[Federal Register Volume 61, Number 84 (Tuesday, April 30, 1996)]
[Rules and Regulations]
[Pages 19120-19132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10467]
[[Page 19119]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 58
Office of the Secretary; Environmental Review Procedures for Entities
Assuming HUD Environmental Responsibilities; Final Rule
Federal Register / Vol. 61, No. 84 / Tuesday, April 30, 1996 / Rules
and Regulations
[[Page 19120]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 58
[Docket No. FR-3514-F-04]
RIN 2501-AB67
Office of the Secretary; Environmental Review Procedures for
Entities Assuming HUD Environmental Responsibilities
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule makes final two rules, one interim and one proposed,
which amended the existing environmental regulations in 24 CFR part 58,
governing entities that assume HUD responsibilities, by making the
environmental review procedures consistent under the various programs
to which these regulations apply. This final rule takes into
consideration the public comments received on both rules, and also
makes streamlining and editorial changes to the existing environmental
regulations governing entities that assume HUD responsibilities.
EFFECTIVE DATE: This rule becomes effective May 30, 1996, except for
Sec. 58.1(b)(6)(i) and Sec. 58.2(a)(5)(v)(A), which pertain to public
housing development and modernization programs. These sections will
become effective on October 14, 1996, unless the Department publishes a
document in the Federal Register that specifies a different effective
date.
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-TTY (1-800-877-8339) and refer to (202) 708-1201.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule revises and restates 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. This
rule makes final two rules, one interim rule and one proposed rule,
which amended 24 CFR part 58. The interim rule was published on March
13, 1995 (60 FR 13518), and the proposed rule was published on
September 25, 1995 (60 FR 49466). This final rule takes into
consideration the public comments received on both rules.
Applicable HUD programs under 24 CFR part 58 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 reduction and
abatement of lead-based paint, (6) Indian Housing and most Section 8
programs under Title I of the United States Housing Act of 1937, (7)
Special projects appropriated under an appropriation Act of HUD, (8)
the FHA Multifamily Housing Finance Agency Pilot Program under section
542(c) of the Housing and Community Development Act of 1992, and (9)
the Self-Help Homeownership Opportunity Program under section 11 of the
Housing Opportunity Program Extension Act of 1996.
The interim and proposed rules did not refer to the last program
cited above, the Self-Help Homeownership Opportunity Program, because
the Housing Opportunity Program Extension Act was approved on March 28,
1996, after those rules were published. However, section 11(m) of that
Act provides that a grant under that program shall be considered to be
funds for a special project for purposes of section 305(c) of the
Multifamily Housing Property Disposition Reform Act of 1994, which
authorized the provisions in the current interim rule providing for
States and units of general local government to assume environmental
responsibilities for special projects under item (7) above.
Accordingly, grants under the new Self-Help Homeownership Opportunity
Program are already subject to the part 58 procedures, by being
considered special project funds. The final rule adds specific
references to the new program in order to provide a complete list of
programs currently subject to part 58.
II. Discussion of Public Comments on the March 13, 1995 Interim Rule
The Department received two comments on the March 13, 1995 interim
rule--one from a State housing development authority and one from a
national organization of State housing agencies.
Both commenters requested, with respect to the FHA Multifamily
Housing Finance Agency Pilot Program in particular, that the rule
clarify that State housing finance agencies (HFAs) may assume
environmental responsibilities. The Department has not changed the
final rule in response to these comments. Section 542(c)(9) of the
Housing and Community Development Act of 1992, as amended, provides
that the Secretary of HUD may provide for agreements to endorse
mortgages for insurance ``upon the request of qualified housing finance
agencies * * *, if the State or unit of general local government, as
designated by the Secretary in accordance with regulations, assumes''
environmental responsibilities.
However, the Department agrees that a State HFA may assume the
responsibility for environmental reviews on behalf of the State if the
HFA is an agency of the State government and is given authority to do
so by the State. If an official of the State HFA will act as the
Certifying Officer for the State, section 542 (c) requires that the
official must have the authority to certify, among other things, that
he or she ``is authorized and consents on behalf of the State * * * and
himself or herself'' to accept Federal court jurisdiction for
enforcement of the environmental responsibilities (emphasis added). The
Certifying Officer's responsibilities are set out in Sec. 58.13 of the
rule, which indicates that he or she must represent the responsible
entity, e.g., the State, rather than merely the State HFA.
