[Federal Register Volume 60, Number 185 (Monday, September 25, 1995)]
[Proposed Rules]
[Pages 49466-49478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23645]
[[Page 49465]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 58
Environmental Review Procedures for Entities Assuming HUD Environmental
Responsibilities; Proposed Rule
Federal Register / Vol. 60, No. 185 / Monday, September 25, 1995 /
Proposed Rules
[[Page 49466]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 58
[Docket No. FR-3514-P-01]
RIN 2501-AB67
Environmental Review Procedures for Entities Assuming HUD
Environmental Responsibilities
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the existing environmental
regulations governing entities that assume HUD responsibilities by
making the environmental review procedures consistent under the various
programs to which these regulations apply. This proposed rule would
also make clarifying and editorial changes to the existing
environmental regulations governing entities that assume HUD
responsibilities.
DATES: Comment Due Date: November 24, 1995.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Rules Docket Clerk, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title. Facsimile (FAX) comments
are not acceptable. A copy of each communication submitted will be
available for public inspection and copying between 7:30 a.m. and 5:30
p.m. weekdays at the above address.
FOR FURTHER INFORMATION CONTACT: Richard H. Broun, Director, Office of
Environment and Energy, Room 7240, Department of Housing and Urban
Development, 451 Seventh Street, S.W., Washington, DC 20410, telephone
(202) 708-2894. For telephone communication, contact Fred Regetz,
Environmental Review Division at (202) 708-1201. Hearing or speech-
impaired individuals may call the Federal Information Relay Service
number at 1-800-877-TDDY (1-800-877-8339) and refer to (202) 708-4346.
SUPPLEMENTARY INFORMATION:
I. Background
This proposed rule would revise and restate the procedures for
recipients of HUD assistance and other responsible entities in
applicable HUD programs to carry out environmental reviews in
accordance with the National Environmental Policy Act of 1969 (42
U.S.C. 4321-4347) (``NEPA''), the NEPA implementing regulations of the
Council on Environmental Quality (CEQ), and other NEPA related federal
laws. Applicable HUD programs include any program in which specific
statutory authority allows the environmental review responsibilities to
be assumed by responsible entities. Currently, applicable HUD programs,
and therefore those covered by part 58 only include: (1) Title I
Community Development Block Grant Programs, (2) the Rental
Rehabilitation Program and the Housing Development Grant Program (3)
the HOME programs under the Cranston-Gonzalez National Affordable
Housing Act (NAHA), (4) the homeless programs authorized by Title IV of
the Stewart B. McKinney Homeless Assistance Act, (5) Grants to States
and units of general local government for abatement of lead-based
paint, (6) Public and Indian Housing and most Section 8 programs under
Title I of the United States Housing Act for 1937, (7) Special projects
appropriated under an appropriation Act of HUD, and (8) The FHA Multi-
Family Housing Finance Agency Pilot Program under section 542(c) of the
Housing and Community Development Act of 1992.
A. Historical Perspective
On April 12, 1982, the Department published an interim rule in the
Federal Register at 47 FR 15750, revising part 58. It set forth the
environmental requirements for the Title I Community Development Block
Grant programs of the Department, as authorized by section 104(g) of
the Housing and Community Development Act of 1974 (HCD Act of 1974).
Under section 104(g), block grant recipients may assume the
environmental review responsibilities of the Secretary.
On June 7, 1984, the Department published another interim rule in
the Federal Register at 49 FR 23610. It amended part 58 to implement
section 17 of the United States Housing Act, as added by section 301 of
the Housing and Urban Rural Recovery Act of 1983. Section 17
established two new housing programs--the Rental Rehabilitation Program
(24 CFR part 511) and the Housing Development Grant Program (24 CFR
part 850) and made these programs subject to section 104(g) of the HCD
Act of 1974. In addition, the rule added Sec. 58.17. Section 58.17
implemented section 17(i)(1) of the 1937 Act by establishing conditions
under which assistance may be provided when the rehabilitation or
development would affect a property on or eligible for inclusion on the
National Register of Historic Places.
On August 10, 1988 (53 FR 30186), the Department amended part 58 by
adding paragraph (a)(6) to Sec. 58.35 to categorically exclude
maintenance and administrative activities which are undertaken to
support housing and shelter programs for the homeless including those
authorized by the Stewart B. McKinney Homeless Assistance Act (McKinney
Act). The McKinney Act was amended in 1988 by adding section 443 which
authorized the use of the environmental review provisions of section
104(g) of the HCD Act of 1974 for HUD's homeless assistance programs.
An interim rule published on June 23, 1993 (58 FR 34130) amended
part 58 to expand its applicability to the HOME program and the
homeless assistance programs under title IV of the McKinney Act. The
1993 interim rule also broadened, where appropriate, program-specific
references to various activities, responsibilities and categorical
exclusions so that they apply to activities and participants under
these two programs.
The 1993 interim rule also amended part 58 to relocate three
statutory and regulatory provisions from the list of laws and
authorities in Sec. 58.5 for which recipients must assume environmental
responsibilities. The three authorities--the Flood Disaster Protection
Act of 1973 (FDPA), the Coastal Barrier Resources Act (CBRA), and the
notice to purchasers of property in runway clear zones of a civil
airport and clear zones of a military airfield--were relocated from
Sec. 58.5 to a new Sec. 58.6. (HUD determined that, intrinsically,
these three authorities are not like the other authorities listed in
Sec. 58.5 that trigger the environmental certification, public notice
and release of funds procedures. FDPA pertains to mandatory purchase of
flood insurance protection; CBRA pertains to the direct prohibition
against use of any funds in designated coastal barriers; and the notice
to purchasers of property in runway clear zones is a disclosure
requirement.)
In this change, the Department also amended part 58 further to
incorporate categorical exclusions from NEPA review and statements
regarding the inapplicability of other environmental laws with respect
to certain activities for which comparable provisions were already made
in 24 CFR part 50. Part 50 applies to programs under which HUD itself
is responsible for performing environmental reviews, and it would be
anomalous to require a different standard of review for recipients
where similar activities are carried out under
[[Page 49467]]
programs covered by part 58. The interim rule also provided an
additional categorical exclusion and statement regarding
inapplicability of related laws for activities to assist homeownership
of existing dwelling units. (This is an important activity under the
HOME program.) This provision derived from the current categorical
exclusion from NEPA review for individual actions on one- to four-
family properties in cases under part 50, and from HUD's determination
that related laws and authorities requiring environmental reviews do
not apply to such homeownership assistance.
The provision in part 58 regarding limitations on actions pending
environmental clearance was also revised to more closely reflect (1)
the already applicable statutory prohibition against premature
commitment of HUD funds, and (2) the already applicable provision in
regulations of the Council on Environmental Quality (CEQ) (40 CFR
1506.1) prohibiting premature undertaking of activities that have
adverse environmental impact or limit the choice of reasonable
alternatives. Finally, the Department made other clarifying and
editorial revisions to part 58 in the interim rule.
On April 21, 1994, HUD published in the Federal Register (59 FR
19100) a final rule that amended 24 CFR part 585(b) to refer to HUD's
Floodplain management regulations in 24 CFR part 55.
On August 26, 1994, under the Multifamily Housing Property
Disposition Reform Act of 1994 (MHPDRA) the Department published an
interim rule in the Federal Register (59 FR 44258) that revised the
sections in 24 CFR part 58 which govern the assumption if environmental
responsibilities by recipients under the HOME Investment Partnership
Program and the Lead-based Paint Hazard Reduction and Abatement
Program.
On March 13, 1995 an interim rule was published in the Federal
Register (60 FR 13518) which provided that the part 58 procedures for
the assumption and carrying out of responsibilities for environmental
review, decisionmaking and action apply to public and Indian housing
programs, the Section 8 program other than Section 8 assistance under
24 CFR part 866 to projects with HUD-insured or HUD-held mortgages and
in connection with the disposition of HUD-owned projects special
projects, and the FHA Multifamily Housing Finance Agency Risk Sharing
Pilot Program covered by the MHPDRA amendments.
II. Discussion of Public Comments From 1993 Interim Rule
The Department received 6 public comments concerning part 58 in
response to the interim rule published on June 23, 1993 (58 FR 34130):
4 comments from local governments and 2 comments from private housing
associations. As a result of these comments, the Department proposes to
make certain revisions to the June 23, 1993 interim rule which are
incorporated into today's proposed rule. The following discussion
summarizes the comments and provides HUD's responses to those comments.
Every comment was reviewed and considered, although it may not be
specifically addressed in this preamble.
Two commenters suggested that the Department exempt recipients from
complying with Sec. 58.5 unless the activity actually has a physical
impact on the land. One commenter cited down payment and closing cost
assistance with HOME funds as an activity with no physical impact on
land, and one which should therefore not be subject to Sec. 58.5. The
Department agrees with this suggestion, and proposes to add more
specific language to Sec. 58.35(b) to restrict the applicability of
Sec. 58.5 in the case of activities which do not have any physical
impact or result in any physical change to land.
