[Federal Register Volume 63, Number 105 (Tuesday, June 2, 1998)]
[Proposed Rules]
[Pages 30046-30053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14245]
[[Page 30045]]
_______________________________________________________________________
Part III
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 50, 55 and 58
_______________________________________________________________________
Floodplain Management and Protection of Wetlands; Proposed Rule
Federal Register / Vol. 63, No. 105 / Tuesday, June 2, 1998 /
Proposed Rules
[[Page 30046]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 50, 55 and 58
[Docket No. FR-4142-P-01]
RIN 2501-AC33
Floodplain Management and Protection of Wetlands
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would adopt procedures implementing
Executive Order 11990, Protection of Wetlands. The rule proposes to
codify policies and procedures to avoid the long and short term adverse
impacts associated with the destruction or modification of wetlands and
to avoid direct or indirect support of new construction in wetlands
wherever there is a practicable alternative. The procedures would apply
to HUD and certain State and local responsible entities before their
respective decisions to approve a proposed action that involves HUD
financial assistance and that would affect a wetland. The wetland
procedures would be incorporated into HUD's existing floodplain
management regulations.
The rule proposes several other changes to HUD's regulations that
govern floodplain management and that would also govern the protection
of wetlands. These include, among others, broadening the use of the
abbreviated four-step decision making process used by HUD and
responsible entities when considering the impact on floodplains in
connection with the repair of existing structures. Specifically, the
rule proposes to authorize the use of the abbreviated process for all
of HUD's rehabilitation programs, not just for repairs financed under
its mortgage insurance programs. This rule would also add a requirement
that, for residential new construction in a 100-year floodplain, an
applicant must secure a final Letter of Map Amendment or final Letter
of Map Revision as a condition for approval of HUD financial
assistance.
DATES: Comment due date: August 3, 1998.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of the General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Comments 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 during regular business hours (7:30
a.m. to 5:30 p.m. Eastern time) at the above address.
FOR FURTHER INFORMATION CONTACT: Richard H. Broun, Director, Office of
Community Viability, Office of Community Planning and Development,
Department of Housing and Urban Development, Room 7240, 451 Seventh
Street, SW, Washington, DC 20410-7000. For inquiry by phone or e-mail:
contact Walter Prybyla, Deputy Director for Policy, Environmental
Review Division at (202) 708-1201, Ext. 4466 or e-mail:
Walter__Prybyla@hud.gov. This phone number is not toll-free. Hearing or
speech-impaired individuals may access this number via TTY by calling
the toll-free Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Discussion
Wetland-Related Amendments
This rule proposes to codify the procedures for complying with
Executive Order 11990, Protection of Wetlands (42 FR 26961, May 25,
1977). The Executive Order directs each agency to provide leadership
and take action to minimize the destruction, loss or degradation of
wetlands, and to preserve and enhance the natural and beneficial values
of wetlands in carrying out the agency's responsibilities for (1)
acquiring, managing, and disposing of Federal lands and facilities; (2)
providing Federally undertaken, financed, or assisted construction and
improvements; and (3) conducting Federal activities and programs
affecting land use, including but not limited to water and related land
resources planning, regulating, and licensing activities.
The Department published a proposed rule on January 4, 1990 (55 FR
396) to implement Executive Order 11990 and also Executive Order 11988,
Floodplain Management (42 FR 26951, May 25, 1977). The January 4, 1990
rule proposed to codify HUD's policies and procedures implementing
these Executive Orders in a new 24 CFR part 55. Because the wetland
policies were under review by the Administration, the part 55 final
rule (59 FR 19100, April 21, 1994) implemented only the floodplain
management Executive Order. The Department advised the public (59 FR at
19100) that it would continue to follow outstanding instructions in
implementing the wetlands Executive Order.
This proposed rule would amend 24 CFR part 55 to implement the
requirements of Executive Order 11990. The proposed rule generally
reflects HUD's current practices for complying with the Executive
Order.
The rule would amend Sec. 55.2 (Terminology) by adding a definition
of the term ``wetlands'' (Sec. 55.2(b)(9)). The proposed definition
provides that wetlands are designated wetland areas identified or
delineated on maps issued by the Fish and Wildlife Service of the U.S.
Department of the Interior as areas that are inundated by surface or
ground water with a frequency sufficient to support, and under normal
circumstances do or would support, a prevalence of vegetative or
aquatic life that requires saturated or seasonally saturated soil
conditions for growth or reproduction. This definition would encompass,
but not be limited to, swamps, marshes, bogs, and similar areas such as
sloughs, potholes, wet meadows, river overflows, mud flats, and natural
ponds.
The proposed rule would also make several conforming amendments to
24 CFR part 55 to reflect the implementation of Executive Order 11990.
For example, Sec. 55.1, which describes the purpose of 24 CFR part 55,
would be amended to state that part 55 implements the requirements of
Executive Order 11990. The proposed rule would also make conforming
amendments to HUD's environmental regulations at 24 CFR part 50
(Protection and Enhancement of Environmental Quality) and 24 CFR part
58 (Environmental Review Procedures for Entities Assuming HUD
Environmental Responsibilities) to reflect the amendments made to 24
CFR part 55.