Even where the State's Certifying Officer is outside the HFA, the
HFA may contribute information or prepare a draft environmental
assessment for the State, but the Certifying Officer must evaluate this
work and take responsibility for the review in accordance with 40 CFR
1506.5 of the regulations of the Council on Environmental Quality.
One of the commenters, citing statements in Secs. 58.4(b) and 58.10
of the interim rule that responsible entities ``shall'' or ``must''
assume environmental review responsibilities, requested that the final
rule clarify that
[[Page 19121]]
the assumption of environmental responsibilities is voluntary. The
Department agrees that assumption of environmental responsibilities by
non-recipient recipient responsible entities is voluntary. However, the
Department has concluded that no change in the rule is necessary on
this point. The cited language (which is similar in the final rule)
must be read in conjunction with Sec. 58.11(d) of the interim and final
rules. Section 58.11(d) indicates that if a responsible entity, other
than a recipient, objects to performing an environmental review, or if
HUD may designate another responsible entity to perform the review or
may perform the review itself.
III. Discussion of Public Comments on the September 25, 1995 Proposed
Rule
The Department received 11 comments on the September 25, 1995
proposed rule. The Department received four from local governments,
three from county governments, two from State housing agencies, and two
from special interest groups. As a result of these, the Department has
made certain changes to the proposed rule which are incorporated into
today's final rule. The following discussion summarizes and provides
HUD responses to those comments. Every comment was reviewed and
considered, although all comments may not be specifically addressed in
this preamble.
One city urged HUD to conduct a detailed federalism analysis in
accordance with Executive Order 12612 on Federalism before taking any
further action on this proposed rule. The charge is made that the
proposed rule would constitute an unfunded mandate on local governments
by transferring to States and local governments various environmental
functions previously performed by HUD. This final rule does not change
any requirements that were not in effect or put in effect by the
interim rule, published in the Federal Register on March 13, 1995 (60
FR 13518) that became effective on April 12, 1995.
The second issue raised by this city was that the tenant-based
Section 8 Existing Housing Program should be exempt from all
environmental review requirements. Section 58.35(b)(1) makes all
tenant-based rental assistance essentially exempt, except for
extraordinary circumstances in which a categorically excluded activity
may have a significant environmental effect.
A second city requested that Sec. 58.34(a)(2) be more declarative
with respect to environmental review requirements for payment of
principal and/or interest to the Federal government. A change in
Sec. 58.34(a) was made to preserve and make more generic the exemption
for payments of principal and interest that is in the interim rule.
A third city suggested that the final rule should make changes that
would allow local communities more latitude in applying section 106 of
the National Historic Preservation Act and applicable regulations in 36
CFR part 800. The Department does not have the authority to effect
changes in the procedures of the State Historic Preservation Officer
(SHPO) or to allow local communities more autonomy in determining which
resources are historically significant.
A fourth city made a number of suggestions to be more specific and/
or carry over some specific language in the interim rule into this
final rule. Some clarifications have been made in Sec. 58.35 of the
final rule.
One county housing agency wanted more clarification about what
would be considered ``adequate local news media'' when disseminating
information to the public. Adequate local news media would be
considered to be at least a newspaper of general circulation in the
affected community. A change has also been made in Sec. 58.21 to
clarify that when there is no publication of Notices, the time periods
start when there is a mailing and posting of a Finding of No
Significant Impact (FONSI) or the Notice of Intent to Request Release
of Funds (NOI/RROF). In addition, this county wanted a definition of
``an individual action'' in reference to the categorical exclusion of
one- to four-family dwellings. Some clarifications have been made to
Sec. 58.35 to reflect current practices with respect to categorical
exclusions.
