SEPTEMBER 2015

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT OFFICE OF ENVIRONMENT AND ENERGY

HANDBOOK OF LAWS, REGULATIONS and EXECUTIVE ORDERS FOR HUD ENVIRONMENTAL COMPLIANCE

SEPTEMBER 2015

HANDBOOK OF LAWS, REGULATIONS and EXECUTIVE ORDERS FOR HUD ENVIRONMENTAL COMPLIANCE

Table of Contents

1. National Environmental Policy Act of 1969

2. 40 CFR Part 1500-1508: Protection of the Environment—President’s Council on Environmental Quality, Appendix A, CEQ Regulations

3. 24 CFR Part 58: Housing and Urban Development--Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities

4. 24 CFR Part 50: Housing and Urban Development--Protection and Enhancement of Environmental Quality

5. 24 CFR Part 51: Housing and Urban Development Environmental Criteria and Standards

6. 24 CFR Part 55: Housing and Urban Development—Floodplain Management and Wetlands Protection

7. 36 CFR Part 800: Advisory Council on Historic Preservation--Protection of Historic Properties

8. 40 CFR Part 312: Environmental Protection Agency—Standards and Practices for All Appropriate Inquiries, Final Rule

9. Executive Order 11988: Floodplain Management

10. Executive Order 11990: Protection of Wetlands

11. Executive Order 13690: Federal Flood Risk Management Standard

12. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

1. National Environmental Policy Act of 1969

The National Environmental Policy Act of 1969

The National Environmental Policy Act of 1969, as amended

(Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July

3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982)

An Act to establish a national policy for the environment, to provide for the establishment of a Council on Environmental Quality, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "National Environmental Policy Act of 1969."

Purpose

Sec. 2 [42 USC § 4321].

The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

TITLE I

CONGRESSIONAL DECLARATION OF NATIONAL ENVIRONMENTAL POLICY

Sec. 101 [42 USC § 4331].

(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consist with other essential considerations of national policy, to improve and coordinate Federal plans, functions,

programs, and resources to the end that the Nation may --

1. fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

2. assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

3. attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

4. preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice;

5. achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

6. enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

Sec. 102 [42 USC § 4332].

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall --

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes;

(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:

(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,

(ii) the responsible Federal official furnishes guidance and participates in such preparation,

(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and

(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.

The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this Act; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction.

(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(F) recognize the worldwide and long-range character of environmental problems and,

where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;

(G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(I) assist the Council on Environmental Quality established by title II of this Act.

Sec. 103 [42 USC § 4333].

All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this Act.

Sec. 104 [42 USC § 4334].

Nothing in section 102 [42 USC § 4332] or 103 [42 USC § 4333] shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency.

Sec. 105 [42 USC § 4335].

The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.

TITLE II

COUNCIL ON ENVIRONMENTAL QUALITY

Sec. 201 [42 USC § 4341].

The President shall transmit to the Congress annually beginning July 1, 1970, an Environmental Quality Report (hereinafter referred to as the "report") which shall set forth

(1) the status and condition of the major natural, manmade, or altered environmental classes of the Nation, including, but not limited to, the air, the aquatic, including marine, estuarine, and fresh water, and the terrestrial environment, including, but not limited to, the forest, dryland, wetland, range, urban, suburban an rural environment; (2) current and foreseeable trends in the quality, management and utilization of such environments and the effects of those trends on the social, economic, and other requirements of the Nation; (3) the adequacy of available natural resources for fulfilling human and economic requirements of the Nation

in the light of expected population pressures; (4) a review of the programs and activities (including regulatory activities) of the Federal Government, the State and local governments, and nongovernmental entities or individuals with particular reference to their effect on the environment and on the conservation, development and utilization of natural resources; and

(5) a program for remedying the deficiencies of existing programs and activities, together with recommendations for legislation.

Sec. 202 [42 USC § 4342].

There is created in the Executive Office of the President a Council on Environmental Quality (hereinafter referred to as the "Council"). The Council shall be composed of three members who shall be appointed by the President to serve at his pleasure, by and with the advice and consent of the Senate. The President shall designate one of the members of the Council to serve as Chairman. Each member shall be a person who, as a result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpret environmental trends and information of all kinds; to appraise programs and activities of the Federal Government in the light of the policy set forth in title I of this Act; to be conscious of and responsive to the scientific, economic, social, aesthetic, and cultural needs and interests of the Nation; and to formulate and recommend national policies to promote the improvement of the quality of the environment.

Sec. 203 [42 USC § 4343].

(a) The Council may employ such officers and employees as may be necessary to carry out its functions under this Act. In addition, the Council may employ and fix the compensation of such experts and consultants as may be necessary for the carrying out of its functions under this Act, in accordance with section 3109 of title 5, United States Code (but without regard to the last sentence thereof).