Other Amendments
Abbreviated decision making process. HUD's current regulations at
Sec. 55.12(a) authorize HUD or the responsible entity (as applicable)
to use an abbreviated decision making process when considering the
impact on floodplain management in connection with several listed
categories of actions. The steps currently include identifying
floodplain location (and wetland location under this proposed rule),
determining impact, considering minimization of impact, reevaluating
the proposed action, and deciding on the action.
This rule proposes two changes to this procedure. The first
proposed revision is a clarification. As Sec. 55.12(a) is currently
drafted, step 6 (Sec. 55.20(f)), reevaluate proposed action, is part of
the abbreviated process. A major component of that reevaluation,
however, is to reconsider alternatives to
[[Page 30047]]
locating the proposed action in the floodplain or wetland that had been
addressed under step 3 (Sec. 55.20(c)). The reference to step 3 in the
context of the abbreviated process is confusing because step 3 is not a
part of the abbreviated process. The rule, accordingly, would add step
6 to the list of steps in Sec. 55.12(a) that do not apply under the
abbreviated process.
For proposed actions covered by the abbreviated decision making
process, the balance of reevaluation described in step 6
(Sec. 55.20(f)(1)) can be addressed in considering minimization of
impact in step 5. Therefore, step 5 (Sec. 55.20(e)) would be revised to
provide that actions covered by Sec. 55.12(a) must be rejected if the
proposed minimization is financially or physically unworkable.
The second proposed revision concerns Sec. 55.12(a)(3), which
currently applies the abbreviated decision making process to HUD
mortgage insurance actions for the repair, rehabilitation,
modernization or improvement of existing multifamily housing projects.
This procedure has proven to be efficient and effective for the covered
programs. The Department, therefore, proposes to include all of its
programs that involve repair, rehabilitation, modernization or
improvement of existing multifamily housing projects.
The proposed rule also would add a reference to Sec. 55.12(a) in
the introductory text of Sec. 55.20 to make it clearer that not all
actions are subject to all eight steps in the decision making process.
The rule also would revise paragraph (b) of Sec. 55.12 to exclude
the leasing of not more than a total of four units of existing housing
located in a building in a 100-year floodplain (or the 500-year
floodplain for Critical Actions) from the floodplain management
decision making process at Sec. 55.20. For example, such exclusion
would occur under HUD's programs providing assistance to the homeless.
This exclusion would cover leasing of not more than four units in a
building under the circumstances described in Sec. 582.100(c) for
sponsor-based rental assistance under the Shelter Plus Care Program
regulations as well as in Sec. 583.115 for grants for leasing under the
Supportive Housing Program regulations. Under Sec. 582.100(c), a
sponsor, itself, may lease from an owner the housing in which the
program participants will reside. The exclusion would not apply,
however, if the sponsor owned the project. Under Sec. 583.115, HUD may
provide grants to support the recipient's cost of leasing structures or
a portion of a structure that is to be used to provide the supportive
housing or supportive services.
This exclusion from the floodplain management decision making
process at Sec. 55.20 would apply only if the existing housing is
located outside the floodway or coastal high hazard area, the community
is participating and in good standing in the Regular Program of the
National Flood Insurance Program (NFIP) and the financial assistance
does not pay for repair or rehabilitation. Leasing of four units or
less under these conditions should have minimal impacts (if any) for
which the floodplain management decision making process at Sec. 55.20
would be warranted.
Obsolete Provisions. This proposed rule would remove
Secs. 55.12(c)(9) and 55.12(c)(10). Paragraph (c)(9) currently provides
that part 55 does not apply to HUD's acceptance of a housing
subdivision approval action by the Department of Veterans Affairs (DVA)
or Farmers Home Administration (now the Rural Housing and Community
Development Service (RHCDS)). The Department is removing the paragraph
because neither the DVA nor the RHCDS currently approves subdivisions.
Paragraph (c)(10) provides guidance on the effect of part 55 on
actions pending on May 23, 1994, the effective date of the part 55
final rule published on April 21, 1994 at 59 FR 19100. The paragraph
would be removed as unnecessary. Its removal would not substantively
alter the requirements of the part.
Revisions to step 3 for multifamily insurance projects. HUD
proposes to revise Sec. 55.20(c), Step 3, to add a new paragraph (c)(2)
to address the consideration of practicable alternatives to floodplains
and wetlands projects proposed by third parties that involve
multifamily mortgage insurance. In these cases, HUD's consideration of
practicable alternatives is limited to a particular site identified in
the application. HUD cannot require applicants to develop another site
that is beyond the floodplain or wetland. In such cases, HUD's option
in reviewing practicable alternatives is limited to proceeding to the
next step in the decision making process. This includes either
considering design modifications under Step 5 or rejecting the
application.
