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HomeMy WebLinkAboutPublic Hearing to consider projects to fund through HUD.pdf1 COMMISSION MEMORANDUM REPORT TO: Honorable Mayor and City Commission FROM: Natalie Meyer, Grants/Sustainability Coordinator Anna Rosenberry, Finance Director Chris Kukulski, City Manager SUBJECT: Public hearing to consider projects to fund through the City’s Housing and Urban Development- Economic Development Initiative grant for reconstruction following the downtown natural gas explosion. MEETING DATE: March 8, 2010 AGENDA ITEM TYPE: Action RECOMMENDATION: Consider a motion that identifies HUD-EDI grant beneficiaries as the F&H LLC Building and, the American Legion or alleyway improvements, with any modifications, following applicant presentations, Commission discussion, and public comment. BACKGROUND INFORMATION: Immediately following the downtown natural gas explosion on March 5, 2009, the City of Bozeman submitted an appropriations request to our Senators and Congressman. We asked the delegation for assistance to offset the costs associated with preservation and repair of damaged buildings, reconstruction of destroyed buildings, or construction of new building within 100 feet of the explosion site perimeter. We anticipated that property-owner reimbursement would be based on approved historic preservation and related code compliance repairs and construction. THE GRANT: On December 15, 2009, the Department of Transportation and Housing and Urban Development, and Related Agencies Appropriations Act of 2010 was signed into law. The Act includes $974,000 for the City of Bozeman “for reconstruction following an explosion in a downtown historic district.” The grant will be provided through Housing and Urban Development’s Economic Development Initiative (HUD-EDI) special purpose grant program. Of the $974,000 grant, HUD retains 0.59 percent for administration, thus the City of Bozeman will be awarded $968,253. The 2010 grant guidelines have not yet been released, but we understand through communication with HUD that June 2010 is the earliest possible date for award. 51 2 Housing and Urban Development Grant Conditions: The EDI special purpose grant program is administered by the Economic Development Office, Congressional Grants Division, at HUD Headquarters. As part of the application process, an environmental review is mandated by the National Environmental Policy Act of 1969 (NEPA). HUD regulations contained at 24 C.F.R . Part 58 (Attachment 1), requires that the environmental review must be completed prior to release of funds. No construction can occur prior to completion of the environmental review if the activity or project would have “an adverse environmental impact or limit the choice of reasonable alternatives”. If the project is underway, it must be temporarily stopped until the environmental review requirements are met. The environmental review must be completed by the Certifying Officer of the Responsible Entity (CO/RE), which is typically the mayor of the city of the general unit of local government exercising land control where the project is located. The City of Bozeman has designated the Grants Coordinator as the CO/RE, thus the Grants Coordinator assumes full legal responsibility from HUD within the federal court system. According to Part 58.30, the environmental review process should begin as soon as a recipient determines the projected use of HUD assistance. Tonight’s action item is anticipated to be our determination point in this project. We won’t be able to fragment the project, awarding some tonight and some at another time; we need to determine the full project before we can move forward with the environmental review process and receive the award. We will submit a single coordinated project description for a single environmental review. Federal environmental reviews are tailored to investigate areas of potentially adverse environmental impacts; not just specific land parcels. This is because federal environmental reviews examine direct impacts (i.e., onsite) and indirect impacts (i.e., off site). Some key items of consideration regarding the project description are the overall physical area impacted by the event and the type of work involved (i.e. demolition, replacement construction, etc.). The process for securing an environmental clearance to release funds for the EDI grant will involve the following sequence: 1. Any construction underway will need to cease, until the environmental clearance to release funds has been issued by HUD. This is required by 24 C.F.R. Part 58.22 (“Limitations on Activities Pending Clearance”), and is intended to permit the accomplishment of the NEPA environmental review and afford the maximum opportunity to identify and mitigate potential adverse environmental impacts. Violations of Part 58.22 could result in the denial of the EDI assistance and/or result in a very lengthy administrative process to secure a regulatory waiver of Part 58.22 with an uncertain outcome. 2. Complete HUD’s Environment Review Process. First, determine the correct level of NEPA environmental review required by reviewing Sections 58.34 through 58.36 of the regulation. Our HUD Field Environmental Officer has determined that the environmental review will need to include the entire destroyed area within its scope of work and an Environmental 52 3 Assessment (EA) level of review will be required because of the scale of the affected area. An Environmental Assessment is used to determine if we will receive a Finding of No Significant Impact (FONSI) or if we will be required to do a full Environmental Impact Statement (EIS). The responsible entity (City of Bozeman) provides the information for the Environmental Assessment. HUD suggests this takes approximately 60 days to compile. Following completion of the Environmental Assessment, there is a minimum 30 day public comment period. In total, the complete Environmental Assessment may take a total of 90 days, and potentially more if the project receives a high volume of comments. Any changes in the scope of work may require a re- evaluation of the Environmental Assessment. If the Commission determines that HUD funds should be committed for the 2010 construction season, we recommend that a professional contractor conduct the Environmental Assessment to ensure the review is completed as efficiently as possible. Contracting for the environmental review is an allowable cost under the HUD-EDI grant. We estimate that $15,000 of grant funds should be budgeted for this expense. 