[Code of Federal Regulations]

[Title 44, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 44CFR10.8]



[Page 105-108]

 

              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE

 

 CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND 

                                SECURITY

 

PART 10_ENVIRONMENTAL CONSIDERATIONS--Table of Contents

 

                Subpart B_Agency Implementing Procedures

 

Sec. 10.8  Determination of requirement for environmental review.



    The first step in applying the NEPA process is to determine whether 

to prepare an environmental assessment or an environmental impact 

statement. Early determination will help ensure that necessary 

environmental documentation is prepared and integrated into the 

decision-making process. Environmental impact statements will be 

prepared for all major Agency actions (see 40 CFR 1508.18) significantly 

(see 40 CFR 1508.27) affecting the quality of the human environment.

    (a) In determining whether to prepare an environmental impact 

statement (EIS) the Regional Director will first determine whether the 

proposal is one which:

    (1) Normally requires an environmental impact statement; or

    (2) Normally does not require either an environmental impact 

statement or an environmental assessment (categorical exclusion).

    (b) Actions that normally require an EIS. (1) In some cases, it will 

be readily apparent that a proposed action will have significant impact 

on the environment. In that event, the Regional Director will, pursuant 

to Sec. 10.9(g) of this part, submit the notice of preparation of an 

environmental impact statement to the Environmental Officer.

    (2) To assist in determining those actions that normally do require 

an environmental impact statement, the following criteria apply:

    (i) If an action will result in an extensive change in land use or 

the commitment of a large amount of land;

    (ii) If an action will result in a land use change which is 

incompatible with the existing or planned land use of the surrounding 

area;

    (iii) If many people will be affected;

    (iv) If the environmental impact of the project is likely to be 

controversial;

    (v) If an action will affect, in large measure, wildlife populations 

and their habitats, important natural resources, floodplains, wetlands, 

estuaries, beaches, dunes, unstable soils, steep slopes, aquifer 

recharge areas, or delicate or rare ecosystems, including endangered 

species;

    (vi) If an action will result in a major adverse impact upon air or 

water quality;

    (vii) If an action will adversely affect a property listed on the 

National Register of Historic Places or eligible for listing on the 

Register if, after consultation with the Advisory Council on Historic 

Preservation an environmental assessment is not deemed sufficient;

    (viii) If an action is one of several actions underway or planned 

for an area and the cumulative impact of these projects is considered 

significant in terms of the above criteria;

    (ix) If an action holds potential for threat or hazard to the 

public; or

    (x) If an action is similar to previous actions determined to 

require an environmental impact statement.

    (3) In any case involving an action that normally does require an 

environmental impact statement, the Regional Director may prepare an 

environmental assessment to determine if an environmental impact 

statement is required.

    (c) Statutory exclusions. The following actions are statutorily 

excluded from NEPA and the preparation of environmental impact 

statements and environmental assessments by section 316 of the Robert T. 

Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as 

amended, 42 U.S.C. 5159;

    (1) Action taken or assistance provided under sections 402, 403, 

407, or 502 of the Stafford Act; and



[[Page 106]]



    (2) Action taken or assistance provided under section 406 of the 

Stafford Act that has the effect of restoring facilities substantially 

as they existed before a major disaster or emergency.

    (d) Categorical Exclusions (CATEXs). CEQ regulations at 40 CFR 

1508.4 provide for the categorical exclusion of actions that do not 

individually or cumulatively have a significant impact on the human 

environment and for which, therefore, neither an environmental 

assessment nor an environmental impact statement is required. Full 

implementation of this concept will help FEMA avoid unnecessary or 

duplicate effort and concentrate resources on significant environmental 

issues.

    (1) Criteria. The criteria used for determination of those 

categories of actions that normally do not require either an 

environmental impact statement or an environmental assessment include:

    (i) Minimal or no effect on environmental quality;

    (ii) No significant change to existing environmental conditions; and

    (iii) No significant cumulative environmental impact.

    (2) List of exclusion categories. FEMA has determined that the 

following categories of actions have no significant effect on the human 

environment and are, therefore, categorically excluded from the 

preparation of environmental impact statements and environmental 

assessments except where extraordinary circumstances as defined in 

paragraph (d)(5) of this section exist. If the action is of an emergency 

nature as described in Sec. 316 of the Stafford Act (42 U.S.C. 5159), 

it is statutorily excluded and is noted with [SE].