Two commenters recommended that the final rule modify part 58 to
allow recipients to enter into option agreements for property
acquisition or to commit non-federal money prior to the completion of
the environmental assessment. These commenters argued that this
restriction prevents recipients from pursuing many viable projects. An
option obtained by a recipient is allowable prior to the completion of
an environmental review and the approval of the RROF when the recipient
can cancel the option if the recipient determines that the property is
undesirable as a result of the environmental review required by 24 CFR
part 58 and the recipient has alternative sites under consideration or
option. There is no constraint on the purchase of options or properties
by third parties that have not been selected for HUD funding, have no
responsibility for the environmental review and have no say in the
approval or disapproval of the project.
Two commenters suggested that the Department exempt rehabilitation
projects of one to four units and owner-occupied rental and
homeownership projects from the environmental requirements of part 58.
This Department has provided some relief in this area in
Secs. 58.35(a)(4) and 58.35(b). A new category of activities (actions
on one to four family structures) was identified (Sec. 58.35(a)(7)) in
the interim rule published on June 23, 1993 as being Categorically
Excluded from the National Environmental Policy Act (NEPA). The
proposed rule proposes to change this section to Sec. 58.35(a)(4).
Categorically excluded activities must still comply with 24 CFR 58.5
unless, on a case-by-case basis, the recipient determines the proposed
action will not alter any conditions that would require compliance with
any of the related laws in Sec. 58.5. In such case, no compliance or
environmental review procedure is necessary. An activity that has the
potential to trigger one or more of the related laws in Sec. 58.5
cannot be exempt.
One commenter suggested that the Department exclude all
rehabilitation projects from the thresholds of Sec. 58.35(a)(4)(i),
arguing that these thresholds are not statutorily based and not
relevant to rehabilitation projects, and constitute an excessive
regulatory burden. The Department does not agree. The Department
believes that maintaining the thresholds identified in
Sec. 58.35(a)(4)(i) is necessary to determine whether NEPA applies.
B. Proposed Rule
This proposed rule would make further changes to part 58 to ensure
that the environmental review procedures are consistent for entities
assuming HUD environmental responsibilities regardless of the program
under which the activity is funded. In addition, it would make
clarifying and editorial revisions to part 58.
In Subpart A, terms, abbreviations and definitions would be
expanded to include acronyms of recently authorized programs, and would
more precisely define terms such as ``unit density,'' ``vacant
building'' and when extraordinary circumstances would warrant a higher
level review of an activity that is normally categorically excluded.
Subpart B would be changed to clarify and emphasize the role that
the responsible entity and the certifying officer play in the
assumption of the responsibilities of the Secretary.
The Department has also proposed to make changes to encourage early
program planning as required by the regulations implementing the
procedural provisions of NEPA (40 CFR 1501.2). Changes in subpart B
would emphasize (a) the need to centralize expertise in preparing
reviews, (b) the development of an environmental data base, (c)
balancing development and economic needs with environmental
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concerns, and (d) the use of a ``tiering'' concept so that
environmental reviews or assessments can consider issues ripe for
review at various points in the development process. The main objective
of the revisions to this subpart would be to eliminate repetitive
discussions of the same issues, to allow a single review to be prepared
and adopted by multiple users, and to increase the credibility of the
environmental process.
The Department has proposed in subpart D to change the focus of
decision-making away from the project-by-project approach to encourage
communities to take environmental factors into account prior to program
and site selection. This new approach would provide for the
identification of areas which may be less suitable for development or
which would require additional costs to develop so that these factors
can be taken into consideration in making site selection decisions. It
also would allow a grantee to determine in advance of the environmental
review, those factors that are most relevant to each area and those
that are minor or of no concern. This data would be of value to all
parties proposing development in the community including private
persons, non-profits and Federal, State and local governments.
A second objective of the revision of subpart D would be to
identify programs and projects that are exempt by statute,
categorically excluded from NEPA, or determined not subject to the
related Federal authorities described in Sec. 58.5, except under
extraordinary circumstances. The list of activities that are normally
considered categorically excluded would also be expanded to reflect the
new programs and activities funded by the Department.
In this proposed rule, former subparts C, G and J would be
incorporated into subpart A. Former subpart H would appear as subpart
F, and former subpart I would appear as subpart G.
Finally, the Department has consulted with the Council on
Environmental Quality and the Environmental Protection Agency by
providing them with advance copies of this proposed rule. When a final
rule is issued, it will take into consideration the comments and
recommendations of those agencies along with the other comments
submitted.
III. Other Matters
A. Environmental Impact
A Finding of No Significant Impact (FONSI) with respect to the
environment has been made in accordance with HUD regulations at 24 CFR
part 50, which implement section 102(2)(C) of the National
Environmental Policy Act (NEPA) of 1969. The FONSI is available for
public inspection during regular business hours in the Office of
General Counsel, the Rules Docket Clerk, room 10276, 451 Seventh
Street, SW., Washington, DC 20410.
B. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive order 12612, Federalism, has determined that the policies
contained in this proposed rule will not have substantial direct
effects on states or their political subdivisions, or the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
As a result, the proposed rule is not subject to review under the
order. Specifically, this proposed rule modifies environmental
requirements for recipients of HUD assistance and other entities that
assume environmental review responsibilities for activities and
projects in which specific statutory authority exists to assign the
environmental review responsibilities to the recipients or to allow
States and local governments to assume those responsibilities on behalf
of certain recipients.
C. Executive Order 12606, the Family
The General Counsel, as the Designated Official under Executive
Order, The Family, has determined that this proposed rule does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
order. No significant change in existing HUD policies or programs will
result from promulgation of this proposed rule, as those policies and
programs relate to family concerns.
D. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) has reviewed and approved this proposed rule, and in so
doing certifies that this proposed rule will not have a significant
economic impact on a substantial number of small entities. This
proposed rule would streamline part 58 and carry out the statutory
mandate of providing for the assumption of environmental review
responsibilities by certain recipients of HUD assistance or other
entities in accordance with section 104(g) of the Housing and Community
Development Act of 1974 and similar statutory provisions.
List of Subjects in 24 CFR Part 58
Community development block grants, Environmental impact
statements, Environmental protection, Grant programs--housing and
community development, Reporting and recordkeeping requirements.
Accordingly, 24 CFR part 58 is proposed to be revised to read as
follows:
PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD
ENVIRONMENTAL RESPONSIBILITIES
Subpart A--Purpose, Legal Authority, Federal Laws and Authorities
Sec.
58.1 Purpose, scope and applicability.
58.2 Terms, abbreviations and definitions.
58.3 [Reserved].
58.4 Assumption authority.
58.5 Related Federal laws and authorities.
58.6 Other requirements.
58.7-58.9 [Reserved].
Subpart B--General Policy: Responsibilities of Responsible Entities
58.10 Basic environmental responsibility.
58.11 Legal capacity and performance.
58.12 Technical and administrative capacity.
58.13 Responsibilities of the certifying officer.
58.14 Interaction with State, Federal and non-Federal entities.
58.15 Tiering.
58.16 [Reserved].
58.17 Historic Preservation requirements for prior Section 17
grants.
58.18 Responsibilities of States Assuming HUD Responsibilities.
58.19-58.20 [Reserved].
Subpart C--General Policy: Environmental Review Procedures
58.20 Incorporation of NEPA regulations by reference.
58.21 Time periods.
58.22 Limitations on activities pending clearance.
58.23 Financial assistance for environmental review.
58.24-58.29 [Reserved].
Subpart D--Environmental Review Process: Documentation, Range of
Activities, Project Aggregation and Classification
58.30 Environmental Review Process.
58.31 [Reserved].
58.32 Project aggregation.
58.33 Emergencies.
58.34 Exempt activities.
58.35 Categorical exclusions.
58.36 Environmental assessments.
58.37 Environmental impact statement determinations.
58.38 Environmental review record.
58.39 [Reserved].
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Subpart E--Environmental Review Process: Environmental Assessments
(EA's)
58.40 Preparing the environmental assessment.
58.41-58.42 [Reserved].
58.43 Dissemination and/or publication of the findings of no
significant impact.
58.44 [Reserved].
58.45 Public comment periods.
58.46 Time delays for exceptional circumstances.
58.47 Re-evaluation of assessment findings.
58.48-58.51 [Reserved].
Subpart F--Environmental Review Process: Environmental Impact Statement
Determinations
58.52 Adoption of other agencies' EISs.
58.53 Use of prior environmental impact statements.
58.54 [Reserved].
Subpart G--Environmental Review Process: Procedures for Draft, Final
and Supplemental Environmental Impact Statements
58.55 Notice of intent to prepare an EIS.
58.56 Scoping process.
58.57 Lead agency designation.
58.58 [Reserved].
58.59 Public hearings and meetings.
58.60 Preparation and filing of environmental impact statements.
58.61-58.69 [Reserved].
Subpart H--Release of Funds for Particular Projects
58.70 Notice of intent to request release of funds.
58.71 Request for release of funds and certification.
58.72 HUD or State actions on RROFs and certifications.
58.73 Objections to release of funds.
58.74 Time for objecting.
58.75 Permissible bases for objections.
58.76 Procedure for objections.
58.77 Effect of approval of certification.
58.78-58.79 [Reserved].