3. Complete the HUD Application. Once HUD Headquarters receives the environmental clearance letter, they will pursue the remaining processing of the grant. a. HUD application: i. We can begin reconstruction once the Environmental Assessment is complete. ii. Before reimbursement is provided, we must complete the HUD application. iii. The HUD application requires that we submit a more detailed project budget. b. Allowable costs: i. Reconstruction ii. Professional services such as architectural, engineering, surveying, appraisal, legal, accounting, etc. are limited to 20 percent of total grant ($193,650). iii. Demolition is possible if it is integrally related to redevelopment AND the project will achieve the goals of the National Historic Preservation Act. Since the statutory authorization is for “reconstruction,” we would be required to include a time frame and source of funding for redevelopment to follow demolition. iv. Property may be purchased by the City of Bozeman for redevelopment; however, if the property is subsequently sold, the federal government receives the HUD’s percentage of participation in the original acquisition (if HUD funds constituted 100% of the funds for purchase, then 100% of sale proceeds would be repaid to HUD). v. Public services within the explosion site (sidewalks, street lighting, repaving the alley) are allowable costs. c. Grant disbursement: i. Typically, HUD-EDI grants are provided on a reimbursement basis. d. Equal Opportunity Requirements for Procurement: 53 4 i. Grantees must comply with the Fair Housing Act, Title VI of the Civil Rights Act of 1964 (nondiscrimination), Age Discrimination Act of 1975 (no discrimination on basis of age), 504 of the Rehabilitation Act of 1973 (no discrimination against handicapped), 24 CFR 5.105(a) equal opportunity, Executive Order 11246 (Equal Employment Opportunity), HUD Act of 1968 (to the extent feasible, opportunities given to low income persons and businesses), Executive Orders 11625 and 12432 & 12138 (encourage the use of Minority Business Enterprises and Women’s Business Enterprises). ii. Property owners would be considered “beneficiaries” rather than “sub- recipients”, therefore HUD procurement requirements would not apply. CITY OF BOZEMAN PROJECT SELECTION: On January 26, 2010, Bozeman City Staff organized a meeting to advise property owners, whose buildings were destroyed or severely damaged in the explosion, of the HUD-EDI grant conditions and procedures. The following participated in the meeting: Bozeman City Manager, Chris Kukulski; Bozeman Mayor, Jeff Krauss; Downtown Business Partnership, Chris Naumann; Historic Preservation Planner, Allyson Bristor; Grants Coordinator, Natalie Meyer; Senator Max Baucus’ Bozeman Field Office, Brianne Rogers; Rocky Mountain Rug Gallery, Jalal Neishabouri; American Legion, Len Albright; American Legion, Tom Jones; F&H Building, Mike Hope; Osborne Block, Chris Pope; and 100F Hall, Ann Bates (via phone). During this meeting we outlined HUD’s conditions, timelines, and discussed eligible uses of funds. Attachment 2 outlines the topics discussed during this meeting. Due to the 90-day environmental review process, it became apparent that the City of Bozeman would need to expedite the application process and environmental review in order to use funding during the 2010 construction season. Each property owner has a unique set of circumstances and reconstruction timeline, thus an award process that meets the expectations of all property owners is not feasible. For instance, delaying the application process will automatically exclude those who have begun or will begin construction during the summer of 2010, while accelerating the process creates challenges for property owners who are in the early stages of planning. Recognizing that our Congressional Delegation worked hard to secure funding for downtown Bozeman, we decided it was our responsibility to provide the Commission with the option to award projects that could begin immediately and would encourage economic recovery and downtown revitalization. The Commission would need to select projects in March 2010 if we wish to award projects in the 2010 construction season. If this accelerated application process does not yield desirable projects, then we could potentially deny the applicants, wait several months and provide a second application opportunity. During the January 26th meeting, many property owners expressed disappointment by the conditions of the HUD grant; however, all agreed that there would be a community benefit if a portion of the funding could be directed towards alleyway improvements following reconstruction of the 200 E. Main block. Alleyway improvements are included in the adopted Downtown Improvement Plan as an opportunity to create areas with civic or ecological function. Alleys can be landscaped, provide natural drainage, and create unique and functional areas for 54 5 both residents and businesses. The City of Bozeman Streets Department plans to repave the alley from Rouse Avenue to Bozeman Avenue once construction is complete. There may be an opportunity to coordinate this effort with an alley project funded through the HUD-EDI grant. On February 1, 2010, we sent a formal letter to property owners describing a process to request grant funding from the City of Bozeman. In this letter (Attachment 3), we asked owners to submit a Letter of Intent by February 10, 2010 to indicate their interest in applying for funds. No details were required, but this would allow us to anticipate the volume of applicants. In this letter, building owners were informed that they would need to submit the following information in the final Request for Funding due March 1, 2010: 1) A brief project description (including amount requested); 2) Timeline- Including the estimated date for completion of construction plans, submit plans to City Planning, project start-up, and completion; 3) Intended uses- If housing units are included, indicate whether affordable housing will be available and the number of units; and 4) Projected building square footage, building footprint, and number of stories. On February 10th, we received four Notices of Intent: 1. Jalal Neishabouri-Rocky Mountain Rug Gallery, Bozeman TV, Furniture, & Appliance, and the Brothel 2. Ann Bates-100F Hall 3. Len Albright-American Legion 4. Mike Hope-F&H Building Thereafter, a confirmation letter (Attachment 4) was mailed on February 16th to the property owners to confirm that we received their Notice of Intent. In this letter, we indicated that each applicant would have ten minutes to present their project proposals to the City Commission during