A second county agency felt there was a contradiction in the
requirement for the responsible entity to address in the Environmental
Review Record (ERR) its compliance with Sec. 58.6 while Sec. 58.34 of
the proposed rule stated that the responsible entity does not have to
comply with the environmental requirements of this part in the case of
exempt activities. The requirements of Sec. 58.6 must be complied with
and the responsible entity is required to address these requirements
where applicable. These requirements apply to exempt activities, when
there is no requirement for an environmental certification by the
certifying officer that indicates that all environmental requirements
have been met. A change has been made in Sec. 58.34 to remove this
contradiction.
A third county agency suggested that the Housing Opportunities for
Persons With AIDS (HOPWA) program should be reviewed under part 58
because HOPWA projects are often funded jointly with CDBG. HUD has no
authority to assign this responsibility to local governments. However,
part 50 and part 58 reviews should not be done in such a manner that
there is duplication. If a review has already been made of a jointly
funded proposal, the prior review can be referenced in subsequent
reviews. The county agency suggested additions to Sec. 58.2 that would
define in more detail ``financial services'' and when a decrease in
unit density would require an environmental review.
The Department feels that these terms are adequately defined in
Secs. 58.34(a)(2) and 58.35(a) and that further detail would not be
appropriate. The county agency also raised a question about the
proposed deletion of the reference to Section 108 loans from
Sec. 58.34(a) of the interim rule. The intent of this rule is to make
requirements more generic and not be program specific. In response to
comments, there is no change in the exempt classification of the
repayment of Section 108 loans to the Federal government and the
comment is addressed generically in Sec. 58.34(a)(11). This county
suggested that changes be made in Sec. 58.47 to address a concern about
when there is a need to re-evaluate an environmental finding. Changes
have been made in Sec. 58.47 to expand the context when a change in
conditions or a change in funding would require a re-evaluation.
One State housing agency requested that Sec. 58.35(b)(5) be
expanded to include homeownership assistance for new housing that is
planned but may or may not yet be built. In response to this comment,
the final rule expands this exclusion to cover assistance to homebuyers
for units under construction as well as existing housing. However,
housing that is not yet under construction cannot be covered by this
exclusion because Sec. 58.53(b) does not require compliance with the
environmental laws and authorities listed in Sec. 58.5. Assistance to
purchase housing yet to be constructed, on a limited scale, as
identified in Sec. 58.35(a)(4), can be determined to be categorically
excluded, but it cannot be exempt from the requirements of Sec. 58.5.
A second State agency suggested that environmental reviews
conducted by other entities on co-funded projects should be used
whenever possible. This final rule encourages combining reviews
conducted by other entities for jointly funded projects.
A national county association wanted to know what was meant by
``broader review'' in Sec. 58.15 on Tiering. The tiering concept is
explained very well in
[[Page 19122]]
the NEPA regulations of the Council on Environmental Quality but
focuses on tiering in EIS situations. This final rule encourages the
use of the tiering concept in non-EIS situations. Tiering, for HUD
purposes, allows responsible entities that have assumed Federal
environmental responsibilities to complete an environmental review and
obtain a release of funds from HUD before the specific properties to be
treated have been identified. Once the properties have been identified,
the responsible entity must comply with environmental laws and
authorities that could not be satisfied until the properties were
identified. The responsible entity may use any available environmental
information. Compliance with section 106 of the National Historic
Preservation Act would normally occur when the properties to be treated
have been identified.
Another commenter requested that the proposed change to Sec. 58.22
prohibiting recipients from committing local (non-HUD) funds before the
approval of RROF be dropped in favor of the language in the present
interim rule. This suggestion has not been adopted, since the language
of proposed Sec. 58.22 better reflects the intent of the Council on
Environmental Quality regulation.
The Department also received a comment on the Home Investment
Partnership Program interim rule published on July 12, 1995 (60 FR
36020) that is relevant to this rule. The comment objected to the
requirement contained in the Home environmental guidelines, and also
contained in proposed Sec. 58.22, that options on property entered into
before completion of the environmental review be refundable, since
refundability is not generally a provision for refundable options in
favor of options being limited to a nominal portion of the purchase
price.
