstruction, or rehabilitation
of public facilities and improvements (other than buildings) when the facilities and
improvements are in place and will be retained in the same use without change in
size or capacity of more than 20 percent (e.g., replacement of water or sewer lines,17
reconstruction of curbs and sidewalks, repaving of streets).” Note that this
categorical exclusion is similar to the Stafford Act’s statutory exemption for projects
that would repair, restore, or replace damaged buildings. Most agencies have
identified similar activities in their list of categorical exclusions.
14 Local, state, and federal environmental laws and regulations may still provide some
exemption or regulatory allowance in the event of an emergency.
15 40 C.F.R. § 1507.3.
16 44 C.F.R. § 10.8(d)(3).
17 24 C.F.R. § 58.38.
Whether or what types of documentation may be required to demonstrate that
a project is categorically excluded will depend on whether the project involves
extraordinary circumstances that may cause a normally excluded action to have a
significant environmental effect.18 Also, the fact that a project does not have a
significant impact as defined under NEPA does not mean that it will not trigger
statutory requirements of other environmental laws. For example, if historical sites,
endangered species habitat, wetlands, or property in minority neighborhoods, to name
a few, would be affected by a proposed federal action, compliance with related
environmental laws or requirements, in addition to NEPA, may be required.
Even though categorically excluded projects do not have significant
environmental impacts, an agency may require a certain level of documentation to
prove that the CE determination is appropriate. For example, FEMA’s NEPA
regulations identify three levels of categorical exclusions and the types of
documentation necessary for each.19
If there are unresolved extraordinary circumstances that may have a significant
adverse environmental impact, such as the potential to affect protected natural or
cultural resources, the proposed action cannot be categorically excluded, and an EA
Projects Requiring an EA or EIS. If a project is not statutorily exempt from
NEPA or does not fit the criteria applicable to a categorical exclusion, it must be
determined whether the environmental impacts of such a project will be significant,
and hence require the preparation of an EIS. An EIS may be required for projects
intended to facilitate long-term recovery of an affected region. Examples may include
disaster-related flood-control or hurricane protection projects (e.g., new wetlands
restoration projects or levee repair projects); construction of roads, bridges, storm
water management projects, tornado shelters, temporary housing, fuel modification
projects, and public facilities (e.g., schools, libraries, utilities); debris storage,
staging, and removal; and building acquisition, relocation, and demolition.
If past disasters can serve as a gauge, a disaster-related project likely will not
require an EIS. However, it may require an EA. An EA is carried out in order to
clarify issues and determine the extent of an action’s environmental effects. CEQ
regulations define an EA as a concise public document that serves to briefly provide
sufficient evidence and analysis for determining whether to prepare an EIS or a
finding of no significant impact (FONSI); aid agency compliance with NEPA when20
no EIS is required; and facilitate preparation of an EIS when one is necessary.
The CEQ regulations require no standard format for EAs, but do require
agencies to include a brief discussion of the need for the proposal, alternatives,
impacts of the proposal and alternatives, and a list of agencies or individuals
18 40 C.F.R. § 1508.4.
19 See “FEMA Categorical Exclusions (CATEX)” at [http://www.fema.gov/plan/ehp/
regi onviii/catex.shtm] .
20 40 C.F.R. § 1508.9(a).
consulted.21 Individual agency regulations and/or guidance may include more
specific requirements. Some agencies suggest that the process for developing an EA
should be similar to the process for developing an EIS. For example, the applicant
should consult interested agencies to scope the project to determine the potential for
social, economic, or environmental impacts; briefly discuss the project’s purpose and
need; identify project alternatives and measures to mitigate adverse impacts; and
identify any other environmental review requirements applicable to the project (e.g.,
permitting requirements under the Clean Water Act). Public participation in the EA
process is left largely to the discretion of the lead agency.