the March 8th public meeting. Property owners were also notified that we expected the dollar amount requested to exceed the amount of grant funding available. Therefore, property owners were asked to include additional information: 1) The estimated total project cost, minimum amount needed to move forward, and a description of project financing. On March 1, 2010, the City of Bozeman received three Requests for Funding (Attachment 5). One property owner submitted three separate requests for three different properties impacted by the explosion: 1. Jalal Neishabouri-Rocky Mountain Rug Gallery, Bozeman TV, Furniture, & Appliance, and the Brothel 2. Len Albright-American Legion 3. Mike Hope-F&H Building 55 6 The table below outlines the information we requested from applicants and their responses: 201 E. Main (Rocky Mountain Rug Gallery) 34 N. Bozeman Ave., Unit A (Bozeman TV & Appliance) 34 N. Bozeman Ave., Unit B (Brothel) American Legion F&H Building Project Description Repair damage Repair damage Repair damage Reconstruction Reconstruction Amount Requested Not addressed Not addressed Not addressed Up to $670,000.00 $768,654.00 Timeline Start: July 2010 Complete: December 2010 Start: July 2010 Complete: December 2010 Start: July 2010 Complete: December 2010 Start: Fall 2009 Complete: September 2010 Start: June 2010 Complete: June 2011 Intended Uses Retail (Rocky Mountain Rug Gallery) Retail Retail & Hotel American Legion businesses, meetings, & community space Hospitality, office space, and possible residential Building Square Footage Not addressed Not addressed Not addressed 10,148 sq. ft. 35,550 sq. ft. (includes 3rd floor) Number of Stories No change discussed No change discussed No change discussed Basement & 2 floors 3 floors Estimated Project Cost $2,894,000.00 $1,882,000.00 $1,002,000.00 Cannot divulge, in litigation $768,654.00 (3rd floor only) Minimum HUD Amount Needed to Move Forward Not addressed Not addressed Not addressed Not applicable (under construction) $768,654.00 Description of Financing Not addressed Not addressed Not addressed Not addressed Not addressed While we would like to distribute the benefits of the HUD-EDI grant to all the property owners who were affected by the March 5th blast, the City of Bozeman assumes a degree of financial risk by accepting this grant and assigning beneficiaries. Therefore, Staff recommends the Commission should consider funding: 56 7 1. $768,654 – F& H Building. The F&H LLC building for the full amount requested for the purpose of completing the 5,702 square foot 3rd floor addition. This recommendation is based on: 1) the substantial increase in square footage, beyond what existed prior to the explosion, provided by the project, 2) the resulting addition to the tax increment finance district, 3) their demonstrated ability to start the project during the 2010 construction season. The F&H LLC building is current on their property taxes and city assessments and we believe they have provided a relatively low-risk project for the City of Bozeman to fund. 2. $184,600 – American Legion. We suggest that the balance of the grant funding should be provided to the American Legion to help off-set their construction costs ($184,600) in support of their approved construction plans. The American Legion’s project has been important in helping to restore confidence in the downtown economy by leading the redevelopment effort. The American Legion is current on their city assessments (they are exempt from property taxes) and we are confident they have sufficient financing to complete the project. We emphasize that if the American Legion is awarded funding, they are required to halt construction immediately while we complete the Environmental Assessment. If they do not stop construction, they will not be eligible for reimbursement and jeopardize our entire project’s compliance with HUD. In the case of the American Legion, the City may pursue a determination from the State Historic Preservation Office (SHPO) that the American Legion’s project will not have “an adverse environmental impact or limit the choice of reasonable alternatives” in order for the property owners to re-start construction prior to completion of the full EA, but there is no guarantee of the outcome or duration of time required for this determination. If the American Legion wishes to pursue this option, they must provide updated and detailed building exterior plans. 3. Or, $184,600 – Alleyway Improvements. In the event the American Legion declines funding, we recommend the City coordinate alleyway improvements with the remaining HUD dollars. Our Streets and Engineering departments would work to design alleyway improvements in accordance with the Downtown Improvement Plan. 4. $14,999 -- Environmental Assessment. A portion of the funding should be available to hire a contractor to complete the environmental review process. Recognizing the financial risk associated with allocating funds to “beneficiaries”, we do not recommend funding for the Rocky Mountain Rug Gallery (201 E. Main St.), Bozeman TV, Furniture, & Appliance (34 N. Bozeman Ave. Unit A), or the Brothel (34 N. Bozeman Ave, Unit B). The Rocky Mountain Rug Gallery property was the subject of a recent Trustee’s Sale, which was subsequently cancelled. All of these properties are delinquent in both city assessments and property taxes, and the applicant failed to specify how much HUD money was needed or describe the project financing. If these issues are later resolved, we can consider these buildings as potential projects for the City’s recent Save America’s Treasures award. The Interior and Environment Appropriations Act of 2010 was signed into law on October 30, 2009, for “City of Bozeman Main Street historic district restoration.” This will be disbursed through Save 57 8 America’s Treasures and, therefore, limited to buildings that were damaged by the blast, but not destroyed. This grant award totals $150,000.00. FISCAL EFFECTS: Grant funding will be used to complete the environmental review and fund the proposed construction projects. Considerable staff time may be used to administer this grant; however, the additional square footage provided by the F&H Building is estimated to increase the property tax base by $8,500 per year. ALTERNATIVES: As suggested by the City Commission. Attachments: HUD-EDI 24 C.F.R Part58 January 26, 2010 Property Owner Meeting Information February 1, 2010 Letter to Property Owners February 16, 2010 Letter to Property Owners Property Owner’s Requests for Funding Report compiled on: March 3, 2010 > 58 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.1] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart A--Purpose, Legal Authority, Federal Laws and Authorities Sec. 58.1 Purpose and applicability. Sec. 58.2 Terms, abbreviations and definitions. Sec. 58.4 Assumption authority. Sec. 58.5 Related Federal laws and authorities. Sec. 58.6 Other requirements. Subpart B--General Policy: Responsibilities of Responsible Entities Sec. 58.10 Basic environmental responsibility. Sec. 58.11 Legal capacity and performance. Sec. 58.12 Technical and administrative capacity. Sec. 58.13 Responsibilities of the certifying officer. Sec. 58.14 Interaction with State, Federal and non-Federal entities. Sec. 58.15 Tiering. Sec. 58.18 Environmental responsibilities of States assuming HUD responsibilities. Subpart C--General Policy: Environmental Review Procedures Sec. 58.21 Time periods. Sec. 58.22 Limitations on activities pending clearance. Sec. 58.23 Financial assistance for environmental review. Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification Sec. 58.30 Environmental review process. Sec. 58.32 Project aggregation. Sec. 58.33 Emergencies. Sec. 58.34 Exempt activities. Sec. 58.35 Categorical exclusions. Sec. 58.36 Environmental assessments. Sec. 58.37 Environmental impact statement determinations. Sec. 58.38 Environmental review record. Subpart E--Environmental Review Process: Environmental Assessments (EA's) Sec. 58.40 Preparing the environmental assessment. Sec. 58.43 Dissemination and/or publication of the findings of no significant impact. Sec. 58.45 Public comment periods. Sec. 58.46 Time delays for exceptional circumstances. Sec. 58.47 Re-evaluation of environmental assessments and other environmental findings. 59 Subpart F--Environmental Review Process: Environmental Impact Statement Determinations Sec. 58.52 Adoption of other agencies' EISs. Sec. 58.53 Use of prior environmental impact statements. Subpart G--Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements Sec. 58.55 Notice of intent to prepare an EIS. Sec. 58.56 Scoping process. Sec. 58.57 Lead agency designation. Sec. 58.59 Public hearings and meetings. Sec. 58.60 Preparation and filing of environmental impact statements. Subpart H--Release of Funds for Particular Projects Sec. 58.70 Notice of intent to request release of funds. Sec. 58.71 Request for release of funds and certification. Sec. 58.72 HUD or State actions on RROFs and certifications. Sec. 58.73 Objections to release of funds. Sec. 58.74 Time for objecting. Sec. 58.75 Permissible bases for objections. Sec. 58.76 Procedure for objections. Sec. 58.77 Effect of approval of certification. 60 Subpart A--Purpose, Legal Authority, Federal Laws and Authorities Sec. 58.1 Purpose 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. [Reserved] 3. i. 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 McKinney-Vento Homeless Assistance Act, in accordance with section 443 (42 U.S.C. 11402); ii. Grants beginning with Fiscal Year 2001 to private non-profit organizations and housing agencies under the Supportive Housing Program and Shelter Plus Care Program authorized by Title IV of the McKinney-Vento 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, including HOPE VI grants authorized under section 24 of the 61 Act for Fiscal Year 2000 and later, in accordance with section 26 (42 U.S.C. 1437x); ii. Grants for the revitalization of severely distressed public housing (HOPE VI) for Fiscal Year 1999 and prior years, in accordance with Title II of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999 (Pub. L. 105-276, approved October 21, 1998); and iii. Assistance administered by a public housing agency under section 8 of the United States Housing Act of 1937, except for assistance provided under part 886 of this title, 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 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)). 10. Assistance provided under the Native American Housing Assistance and Self- Determination Act of 1996 (NAHASDA), in accordance with: i. Section 105 for Indian Housing Block Grants and Federal Guarantees or Financing for Tribal Housing Authorities (25 U.S.C. 4115 and 4226); and ii. Section 806 for Native Hawaiian Housing Block Grants (25 U.S.C. 4226); 11. Indian Housing Loan Guarantees authorized by section 184 of the Housing and Community Development Act of 1992, in accordance with section 184(k) (12 U.S.C. 1715z-13a(k)); and 12. Grants for Housing Opportunities for Persons with AIDS (HOPWA) under the AIDS Housing Opportunity Act, as follows: competitive grants beginning with Fiscal Year 2001 and all formula grants, in accordance with section 856(h) (42 U.S.C. 12905(h)); all grants for Fiscal Year 1999 and prior years, in accordance with section 207(c) of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999 (Pub. L. 105-276, approved October 21, 1998). c. When HUD assistance is used to help fund a revolving loan fund that is administered by a recipient or another party, the activities initially receiving assistance from the fund are subject to the requirements in this part. Future activities receiving assistance from the revolving loan fund, after the fund has received loan 62 repayments, are subject to the environmental review requirements if the rules of the HUD program that initially provided assistance to the fund continue to treat the activities as subject to the Federal requirements. If the HUD program treats the activities as not being subject to any Federal requirements, then the activities cease to become Federally-funded activities and the provisions of this part do not apply. d. To the extent permitted by applicable laws and the applicable regulations of the Council on Environmental Quality, the Assistant Secretary for Community Planning and Development may, for good cause and with appropriate conditions, approve waivers and exceptions or establish criteria for exceptions from the requirements of this part. 63 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart A--Purpose, Legal Authority, Federal Laws and Authorities 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; 64 v. With respect to Public Housing Programs under Sec. 58.1(b)(6)(i), fiscal year 1999 and prior HOPE VI grants under Sec. 58.1(b)(6)(ii) or Section 8 assistance under Sec. 58.1(b)(6)(iii), a public housing agency; vi. Any direct grantee of HUD for a special project under Sec. 58.1(b)(7); vii. With respect to the FHA Multifamily Housing Finance Agency Program under 58.1(b)(8), a qualified housing finance agency; viii. With respect to the Self-Help Homeownership Opportunity Program under Sec. 58.1(b)(9), any direct grantee of HUD. ix. A. With respect to NAHASDA assistance under Sec. 58.1(b)(10), the Indian tribe or the Department of Hawaiian Home Lands; and B. With respect to the Section 184 Indian Housing Loan Guarantee program under Sec. 58.1(b)(11), the Indian tribe. x. With respect to the Shelter Plus Care and Supportive Housing Programs under Sec. 58.1(b)(3)(ii), nonprofit organizations and other entities. 