Residential new construction in 100-year floodplain. This proposed
rule would add a requirement that HUD financial assistance involving
residential new construction in a 100-year floodplain may not be
approved unless the applicant secures a final Letter of Map Amendment
(LOMA) or final Letter of Map Revision (LOMR). These are letters issued
by the Federal Emergency Management Agency (FEMA) indicating that the
property is not, or is no longer, located within the special flood
hazard area (100-year floodplain). The proposed rule would similarly
amend Sec. 55.20(g), step 7 of the decision making process, to require
whenever a reevaluation of proposed residential new construction
results in a determination that there is no practicable alternative to
locating the proposal in the 100-year floodplain, a statement that a
final Letter of Map Amendment (LOMA) or a final Letter of Map Revision
(LOMR) will be secured by the applicant.
The reasons for this change are to encourage: (i) public safety, in
that the potential threat to the loss of life from flooding would be
diminished for prospective residents and visitors; (ii) site selection
and planning, which avoids encroachment on the floodplain;\1\ (iii)
early coordination between the HUD applicant and FEMA for the purpose
of obtaining a LOMA or LOMR in that FEMA has jurisdiction both by law
for designation of special flood hazard areas (SFHA) and by Executive
Order 11988 for advising Federal agencies on implementation of the
Order; and (iv) cost savings that result once the LOMA or LOMR excludes
the property from the SFHA and eliminates the applicant's legal
obligation to obtain and maintain flood insurance coverage for the term
of the loan or life of the building being proposed for HUD financial
assistance. The savings may make the property more affordable for low-
and moderate-income housing.
---------------------------------------------------------------------------
\1\ Even if avoiding encroachment is impracticable, the change
requires increasing the elevation to minimize potential financial
loss due to flooding damage for uninsurable elements under the
National Flood Insurance Program (NFIP), which include outdoor
playgrounds and recreational amenities, vehicular parking and
freight access areas, public plazas and walkways, landscaping, and
the land itself.
---------------------------------------------------------------------------
Other amendments. This proposed rule would make several other
amendments to conform to earlier amendments to 24 CFR parts 50 and 58.
The rule would replace ``grant recipient'' with ``responsible entity''
in several places where the term occurs in part 55. Section 55.3,
Assignment of responsibilities, would be revised to specify the
respective responsibilities of responsible entities and recipients.
These amendments would conform part 55 to the change in terminology
adopted in the final rule that revised 24 CFR part 58 (61 FR 19122,
April 30, 1996).
Section 55.12(c) describes the categories of activities that are
not subject to part 55. This proposed rule would revise paragraph (c)
to conform
[[Page 30048]]
to amendments to parts 50 and 55. Paragraph (c)(1) would be revised to
reflect the fact that the activities that are not subject to review
under environmental authorities such as Executive Orders 11988 and
11990 include activities listed in 24 CFR 58.35(b) as well as those
listed in Sec. 58.34. A new paragraph (c)(2) would be added to include
the activities described in 24 CFR 50.19 (which was revised by a final
rule published at 61 FR 50914 on September 27, 1996). Section 50.19
lists those activities that are categorically excluded from the
environmental assessment required by NEPA and are not subject to the
individual compliance requirements of the related laws and authorities
referred to in Sec. 50.4.
A new paragraph (c)(12) (which is similar to Sec. 50.20(a)(1))
would be added to provide that special projects directed to the removal
of material and architectural barriers that restrict the mobility of
and accessibility to elderly and persons with disabilities are not
subject to part 55.
Finally, the proposed rule would add an exclusion from the
requirements of the part for the approval of financial assistance for
acquisition, leasing, construction, rehabilitation, repair,
maintenance, or operation of ships and other water-borne vessels that
will be used for transportation or cruises and will not be permanently
moored.
II. Findings and Certifications
Paperwork Reduction Act Statement
The proposed information collection requirements contained at
Secs. 55.21, 55.22 and 55.27 of this rule have been submitted to the
Office of Management and Budget (OMB) for review, under section 3507(d)
of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection displays
a valid control number.
The public reporting burden for each of these collections of
information is estimated to include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Information on the estimated public
reporting burden is provided in the following table.
Floodplain Management and Protection of Wetlands
----------------------------------------------------------------------------------------------------------------
Responses Total
Information collection Number of per annual Hours per Total hours Regulatory
respondents respondent responses response reference
----------------------------------------------------------------------------------------------------------------
Notification of floodplain hazard. 300 1 300 1 300 55.21
Owner notice to tenants concerning
Critical Action flood hazard..... 1 50 50 \1/20\ 2.5 55.22
Documentation of compliance..... 300 1 300 8 2,400 55.27
-----------------------------------------------------------------------------
Total Annual Burden......... ........... ........... ........... ........... 2,702
----------------------------------------------------------------------------------------------------------------
In accordance with 5 CFR 1320.8(d)(1), the Department is soliciting
comments from members of the public and affected agencies concerning
the proposed collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this proposal. Comments must be
received within sixty (60) days from the date of this proposal.
Comments must refer to the proposal by name and docket number (FR-3447)
and must be sent to: Joseph F. Lackey, Jr., HUD Desk Officer, Office of
Management and Budget, New Executive Office Building, Washington, DC
20503.