(b) Notwithstanding section 1342 of Title 31, the Council may accept and employ voluntary and uncompensated services in furtherance of the purposes of the Council.

Sec. 204 [42 USC § 4344].

It shall be the duty and function of the Council --

1. to assist and advise the President in the preparation of the Environmental Quality Report required by section 201 [42 USC § 4341] of this title;

2. to gather timely and authoritative information concerning the conditions and trends in the quality of the environment both current and prospective, to analyze and interpret such information for the purpose of determining whether such conditions and trends are interfering, or are likely to interfere, with the achievement of the policy set forth in title I of this Act, and to compile and submit to the President studies relating to such conditions and trends;

3. to review and appraise the various programs and activities of the Federal Government in the light of the policy set forth in title I of this Act for the purpose of determining the extent to which such programs and activities are contributing to the achievement

of such policy, and to make recommendations to the President with respect thereto;

4. to develop and recommend to the President national policies to foster and promote the improvement of environmental quality to meet the conservation, social, economic, health, and other requirements and goals of the Nation;

5. to conduct investigations, studies, surveys, research, and analyses relating to ecological systems and environmental quality;

6. to document and define changes in the natural environment, including the plant and animal systems, and to accumulate necessary data and other information for a continuing analysis of these changes or trends and an interpretation of their underlying causes;

7. to report at least once each year to the President on the state and condition of the environment; and

8. to make and furnish such studies, reports thereon, and recommendations with respect to matters of policy and legislation as the President may request.

Sec. 205 [42 USC § 4345].

In exercising its powers, functions, and duties under this Act, the Council shall --

1. consult with the Citizens' Advisory Committee on Environmental Quality established by Executive Order No. 11472, dated May 29, 1969, and with such representatives of science, industry, agriculture, labor, conservation organizations, State and local governments and other groups, as it deems advisable; and

2. utilize, to the fullest extent possible, the services, facilities and information (including statistical information) of public and private agencies and organizations, and individuals, in order that duplication of effort and expense may be avoided, thus assuring that the Council's activities will not unnecessarily overlap or conflict with similar activities authorized by law and performed by established agencies.

Sec. 206 [42 USC § 4346].

Members of the Council shall serve full time and the Chairman of the Council shall be compensated at the rate provided for Level II of the Executive Schedule Pay Rates [5 USC § 5313]. The other members of the Council shall be compensated at the rate provided for Level IV of the Executive Schedule Pay Rates [5 USC § 5315].

Sec. 207 [42 USC § 4346a].

The Council may accept reimbursements from any private nonprofit organization or from any department, agency, or instrumentality of the Federal Government, any State, or local government, for the reasonable travel expenses incurred by an officer or employee of the Council in connection with his attendance at any conference, seminar, or similar meeting conducted for the benefit of the Council.

Sec. 208 [42 USC § 4346b].

The Council may make expenditures in support of its international activities, including expenditures for: (1) international travel; (2) activities in implementation of international agreements; and (3) the support of international exchange programs in the United States and in foreign countries.

Sec. 209 [42 USC § 4347].

There are authorized to be appropriated to carry out the provisions of this chapter not to exceed $300,000 for fiscal year 1970, $700,000 for fiscal year 1971, and $1,000,000 for each fiscal year thereafter.

The Environmental Quality Improvement Act, as amended (Pub. L. No. 91- 224, Title II, April 3, 1970; Pub. L. No. 97-258, September 13, 1982; and Pub. L. No. 98-581, October 30,

1984.

42 USC § 4372.

(a) There is established in the Executive Office of the President an office to be known as the Office of Environmental Quality (hereafter in this chapter referred to as the "Office"). The Chairman of the Council on Environmental Quality established by Public Law 91- 190 shall be the Director of the Office. There shall be in the Office a Deputy Director who shall be appointed by the President, by and with the advice and consent of the Senate.

(b) The compensation of the Deputy Director shall be fixed by the President at a rate not in excess of the annual rate of compensation payable to the Deputy Director of the Office of Management and Budget.

(c) The Director is authorized to employ such officers and employees (including experts and consultants) as may be necessary to enable the Office to carry out its functions ;under this chapter and Public Law 91-190, except that he may employ no more than ten specialists and other experts without regard to the provisions of Title 5, governing appointments in the competitive service, and pay such specialists and experts without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, but no such specialist or expert shall be paid at a rate in excess of the maximum rate for GS-18 of the General Schedule under section 5332 of Title 5.