If at any time during preparation of the EA it is determined that a project’s
impacts are significant, EIS preparation should begin. If it is ultimately determined
that impacts are not significant, the lead agency must prepare a FONSI. The FONSI
serves as the agency’s administrative record in support of its decision regarding a
project’s impact. The FONSI also must be available to the affected public.22
Alternative Compliance Arrangements. In addition to categorical and
statutory exclusions to NEPA, both CEQ and individual agencies have specified
“Alternative Arrangements” for complying with NEPA’s requirements in the event
of an emergency.23 Alternative arrangements are available where emergency
circumstances make it necessary to take an action with significant environmental
impacts (i.e., a project that would otherwise require an EIS) without observing the
provisions of the applicable NEPA regulations. In such circumstances, the federal
agency taking the action should consult with CEQ about what those arrangements
may be and the time frame within which they must be completed. Exactly what those
arrangements involve and how they would be implemented would vary according to
the nature of the disaster. Generally, their intent is to expedite the NEPA process
when an EIS would otherwise be required.
These Alternative Arrangements do not waive the requirement to comply with
NEPA regulations, but establish an alternative means of compliance. Agencies and
CEQ are to limit such arrangements to actions necessary to control the immediate
impacts of the emergency.
On September 8, 2005, CEQ released a memorandum that provides guidance
on emergency alternative arrangements under NEPA. That guidance was specific to24
Hurricane Katrina, but could be applicable to any disaster response activities
undertaken by federal agencies. For example, CEQ lists activities that could be
considered for analyses in accordance with alternative arrangement provisions, such
as the disposal of unsorted disaster debris (waste that includes both hazardous and
21 40 C.F.R. § 1508.9(b).
22 40 C.F.R. § 1501.4(e)(1).
23 40 CFR § 1506.11. The Corps has regulatory provisions similar to CEQ’s that address
emergency actions. FEMA’s regulations reference statutory exemptions provided under the
24 See “Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA,”
including Attachments 1 and 2, at [http://www.nepa.gov/nepa/regs/guidance.html].
nonhazardous constituents) at a specific site or the permanent replacement of certain
major facilities when the agency expects that significant environmental affects will
On March 23, 2006, FEMA published a notice specifying those arrangements
for agency grants to repair or reconstruct critical infrastructure in the New Orleans
Metropolitan Area.25 “Critical infrastructure” included
!hospitals and health care facilities,
!utilities and wastewater treatment plants,
!permanent police and fire stations,
!government and court administration buildings,
!detention centers (jails), and
Although alternative arrangements are an option after a disaster, they are rarely
used. Since 1980, the only disaster-related projects to use alternative arrangements
involved certain rebuilding efforts in the New Orleans area after Hurricanes Katrina
and Rita. In particular, alternative arrangements were established for the Corps’
reconstruction of levies damaged after the storm and FEMA grant-assisted projects
to replace certain critical infrastructures (referenced above). Specifically, after the
hurricanes, FEMA anticipated that grant applications from Louisiana “will more
strongly reflect future demands than returning to pre-disaster conditions. Proposed
projects will not necessarily be the same size, nature or location; will use current
building codes, and construction methods; and take advantage of current community
and urban planning principles, and hazard mitigation opportunities.”26 Under such
conditions, NEPA would apply. To coordinate their recovery efforts more quickly,
among other factors, FEMA requested Alternative Arrangements to meet its NEPA
When a community is devastated by a disaster, all at once it may be faced with
the need to rebuild roads, bridges, private homes, and public buildings. Such projects,
when undertaken under normal circumstances, may not qualify for federal funding,
but when they do, as in the case after a disaster, the federal government must be
assured that certain criteria are met before those funds are made available. Among
other factors, the federal government needs confirmation that those funds will not be
used in a way that increases the likelihood that their investment will be lost if and
when another disaster strikes the same area. Further, before a federal agency will
provide funds for disaster recovery or rebuilding, it must gain assurance that the
project complies with applicable regulations, laws, and executive orders. The NEPA
process is a vehicle by which that assurance can be obtained.
25 71 Federal Register 14712-14716; see also FEMA’s webpage “Greater New Orleans
Infrastructure Projects,” at [http://www.fema.gov/plan/ehp/noma/about1.shtm].
26 71 Federal Register 14715.