Authority: 12 U.S.C. 1707 note; 42 U.S.C. 1437o(i) (1) and (2),
1437x, 3535(d), 3547, 4332, 4852, 5304(g), 11402, and 12838; E.O.
11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as amended by
E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p.123.
Subpart A--Purpose, Legal Authority, Federal Laws and Authorities
Sec. 58.1 Purpose, scope and applicability.
(a) Purpose. This part provides instructions and guidance to
recipients of HUD assistance and other responsible entities for
conducting an environmental review for a particular project or activity
and for obtaining approval of a Request for Release of Funds.
(b) Applicability. This part applies to activities and projects
where specific statutory authority exists for recipients or other
responsible entities to assume environmental responsibilities. Programs
and activities subject to this part include:
(1) Community Development Block Grant programs authorized by title
I of the Housing and Community Development Act of 1974, in accordance
with section 104(g) (42 U.S.C. 5304(g));
(2) The Rental Rehabilitation program and Housing Development Grant
program authorized by section 17 of the United States Housing Act of
1937, in accordance with sections 17(i)(1) and 17(i)(2) with respect to
projects and programs for which binding commitments have been entered
into prior to October 1, 1991, since section 17 was repealed by the
Cranston-Gonzalez National Affordable Housing Act enacted November 28,
1990 (42 U.S.C. 1437o(i) (1) and (2).
(3) The Emergency Shelter Grant Program, Supportive Housing program
(and its predecessors, the Supportive Housing Demonstration program
(both Transitional Housing and Permanent Housing for Homeless Persons
with Disabilities) and Supplemental Assistance for Facilities to Assist
the Homeless), Shelter Plus Care program, Safe Havens for Homeless
Individuals Demonstration Program, and Rural Homeless Housing
Assistance, authorized by title IV of the Stewart B. McKinney Homeless
Assistance Act, in accordance with section 443 (42 U.S.C. 11402);
(4) The HOME Investment Partnerships Program authorized by title II
of the Cranston-Gonzalez National Affordable Housing Act (NAHA), in
accordance with section 288 (42 U.S.C. 12838);
(5) Grants to States and units of general local government for
abatement of lead-based paint and lead dust hazards pursuant to title
II of the Departments of Veterans Affairs and Housing and Urban
Development and Independent Agencies Appropriations Act, 1992, and
grants for lead-based paint hazard reduction under section 1011 of the
Housing and Community Development Act of 1992, in accordance with
section 1011(o) (42 U.S.C. 4852(o));
(6)(i) Public Housing Programs under Title I of the United States
Housing Act of 1937, in accordance with section 26 (42 U.S.C. 1437x);
(ii) Indian Housing Programs under Title I of the United States
Housing Act of 1937, including the Mutual Help Program, in accordance
with section 26 (42 U.S.C. 1437x); and
(iii) Assistance administered by a public housing agency or Indian
housing authority under section 8 of the United States Housing Act of
1937, except for assistance provided under 24 CFR part 886, in
accordance with section 26 (42 U.S.C. 1437x).
(7) Special Projects appropriated under an appropriation act for
HUD, such as special projects under the head ``Annual Contributions for
Assisted Housing'' in Title II of various Departments of Veterans
Affairs and Housing and Urban Development, and Independent Agencies
Appropriations Acts, in accordance with section 305(c) of the
Multifamily Housing Property Disposition Reform Act of 1994 (42 U.S.C.
3547); and
(8) The FHA Multifamily Housing Finance Agency Pilot Program under
section 542(c) of the Housing and Community Development Act of 1992, in
accordance with section 542(c)(9)(12 U.S.C. 1707 note).
Sec. 58.2 Terms, abbreviations and definitions.
(a) For the purposes of this part, the following definitions
supplement the uniform terminology provided in 40 CFR part 1508:
(1) Activity means an action that a grantee or recipient puts forth
as part of an assisted project, regardless of whether its cost is to be
borne by the HUD assistance or is an eligible expense under the HUD
assistance program.
(2) Certifying officer means the official who is authorized to
execute the Request for Release of Funds and Certification and has the
legal capacity to carry out the responsibilities of Sec. 58.13.
(3) Extraordinary circumstances means a situation in which an
environmental assessment (EA) or environmental impact statement (EIS)
is not normally required, but due to unusual conditions, an EA or EIS
is appropriate. Indicators of unusual conditions are:
(i) Actions that are unique or without precedent;
(ii) Actions that are substantially similar to those that normally
require an EIS;
(iii) Actions that are likely to alter existing HUD policy or HUD
mandates; or
(iv) Actions that, due to unusual physical conditions on the site
or in the vicinity, have the potential for a significant impact on the
environment or in which the environment could have a significant impact
on users of the facility.
(4) Project means an activity, or a group of integrally related
activities, designed by the recipient to accomplish, in whole or in
part, a specific objective.
(5) Recipient means any of the following entities, when they are
eligible recipients or grantees under a program listed in Sec. 58.1(b):
[[Page 49470]]
(i) A State that does not distribute HUD assistance under the
program to a unit of general local government;
(ii) Guam, the Northern Mariana Islands, the Virgin Islands,
American Samoa, and Palau;
(iii) A unit of general local government;
(iv) An Indian tribe.
(v)(A) With respect to Public Housing Programs under
Sec. 58.1(b)(6)(i), a public housing agency;
(B) With respect to Indian Housing Programs under
Sec. 58.1(b)(6)(ii), an Indian housing authority;
(C) With respect to section 8 assistance under
Sec. 58.1(b)(6)(iii), a public housing agency or Indian housing
authority;
(vi) Any direct grantee of HUD for a special project under
Sec. 58.1(b)(7); and
(vii) With respect to the FHA Multifamily Housing Finance Agency
Pilot Program under Sec. 58.1(b)(8), a qualified housing finance
agency.
(6) Release of funds. In the case of The FHA Multifamily Housing
Finance Agency Pilot Program under Sec. 58.1(b)(8), Release of Funds,
as used in this part, refers to HUD issuance of a firm approval letter,
and Request for Release of Funds refers to a recipient's request for a
firm approval letter.
(7) Responsible entity means:
(i) With respect to environmental responsibilities under programs
listed in Sec. 58.1(b) (1) through (5), a recipient under the program.
(ii) With respect to environmental responsibilities under the
programs listed in Sec. 58.1(b) (6) through (8), a State, unit of
general local government, Indian tribe or Alaska native village, when
it is the recipient under the program. Non-recipient responsible
entities are designated as follows:
(A) For qualified housing finance agencies, the State or a unit of
general local government, Indian tribe or Alaska native village whose
jurisdiction contains the project site;
(B) For public housing agencies, the unit of general local
government within which the project is located that exercises land use
responsibility, or if HUD determines this infeasible, the county, or if
HUD determines this infeasible, the State;
(C) For non-profit organizations and other entities, the unit of
general local government, Indian tribe or Alaska native village within
which the project is located that exercises land use responsibility, or
if HUD determines this infeasible, the county, or if HUD determines
this infeasible, the State;
(D) For Indian housing authorities (outside of Alaska), the Indian
tribe in whose jurisdiction the project is located, or if the project
is located outside of a reservation, the Indian tribe that established
the authority; and
(E) For Indian housing authorities in Alaska, the Alaska native
village in whose community the project is located, or if HUD determines
this infeasible, a unit of general local government or the State, as
designated by HUD.
(8) Unit density refers to a change in the number of dwelling
units. Where a threshold is identified as a percentage change in
density that triggers review requirements, no distinction is made
between an increase or a decrease in density.
(9) Tiering means the evaluation of an action or an activity at
various points in the development process as a proposal or event
becomes ripe for an Environment Assessment or Review.
(10) Vacant building means a habitable structure that has been
vacant for more than one year.
(b) The following abbreviations are used throughout this part:
CDBG--Community Development Block Grant
CEQ--Council on Environmental Quality
EA--Environmental Assessment
EIS--Environmental Impact Statement
EPA--Environmental Protection Agency
ERR--Environmental Review Record
FONSI--Finding of No Significant Impact
HUD--Department of Housing and Urban Development
NAHA--Cranston-Gonzalez National Affordable Housing Act of 1990
NEPA--National Environmental Policy Act of 1969, as amended
NOI/EIS--Notice of Intent to Prepare an EIS
NOI/RROF--Notice of Intent to Request Release of Funds
ROD--Record of Decision
ROF--Release of Funds
RROF--Request for Release of Funds
Sec. 58.3 [Reserved].
Sec. 58.4 Assumption authority.
(a) Assumption authority for responsible entities: General.
Responsible entities shall assume the responsibility for environmental
review, decision-making, and action that would otherwise apply to HUD
under NEPA and other provisions of law that further the purposes of
NEPA, as specified in Sec. 58.5. Responsible entities that receive
assistance directly from HUD assume these responsibilities by execution
of a grant agreement with HUD and/or a legally binding document such as
the certification contained on HUD Form 7015.15, certifying to the
assumption of environmental responsibilities. When a State distributes
funds to a responsible entity, the State must provide for appropriate
procedures by which these responsible entities will evidence their
assumption of environmental responsibilities.