6. Release of funds. In the case of the FHA Multifamily Housing Finance Agency 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. In the case of the Section 184 Indian Housing Loan Guarantee program under Sec. 58.1(b)(11), Release of Funds refers to HUD's issuance of a commitment to guarantee a loan, or if there is no commitment, HUD's issuance of a certificate of guarantee. 7. Responsible Entity. Responsible Entity means: i. With respect to environmental responsibilities under programs listed in Sec. 58.1(b)(1), (2), (3)(i), (4), and (5), a recipient under the program. ii. With respect to environmental responsibilities under the programs listed in Sec. 58.1(b)(3)(ii) and (6) through (12), a state, unit of general local government, Indian tribe or Alaska Native Village, or the Department of Hawaiian Home Lands, when it is the recipient under the program. Under the Native American Housing Assistance and Self- Determination Act of 1996 (25 U.S.C. 4101 et seq.) listed in Sec. 58.1(b)(10)(i), the Indian tribe is the responsible entity whether or not a Tribally Designated Housing Entity is authorized to receive grant amounts on behalf of the tribe. The Indian tribe is also the responsible entity under the Section 184 Indian Housing Loan Guarantee program listed in Sec. 58.1(b)(11). Regional Corporations in Alaska are considered Indian tribes in this part. Non-recipient responsible entities are designated as follows: 65 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; 66 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. 67 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart A--Purpose, Legal Authority, Federal Laws and Authorities 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. 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. c. Particular responsibilities of Indian tribes. An Indian tribe may, but is not required to, assume responsibilities for environmental review, decision-making and action for programs authorized by the Native American Housing Assistance and Self- Determination Act of 1996 (25 U.S.C. 4101 et seq.) (other than title VIII) or section 184 of the Housing and Community Development Act of 1992 (12 U.S.C. 1715z- 13a). The tribe must make a separate decision regarding assumption of responsibilities for each of these Acts and communicate that decision in writing to HUD. If the tribe assumes these responsibilities, the requirements of this part shall apply. If a tribe formally declines assumption of these responsibilities, they are retained by HUD and the provisions of part 50 of this title apply. 68 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart A--Purpose, Legal Authority, Federal Laws and Authorities 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 (16 U.S.C. 470 et seq.), particularly sections 106 and 110 (16 U.S.C. 470 and 470h-2). 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 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. 69 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. 1. Applicable criteria and standards specified in part 51 of this title, other than the runway clear zone notification requirement in Sec. 51.303(a)(3). 2. i. Also, it is HUD policy that all properties that are being proposed for use in HUD programs be free of hazardous materials, contamination, toxic chemicals and gases, and radioactive substances, where a hazard could affect the health and safety of occupants or conflict with the intended utilization of the property. ii. The environmental review of multifamily housing with five or more dwelling units (including leasing), or non-residential property, must include the evaluation of previous uses of the site or other evidence of contamination on or near the site, to ensure that the occupants of proposed sites are not adversely affected by any of the hazards listed in paragraph (i)(2)(i) of this section. iii. Particular attention should be given to any proposed site on or in the general proximity of such areas as dumps, landfills, industrial sites, or other locations that contain, or may have contained, hazardous wastes. 70 iv. The responsible entity shall use current techniques by qualified professionals to undertake investigations determined necessary. 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. 71 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart A--Purpose, Legal Authority, Federal Laws and Authorities 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)(12) 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. Where the community is participating in the National Flood Insurance Program, flood insurance protection is to be obtained as a condition of the approval of financial assistance to the property owner. 2. Where the community is participating in the National Flood Insurance Program and the 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. 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 for flood damage to any personal, residential or commercial property if: 72 1. The person had previously received Federal flood disaster assistance conditioned on obtaining and maintaining flood insurance; and 2. The person failed to obtain and maintain flood insurance. c. 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. d. 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. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15271, Mar. 30, 1998] 73 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.10] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents 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), except as otherwise provided in Sec. 58.4(c), the responsible entity must assume the environmental responsibilities for projects under programs cited in Sec. 58.1(b). In doing so, the responsible entity 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. [63 FR 15271, Mar. 30, 1998] 74 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart B--General Policy: Responsibilities of Responsible Entities 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, special project, HOPWA, Supportive Housing, Shelter Plus Care, or Self-Help Homeownership Opportunity recipient that is not a responsible entity 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 in accordance with this part or may itself conduct the environmental review in accordance with the provisions of 24 CFR part 50. 