Environmental Impact
A Finding of No Significant Impact 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 of 1969. The Finding of No Significant Impact is available for
public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk at the above address.
Regulatory Planning and Review
This rule has been reviewed in accordance with Executive Order
12866, issued by the President on September 30, 1993 (58 FR 51735,
October 4, 1993). Any changes to the rule resulting from this review
are available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays in the Office of the Rules Docket Clerk.
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 would not have a significant
economic impact on a substantial number of small entities. The proposed
rule would codify HUD's policies and procedures implementing Executive
Order 11990, Protection of Wetlands. The goal of the Executive Order is
to prevent the adverse impacts associated with the destruction or
modification of wetlands. Executive Order 11990 establishes a uniform
set of requirements designed to meet this goal, and which are
applicable to both large and small entities. However, in developing the
proposed rule HUD has attempted to minimize the regulatory burden
placed on responsible entities. For example, the proposed rule would
broaden the use of the abbreviated decision making process used by HUD
and responsible entities when considering the impact on floodplains in
connection with the repair of existing structures. Specifically, the
rule proposes to authorize the use of the abbreviated process for all
of HUD's rehabilitation programs. The current regulations limit the use
of the abbreviated decision making process to repairs financed under
HUD's mortgage insurance programs.
[[Page 30049]]
Notwithstanding HUD's determination that this rule would not have a
significant economic impact on a substantial number of small entities,
HUD specifically invites comment regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in this preamble.
Unfunded Mandates Reform Act
The Secretary has reviewed this rule before publication and by
approving it certifies, in accordance with the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal
mandate that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
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 rule will not have substantial direct effects on
States or their political subdivisions, on the relationship between the
Federal Government and the States, or on the distribution of power and
responsibilities among the various levels of government. HUD's
regulations at 24 CFR part 58, implementing section 104(g) of the HCD
Act of 1974 and other similar statutory provisions, have long provided
for State and local governmental assumption of NEPA, Executive Order,
and other environmental review responsibilities. State and local
governments thus already have been assuming and carrying out these
responsibilities for many years. These amendments to part 55 merely
describe and codify more specifically the implementing policies and
procedures under Executive Order 11990.
Catalog of Federal Domestic Assistance Number
The programs affected by this rule are listed in the Catalog of
Federal Domestic Assistance under program numbers 14.108 through
14.900.
List of Subjects
24 CFR Part 50
Environmental assessments, Environmental impact statements,
Environmental policies and review procedures.
24 CFR Part 55
Environmental impact statements, Flood plains, Wetlands.
24 CFR Part 58
Community development block grants, Environmental impact
statements, Grant programs--housing and community development,
Reporting and recordkeeping requirements.
Accordingly, 24 CFR parts 50, 55, and 58 are proposed to be amended
as follows:
PART 50--PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 4332; and Executive Order
11991, 3 CFR, 1997 Comp., p. 123.
2. In Sec. 50.4, paragraph (b)(2) is revised and paragraph (b)(3)
is removed and reserved, to read as follows:
Sec. 50.4 Related Federal laws and authorities.
* * * * *
(b) * * *
(2) HUD Procedure for the Implementation of Executive Order 11988
(Floodplain Management) (3 CFR, 1977 Comp., p. 117) and Executive Order
11990 (Protection of Wetlands) (3 CFR, 1977 Comp., p. 121)--24 CFR part
55, Floodplain Management and Protection of Wetlands.
* * * * *
PART 55--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS
3. The heading for part 55 is revised to read as set forth above.
4. The authority citation for part 55 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 4001-4128 and 5154a; E.O. 11988,
42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990, 42 FR 26961, 3
CFR, 1977 Comp., p 121.
5. Section 55.1 is amended by revising paragraph (a), redesignating
paragraph (b) as paragraph (b)(1), adding a new paragraph (b)(2), and
adding a new paragraph (d), to read as follows:
Sec. 55.1 Purpose and basic responsibility.
(a) This part implements the requirements of Executive Order 11988,
Floodplain Management (3 CFR, 1977 Comp., p. 117), and Executive Order
11990, Protection of Wetlands (3 CFR, 1977 Comp., p. 121), and employs
the principles of the Unified National Program for Floodplain
Management. It covers the proposed acquisition, construction,
improvement, disposition, financing and use of properties located in a
floodplain or a wetland for which approval is required either from HUD
under any applicable HUD program or from a responsible entity subject
to 24 CFR part 58. This part does not prohibit approval of such actions
(except for certain actions in high hazard areas), but provides a
consistent means for implementing the Department's interpretation of
the executive orders in the project approval decision making processes
of HUD and of responsible entities subject to 24 CFR part 58. The
implementation of Executive Orders 11988 and 11990 under this part
shall be conducted by HUD for Department-administered programs subject
to environmental review under 24 CFR part 50 and by responsible
entities for financial assistance subject to environmental review under
24 CFR part 58.
(b)(1) * * *
(2) Under section 582 of the National Flood Insurance Reform Act of
1994, 42 U.S.C. 5154a, HUD disaster assistance that is made available
in a special flood hazard area may not be used to make a payment
(including any loan assistance payment) to a person for repair,
replacement or restoration of damage to any personal, residential or
commercial property if:
(i) The person had previously received Federal flood disaster
assistance conditioned on obtaining and maintaining flood insurance;
and
(ii) The person failed to obtain and maintain the flood insurance.