(b) Particular responsibilities of the States. (1) States are
recipients for purposes of directly undertaking a State project and
must assume the environmental review responsibilities for the State's
activities and those of any non-governmental entity that may
participate in the project. In this case, the State must submit the
certification and RROF to HUD for approval.
(2) In accordance with Sec. 58.18, State program agencies are
authorized to exercise HUD's responsibilities with respect to approval
of a unit of local government's environmental certification and RROF
for a HUD assisted project funded through the State, except for
projects assisted by Section 17 Rental Rehabilitation assistance and
Housing Development Grants. Approval by the State of a unit of local
government's certification and RROF satisfies the Secretary's
responsibilities under NEPA and the related laws cited in Sec. 58.5.
(3) For section 17 Rental Rehabilitation projects and Housing
Development Grants, the State program agency shall meet the
responsibilities set forth in Sec. 58.18. However, for section 17
projects, the State lacks authority to approve RROFs and therefore must
forward to the responsible HUD Field Office the local recipient's
certification and RROF, any objections to the release of funds
submitted by another party, and the State's recommendation as to
whether HUD should approve the certification and the RROF.
Sec. 58.5 Related Federal laws and authorities.
In accordance with the provisions of law cited in Sec. 58.1(b), the
responsible entity must assume responsibilities for environmental
review, decision-making and action that would apply to HUD under the
following specified laws and authorities. The responsible entity must
certify that it has complied with the requirements that would apply to
HUD under these laws and authorities and must consider the criteria,
standards, policies and regulations of these laws and authorities.
(a) Historic properties. (1) The National Historic Preservation Act
of 1966 as amended (16 U.S.C. 470 et seq.), particularly sections 106
and 110 (16 U.S.C. 470 and 4-70h-2), except as provided in Sec. 58.17
for Section 17 projects.
[[Page 49471]]
(2) Executive Order 11593, Protection and Enhancement of the
Cultural Environment, May 13, 1971 (36 FR 8921) particularly section
2(c).
(3) Federal historic preservation regulations as follows:
(i) 36 CFR part 800 with respect to HUD programs other than Urban
Development Action Grants (UDAG); and
(ii) 36 CFR part 801 with respect to UDAG.
(4) The Reservoir Salvage Act of 1960 (16 U.S.C. 469 et seq);
particularly section 3 (16 U.S.C. 469a-1); as amended by the
Archeological and Historic Preservation Act of 1974.
(b) Floodplain management and wetland protection. (1) Executive
Order 11988, Floodplain Management, May 24, 1977 (42 FR 26951), as
interpreted in HUD regulations at 24 CFR part 55, particularly section
2 (a) of the order (For an explanation of relationship between the
decision-making process in 24 CFR part 55 and this part, see Sec. 55.10
of this subtitle.)
(2) Executive Order 11990, Protection of Wetlands, May 24, 1977 (42
FR 26961) particularly sections 2 and 5.
(c) Coastal Zone Management. The Coastal Zone Management Act of
1972 (16 U.S.C. 1451 et seq.), as amended particularly section 307 (c)
and (d) (16 U.S.C. 1456 (c) and (d)).
(d) Sole source aquifers. (1) The Safe Drinking Water Act of 1974
(42 U.S.C. 201, 300(f) et seq., and 21 U.S.C. 349) as amended;
particularly section 1424(e) (42 U.S.C. 300h-3(e)).
(2) Sole Source Aquifers (Environmental Protection Agency)-- 40 CFR
part 149.
(e) Endangered species. The Endangered Species Act of 1973 (16
U.S.C. 1531 et seq) as amended particularly section 7 (16 U.S.C.
1536)).
(f) Wild and scenic rivers. The Wild and Scenic Rivers Act of 1968
(16 U.S.C. 1271 et seq) as amended particularly section 7 (b) and (c)
(16 U.S.C. 1278 (b) and (c)).
(g) Air quality. (1) The Clean Air Act (42 U.S.C. 7401 et. seq.) as
amended; particularly section 176 (c) and (d) (42 U.S.C. 7506 (c) and
(d)).
(2) Determining Conformity of Federal Actions to State or Federal
Implementation Plans (Environmental Protection Agency)--40 CFR parts 6,
51, and 93.
(h) Farmlands protection. (1) Farmland Protection Policy Act of
1981 (7 U.S.C. 4201 et seq.) particularly sections 1540(b) and 1541 (7
U.S.C. 4201(b) and 4202).
(2) Farmland Protection Policy (Department of Agriculture)--(7 CFR
part 658).
(i) HUD environmental standards. Applicable criteria and standards
specified in HUD environmental regulations (24 CFR part 51) (other than
the runway clear zone and clear zone notification requirement in 24 CFR
51.303 (a)(3)) and HUD Notice 79-33, Policy Guidance to Address the
Problems Posed by Toxic Chemicals and Radioactive Materials, September
10, 1979).
(j) Environmental justice. Executive Order 12898--Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations, February 11, 1994 (59 FR 7629.)
Sec. 58.6 Other requirements.
In addition to the duties under the laws and authorities specified
in Sec. 58.5 for assumption by the responsible entity under the laws
cited in Sec. 58.1(b), the responsible entity must comply with the
following requirements. Applicability of the following requirements
does not trigger the certification and release of funds procedure under
this part or preclude exemption of an activity under Sec. 58.34(a)(11)
and/or the applicability of Sec. 58.35(b). However, the responsible
entity remains responsible for addressing the following requirements in
its ERR and meeting these requirements, where applicable, regardless of
whether the activity is exempt under Sec. 58.34 or categorically
excluded under Sec. 58.35 (a) or (b).
(a)(1) Under the Flood Disaster Protection Act of 1973, as amended
(42 U.S.C. 4001-4128), Federal financial assistance for acquisition and
construction purposes (including rehabilitation) may not be used in an
area identified by the Federal Emergency Management Agency (FEMA) as
having special flood hazards, unless:
(i) The community in which the area is situated is participating in
the National Flood Insurance Program (see 44 CFR parts 59 through 79),
or less than one year has passed since the FEMA notification regarding
such hazards; and
(ii) Flood insurance protection is to be obtained as a condition of
the approval of financial assistance to the property owner.
(2) Where a recipient provides financial assistance for acquisition
or construction purposes (including rehabilitation) for property
located in an area identified by FEMA as having special flood hazards,
the responsible entity is responsible for assuring that flood insurance
under the National Flood Insurance Program is obtained and maintained.
(3) Paragraph (a) of this section does not apply to Federal formula
grants made to a State.
(b) Pursuant to the Coastal Barrier Resources Act, as amended by
the Coastal Barrier Improvement Act of 1990 (16 U.S.C. 3501), HUD
assistance may not be used for most activities proposed in the Coastal
Barrier Resources System.
(c) In all cases involving HUD assistance, subsidy, or insurance
for the purchase or sale of an existing property in a Runway Clear Zone
or Clear Zone, as defined in 24 CFR part 51, the responsible entity
shall advise the buyer that the property is in a runway clear zone or
clear zone, what the implications of such a location are, and that
there is a possibility that the property may, at a later date, be
acquired by the airport operator. The buyer must sign a statement
acknowledging receipt of this information.
Secs. 58.7-58.9 [Reserved]
Subpart B--General Policy: Responsibilities of Responsible Entities
Sec. 58.10 Basic environmental responsibility.
In accordance with the provisions of law cited in Sec. 58.1(b), the
responsible entity must assume the environmental responsibilities for
projects under programs cited in Sec. 58.1(b), and in doing so must
comply with the provisions of NEPA and the CEQ regulations contained in
40 CFR parts 1500 through 1508, including the procedures set forth in
this part. This includes responsibility for compliance with the
applicable provisions and requirements of the Federal laws and
authorities specified in Sec. 58.5. The provisions of the CEQ
regulations in 40 CFR parts 1500 through 1508 are incorporated by
reference into this part.
Sec. 58.11 Legal capacity and performance.
(a) A responsible entity which believes that it does not have the
legal capacity to carry out the environmental responsibilities required
by this part should contact the appropriate local HUD Office or the
State for further instructions. Determinations of legal capacity will
be made on a case-by-case basis.
(b) If a public housing, Indian housing, or special project
recipient objects to the non-recipient responsible entity conducting
the environmental review on the basis of performance, timing, or
compatibility of objectives, HUD will review the facts to determine
[[Page 49472]]
who will perform the environmental review.
(c) At any time, HUD may reject the use of a responsible entity to
conduct the environmental review in a particular case on the basis of
performance, timing or compatibility of objectives, or in accordance
with Sec. 58.77(d)(1).
(d) If a responsible entity, other than a recipient, objects to
performing an environmental review, or if HUD determines that the
responsible entity should not perform the environmental review, HUD may
designate another responsible entity to conduct the review in
accordance with this part or may itself conduct the environmental
review in accordance with the provisions of 24 CFR part 50.
Sec. 58.12 Technical and administrative capacity.
The responsible entity must develop the technical and
administrative capability necessary to comply with 40 CFR parts 1500
through 1508 and the procedures of this part.