75 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart B--General Policy: Responsibilities of Responsible Entities 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. 76 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart B--General Policy: Responsibilities of Responsible Entities 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. 77 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart B--General Policy: Responsibilities of Responsible Entities Sec. 58.14 Interaction with State, Federal and non-Federal entities. A responsible entity shall consult with 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 or joint environmental assessments (see 40 CFR 1501.5(b) and 1501.6). A single EIS or EA 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. [63 FR 15271, Mar 30, 1998] 78 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart B--General Policy: Responsibilities of Responsible Entities 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. 79 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart B--General Policy: Responsibilities of Responsible Entities Sec. 58.17 [Reserved] 80 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart B--General Policy: Responsibilities of Responsible Entities Sec. 58.18 Environmental responsibilities of States assuming HUD responsibilities. States that elect to administer a HUD program shall ensure that the program complies with the provisions of this part. The state must: a. Designate the state agency or agencies that will be responsible for carrying out the requirements and administrative responsibilities set forth in subpart H of this part and which will: 1. Develop a monitoring and enforcement program for post-review actions on environmental reviews and monitor compliance with any environmental conditions included in the award. 2. Receive public notices, RROFs, and certifications from recipients pursuant to Sec. 58.70 and Sec. 58.71; accept objections from the public and from other agencies (Sec. 58.73); and perform other related responsibilities regarding releases of funds. b. 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. 81 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.21] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents 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. 82 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart C--General Policy: Environmental Review Procedures Sec. 58.22 Limitations on activities pending clearance. a. Neither a recipient nor any participant in the development process, including public or private nonprofit or for-profit entities, or any of their contractors, may commit HUD assistance 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 from the responsible entity. In addition, until the RROF and the related certification have been approved, neither a recipient nor any participant in the development process may commit non-HUD funds on or undertake 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. b. If a project or activity is exempt under Sec. 58.34, or is categorically excluded (except in extraordinary circumstances) under Sec. 58.35(b), no RROF is required and the recipient may undertake the activity immediately after the responsible entity has documented its determination as required in Sec. 58.34(b) and Sec. 58.35(d), but the recipient must comply with applicable requirements under Sec. 58.6. c. If a recipient is considering an application from a prospective subrecipient or beneficiary and is aware that the prospective subrecipient or beneficiary is about to take an action within the jurisdiction of the recipient that is prohibited by paragraph (a) of this section, then the recipient will take appropriate action to ensure that the objectives and procedures of NEPA are achieved. d. An option agreement on a proposed site or property is allowable prior to the completion of the environmental review if the option agreement is subject to a determination by the recipient on the desirability of the property for the project as a result of the completion of the environmental review in accordance with 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. e. Self-Help Homeownership Opportunity Program (SHOP). In accordance with section 11(d)(2)(A) of the Housing Opportunity Program Extension Act of 1996 (42 U.S.C. 12805 note), an organization, consortium, or affiliate receiving assistance under the SHOP program may advance nongrant funds to acquire land prior to completion of an environmental review and approval of a Request for Release of Funds (RROF) and certification, notwithstanding paragraph (a) of this section. Any advances to acquire land prior to approval of the RROF and certification are made at the risk of the organization, consortium, or affiliate and reimbursement for such advances may depend on the result of the environmental review. This authorization is limited to the SHOP program only and all other forms of HUD assistance are subject to the limitations in paragraph (a) of this section. 83 f. 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. 84 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart C--General Policy: Environmental Review Procedures 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 85 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.30] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents 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. 86 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 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. 87 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. 88 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 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 adherence to separate comment periods would prevent the giving of assistance during a Presidentially declared disaster, or during a local emergency that has been declared by the chief elected official of the responsible entity who has proclaimed that there is an immediate need for public action to protect the public safety, the combined Notice of FONSI and Notice of Intent to Request Release of Funds (NOI/RROF) may be disseminated and/or published simultaneously with the submission of the RROF. The combined Notice of FONSI and NOI/RROF shall state that the funds are needed on an emergency basis due to a 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 ensure that these comments will receive full consideration. 