* * * * *
(d) No HUD financial assistance (including mortgage insurance) may
be approved for residential new construction in a 100-year floodplain
unless a final Letter of Map Amendment (LOMA) or final Letter of Map
Revision (LOMR) will be secured by the applicant as a condition of
HUD's or the responsible entity's approval of the assistance.
6. Section 55.2 is amended by revising paragraph (a); revising the
introductory text of paragraph (b); removing, in paragraph (b)(1), the
term ``(Sec. 55.2(b)(8))'' and adding in its place the term
``(Sec. 55.2(b)(7))'', and adding a new paragraph (b)(9), to read as
follows:
Sec. 55.2 Terminology.
(a) With the exception of those terms defined in paragraph (b) of
this section, the terms used in this part shall follow the definitions
contained in section 6 of Executive Order 11988, in section 7 of
Executive Order 11990, and in the Floodplain Management Guidelines for
Implementing Executive Order 11988 issued by the Water Resources
Council (copies of the Guidelines are available from the Environmental
Review Division, Department of Housing and
[[Page 30050]]
Urban Development, 451 Seventh Street, SW, Washington, DC 20410); and
the terms ``special flood hazard area,'' ``criteria'' and ``Regular
Program'' shall follow the definitions contained in FEMA regulations at
44 CFR 59.1.
(b) The definitions of the following terms in Executive Order
11988, Executive Order 11990, and related documents affecting this part
are modified for purposes of this part:
* * * * *
(9) Wetlands means only those designated wetland areas identified
or delineated on maps issued by the Fish and Wildlife Service of the
U.S. Department of the Interior as areas that are inundated by surface
or ground water with a frequency sufficient to support, and under
normal circumstances do or would support, a prevalence of vegetative or
aquatic life that requires saturated or seasonally saturated soil
conditions for growth or reproduction. They are the areas subject to
coverage under this part.
7. Section 55.3 is amended by revising paragraphs (a)(1)(i),
(a)(1)(ii), (b)(1), (b)(2), and (c) and adding a new paragraph (d), to
read as follows:
Sec. 55.3 Assignment of responsibilities.
(a)(1) * * *
(i) The Department's implementation of the orders and this part in
all HUD programs; and
(ii) The implementation activities of HUD program managers and, for
HUD financial assistance subject to 24 CFR part 58, of grant recipients
and responsible entities.
* * * * *
(b) * * *
(1) Ensure compliance with this part for all actions under their
jurisdiction that are proposed to be conducted, supported, or permitted
in a floodplain or wetland;
(2) Ensure that actions approved by HUD or responsible entities are
monitored and that any prescribed mitigation is implemented;
* * * * *
(c) Responsible entity Certifying Officer. Certifying Officers of
responsible entities administering or reviewing activities subject to
24 CFR part 58 shall comply with this part 55 in carrying out HUD-
assisted programs.
(d) Recipient. Recipients subject to 24 CFR part 58 shall monitor
approved actions and ensure that any prescribed mitigation is
implemented.
8. The heading for subpart B is revised to read as follows:
Subpart B--Application of Executive Orders on Floodplain Management
and Protection of Wetlands
9. Section 55.10 is revised to read as follows:
Sec. 55.10 Environmental review procedures under 24 CFR parts 50 and
58.
(a) Where an environmental review is required under the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332, and 24 CFR
part 50 or part 58, compliance with this part shall be completed before
the completion of an environmental assessment (EA) including a finding
of no significant environmental impact (FONSI), or an environmental
impact statement (EIS), in accordance with the decision points listed
in 24 CFR 50.17(a)-(h), or before the preparation of an EA under 24 CFR
58.40 or an EIS under 24 CFR 58.37. For types of proposed actions that
are categorically excluded from National Environmental Policy Act
(NEPA) requirements under 24 CFR part 50 or part 58, compliance with
this part shall be completed before the Department's initial approval
(or approval by a responsible entity subject to 24 CFR part 58) of
proposed actions in a floodplain or wetland.
(b) The categorical exclusion of certain proposed actions from
environmental review requirements under NEPA and 24 CFR parts 50 and 58
(see 24 CFR 50.20 and 58.35(a)) does not exclude those actions from
compliance with this part.
10. Section 55.11 is revised to read as follows:
Sec. 55.11 Applicability of Subpart C decision making process.
(a) Before reaching the decision points described in Sec. 55.10(a),
HUD (for Department-administered programs) or the responsible entity
(for HUD financial assistance subject to 24 CFR part 58) shall
determine whether Executive Order 11988 or 11990 and this part apply to
the proposed action.
(b) If Executive Order 11988 or 11990 applies, the approval of a
proposed action or initial commitment shall be made in accordance with
this part. The primary purpose of Executive Order 11988 is to ``avoid
direct or indirect support of floodplain development.'' Consistent with
section 2 of Executive Order 11990, the decision making process in
Sec. 55.20 only applies to Federal assistance for new construction in
wetland locations.