Sec. 58.13 Responsibilities of the certifying officer.
Under the terms of the certification required by Sec. 58.71, a
responsible entity's certifying officer is the ``responsible Federal
official'' as that term is used in section 102 of NEPA and in statutory
provisions cited in Sec. 58.1(b). The Certifying Officer is therefore
responsible for all the requirements of section 102 of NEPA and the
related provisions in 40 CFR parts 1500 through 1508, and 24 CFR part
58, including the related Federal authorities listed in Sec. 58.5 of
this part. The Certifying Officer must also:
(a) Represent the responsible entity and be subject to the
jurisdiction of the Federal courts. The Certifying Officer will not be
represented by the Department of Justice in court; and
(b) Ensure that the responsible entity reviews and comments on all
EISs prepared for Federal projects that may have an impact on the
recipient's program.
Sec. 58.14 Interaction with State, Federal and non-Federal entities.
A responsible entity shall consult, as appropriate, environmental
agencies, State, Federal and non-Federal entities and the public in the
preparation of an EIS, EA or other environmental reviews undertaken
under the related laws and authorities cited in Sec. 58.5 and
Sec. 58.6. The responsible entity must also cooperate with other
agencies to reduce duplication between NEPA and comparable
environmental review requirements of the State (see 40 CFR 1506.2 (b)
and (c)). The responsible entity must prepare its EAs and EISs so that
they comply with the environmental review requirements of both Federal
and State laws unless otherwise specified or provided by law. State,
Federal and local agencies may participate or act in a joint lead or
cooperating agency capacity in the preparation of joint EISs (see 40
CFR 1501.5(b) and 1501.6). A single EIS may be prepared and adopted by
multiple users to the extent that the review addresses the relevant
environmental issues and there is a written agreement between the
cooperating agencies which sets forth the coordinated and overall
responsibilities.
Sec. 58.15 Tiering.
Responsible entities may tier their environmental reviews and
assessments to eliminate repetitive discussions of the same issues at
subsequent levels of review. Tiering is appropriate when there is a
requirement to evaluate a policy or proposal in the early stages of
development or when site-specific analysis or mitigation is not
currently feasible and a more narrow or focused analysis is better at a
later date. The site specific review need only reference or summarize
the issues addressed in the broader review. The broader review should
identify and evaluate those issues ripe for decision and exclude those
issues not relevant to the policy, program or project under
consideration. The broader review should also establish the policy,
standard or process to be followed in the site specific review. The
Finding of No Significant Impact (FONSI) with respect to the broader
assessment shall include a summary of the assessment and identify the
significant issues to be considered in site specific reviews.
Subsequent site-specific reviews will not require notices or a Request
for Release of Funds unless the Certifying Officer determines that
there are unanticipated impacts or impacts not adequately addressed in
the prior review. A tiering approach can be used for meeting
environmental review requirements in areas designated for special focus
in local Consolidated Plans. Local and State Governments are encouraged
to use the Consolidated Plan process to facilitate environmental
reviews.
Sec. 58.16 [Reserved].
Sec. 58.17 Historic Preservation requirements for prior Section 17
grants.
A recipient of a section 17 grant shall comply with the historic
preservation requirements of this part and existing grant agreements.
Sec. 58.18 Responsibilities of States Assuming HUD Responsibilities.
(a) States that elect to administer a HUD program shall ensure that
the program complies with the provisions of this part. The State must:
(1) Designate the State agency or agencies which will be
responsible for carrying out the requirements and administrative
responsibilities set forth in subpart H and which will:
(i) Develop a monitoring and enforcement program for post-review
actions on environmental reviews and monitor compliance with any
environmental conditions included in the award.
(ii) Receive public notices, RROFs and certifications from
recipients pursuant to Secs. 58.70 and 58.71; accept objections from
the public and from other agencies (Sec. 58.73); and perform other
related responsibilities regarding releases of funds.
(2) Fulfill the State role in Subpart H relative to the time period
set for the receipt and disposition of comments, objections and appeals
(if any) on particular projects.
(b) States administering section 17 Programs shall assume the
responsibilities set forth in this section for overseeing the State
recipient's performance and compliance with NEPA and related Federal
authorities as set forth in this part, including receiving RROFs and
environmental certifications for particular projects from State
recipients and objections from government agencies and the public in
accordance with the procedures contained in subpart H of this part. The
State shall forward to the responsible HUD Field Office the
environmental certification, the RROF and any objections received, and
shall recommend whether to approve or disapprove the certification and
RROF.
Secs. 58.19-58.20 [Reserved].
Subpart C--General Policy: Environmental Review Procedures
Sec. 58.21 Time periods.
All time periods in this part shall be counted in calendar days.
The first day of a time period begins at 12:01 a.m. local time on the
day following the publication date of the notice which initiates the
time period.
Sec. 58.22 Limitations on activities pending clearance.
(a) A recipient may not commit HUD assistance funds under a program
listed in Sec. 58.1(b) on an activity or project until HUD or the State
has approved the recipient's RROF and the related certification of the
responsible entity. In
[[Page 49473]]
addition, until the RROF and related certification has been approved,
the recipient may not commit local (non-HUD) funds on an activity or
project under a program listed in Sec. 58.1(b) if the activity or
project would have an adverse environmental impact or limit the choice
of reasonable alternatives. If an activity is exempt under Sec. 58.34,
or not subject to Sec. 58.5 under Sec. 58.35(b), no RROF is required
and a recipient may undertake the activity immediately after the award
of the assistance.
(b) An option agreement on a proposed site or property is allowable
prior to the completion of the environmental review if the option
agreement is subject to a determination by the recipient on the
desirability of the property for the project as a result of the
completion of the environmental review in accordance with 24 CFR part
58 and its cost is fully refundable. There is no constraint on the
purchase of an option by third parties that have not been selected for
HUD funding, have no responsibility for the environmental review and
have no say in the approval or disapproval of the project.
(c) Relocation Costs. Relocation costs may be incurred before the
approval of the RROF and related certification for the project provided
that they are required by 24 CFR part 42.
Sec. 58.23 Financial assistance for environmental review.
The costs of environmental reviews, including costs incurred in
complying with any of the related laws and authorities cited in
Sec. 58.5 and Sec. 58.6, are eligible project costs to the extent
allowable under the HUD assistance program regulations.
Secs. 58.24-58.29 [Reserved]
Subpart D--Environmental Review Process: Documentation, Range of
Activities, Project Aggregation and Classification
Sec. 58.30 Environmental Review Process.
The environmental review process consists of all the actions that a
responsible entity must take to determine compliance with NEPA and
related provisions of law and this part. The environmental review
process includes all the compliance actions needed for other activities
and projects that are not assisted by HUD but are aggregated by the
responsible entity in accordance with Sec. 58.32.
Sec. 58.31 [Reserved]
Sec. 58.32 Project aggregation.
(a) A responsible entity must group together and evaluate as a
single project all individual activities which are related either on a
geographical or functional basis, or are logical parts of a composite
of contemplated actions.
(b) In deciding the most appropriate basis for aggregation when
evaluating activities under more than one program, the responsible
entity may choose: Functional aggregation when a specific type of
activity (e.g., water improvements) is to take place in several
separate locales or jurisdictions; geographic aggregation when a mix of
dissimilar but related activities is to be concentrated in a fairly
specific project area (e.g., a combination of water, sewer and street
improvements and economic development activities); or a combination of
aggregation approaches, which, for various project locations, considers
the impacts arising from each functional activity and its
interrelationship with other activities.
(c) The purpose of project aggregation is to group together related
activities so that the responsible entity can:
(1) Address adequately and analyze, in a single environmental
review, the separate and combined impacts of activities that are
similar, connected and closely related, or that are dependent upon
other activities and actions. (See 40 CFR 1508.25(a)).
(2) Consider reasonable alternative courses of action.
(3) Schedule the activities to resolve conflicts or mitigate the
individual, combined and/or cumulative effects.
(4) Prescribe mitigation measures and safeguards including project
alternatives and modifications to individual activities.
(d) Multi-year project aggregation.
(1) Release of funds. When a recipient's planning and program
development provide for activities to be implemented over two or more
years, the responsible entity's environmental review should consider
the relationship among all component activities of the multi-year
project regardless of the source of funds and address and evaluate
their cumulative environmental effects. The full schedule of all the
aggregated activities and the estimated cost of the total project must
be listed and described by the responsible entity in the environmental
review and included in the RROF. The release of funds will cover the
entire project period.
(2) When one or more of the conditions described in Sec. 58.47
exists, the recipient or other responsible entity must re-evaluate the
environmental review.
Sec. 58.33 Emergencies.
(a) In the cases of emergency, disaster or imminent threat to
health and safety which warrant the taking of an action with
significant environmental impact, the provisions of 40 CFR 1506.11
shall apply.