89 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 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 or imminent threats to public safety including those resulting from 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. 90 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. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15271, Mar. 30, 1998] 91 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 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 a building for residential use (with one to four units), the density is not increased beyond four units, the land use is not changed, and the footprint of the building is not increased in a floodplain or in a wetland; ii. 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. 92 iii. 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. i. An individual action on up to four dwelling units where there is a maximum of four units on any one site. The units can be four one-unit buildings or one four-unit building or any combination in between; or ii. An individual action on a project of five or more housing units developed on scattered sites when the sites are more than 2,000 feet apart and there are not more than four housing units on any one site. iii. Paragraphs (a)(4)(i) and (ii) of this section do not apply to rehabilitation of a building for residential use (with one to four units) (see paragraph (a)(3)(i) of this section). 5. Acquisition (including leasing) or disposition of, or equity loans on an existing structure, or acquisition (including leasing) of vacant land provided that the structure or land acquired, financed, 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; 93 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 homebuyers to purchase existing dwelling units or dwelling units under construction, including closing costs and down payment assistance, interest buydowns, and similar activities that result in the transfer of title. 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. 7. Approval of supplemental assistance (including insurance or guarantee) to a project previously approved under this part, if the approval is made by the same responsible entity that conducted the environmental review on the original project and re-evaluation of the environmental findings is not required under Sec. 58.47. 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. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15272, Mar. 30, 1998] 94 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 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. 95 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 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 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. 96 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart D--Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification 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, decision making 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. 97 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.40] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents 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. 98 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart E--Environmental Review Process: Environmental Assessments (EA's) 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. 99 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart E--Environmental Review Process: Environmental Assessments (EA's) Sec. 58.45 Public comment periods. Required notices must afford the public the following minimum comment periods, counted in accordance with Sec. 58.21: a. Notice of Finding of No Significant Impact (FONSI): 15 days when published or, if no publication, 18 days when mailing and posting b. Notice of Intent to Request Release of Funds (NOI-RROF): 7 days when published or, if no publication, 10 days when mailing and posting c. Concurrent or combined notices: 15 days when published or, if no publication, 18 days when mailing and posting 100 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart E--Environmental Review Process: Environmental Assessments (EA's) 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. 101 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart E--Environmental Review Process: Environmental Assessments (EA's) Sec. 58.47 Re-evaluation of environmental assessments and other environmental findings. a. A responsible entity must re-evaluate its environmental findings to determine if the original findings are still valid, 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. 1. If the original findings are still valid but the data or conditions upon which they were based have changed, the responsible entity must affirm the original findings and update its ERR by including this re-evaluation and its determination based on its findings. Under these circumstances, if a FONSI notice has already been published, no further publication of a FONSI notice is required. 2. 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. 3. 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. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15272, Mar. 30, 1998] 102 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.52] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents 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. 103 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart F--Environmental Review Process: Environmental Impact Statement Determinations 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. 104 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.55] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents 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. 105 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart G--Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements 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. 106 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart G--Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements 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). 107 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart G--Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements 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: 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. 108 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart G--Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements 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 1505.2. [61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15272, Mar. 30, 1998] 109 [Code of Federal Regulations] [Title 24, Volume 1] [Revised as of October 29, 2003] [CITE: 24CFR58.70] TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents 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. 