Environmental and Historic Preservation (EHP) Requirements

Purpose and Scope

Environmental and Historic Preservation (EHP) compliance is a mandatory legal framework governed by  FEMA Directive 108-1 . It is not a bureaucratic hurdle but a critical prerequisite for securing and maintaining federal grant eligibility. Throughout the Public Assistance (PA) Grant Lifecycle, EHP serves as a strategic gatekeeper.

A primary tool in this process is the  "Green Sheet,"  which specialists prepare at the onset of a disaster. For the applicant, the Green Sheet acts as a vital disaster-specific checklist for local hazards—such as protected species or archaeological zones—allowing for the proactive integration of EHP considerations into the project formulation stage.

Failure to engage EHP specialists early often results in project stagnation and significant de-obligation risks.This document serves as the definitive guide for navigating the EHP review process. Compliance is a non-negotiable requirement for project obligation. All federally funded projects must undergo a formal review to assess potential impacts on natural and cultural resources, adhering to a mandate of avoidance, minimization, or compensation for adverse effects.

Document Structural Breakdown

I. EHP Compliance Review

The  Record of Environmental Consideration (REC)  is the administrative anchor for all compliance determinations. Beyond being a summary of past reviews, the REC functions as a  compliance contract . It is the formal mechanism FEMA uses to convey specific conditions that must be followed during project execution. If a REC condition mandates a specific construction window or material type, the applicant is legally bound to those terms; deviation provides the legal basis for de-obligation.

Required Information and Documentation

To prevent project delays and minimize the issuance of Requests for Information (RFIs), applicants must provide high-quality data during project formulation:

• Location Data:  Physical addresses and precise GPS coordinates for work sites, equipment staging areas, and  material fill sources .
• Physical Dimensions:  Comprehensive dimensions of all ground disturbances (length, width, and depth).
• Project Specifics:  Type and quantity of materials;  temporary and final disposal site information for debris ; and source of fill material.
• Facility History:  Original construction dates and records of all subsequent renovations.
• Technical Support:  Maps, site plans, blueprints, and pre-existing permits or correspondence with regulatory agencies.

Projects Qualifying for Streamlined EHP Review

FEMA utilizes Programmatic Agreements and standardized exclusions to accelerate obligations for low-risk projects.

• Statutory Exclusion (STATEX):  Applied to actions required in the immediate aftermath of a disaster to return facilities to their  pre-disaster condition . These are considered a statutory necessity with minimal environmental impact.
• Categorical Exclusion (CATEX):  Applied to recurring project types that FEMA has demonstrated do not normally have a significant effect on the environment.
• Common Streamlined Actions:  Restoration to pre-disaster condition using in-kind materials; projects involving replacement of contents or equipment; and work on structures less than 45 years old that lack historic eligibility.

Projects Requiring Complex EHP Review

Complex reviews are triggered when work impacts sensitive resources, necessitating coordination with agencies such as the USFWS, EPA, USACE, or SHPO/THPO. Triggers include:

• New construction or changes to the location, footprint, or size of a facility.
• Work on buildings or districts  45 years or older , or any soil movement in historic areas.
• Work within the 1% annual chance floodplain (100-year) or, for  critical actions , work within the 0.2% annual chance floodplain (500-year).
• Work in environmentally sensitive areas, such as barrier islands or conservation easements.

Emergency Work (Categories A and B)

While the Stafford Act (Section 316) statutorily excludes most emergency work from NEPA, it does  not  exempt it from other federal laws like the Endangered Species Act (ESA) or the National Historic Preservation Act (NHPA).

• Debris Removal:  Must avoid impacts to wetlands, underwater archaeological resources, and hazardous gas release sites.
• Emergency Protective Measures:  Applicants are encouraged to "front-load" EHP considerations. For completed work, documentation must be provided  after-the-fact  to demonstrate compliance. Note: After-the-fact documentation is a high-audit-risk area where the burden of proof rests entirely on the applicant to show that resources were not harmed.

Permanent Work (Categories C-G)

Permanent work involving footprint changes or relocation requires the most intensive EHP review.

• Disposition of Original Facility:  For  capped project funding  (alternate and alternative procedures), if the applicant does not repair the original facility, they must render it safe and secure or demolish it.
• Salvage Value Nuance:  For capped projects, FEMA will adjust the funding based on the value or anticipated fair market value of salvaged materials, less the costs of making the facility safe or demolishing it.

Navigating the EHP Compliance Process

1. Permit Acquisition:  Applicants must obtain all necessary permits (e.g., CWA Section 404) prior to construction.
2. Correspondence Logs:  Maintain and provide all communications with regulatory agencies.
3. Condition Adherence:  Verify and document that all REC-mandated conditions were met during construction.