(b) If funds are needed on an emergency basis and when adherence to
separate comment periods would prevent the giving of assistance, the
combined Notice of FONSI and the Notice of the Intent to Request
Release of Funds may be disseminated and/or published simultaneously
with the submission of the Request for Release of Funds (RROF). The
combined Notice of FONSI and NOI/ROF shall state that the funds are
needed on an immediate emergency basis due to a Presidentially declared
disaster and that the comment periods have been combined. The Notice
shall also invite commenters to submit their comments to both HUD and
the responsible entity issuing the notice to assure that these comments
will receive full consideration.
Sec. 58.34 Exempt activities.
(a) A responsible entity does not have to comply with the
environmental requirements of this part or undertake any environmental
review, consultation or other action under NEPA and the other
provisions of law or authorities cited in Sec. 58.5 for the activities
exempt by this section or projects consisting solely of the following
exempt activities:
(1) Environmental and other studies, resource identification and
the development of plans and strategies;
(2) Information and financial services;
(3) Administrative and management activities;
(4) Public services that will not have a physical impact or result
in any physical changes, including but not limited to services
concerned with employment, crime prevention, child care, health, drug
abuse, education, counseling, energy conservation and welfare or
recreational needs;
(5) Inspections and testing of properties for hazards or defects;
(6) Purchase of insurance;
(7) Purchase of tools;
(8) Engineering or design costs;
(9) Technical assistance and training;
(10) Assistance for any temporary improvements or for permanent
improvements that do not alter environmental conditions and are limited
to protection, repair or restoration activities necessary only to
control or arrest the effects from disasters, imminent threats or
physical deterioration;
(11) Any of the categorical exclusions listed in Sec. 58.35(a)
provided that there
[[Page 49474]]
are no circumstances which require compliance with any other Federal
laws and authorities cited in Sec. 58.5.
(b) A recipient does not have to submit an RROF and certification,
and no further approval from HUD or the State will be needed by the
recipient for the drawdown of funds to carry out exempt activities and
projects. However, the responsible entity must document in writing its
determination that each activity or project is exempt and meets the
conditions specified for such exemption under this section.
Sec. 58.35 Categorical exclusions.
Categorical exclusion refers to a category of activities for which
no environmental impact statement or environmental assessment and
finding of no significant impact under NEPA is required, except in
extraordinary circumstances (see Sec. 58.2(a)(3)) in which a normally
excluded activity may have a significant impact. Compliance with the
other applicable Federal environmental laws and authorities listed in
Sec. 58.5 is required for any categorical exclusion listed in paragraph
(a) of this section.
(a) Categorical exclusions subject to Sec. 58.5. The following
activities are categorically excluded under NEPA, but may be subject to
review under authorities listed in Sec. 58.5:
(1) Acquisition, repair, 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, reconstruction of curbs and
sidewalks, repaving of streets).
(2) Special projects directed to the removal of material and
architectural barriers that restrict the mobility of and accessibility
to elderly and handicapped persons.
(3) Rehabilitation of buildings and improvements when the following
conditions are met;
(i) In the case of multifamily residential buildings:
(A) Unit density is not changed more than 20 percent;
(B) The project does not involve changes in land use (from
residential to non-residential); and
(C) The estimated cost of rehabilitation is less than 75 percent of
the total estimated cost of replacement after rehabilitation.
(ii) In the case of non-residential structures, including
commercial, industrial, and public buildings:
(A) The facilities and improvements are in place and will not be
changed in size or capacity by more than 20 percent; and
(B) The activity does not involve a change in land use, such as
from non-residential to residential, commercial to industrial, or from
one industrial use to another.
(4) An individual action on a one - to four-family dwelling or an
individual action on a project of five or more units developed on
scattered sites when the sites are more than 2,000 feet apart and there
are not more than four units on any one site.
(5) Acquisition or disposition of an existing structure or
acquisition of vacant land provided that the structure or land acquired
or disposed of will be retained for the same use.
(b) Categorical exclusions not subject to Sec. 58.5. The Department
has determined that the following categorically excluded activities
would not alter any conditions that would require a review or
compliance determination under the Federal laws and authorities cited
in Sec. 58.5. When the following kinds of activities are undertaken,
the responsible entity does not have to publish a NOI/RROF or execute a
certification and the recipient does not have to submit a RROF to HUD
(or the State) except in the circumstances described in paragraph (c)
of this section. Following the award of the assistance, no further
approval from HUD or the State will be needed with respect to
environmental requirements, except where paragraph (c) of this section
applies. The recipient remains responsible for carrying out any
applicable requirements under Sec. 58.6.
(1) Tenant-based rental assistance;
(2) Supportive services including, but not limited to, health care,
housing services, permanent housing placement, day care, nutritional
services, short-term payments for rent/mortgage/utility costs, and
assistance in gaining access to local, State, and Federal government
benefits and services;
(3) Operating costs including maintenance, security, operation,
utilities, furnishings, equipment, supplies, staff training and
recruitment and other incidental costs;
(4) Economic development activities, including but not limited to,
equipment purchase, inventory financing, interest subsidy, operating
expenses and similar costs not associated with construction or
expansion of existing operations;
(5) Activities to assist homeownership of existing dwelling units,
including closing costs and down payment assistance to home buyers,
interest buydowns and similar activities that result in the transfer of
title to a property;
(6) Affordable housing pre-development costs including legal,
consulting, developer and other costs related to obtaining site
control, project financing, loan commitments, zoning approvals, and
other related activities which do not have a physical impact.
(c) Circumstances requiring NEPA review. If a responsible entity
determines that an activity or project identified in paragraph (a) or
(b) of this section, because of extraordinary circumstances and
conditions at or affecting the location of the activity or project, may
have a significant environmental effect, it shall comply with all the
requirements of this part.
(d) The Environmental Review Record (ERR) must contain a well
organized written record of the process and determinations made under
this section.
Sec. 58.36 Environmental assessments.
If a project is not exempt or categorically excluded under
Secs. 58.34 and 58.35, the responsible entity must prepare an EA in
accordance with subpart E of this part. If it is evident without
preparing an EA that an EIS is required under Sec. 58.37, the
responsible entity should proceed directly to an EIS.
Sec. 58.37 Environmental impact statement determinations.
(a) An EIS is required when the project is determined to have a
potentially significant impact on the human environment.
(b) An EIS is required under any of the following circumstances,
except as provided in paragraph (c) of this section:
(1) The project would provide a site or sites for, or result in the
construction of, hospitals or nursing homes containing a total of 2,500
or more beds.
(2) The project would remove, demolish, convert or substantially
rehabilitate 2,500 or more existing housing units (but not including
rehabilitation projects categorically excluded under Sec. 58.35), or
would result in the construction or installation of 2,500 or more
housing units, or would provide sites for 2,500 or more housing units.
(3) The project would provide enough additional water and sewer
capacity to support 2,500 or more additional housing units. The project
does not have to be specifically intended for residential use nor does
it have to be totally new construction. If the project is designed to
provide upgraded service to existing development as well as to serve
new development, only that portion of the increased capacity which is
intended to serve new development should be counted.
[[Page 49475]]
(c) If, on the basis of an EA, a responsible entity determines that
the thresholds in paragraph (b) of this section are the sole reason for
the EIS, the responsible entity may prepare a FONSI pursuant to 40 CFR
1501.4. In such cases, the FONSI must be made available for public
review for at least 30 days before the responsible entity makes the
final determination whether to prepare an EIS.
(d) Notwithstanding paragraphs (a) through (c) of this section, an
EIS is not required where Sec. 58.53 is applicable.
(e) Recommended EIS Format. The responsible entity must use the EIS
format recommended by the CEQ regulations (40 CFR 1502.10) unless a
determination is made on a particular project that there is a
compelling reason to do otherwise. In such a case, the EIS format must
meet the minimum requirements prescribed in 40 CFR 1502.10.
Sec. 58.38 Environmental review record.
The responsible entity must maintain a written record of the
environmental review undertaken under this part for each project. This
document will be designated the ``Environmental Review Record'' (ERR),
and shall be available for public review. The responsible entity must
use the current HUD-recommended formats or develop equivalent formats.
(a) ERR Documents. The ERR shall contain all the environmental
review documents, public notices and written determinations or
environmental findings required by this part as evidence of review,
decisionmaking and actions pertaining to a particular project of a
recipient. The document shall:
(1) Describe the project and the activities that the recipient has
determined to be part of the project;
(2) Evaluate the effects of the project or the activities on the
human environment;
(3) Document compliance with applicable statutes and authorities,
in particular those cited in Sec. 58.5 and 58.6; and
(4) Record the written determinations and other review findings
required by this part (e.g., exempt and categorically excluded projects
determinations, findings of no significant impact).
(b) Other documents and information. The ERR shall also contain
verifiable source documents and relevant base data used or cited in
EAs, EISs or other project review documents. These documents may be
incorporated by reference into the ERR provided that each source
document is identified and available for inspection by interested
parties. Proprietary material and special studies prepared for the
recipient that are not otherwise generally available for public review
shall not be incorporated by reference but shall be included in the
ERR.
Sec. 58.39 [Reserved].
Subpart E--Environmental Review Process: Environmental Assessments
(EA's)
Sec. 58.40 Preparing the environmental assessment.