    (i) Administrative actions such as personnel actions, travel, 

procurement of supplies, etc., in support of normal day-to-day 

activities and disaster related activities;

    (ii) Preparation, revision, and adoption of regulations, directives, 

manuals, and other guidance documents related to actions that qualify 

for categorical exclusions;

    (iii) Studies that involve no commitment of resources other than 

manpower and associated funding;

    (iv) Inspection and monitoring activities, granting of variances, 

and actions to enforce Federal, state, or local codes, standards or 

regulations;

    (v) Training activities and both training and operational exercises 

utilizing existing facilities in accordance with established procedures 

and land use designations;

    (vi) Procurement of goods and services for support of day-to-day and 

emergency operational activities, and the temporary storage of goods 

other than hazardous materials, so long as storage occurs on previously 

disturbed land or in existing facilities;

    (vii) The acquisition of properties and the associated demolition/

removal [see paragraph (d)(2)(xii) of this section] or relocation of 

structures [see paragraph (d)(2)(xiii) of this section] under any 

applicable authority when the acquisition is from a willing seller, the 

buyer coordinated acquisition planning with affected authorities, and 

the acquired property will be dedicated in perpetuity to uses that are 

compatible with open space, recreational, or wetland practices.

    (viii) Acquisition or lease of existing facilities where planned 

uses conform to past use or local land use requirements;

    (ix) Acquisition, installation, or operation of utility and 

communication systems that use existing distribution systems or 

facilities, or currently used infrastructure rights-of-way;

    (x) Routine maintenance, repair, and grounds-keeping activities at 

FEMA facilities;

    (xi) Planting of indigenous vegetation;

    (xii) Demolition of structures and other improvements or disposal of 

uncontaminated structures and other improvements to permitted off-site 

locations, or both;

    (xiii) Physical relocation of individual structures where FEMA has 

no involvement in the relocation site selection or development;

    (xiv) Granting of community-wide exceptions for floodproofed 

residential basements meeting the requirements of 44 CFR 60.6(c) under 

the National Flood Insurance Program;

    (xv) Repair, reconstruction, restoration, elevation, retrofitting, 

upgrading to current codes and standards, or replacement of any facility 

in a manner



[[Page 107]]



that substantially conforms to the preexisting design, function, and 

location; [SE, in part]

    (xvi) Improvements to existing facilities and the construction of 

small scale hazard mitigation measures in existing developed areas with 

substantially completed infrastructure, when the immediate project area 

has already been disturbed, and when those actions do not alter basic 

functions, do not exceed capacity of other system components, or modify 

intended land use; provided the operation of the completed project will 

not, of itself, have an adverse effect on the quality of the human 

environment;

    (xvii) Actions conducted within enclosed facilities where all 

airborne emissions, waterborne effluent, external radiation levels, 

outdoor noise, and solid and bulk waste disposal practices comply with 

existing Federal, state, and local laws and regulations;

    (xviii) The following planning and administrative activities in 

support of emergency and disaster response and recovery:

    (A) Activation of the Emergency Support Team and convening of the 

Catastrophic Disaster Response Group at FEMA headquarters;

    (B) Activation of the Regional Operations Center and deployment of 

the Emergency Response Team, in whole or in part;

    (C) Deployment of Urban Search and Rescue teams;

    (D) Situation Assessment including ground and aerial reconnaissance;

    (E) Information and data gathering and reporting efforts in support 

of emergency and disaster response and recovery and hazard mitigation; 

and

    (xix) The following emergency and disaster response, recovery and 

hazard mitigation activities under the Stafford Act:

    (A) General Federal Assistance (Sec. 402); [SE]

    (B) Essential Assistance (Sec. 403); [SE]

    (C) Debris Removal (Sec. 407) [SE]

    (D) Temporary Housing (Sec. 408), except locating multiple mobile 

homes or other readily fabricated dwellings on sites, other than private 

residences, not previously used for such purposes;

    (E) Unemployment Assistance (Sec. 410);

    (F) Individual and Family Grant Programs (Sec. 411), except for 

grants that will be used for restoring, repairing or building private 

bridges, or purchasing mobile homes or other readily fabricated 

dwellings;

    (G) Food Coupons and Distribution (Sec. 412);

    (H) Food Commodities (Sec. 413);

    (I) Legal Services (Sec. 415);

    (J) Crisis Counseling Assistance and Training (Sec. 416);

    (K) Community Disaster Loans (Sec. 417);

    (L) Emergency Communications (Sec. 418);

    (M) Emergency Public Transportation (Sec. 419);

    (N) Fire Management Assistance Grants; and

    (O) Federal Emergency Assistance (Sec. 502) [SE].