Understanding EHP Laws and Executive Orders

• NEPA:  Establishes levels of review from STATEX/CATEX to Environmental Impact Statements (EIS).
• NHPA (Section 106):  Requires consultation with SHPO/THPO to resolve adverse effects on historic properties.
• ESA (Section 7):  Mandates consultation with USFWS or NMFS for projects affecting listed species or critical habitats.
• EO 11988 & 11990:  Mandates an 8-step process to ensure the floodplain or wetland is the only  practicable  location for the project.
• Coastal Barrier Resources Act (CBRA):  Restricts assistance in the CBRS. Note: Proposed actions in  "Otherwise Protected Areas" (OPAs)  generally do not require USFWS consultation, a key distinction for coastal applicants.
• Clean Water Act (CWA):  Requires Section 401/402/404 permits for work in navigable waters. For  non-reporting nationwide permits (NWP) , the applicant must explicitly  declare the use of the permit  to FEMA, as no physical paper permit is issued.

Coordination and Partnerships

• Unified Federal Review (UFR):  Facilitates inter-agency coordination to resolve impasses in geographic areas with overlapping federal jurisdictions.
• Heritage Emergency National Task Force (HENTF):  A partnership between FEMA and the Smithsonian providing technical expertise for cultural institutions and the arts sector.

Key Findings & Strategic Evaluation

The "REC Gatekeeper" Concept

The REC is the final regulatory filter. Because it functions as the "compliance contract," its conditions are the primary mechanism for capturing legal requirements. Failure to meet these conditions during project execution renders the funding legally indefensible.

Compliance Mandate

1. Proactive Integration:  EHP must be integrated into the initial SOW; after-the-fact documentation is a high-risk strategy that often leads to de-obligation.
2. Mandatory Avoidance:  The framework prioritizes the avoidance of impacts over compensatory measures.
3. Legal Prerequisite:  No project can be obligated without a completed EHP review and a signed REC.

Critical Data Points and Evidence Standards

• Mandatory Metrics:  45-year threshold for historic review; 1% (all) and 0.2% (critical actions) floodplain zones; adherence to  44 C.F.R. Part 9 .
• Evidence Standards:  FEMA requires post-construction surveys, letters of exemption, and formal declarations for non-reporting NWPs.

Notable Risks, Gaps, or Assumptions

• The NEPA Exclusion Fallacy:  The assumption that a NEPA exclusion covers all EHP laws is a primary cause of project failure. ESA and NHPA are always independent requirements.
• The Construction Gap:  Proceeding without permits or before the REC is signed creates a near-certain risk of total de-obligation.
• External Timeframes:  Consultation timelines with agencies (SHPO, USFWS) are outside FEMA’s control and represent the primary risk to project schedules.

Slide Planning For This Document

• Image Context:  A flowchart depicting the transition from a Project Scope of Work (SOW) through EHP Review Levels (Streamlined/STATEX vs. Complex), showing regulatory touchpoints (SHPO, USFWS, USACE), and culminating in the Record of Environmental Consideration (REC) as a contract of conditions.
• Connective Tissue:  The granular requirements identified in this chapter—specifically regarding GPS data, facility age, and permit status—serve as the evidentiary foundation for the following macro-synthesis of organizational risk and mitigation strategy.

Macro-Synthesis for Leadership Review

Top Actionable Insights

1. Front-Load SOW Data:  Provide GPS, fill sources, and debris disposal site info immediately to avoid RFIs.
2. Declare NWPs:  Explicitly state the use of non-reporting nationwide permits to satisfy CWA requirements.
3. Utilize Programmatic Agreements:  Target "in-kind" repairs to trigger STATEX/streamlined tracks.
4. Prioritize SHPO Engagement:  Initiate historic reviews for any structure 45+ years old at day one.

Major Risks or Red Flags

• "After-the-Fact" Documentation:  High risk of failing EHP review for completed work, resulting in 100% funding loss.
• Critical Action Floodplain Errors:  Failing to identify "critical actions" in the 500-year floodplain can stall project approval late in the lifecycle.

Opportunities or Strategic Implications

• Optimization:  Leveraging HENTF and the UFR process can resolve complex impasses in multi-agency projects, reducing the burden on internal staff.

What Leadership Should Care About Most

EHP compliance is the primary funding trigger.  Beyond bureaucratic checkboxes, these requirements protect the agency from  litigation and legal challenges  that can freeze recovery efforts. If REC conditions are ignored or permits are missing, the project is legally ineligible for federal reimbursement. The cost of proactive compliance and specialist engagement is significantly lower than the financial and reputational cost of de-obligation.

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