The responsible entity may prepare the EA using the HUD recommended
format. In preparing an EA for a particular project, the responsible
entity must:
(a) Determine existing conditions and describe the character,
features and resources of the project area and its surroundings;
identify the trends that are likely to continue in the absence of the
project.
(b) Identify all potential environmental impacts, whether
beneficial or adverse, and the conditions that would change as a result
of the project.
(c) Identify, analyze and evaluate all impacts to determine the
significance of their effects on the human environment and whether the
project will require further compliance under related laws and
authorities cited in Sec. 58.5 and Sec. 58.6.
(d) Examine and recommend feasible ways in which the project or
external factors relating to the project could be modified in order to
eliminate or minimize adverse environmental impacts.
(e) Examine alternatives to the project itself, if appropriate,
including the alternative of no action.
(f) Complete all environmental review requirements necessary for
the project's compliance with applicable authorities cited in
Secs. 58.5 and 58.6.
(g) Based on steps set forth in paragraph (a) through (f) of this
section, make one of the following findings:
(1) A Finding of No Significant Impact (FONSI), in which the
responsible entity determines that the project is not an action that
will result in a significant impact on the quality of the human
environment. The responsible entity may then proceed to Sec. 58.43.
(2) A finding of significant impact, in which the project is deemed
to be an action which may significantly affect the quality of the human
environment. The responsible entity must then proceed with its
environmental review under subparts F or G of this part.
Sec. 58.41-58.42 [Reserved].
Sec. 58.43 Dissemination and/or publication of the findings of no
significant impact.
(a) If the responsible entity makes a finding of no significant
impact, it must prepare a FONSI notice, using the current HUD-
recommended format or an equivalent format. As a minimum, the
responsible entity must send the FONSI notice to individuals and groups
known to be interested in the activities, to the local news media, to
appropriate tribal, local, State and Federal agencies; to the Regional
Offices of the Environmental Protection Agency having jurisdiction and
to the HUD Field Offices. The responsible entity may also publish the
FONSI notice in a newspaper of general circulation in the affected
community. If the notice is not published, it must also be prominently
displayed in public buildings, such as the local Post Office and within
the project area or in accordance with procedures established as part
of the affected community's citizen participation process.
(b) The responsible entity may disseminate or publish a FONSI
notice at the same time it disseminates or publishes the NOI/RROF
required by Sec. 58.70. If the notices are released as a combined
notice, the combined notice shall:
(1) Clearly indicate that it is intended to meet two separate
procedural requirements; and
(2) Advise the public to specify in their comments which ``notice''
their comments address.
(c) The responsible entity must consider the comments and make
modifications, if appropriate, in response to the comments, before it
completes its environmental certification and before the recipient
submits its RROF. In Presidentially declared disaster areas,
modifications resulting from public comment, if appropriate, must be
made before proceeding with the expenditure of funds.
Sec. 58.44 [Reserved].
Sec. 58.45 Public comment periods.
(a) Notice of finding of no significant impact: 15 days from date
of publication or if no publication, 18 days from the date of mailing
and posting.
(b) Notice of intent to request release of funds: 7 days from date
of publication or if no publication, 10 days from date of mailing and
posting.
(c) Concurrent or Combined notices: Same as FONSI notice.
[[Page 49476]]
Sec. 58.46 Time delays for exceptional circumstances.
The responsible entity must make the FONSI available for public
comments for 30 days before the recipient files the RROF when:
(a) There is a considerable interest or controversy concerning the
project;
(b) The proposed project is similar to other projects that normally
require the preparation of an EIS; or
(c) The project is unique and without precedent.
Sec. 58.47 Re-evaluation of assessment findings.
(a) A responsible entity must re-evaluate the EA findings when:
(1) The recipient proposes substantial changes in the nature,
magnitude or extent of the project, including adding new activities not
anticipated in the original scope of the project and its cost estimate;
(2) There are new circumstances and environmental conditions which
may affect the project or have a bearing on its impact, such as
concealed or unexpected conditions discovered during the implementation
of the project or activity which is proposed to be continued; or
(3) The recipient proposes the selection of an alternative not
considered in the original EA.
(b) The purpose of the responsible entity's re-evaluation of the EA
is to determine if the FONSI is still valid. If the FONSI is still
valid but the data or conditions upon which it was based have changed,
the responsible entity must amend the original assessment and update
its ERR by including this re-evaluation and its determination based on
its findings. If the responsible entity determines that the FONSI is no
longer valid, it must prepare an EA or an EIS if its evaluation
indicates potentially significant impacts. Where the recipient is not
the responsible entity, the recipient must inform the responsible
entity promptly of any proposed substantial changes under paragraph
(a)(1) of this section, new circumstances or environmental conditions
under paragraph (a)(2) of this section, or any proposals to select a
different alternative under paragraph (a)(3) of this section, and must
then permit the responsible entity to re-evaluate the EA before
proceeding.
Secs. 58.48-58.51 [Reserved].
Subpart F--Environmental Review Process: Environmental Impact
Statement Determinations
Sec. 58.52 Adoption of other agencies' EISs.
The responsible entity may adopt a draft or final EIS prepared by
another agency provided that the EIS was prepared in accordance with 40
CFR parts 1500 through 1508. If the responsible entity adopts an EIS
prepared by another agency, the procedure in 40 CFR 1506.3 shall be
followed. An adopted EIS may have to be revised and modified to adapt
it to the particular environmental conditions and circumstances of the
project if these are different from the project reviewed in the EIS. In
such cases the responsible entity must prepare, circulate, and file a
supplemental draft EIS in the manner prescribed in Sec. 58.64 and
otherwise comply with the clearance and time requirements of the EIS
process, except that scoping requirements under 40 CFR 1501.7 shall not
apply. The agency that prepared the original EIS should be informed
that the responsible entity intends to amend and adopt the EIS. The
responsible entity may adopt an EIS when it acts as a cooperating
agency in its preparation under 40 CFR 1506.3. The responsible entity
is not required to re-circulate or file the EIS, but must complete the
clearance process for the RROF. The decision to adopt an EIS shall be
made a part of the project ERR.
Sec. 58.53 Use of prior environmental impact statements.
Where any final EIS has been listed in the Federal Register for a
project pursuant to this part, or where an areawide or similar broad
scale final EIS has been issued and the EIS anticipated a subsequent
project requiring an environmental clearance, then no new EIS is
required for the subsequent project if all the following conditions are
met:
(a) The ERR contains a decision based on a finding pursuant to
Sec. 58.40 that the proposed project is not a new major Federal action
significantly affecting the quality of the human environment. The
decision shall include:
(1) References to the prior EIS and its evaluation of the
environmental factors affecting the proposed subsequent action subject
to NEPA;
(2) An evaluation of any environmental factors which may not have
been previously assessed, or which may have significantly changed;
(3) An analysis showing that the proposed project is consistent
with the location, use, and density assumptions for the site and with
the timing and capacity of the circulation, utility, and other
supporting infrastructure assumptions in the prior EIS;
(4) Documentation showing that where the previous EIS called for
mitigating measures or other corrective action, these are completed to
the extent reasonable given the current state of development.
(b) The prior final EIS has been filed within five (5) years, and
updated as follows:
(1) The EIS has been updated to reflect any significant revisions
made to the assumptions under which the original EIS was prepared;
(2) The EIS has been updated to reflect new environmental issues
and data or legislation and implementing regulations which may have
significant environmental impact on the project area covered by the
prior EIS.
(c) There is no litigation pending in connection with the prior
EIS, and no final judicial finding of inadequacy of the prior EIS has
been made.
Sec. 58.54 [Reserved]
Subpart G--Environmental Review Process: Procedures for Draft,
Final and Supplemental Environmental Impact Statements
Sec. 58.55 Notice of intent to prepare an EIS.
As soon as practicable after the responsible entity decides to
prepare an EIS, it must publish a NOI/EIS, using the HUD recommended
format and disseminate it in the same manner as required by 40 CFR
parts 1500 through 1508.
Sec. 58.56 Scoping process.
The determination on whether or not to hold a scoping meeting will
depend on the same circumstances and factors as for the holding of
public hearings under Sec. 58.59. The responsible entity must wait at
least 15 days after publishing the NOI/EIS before holding a scoping
meeting.
Sec. 58.57 Lead agency designation.
If there are several agencies ready to assume the lead role, the
responsible entity must make its decision based on the criteria in 40
CFR 1501.5(c). If the responsible entity and a Federal agency are
unable to reach agreement, then the responsible entity must notify HUD
(or the State, where applicable). HUD (or the State) will assist in
obtaining a determination based on the procedure set forth in 40 CFR
1501.5(e).
[[Page 49477]]
Sec. 58.58 [Reserved]
Sec. 58.59 Public hearings and meetings.
(a) Factors to consider. In determining whether or not to hold
public hearings in accordance with 40 CFR 1506.6, the responsible
entity must consider the following factors:
(1) The magnitude of the project in terms of economic costs, the
geographic area involved, and the uniqueness or size of commitment of
resources involved.
(2) The degree of interest in or controversy concerning the
project.
(3) The complexity of the issues and the likelihood that
information will be presented at the hearing which will be of
assistance to the responsible entity.