(c) The following table indicates the applicability, by location
and type of action, of the decision making process for implementing
Executive Orders 11988 and 11990 under subpart C of this part:
Table 1
----------------------------------------------------------------------------------------------------------------
Type of proposed action
-------------------------------------------------------------------------------
Type of proposed action (new Wetland or 100- Non-wetland area
reviewable action or an Coastal high year floodplain between 100-year
amendment) \1\ Floodways hazard areas outside high and 500-year
hazard area floodplain
----------------------------------------------------------------------------------------------------------------
Critical actions as defined in Critical actions Critical actions Allowed if the Allowed if the
Sec. 55.12(b)(2). not allowed. not allowed. proposed critical proposed critical
action is action is
processed under processed under
Sec. 55.20.2. Sec. 55.20.\2\
Non-critical actions not Allowed only if Allowed only if Allowed if the Any non-critical
excluded under Sec. 55.12(b) the proposed non- the proposed non- proposed non- action is allowed
or (c). critical action critical action: critical action without
is a functionally (1) Is either (a) is processed processing under
dependent use and designed for under Sec. this part.
processed under location in a 55.20.\2\
Sec. 55.20.2.\2\ high hazard area
or (b) a
functionally
dependent use;
and (2) is
processed under
Sec. 55.20.\2\
----------------------------------------------------------------------------------------------------------------
\1\ Under Executive Order 11990, the decision making process in Sec. 55.20 only applies to Federal assistance
for new construction in wetland locations.
\2\ Or those paragraphs of Sec. 55.20 that are applicable to an action listed in Sec. 55.12(a).
[[Page 30051]]
11. Section 55.12 is amended by:
a. Revising the introductory text to paragraph (a);
b. Revising paragraph (a)(3);
c. Removing ``and'' at the end of paragraph (b)(3);
d. Removing the period at the end of paragraph (b)(4) and adding
``; and'' in its place;
e. Adding a new paragraph (b)(5);
f. Revising paragraph (c)(1);
g. Removing paragraphs (c)(9) and (c)(10);
h. Redesignating paragraphs (c)(2), (c)(3), (c)(4), (c)(5), (c)(6),
(c)(7), (c)(8), (c)(11), and (c)(12) as paragraphs (c)(3), (c)(4),
(c)(5), (c)(6), (c)(7), (c)(8), (c)(9), (c)(10), and (c)(11),
respectively;
i. Adding a new paragraph (c)(2);
j. Revising newly redesignated paragraphs (c)(6) and (c)(7);
k. Revising the introductory text to newly redesignated paragraph
(c)(9);
l. Removing ``and'' at the end of newly redesignated paragraph
(c)(10);
m. Removing the period at the end of newly redesignated paragraph
(c)(11) and adding a semicolon in its place; and
n. Adding new paragraphs (c)(12) and (c)(13), to read as follows:
Sec. 55.12 Inapplicability of this part 55 to certain categories of
proposed actions.
(a) The decision making steps in Sec. 55.20(b), (c), (f), and (g)
(steps 2, 3, 6, and 7) do not apply to the following categories of
proposed actions:
* * * * *
(3) HUD actions under any HUD program involving the repair,
rehabilitation, modernization or improvement of existing multifamily
housing projects (including nursing homes, board and care facilities
and intermediate care facilities) and existing one-to four-family
properties, in communities that are in the Regular Program of the NFIP
and are in good standing, provided that the number of units is not
increased more than 20 percent, the action does not involve a
conversion from nonresidential to residential land use, and the
footprint of the structure and paved areas is not significantly
increased.
(b) * * *
(5) The approval of financial assistance to lease not more than a
total of four units of existing housing in a building located within
the 100-year floodplain (or the 500-year floodplain for Critical
Actions), but only if--
(i) The housing is located outside the floodway or coastal high
hazard area, and is in a community that is in the Regular Program of
the National Flood Insurance Program (NFIP) and in good standing (i.e.,
not suspended from program eligibility or placed on probation under 44
CFR 59.24);
(ii) The leasing is in a structure insured under the NFIP; and
(iii) The financial assistance does not pay for repair or
rehabilitation.
(c) * * *
(1) HUD-assisted activities described in 24 CFR 58.34 and 58.35(b);
(2) HUD-assisted activities described in 24 CFR 50.19, except as
otherwise indicated in Sec. 50.19;
* * * * *
(6) A minor amendment to a previously approved action with no
additional adverse impact on or from a floodplain or wetland;
(7) HUD's approval of a project site, an incidental portion of
which is situated in an adjacent floodplain or wetland, but only if:
(i) The proposed construction and landscaping activities (except
for minor grubbing, clearing of debris, pruning, sodding, seeding, or
other similar activities) do not occupy or modify the 100-year
floodplain (or the 500-year floodplain for Critical Actions) or the
wetland;
(ii) Appropriate provision is made for site drainage; and
(iii) A covenant or comparable restriction is placed on the
property's continued use to preserve the floodplain or wetland;
* * * * *
(9) HUD's approval of financial assistance for a project on any
non-wetland site in a floodplain for which FEMA has issued:
* * * * *
(12) Special projects directed to the removal of material and
architectural barriers that restrict the mobility of and accessibility
to elderly and persons with disabilities; and
(13) The approval of financial assistance for acquisition, leasing,
construction, rehabilitation, repair, maintenance, or operation of
ships and other water-borne vessels that will be used for
transportation or cruises and will not be permanently moored.
