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.
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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
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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:
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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
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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
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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:
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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
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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
>
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[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.
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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.
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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
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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
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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.
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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;
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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.
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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.
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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.
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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]
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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.
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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.
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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.
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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.
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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]
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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.
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[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.
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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.
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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.
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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.
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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.
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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]
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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]
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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.
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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.
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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.
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[Code of Federal Regulations]
[Title 24, Volume 1]
[Revised as of October 29, 2003]
[CITE: 24CFR58.40]
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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.
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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.
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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
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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.
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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]
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[Revised as of October 29, 2003]
[CITE: 24CFR58.52]
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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.
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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.
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[Revised as of October 29, 2003]
[CITE: 24CFR58.55]
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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.
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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.
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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).
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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.
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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]
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[Revised as of October 29, 2003]
[CITE: 24CFR58.70]
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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;
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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.
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[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!
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[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.
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