SRF 101 SRF Cross Cutters: Understanding the Environmental and Cultural Reviews EPA s Perspective CIFA Conference Workshop Seattle, Washington Monday, November 2, 2009 Philip C. Metzger Attorney, US EPA Office of Ground Water and Drinking Water
NEPA and Environmental Review in the State Revolving Funds NEPA requires review of impacts for all activities undertaken using Federal funds or subject to Federal permits EPA s DWSRF rule provides for State Environmental Review Process (SERP) in lieu of NEPA review (40 CFR 35.3580) CWSRF rule is similar il (40 CFR 35.3140) 3140) SERPs for the SRFs must include elements that are functionally equivalent to NEPA
What are cross-cutters? cutters Cross-cutters are Federal laws, executive orders, and government-wide policies [that] apply by their own terms to projects and activities receiving Federal financial assistance, regardless of whether the statute authorizing the assistance makes them applicable
Environmental cross-cutters cutters Historic Resources National Historic i Preservation Act Archeological and Historic Preservation Act Environmentally Sensitive Lands Protection of Wetlands Flood Plain Management Farmland Protection Policy Act Coastal Area Protection Coastal Zone Management Act Coastal Barriers Resources Act Wild and Scenic Rivers Act Endangered Species Act Essential Fish Habitat Clean Air Act Safe Drinking Water Act
Social Policy cross-cutterscutters Civil Rights Laws (i.e., Super Cross-Cutters) Title VI of the Civil Rights Act of 1964 Section 13 of the FWPCA Amendments of 1972 Section 504 of the Rehabilitation Act of 1973 The Age Discrimination Act of 1975 Equal Employment Opportunity, Executive Order No. 112 Disadvantaged Business Enterprise Provisions Promoting the Use of Small, Minority, and Womenowned Businesses Section 129 of the Small Business Administration Reauthorization and Amendment Act of 1988 Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1993
Economic and Miscellaneous Cross-cutters Prohibitions Relating to Violators of the Clean Air Act and the Clean Water Act Debarment and Suspension, Executive Order No. 12549 Demonstration Cities and Metropolitan Development Act Uniform Relocation Assistance and Real Property Acquisition Policies Act Preservation of Open Competition and Government Neutrality
In applying cross-cutters, what are equivalency projects? All projects for which a State provides assistance in amounts up to the amount of the capitalization grant deposited into the Fund must comply with the requirements of the crosscutters. [40 CFR 35.3575(b)(1)] States must ensure projects comply in an amount equivalent to the capitalization grant Projects that are not equivalency (above the equivalency amount) need not comply with some cross-cutters directly
In applying cross-cutters, what are limits i on equivalency projects? All projects are subject to anti- discrimination laws (no equivalency applies) Under DWSRF but not CWSRF rule, States can bank excess in applying cross-cutterscutters Administering the equivalency distinction is a practical and political l challenge
Relationship between environmental review and cross-cutters Some cross-cutters require detailed consultation and impact resolution process, esp. where driven by Federal law (NHPA, Wild & Scenic River Act) NEPA/SERPs, some cross-cutters (e.g., policies) require impact assessment only EPA NEPA rule (40 CFR Part 6, rev. 9/07) provides explicit Categorical Exclusions for many types of water infrastructure projects
Relationship between environmental review and cross-cutters NEPA rule 6.204(a)(1)(ii) gives categorical exclusions to actions relating to existing infrastructure systems (such as drinking water supply systems) that involve rehabilitation (including functional replacement) of the existing system Non-equivalency projects with CEs exempt from environmental cross-cutters may still need SERP review if have exceptional circumstances cu ces (impact on environmental e cross- cutters)
Relationship between environmental review and cross-cutters Non-equivalency status is NOT a get out of jail free card for cross-cutters Compliance out for cross-cutter logistics and process 6.204(b) extraordinary circumstances means non-equivalency projects remain subject to core substance of environmental cross-cutterscutters Rehab/replacement projects are generally unlikely to have enviro cross-cutter effects
State SRF agencies are lead in implementing environmental and cross- cutter reviews State SRF agency makes the no significant effect determination for CE status under DWSRF rule (35.3580) any application of equivalency as among projects many initial no potential to affect determinations (based on federal agency info) Thus, answering most environmental do we have to look further? Qs for projects appropriate for CE status is w/in state role
NHPA 106 Process Simplified Summary State DWSRF agency responsible for Par t800 ( 106 rule) review, guidance to applicants on review function, process, info required, EPA performs programmatic oversight through an appropriate, mutually-agreed upon, binding vehicle Is project an undertaking? ( 800.3(a)) Review question asked under Part 800 ( 106 rule) Process Key Entity, basis, participation process to answer question process per Part 800 State DWSRF agency determines State has discretion to limit to Federal grant equivalency projects No consultation required If yes, is project a type of activity with potential to affect historic properties? ( 800.3(a)(1)) NO Color Key (Suggested programmatic products in bold underlined italics) Question Who Decides? What is the substantive basis for the decision/determination? Who participates in the decisionmaking process, and how? Outcome State DWSRF agency determines State agency official writes guidelines in consultation with S/THPOs No consultation required on specific projects, but is advisable with S/THPO on guidelines to make agency expertise credible NO No further action required under 106
If yes, are National Register-eligible properties present? (identify historic properties, evaluate significance ( 800.4)) Will the undertaking have an adverse effect on such property? (Assessment of effects ( 800.5)) NO State DWSRF agency proposes finding, but lack of S/THPO concurrence may require Advisory Council review Generation of adequate information: State DWSRF ensure essential info generated for core 106 determinations (applicant s job?) Consultation: State DWSRF develop protocols with S/THPOs re required consultation and information-sharing Public Involvement: Timely input vital to understand historic resources, potential project effects, impact of interests If yes, can adverse effects be resolved? ( 800.6) State DWSRF agency must involve public, consult with S/THPO; bring in Advisory Council if agency and S/THPO disagree on memo to resolve effects Goal of negotiations o is to reach MOA to avoid/minimize/mitigate adverse effectsects Process detailed in 800.6: State agency provides documentation for S/THPO review/ consultation/negotiation, public involvement, including Advisory Council as needed YES Take actions agreed upon by DWSRF Agency, S/THPO NO Enter 800.7 process (failure to resolve adverse effects)