IV. Other Matters
Environmental Impact
A Finding of No Significant Impact (FONSI) with respect to the
environment was made in connection with development of the September
25, 1995 proposed rule in accordance with HUD regulations in 24 CFR
Part 50 which implement Section 102(2)(C) of the National Environmental
Policy Act (NEPA). Since the changes made to the proposed rule in this
final rule do not change the impact on the environment, the original
Finding is still valid. The original Finding is available for public
inspection during regular business hours in the Office of the General
Counsel, Rules Docket Clerk, at the above address.
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 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 rule is not subject to review under the order. Specifically, this
final rule modifies environmental requirements for recipients of HUD
assistance and other entities that assume environmental review
responsibilities for activities and projects where 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.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order, The Family, has determined that this final rule will 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 final rule, as those policies and
programs relate to family concerns.
Regulatory Flexibility Act. The Secretary, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) has reviewed and approved
this rule, and in so doing certifies that this final rule will not have
a significant economic impact on a substantial number of small
entities. This final rule streamlines part 58 and carries 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
Environmental protection, Community Development Block Grants,
Environmental impact statements, Grant programs--housing and community
development, Reporting and recordkeeping requirements.
Accordingly, 24 CFR part 58 is revised 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.
58.4 Assumption authority.
58.5 Related Federal laws and authorities.
58.6 Other requirements.
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.
58.17 Historic Preservation requirements for prior section 17
grants.
58.18 Responsibilities of States Assuming HUD Responsibilities.
Subpart C--General Policy: Environmental Review Procedures
58.21 Time periods.
58.22 Limitations on activities pending clearance.
58.23 Financial assistance for environmental review.
Subpart D--Environmental Review Process: Documentation, Range of
Activities, Project Aggregation and Classification
58.30 Environmental Review Process.
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.
Subpart E--Environmental Review Process: Environmental Assessments
(EA's)
58.40 Preparing the environmental assessment.
58.43 Dissemination and/or publication of the findings of no
significant impact.
58.45 Public comment periods.
58.46 Time delays for exceptional circumstances.
58.47 Re-evaluation of environmental assessments and other
environmental findings.
Subpart F--Environmental Review Process: Environmental Impact Statement
Determinations
58.52 Adoption of other agencies' EISs.
58.53 Use of prior environmental impact statements.
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.
[[Page 19123]]
58.57 Lead agency designation.
58.59 Public hearings and meetings.
58.60 Preparation and filing of environmental impact statements.
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.
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.
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) Grants to States and units of general local government under
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 heading ``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);
(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); and
(9) The Self-Help Homeownership Opportunity Program under section
11 of the Housing Opportunity Program Extension Act of 1996 (Pub. L.
104-120, 110 Stat. 834), in accordance with section 11(m)).
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):
(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);
[[Page 19124]]
(vii) With respect to the FHA Multifamily Housing Finance Agency
Pilot Program under Sec. 58.1(b)(8), a qualified housing finance
agency; and
(viii) With respect to the Self-Help Homeownership Opportunity
Program under Sec. 58.1(b)(9), any direct grantee of HUD.
(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 (9), 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:
(1) CDBG--Community Development Block Grant;
(2) CEQ--Council on Environmental Quality;
(3) EA--Environmental Assessment;
(4) EIS--Environmental Impact Statement;
(5) EPA--Environmental Protection Agency;
(6) ERR--Environmental Review Record;
(7) FONSI--Finding of No Significant Impact;
(8) HUD--Department of Housing and Urban Development;
(9) NAHA--Cranston-Gonzalez National Affordable Housing Act of 1990;
(10) NEPA--National Environmental Policy Act of 1969, as amended;
(11) NOI/EIS--Notice of Intent to Prepare an EIS;
(12) NOI/RROF--Notice of Intent to Request Release of Funds;
(13) ROD--Record of Decision;
(14) ROF--Release of Funds; and
(15) RROF--Request for Release of Funds.
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) States must exercise HUD's responsibilities in accordance with
Sec. 58.18, 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 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 470h-2), except as provided in Sec. 58.17
for Section 17 projects.