12. The heading for subpart C is revised to read as follows:
Subpart C--Procedures For Making Determinations on Floodplain
Management and Protection of Wetlands
13. Section 55.20 is amended by revising the introductory text;
revising paragraph (a); revising the introductory text of paragraph
(b); revising paragraph (b)(3); revising paragraph (c); revising
paragraph (d); revising the introductory text of paragraph (e);
revising paragraph (f)(1); revising paragraph (g); and revising
paragraph (h), to read as follows:
Sec. 55.20 Decision making process.
Except for actions covered by Sec. 55.12(a), the decision making
process for compliance with this part contains eight steps, including
public notices and an examination of practicable alternatives. The
steps to be followed in the decision making process are:
(a) Step 1. Determine whether the proposed action is located in a
100-year floodplain (or a 500-year floodplain for a Critical Action) or
a wetland. If the proposed action would not be conducted in one of
those locations, then no further compliance with this part is required.
(b) Step 2. Notify the public at the earliest possible time of a
proposal to consider an action in a 100-year floodplain (or a 500-year
floodplain for a Critical Action) or a wetland and involve the affected
and interested public in the decision making process.
* * * * *
(3) A notice under this paragraph (b) shall state: the name,
proposed location and description of the activity; the total number of
acres of floodplain or wetland involved; and the HUD official and phone
number to contact for information. The notice shall indicate the hours
and the HUD office or responsible entity's office at which a full
description of the proposed action may be reviewed.
(c) Step 3. Identify and evaluate practicable alternatives to
locating the proposed action in a 100-year floodplain (or a 500-year
floodplain for a Critical Action) or wetland. The evaluation shall
focus on the potential impacts inside and outside the floodplain or
wetland area as such impacts relate to the protection of human life,
real property, and the natural and beneficial values served by the
floodplain or wetland.
(1) Except as provided in paragraph (c)(2) of this section, HUD's
or the responsible entity's consideration of practicable alternatives
to the sites which they select for a project should include:
(i) Locations outside the 100-year floodplain (or the 500-year
floodplain for a Critical Action) or wetland;
(ii) Alternative methods to serve the identical project objective
including feasible technological alternatives; and
(iii) A determination not to approve any action.
(2) For multifamily projects involving HUD mortgage insurance that
are initiated by third parties, HUD's or the responsible entity's
consideration of practicable alternatives should include a
determination not to approve the request.
(d) Step 4. Identify and evaluate the potential direct and indirect
impacts
[[Page 30052]]
associated with the occupancy or modification of the 100-year
floodplain (or the 500-year floodplain for a Critical Action) or the
wetland.
(e) Step 5. Where practicable, design or modify the proposed action
to minimize the potential adverse impacts within the 100-year
floodplain (or the 500-year floodplain for a Critical Action) or the
wetland and to restore and preserve its natural and beneficial values.
Actions covered by Sec. 55.12(a) must be rejected if the proposed
minimization is financially or physically unworkable. All critical
actions in the 500-year floodplain shall be designed and built at or
above the 100-year floodplain (in the case of new construction) and
modified to include:
* * * * *
(f) * * *
(1) Whether it is still practicable in light of its exposure to
flood hazards in the floodplain or its possible adverse impact on the
floodplain or wetland, the extent to which it will aggravate the
current hazards to other floodplains or wetlands, and its potential to
disrupt floodplain or wetland values; and
* * * * *
(g) Step 7. If the reevaluation results in a determination that
there is no practicable alternative to locating the proposal in the
100-year floodplain (or the 500-year floodplain for a Critical Action)
or the wetland, publish a final notice that includes:
(1) The reasons why the proposal must be located in the floodplain
or wetland;
(2) A list of the alternatives considered;
(3) All mitigation measures to be taken to minimize adverse impacts
and to restore and preserve natural and beneficial values; and
(4) For residential new construction in a 100-year floodplain, a
statement that a final Letter of Map Amendment (LOMA) or final Letter
of Map Revision (LOMR) will be secured by the applicant as a condition
of HUD's or the responsible entity's approval of floodplain
development.
(h) Step 8. Upon completion of the decision making process in Steps
1 through 7, implement the proposed action. There is a continuing
responsibility on HUD and the recipient to ensure that the mitigating
measures identified in Step 7 are implemented and, where applicable,
that the LOMA or LOMR is secured.
14. In Sec. 55.22, the introductory text to paragraph (a) and
paragraph (a)(1) are revised to read as follows:
Sec. 55.22 Conveyance restrictions for the disposition of multifamily
real property.