    (3) Extraordinary circumstances. If extraordinary circumstances 

exist within an area affected by an action, such that an action that is 

categorically excluded from NEPA compliance may have a significant 

adverse environmental impact, an environmental assessment shall be 

prepared. Extraordinary circumstances that may have a significant 

environmental impact include:

    (i) Greater scope or size than normally experienced for a particular 

category of action;

    (ii) Actions with a high level of public controversy;

    (iii) Potential for degradation, even though slight, of already 

existing poor environmental conditions;

    (iv) Employment of unproven technology with potential adverse 

effects or actions involving unique or unknown environmental risks;

    (v) Presence of endangered or threatened species or their critical 

habitat, or archaeological, cultural, historical or other protected 

resources;

    (vi) Presence of hazardous or toxic substances at levels which 

exceed Federal, state or local regulations or standards requiring action 

or attention;

    (vii) Actions with the potential to affect special status areas 

adversely or other critical resources such as wetlands, coastal zones, 

wildlife refuge and



[[Page 108]]



wilderness areas, wild and scenic rivers, sole or principal drinking 

water aquifers;

    (viii) Potential for adverse effects on health or safety; and

    (ix) Potential to violate a Federal, State, local or tribal law or 

requirement imposed for the protection of the environment.

    (x) Potential for significant cumulative impact when the proposed 

action is combined with other past, present and reasonably foreseeable 

future actions, even though the impacts of the proposed action may not 

be significant by themselves.

    (4) Documentation. The Regional Director will prepare and maintain 

an administrative record of each proposal that is determined to be 

categorically excluded from the preparation of an environmental impact 

statement or an environmental assessment.

    (5) Revocation. The Regional Director shall revoke a determination 

of categorical exclusion and shall require a full environmental review 

if, subsequent to the granting an exclusion, the Regional Director 

determines that due to changes in the proposed action or in light of new 

findings, the action no longer meets the requirements for a categorical 

exclusion.

    (6) Changes to the list of exclusion categories. (i) The FEMA list 

of exclusion categories will be continually reviewed and refined as 

additional categories are identified and experience is gained in the 

categorical exclusion process. An office, directorate, or administration 

of FEMA may, at any time, recommend additions or changes to the FEMA 

list of exclusion categories.

    (ii) Offices, directorates, and administrations of FEMA are 

encouraged to develop additional categories of exclusions necessary to 

meet their unique operational and mission requirements.

    (iii) If an office, directorate, or administration of FEMA proposes 

to change or add to the list of exclusion categories, it shall first:

    (A) Obtain the approval of the Environmental Officer and the Office 

of the General Counsel; and

    (B) Publish notice of such proposed change or addition in the 

Federal Register at least 60 days before the effective date of such 

change or addition.

    (e) Actions that normally require an environmental assessment. When 

a proposal is not one that normally requires an environmental impact 

statement and does not qualify as a categorical exclusion, the Regional 

Director shall prepare an environmental assessment.

    (f) Documentation. The Regional Director will prepare and maintain 

an administrative record of each proposal that is determined to be 

categorically excluded from the preparation of an environmental impact 

statement or an environmental assessment.

    (g) Actions that normally require an environmental assessment. When 

a proposal is not one that normally requires an environmental impact 

statement and does not qualify as a categorical exclusion, the Regional 

Director shall prepare an environmental assessment.



[45 FR 41142, June 18, 1980, as amended at 46 FR 2049, Jan. 8, 1981; 46 

FR 54346, Nov. 3, 1981; 47 FR 13149, Mar. 29, 1982; 52 FR 5285, Feb. 20, 

1987; 59 FR 954, Jan. 7, 1994; 61 FR 4230, Feb. 5, 1996; 61 FR 10688, 

Mar. 15, 1996; 66 FR 57347, Nov. 14, 2001]