(2) Executive Order 11593, Protection and Enhancement of the
Cultural Environment, May 13, 1971 (36 FR 8921), 3 CFR 1971-1975 Comp.,
p. 559, 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 as amended by the
Archeological and Historic Preservation Act of 1974 (16
[[Page 19125]]
U.S.C. 469 et seq.), particularly section 3 (16 U.S.C. 469a-1).
(b) Floodplain management and wetland protection. (1) Executive
Order 11988, Floodplain Management, May 24, 1977 (42 FR 26951), 3 CFR,
1977 Comp., p. 117, as interpreted in HUD regulations at 24 CFR part
55, particularly section 2(a) of the order (For an explanation of the
relationship between the decision-making process in 24 CFR part 55 and
this part, see Sec. 55.10 of this subtitle A.)
(2) Executive Order 11990, Protection of Wetlands, May 24, 1977 (42
FR 26961), 3 CFR, 1977 Comp., p. 121, 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), 3 CFR, 1994 Comp. p. 859.
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.
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 requirements 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 applicable to 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 must 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, special project or self-
help homeownership opportunity 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 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
[[Page 19126]]
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 requirements 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. 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 done
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. 58.17 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 of this part 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.
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 or the mailing and posting 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 addition, until the RROF and related
certification has been approved, the recipient may not commit 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
[[Page 19127]]
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 this part and
the cost of the option is a nominal portion of the purchase price.
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. Funds may be committed for relocation assistance
before the approval of the RROF and related certification for the
project provided that the relocation assistance is 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 costs to the extent allowable
under the HUD assistance program regulations.
Subpart D--Environmental Review Process: Documentation, Range of
Activities, Project Aggregation and Classification
Sec. 58.30 Environmental Review Process.
(a) The environmental review process consists of all the actions
that a responsible entity must take to determine compliance with 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.
(b) The environmental review process should begin as soon as a
recipient determines the projected use of HUD assistance.
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 estimated range of 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) Except for the applicable requirements of Sec. 58.6, the
responsible entity does not have to comply with the 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 temporary or 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) Payment of principal and interest on loans made or obligations
guaranteed by HUD;
(12) Any of the categorical exclusions listed in Sec. 58.35(a)
provided that there 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.
[[Page 19128]]
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, improvement, 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.
(6) Combinations of the above activities.
(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 ``or new
dwelling units not assisted with Federal funds'' 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
options, project financing, administrative costs and fees for 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.
(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
[[Page 19129]]
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.
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 subpart F or G of this part.
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
the appropriate tribal, local, State and Federal agencies; to the
Regional Offices of the Environmental Protection Agency having
jurisdiction and to the HUD Field Office (or the State where
applicable). 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
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. If funds will be used in Presidentially declared
disaster areas, modifications resulting from public comment, if
appropriate, must be made before proceeding with the expenditure of
funds.
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.
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.
[[Page 19130]]
Sec. 58.47 Re-evaluation of environmental assessments and other
environmental findings.
(a) A responsible entity must re-evaluate its environmental
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;
(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 in
the original finding.
(b) The purpose of the responsible entity's re-evaluation is to
determine if the original findings are still valid. If the original
findings are still valid but the data or conditions upon which they
were based have changed, the responsible entity must amend the original
findings and update its ERR by including this re-evaluation and its
determination based on its findings. If the responsible entity
determines that the original findings are 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 findings before proceeding.
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. 58.60(d) 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.
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 disseminating or 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).
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 in the local news media 15 days
before the hearing date. The Notice must:
[[Page 19131]]
(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.
(c) The responsible entity may request waivers from the time
requirements specified for the draft and final EIS as prescribed in 40
CFR 1506.6.
(d) When substantial changes are proposed in a project or when
significant new circumstances or information becomes available during
an environmental review, the recipient may prepare a supplemental EIS
as prescribed in 40 CFR 1502.9.
(e) The responsible entity must prepare a Record of Decision (ROD)
as prescribed in 40 CFR 1502.2.
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 commit funds
for 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
subpart H of this part. 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.
(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 of this part 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.
[[Page 19132]]
(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 person 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 is 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 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.
Dated: March 27, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-10467 Filed 4-29-96; 8:45 am]
BILLING CODE 4210-29-P