(a) In the disposition (including leasing) of multifamily
properties acquired by HUD that are located in a 100-year floodplain
(or a 500-year floodplain for a Critical Action) or a wetland, the
documents used for the conveyance must:
(1) Refer to those uses that are restricted under identified
federal, state, or local floodplain or wetland regulations; and
* * * * *
15. Section 55.24 is revised to read as follows:
Sec. 55.24 Aggregation.
Where two or more actions have been proposed, require compliance
with this subpart, affect the same floodplain or wetland, and are
currently under review by the Department (or by a responsible entity
subject to 24 CFR part 58), individual or aggregated approvals may be
issued. A single compliance review and approval under this section is
subject to compliance with the decision making process in Sec. 55.20.
16. Section 55.25 is amended by removing the period at the end of
paragraph (d)(3)(iii) and adding a semicolon in its place; by removing
the period at the end of paragraph (d)(6) and adding ``; and'' in its
place; and by revising paragraphs (a), (b), (d)(4) and (d)(5), to read
as follows:
Sec. 55.25 Areawide compliance.
(a) A HUD-approved areawide compliance process may be substituted
for individual compliance or aggregated compliance under Sec. 55.24
where a series of individual actions is proposed or contemplated in a
pertinent area for HUD's examination of floodplain hazards or the
protection of wetlands. In areawide compliances, the area for
examination may include a sector of, or the entire, floodplain or
wetland--as relevant to the proposed or anticipated actions. The
areawide compliance process shall be in accord with the decision making
process under Sec. 55.20.
(b) The areawide compliance process shall address the relevant
executive orders and shall consider local land use planning and
development controls (e.g., those enforced by the community for
purposes of floodplain management under the National Flood Insurance
Program (NFIP)) and applicable state programs for floodplain management
and wetland protection. The process shall include the development and
publication of a strategy that identifies the range of development and
mitigation measures under which the proposed HUD assistance may be
approved and that indicates the types of actions that will not be
approved in the floodplain or wetland.
* * * * *
(d) * * *
(4) An open scoping process (in accordance with 40 CFR 1501.7)
shall be used for determining the scope of issues to be addressed and
for identifying significant issues related to housing and community
development for the floodplain or wetland;
(5) Federal, state and local agencies with expertise in floodplain
management, wetland protection, flood evacuation preparedness, land use
planning and building regulation, or soil and natural resource
conservation shall be invited to participate in the scoping process and
to provide advice and comments;
* * * * *
17. Section 55.26 is amended by revising the introductory text and
paragraph (a), to read as follows:
Sec. 55.26 Adoption of another agency's review under the executive
orders.
If a proposed action covered under this part is already covered in
a prior review performed under the executive orders by another agency,
that review may be adopted by HUD or by a responsible entity authorized
under 24 CFR part 58, provided that:
(a) There is no pending litigation relating to the other agency's
review for floodplain management and wetland protection;
* * * * *
18. Section 55.27 is amended by revising the introductory text to
paragraph (a) and paragraph (a)(1) to read as follows:
Sec. 55.27 Documentation.
(a) For purposes of compliance with Sec. 50.20, the responsible HUD
official who would approve the proposed action (or Certifying Officer
for a responsible entity subject to 24 CFR part 58) shall require that
the following actions be documented:
(1) When required by Sec. 55.20(c), practicable alternative sites
have been considered outside the floodplain or wetland, but within the
local housing market area, the local public utility service area, or
the jurisdictional boundaries of a recipient unit of general local
government, whichever geographic area is more appropriate to the
proposed HUD action. Actual sites under review must be identified and
the reasons for the non-selection of those sites as practicable
alternatives must be described; and
* * * * *
[[Page 30053]]
Secs. 55.21, 55.25, and 55.27 [Amended]
19. In addition to the amendments set forth above, in 24 CFR part
55:
a. Remove the words ``grant recipient'' and add, in their place,
the words ``responsible entity'' in the following places:
i. Section 55.21;
ii. Section 55.25(c); and
iii. Section 55.27(b); and
b. Remove the words ``grant recipients'' and add, in their place,
the words ``responsible entities'' in the following places:
i. Section 55.25(d)(2); and
ii. Section 55.27(c).
PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD
ENVIRONMENTAL RESPONSIBILITIES
20. The authority citation for part 58 continues to read as
follows:
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, 3 CFR, 1966-1970, Comp., p. 902, as amended by E.O. 11991, 3
CFR, 1977 Comp., p.123.
21. In Sec. 58.5, paragraph (b)(2) is revised to read as follows:
Sec. 58.5 Related Federal laws and authorities.
* * * * *
(b) * * *
(2) Executive Order 11990, Protection of Wetlands, May 24, 1977 (42
FR 26961), 3 CFR, 1977 Comp., p. 121, as interpreted in HUD regulations
at 24 CFR part 55, particularly sections 2 and 5 of the order.
* * * * *
Dated: April 27, 1998.
Andrew Cuomo,
Secretary.
[FR Doc. 98-14245 Filed 6-1-98; 8:45 am]
BILLING CODE 4210-32-P