110 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart H--Release of Funds for Particular Projects 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. 111 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart H--Release of Funds for Particular Projects 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 or other participants in the development process have 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. 112 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart H--Release of Funds for Particular Projects 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. 113 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart H--Release of Funds for Particular Projects 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. 114 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart H--Release of Funds for Particular Projects 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 or other participants in the development process have committed funds, incurred costs or undertaken activities not authorized by this part before release of funds and approval of the environmental certification by HUD (or the state). f. Another Federal agency acting pursuant to 40 CFR part 1504 has submitted a written finding that the project is unsatisfactory from the standpoint of environmental quality. 115 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart H--Release of Funds for Particular Projects 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. 116 TITLE 24--HOUSING AND URBAN DEVELOPMENT PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES--Table of Contents Subpart H--Release of Funds for Particular Projects 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; 117 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. 118      [HUD‐EDI DOWNTOWN EXPLOSION APPROPRIATION]January 26, 2010      I. On December 15, 2009, the Department of Transportation and Housing and Urban  Development, and Related Agencies Appropriations Act of 2010 was signed into law.    a. The Act includes $974,000 for the City of Bozeman “for reconstruction following an  explosion in a downtown historic district.”    b. HUD keeps 0.59% for administration, thus leaving us with $968,253.  II. When the appropriation was requested, the City’s intent was to use the appropriation  to assist property owners rebuild the 22,500 square foot explosion site and promote  historically appropriate construction.  III. Before HUD releases grant funding to property owners, the City of Bozeman must  complete an Environmental Assessment (EA).   a. We would submit a single coordinated project description for a single environmental  review.  b. To complete the Environmental Assessment we need owners to provide project  descriptions that include: estimated total project costs, and construction plans.*   c. No construction can occur prior to completion of the environmental review if the  activity or project would have “an adverse environmental impact or limit the choice  of reasonable alternatives”.  If the project is underway, it must be temporarily  stopped until the Environmental Assessment is complete.   d. The Environmental Assessment is used to determine if we will receive a Finding of  No Significant Impact (FONSI) or if we will be required to do a full Environmental  Impact Statement (EIS).  i. The responsible entity (City of Bozeman) provides the information for the  Environmental Assessment.  HUD suggests this takes approximately 60 days  to compile.  The City of Bozeman will submit the necessary letters and  documentation from government agencies to complete the EA.  ii. Minimum 30 day public comment period:  1. Finding of No Significant Impact & Notice of Intent to Request Release  of Funds (NOI‐RROF): Published and posted for 15 days (may be  increased to 30 days if an EIS is likely needed).  2. Once the Notice of Intent to Request Release of Funds (NOI‐RROF) is  submitted to HUD there is a second comment period of 15 days.   3. Without reasonable objections, the environmental certification can  be approved.  iii. The complete Environmental Assessment may take a total of 90 days.  1. Changes in scope of work may require a new Environmental  Assessment!  119      [HUD‐EDI DOWNTOWN EXPLOSION APPROPRIATION]January 26, 2010    e. HUD application:  i. We can begin reconstruction once the Environmental Assessment is  complete.  ii. Before reimbursement is provided, we must complete the HUD application.  iii. The HUD application requires that we submit a more detailed project budget.   f. Allowable costs:  i. Reconstruction  ii. Professional services such as architectural, engineering, surveying, appraisal,  legal, accounting, etc. are limited to 20 percent of total grant ($193,650).  iii. Demolition is possible if it is integrally related to redevelopment AND the  project will achieve the goals of the National Historic Preservation Act  (Bristor).  iv. Property may be purchased by the City of Bozeman for redevelopment;  however, if the property is subsequently sold, the federal government  receives the HUD’s percentage of participation in the original acquisition (if  HUD funds constituted 100% of the funds for purchase, then 100% of sale  proceeds would be repaid to HUD).   v. Public services within the explosion site (sidewalks, street lighting, repaving  the alley) are allowable costs.  g. Grant disbursement:  i. Typically, HUD‐EDI grants are provided on a reimbursement basis.  ii. HUD may allow the City to take out an interim or bridge loan to finance  authorized activities and then use the EDI funds to pay off the loan.  The  Environmental Assessment must be complete prior to signing any loan  commitments.   h. Equal Opportunity Requirements:  i. Grantees must comply with the Fair Housing Act, Title VI of the Civil Rights  Act of 1964 (nondiscrimination), Age Discrimination Act of 1975 (no  discrimination on basis of age), 504 of the Rehabilitation Act of 1973 (no  discrimination against handicapped), 24 CFR 5.105(a) equal opportunity,  Executive Order 11246 (Equal Employment Opportunity), HUD Act of 1968  (to the extent feasible, opportunities given to low income persons and  businesses), Executive Orders 11625 and 12432 & 12138 (encourage the use  of Minority Business Enterprises and Women’s Business Enterprises).  ii. We still need to clarify how these requirements will apply to downtown  business owners. The City, as the primary grantee, will assume responsibility  for as much of the documentation as possible.  120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144