(4) The extent to which public involvement has been achieved
through other means.
(b) Procedure. All public hearings must be preceded by a notice of
public hearing, which must be published and disseminated in the same
manner as the FONSI Notice (See Sec. 58.43). The public hearing notice
must be published at least 15 days before the hearing date. The Notice
must:
(1) State the date, time, place, and purpose of the hearing or
meeting.
(2) Describe the project, its estimated costs, and the project
area.
(3) State that persons desiring to be heard on environmental issues
will be afforded the opportunity to be heard.
(4) State the responsible entity's name and address and the name
and address of its Certifying Officer.
(5) State what documents are available, where they can be obtained,
and any charges that may apply.
Sec. 58.60 Preparation and filing of environmental impact statements.
(a) The responsible entity must prepare the draft environmental
impact statement (DEIS) and the final environmental impact statements
(FEIS) using the current HUD recommended format or its equivalent.
(b) The responsible entity must file and distribute the (DEIS) and
the (FEIS) in the following manner:
(1) Five copies to EPA Headquarters;
(2) Five copies to EPA Regional Office;
(3) Copies made available in the responsible entity's and the
recipient's office;
(4) Copies or summaries made available to persons who request them;
and
(5) FEIS only--one copy to State, HUD Field Office, and HUD
Headquarters library.
Secs. 58.61-58.69 [Reserved]
Subpart H--Release of Funds for Particular Projects
Sec. 58.70 Notice of intent to request release of funds.
The NOI/RROF must be disseminated and/or published in the manner
prescribed by Sec. 58.43 and Sec. 58.45 before the certification is
signed by the responsible entity.
Sec. 58.71 Request for release of funds and certification.
(a) The RROF and certification shall be sent to the appropriate HUD
Field Office (or the State, if applicable), except as provided in
paragraph (b) of this section. This request shall be executed by the
Certifying Officer. The request shall describe the specific project and
activities covered by the request and contain the certification
required under the applicable statute cited in Sec. 58.1(b). The RROF
and certification must be in a form specified by HUD.
(b) When the responsible entity is conducting an environmental
review on behalf of a recipient, as provided for in Sec. 58.10, the
recipient must provide the responsible entity with all available
project and environmental information and refrain from undertaking any
physical activities or choice limiting actions until HUD (or the State,
if applicable), has approved its request for release of funds. The
certification form executed by the responsible entity's certifying
officer shall be sent to the recipient that is to receive the
assistance along with a description of any special environmental
conditions that must be adhered to in carrying out the project. The
recipient is to submit the RROF and the certification of the
responsible entity to HUD (or the State, if applicable) requesting the
release of funds. The recipient must agree to abide by the special
conditions, procedures and requirements of the environmental review,
and to advise the responsible entity of any proposed change in the
scope of the project or any change in environmental conditions.
(c) If the responsible entity determines that some of the
activities are exempt under applicable provisions of this part, the
responsible entity shall advise the recipient that it may incur costs
on these activities as soon as programmatic authorization is received.
This finding shall be documented in the ERR maintained by the
responsible entity and in the recipient's project files.
Sec. 58.72 HUD or State Actions on RROFs and Certifications.
The actions which HUD (or a State) may take with respect to a
recipient's environmental certification and RROF are as follows:
(a) In the absence of any receipt of objection to the contrary,
except as provided in paragraph (b) of this section, HUD (or the State)
will assume the validity of the certification and RROF and will approve
these documents after expiration of the 15-day period prescribed by
statute.
(b) HUD (or the State) may disapprove a certification and RROF if
it has knowledge that the responsible entity has not complied with the
items in Sec. 58.75, or that the RROF and certification are inaccurate.
(c) In cases in which HUD has approved a certification and RROF but
subsequently learns (e.g., through monitoring) that the recipient
violated Sec. 58.22 or the recipient or responsible entity otherwise
failed to comply with a clearly applicable environmental authority, HUD
shall impose appropriate remedies and sanctions in accord with the law
and regulations for the program under which the violation was found.
Sec. 58.73 Objections to release of funds.
HUD (or the State) will not approve the ROF for any project before
15 calendar days have elapsed from the time of receipt of the RROF and
the certification or from the time specified in the notice published
pursuant to Sec. 58.70, whichever is later. Any person or agency may
object to a recipient's RROF and the related certification. However,
the objections must meet the conditions and procedures set forth in
this subpart H. HUD (or the State) can refuse the RROF and
certification on any grounds set forth in Sec. 58.75. All decisions by
HUD (or the State) regarding the RROF and the certification shall be
final.
Sec. 58.74 Time for objecting.
All objections must be received by HUD (or the State) within 15
days from the time HUD (or the State) receives the recipient's RROF and
the related certification, or within the time period specified in the
notice, whichever is later.
Sec. 58.75 Permissible bases for objections.
HUD (or the State), will consider objections claiming a responsible
entity's noncompliance with this part based only on any of the
following grounds:
(a) The certification was not in fact executed by the responsible
entity's Certifying Officer.
[[Page 49478]]
(b) The responsible entity has failed to make one of the two
findings pursuant to Sec. 58.40 or to make the written determination
required by Secs. 58.35, 58.47 or 58.53 for the project, as applicable.
(c) The responsible entity has omitted one or more of the steps set
forth at subpart E for the preparation, publication and completion of
an EA.
(d) The responsible entity has omitted one or more of the steps set
forth at subparts F and G of this part for the conduct, preparation,
publication and completion of an EIS.
(e) The recipient has committed funds or incurred costs not
authorized by this part before release of funds and approval of the
environmental certification by HUD or the State.
(f) Another Federal agency acting pursuant to 40 CFR part 1504 has
submitted a written finding that the project is unsatisfactory from the
standpoint of environmental quality.
Sec. 58.76 Procedure for objections.
A person or agency objecting to a responsible entity's RROF and
certification shall submit objections in writing to HUD (or the State).
The objections shall:
(a) Include the name, address and telephone number of the persons
or agency submitting the objection, and be signed by the person or
authorized official of an agency.
(b) Be dated when signed.
(c) Describe the basis for objection and the facts or legal
authority supporting the objection.
(d) State when a copy of the objection was mailed or delivered to
the responsible entity's Certifying Officer.
Sec. 58.77 Effect of approval of certification.
(a) Responsibilities of HUD and States. HUD's (or, where
applicable, the State's) approval of the certification shall be deemed
to satisfy the responsibilities of the Secretary under NEPA and related
provisions of law cited at Sec. 58.5 insofar as those responsibilities
relate to the release of funds as authorized by the applicable
provisions of law cited in Sec. 58.1(b).
(b) Public and agency redress. Persons and agencies seeking redress
in relation to environmental reviews covered by an approved
certification shall deal with the responsible entity and not with HUD.
It shall be HUD's policy to refer all inquiries and complaints to the
responsible entity and its Certifying Officer. Similarly, the State
(where applicable) may direct persons and agencies seeking redress in
relation to environmental reviews covered by an approved certification
to deal with the responsible entity, and not the State, and may refer
inquiries and complaints to the responsible entity and its Certifying
Officer. Remedies for noncompliance are set forth in program
regulations.
(c) Implementation of environmental review decisions. Projects of a
recipient will require post-review monitoring and other inspection and
enforcement actions by the recipient and the State or HUD (using
procedures provided for in program regulations) to assure that
decisions adopted through the environmental review process are carried
out during project development and implementation.
(d) Responsibility for monitoring and training. (1) At least once
every three years, HUD Field Office intends to conduct in-depth
monitoring and exercise quality control (through training and
consultation) over the environmental activities performed by
responsible entities under this part. Limited monitoring of these
environmental activities will be conducted during each program
monitoring site visit. If through limited or in-depth monitoring of
these environmental activities or by other means, HUD becomes aware of
any environmental deficiencies, HUD may take one or more of the
following actions:
(i) In the case of problems found during limited monitoring, HUD
may schedule in-depth monitoring at an earlier date or may schedule in-
depth monitoring more frequently;
(ii) HUD may require attendance by staff of the responsible entity
at HUD-sponsored or approved training, which will be provided
periodically at various locations around the country;
(iii) HUD may refuse to accept the certifications of environmental
compliance on subsequent grants;
(iv) HUD may suspend or terminate the responsible entity's
assumption of the environmental review responsibility;
(v) HUD may initiate sanctions, corrective actions, or other
remedies specified in program regulations or agreements or contracts
with the recipient.
(2) HUD's responsibilities and action under paragraph (d)(1) of
this section shall not be construed to limit or reduce any
responsibility assumed by a responsible entity with respect to any
particular release of funds under this part. Whether or not HUD takes
action under paragraph (d)(1) of this section, the Certifying Officer
remains the responsible Federal official under Sec. 58.13 with respect
to projects and activities for which the Certifying Officer has
submitted a certification under this part.
Secs. 58.78-58.79 [Reserved].
Dated: August 30, 1995.
Henry G. Cisneros,
Secretary.
[FR Doc. 95-23645 Filed 9-22-95; 8:45 am]
BILLING CODE 4210-32-P