(d) In carrying out his functions the Director shall assist and advise the President on policies and programs of the Federal Government affecting environmental quality by --

1. providing the professional and administrative staff and support for the Council on Environmental Quality established by Public Law 91- 190;

2. assisting the Federal agencies and departments in appraising the effectiveness of existing and proposed facilities, programs, policies, and activities of the Federal Government, and those specific major projects designated by the President which

do not require individual project authorization by Congress, which affect environmental quality;

3. reviewing the adequacy of existing systems for monitoring and predicting environmental changes in order to achieve effective coverage and efficient use of research facilities and other resources;

4. promoting the advancement of scientific knowledge of the effects of actions and technology on the environment and encouraging the development of the means to prevent or reduce adverse effects that endanger the health and well-being of man;

5. assisting in coordinating among the Federal departments and agencies those programs and activities which affect, protect, and improve environmental quality;

6. assisting the Federal departments and agencies in the development and interrelationship of environmental quality criteria and standards established throughout the Federal Government;

7. collecting, collating, analyzing, and interpreting data and information on environmental quality, ecological research, and evaluation.

(e) The Director is authorized to contract with public or private agencies, institutions, and organizations and with individuals without regard to section 3324(a) and (b) of Title 31 and section 5 of Title 41 in carrying out his functions.

42 USC § 4373. Each Environmental Quality Report required by Public Law 91-190 shall, upon transmittal to Congress, be referred to each standing committee having jurisdiction over any part of the subject matter of the Report.

42 USC § 4374. There are hereby authorized to be appropriated for the operations of the Office of Environmental Quality and the Council on Environmental Quality not to exceed the following sums for the following fiscal years which sums are in addition to those contained in Public Law 91- 190:

(a) $2,126,000 for the fiscal year ending September 30, 1979.

(b) $3,000,000 for the fiscal years ending September 30, 1980, and September 30, 1981.

(d) $480,000 for each of the fiscal years ending September 30, 1985 and 1986.

42 USC § 4375.

(a) There is established an Office of Environmental Quality Management Fund (hereinafter referred to as the "Fund") to receive advance payments from other agencies or accounts that may be used solely to finance --

1. study contracts that are jointly sponsored by the Office and one or more other Federal agencies; and

2. Federal interagency environmental projects (including task forces) in which the Office participates.

(b) Any study contract or project that is to be financed under subsection (a) of this section may be initiated only with the approval of the Director.

Back to Table of Contents

2. 40 CFR Part 1500-1508: Protection of the Environment-President’s Council on Environmental Quality, Appendix A, CEQ Regulations

Appendix A 40 CFR 1500-1508--

Council On Environmental Quality

40 CFR PART 1500--PURPOSE, POLICY, AND MANDATE

§1500.1 Purpose.

(a) The National Environmental Policy Act (NEPA) is our basic national charter for protection of the environment. It establishes policy, sets goals (section 101), and provides means (section 102) for carrying out the policy. Section 102(2) contains "action-forcing" provisions to make sure that federal agencies act according to the letter and spirit of the Act. The regulations that follow implement section 102(2). Their purpose is to tell federal agencies what they must do to comply with the procedures and achieve the goals of the Act. The President, the federal agencies, and the courts share responsibility for enforcing the Act so as to achieve the substantive requirements of section 101.

(b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.

(c) Ultimately, of course, it is not better documents but better decisions that count. NEPA's purpose is not to generate paperwork--even excellent paperwork--but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. These regulations provide the direction to achieve this purpose.

§1500.2 Policy.

Federal agencies shall to the fullest extent possible:

(a) Interpret and administer the policies, regulations, and public laws of the United

Appendix A – CEQ Regulations

States in accordance with the policies set forth in the Act and in these regulations.

(b) Implement procedures to make the NEPA process more useful to decisionmakers and the public; to reduce paperwork and the accumulation of extraneous background data; and to emphasize real environmental issues and alternatives. Environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that agencies have made the necessary environmental analyses.

(c) Integrate the requirements of NEPA with other planning and environmental review procedures required by law or by agency practice so that all such procedures run concurrently rather than consecutively.

(d) Encourage and facilitate public involvement in decisions which affect the quality of the human environment.

(e) Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment.

(f) Use all practicable means, consistent with the requirements of the Act and other essential considerations of national policy, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment.

§1500.3 Mandate.

Parts 1500 through 1508 of this title provide regulations applicable to and binding on all Federal agencies for implementing the procedural provisions of the National Environmental Policy Act of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321 et seq.) (NEPA or the Act) except where compliance would be inconsistent with other statutory requirements. These regulations are issued pursuant to NEPA, the Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.) section 309 of the Clean Air Act, as amended (42 U.S.C. 7609) and Executive Order 11514, Protection and Enhancement of Environmental Quality (March 5, 1970, as amended by Executive Order 11991, May 24, 1977). These regulations, unlike the predecessor guidelines, are not confined to sec. 102(2)(C) (environmental impact

Appendix A – CEQ Regulations

statements). The regulations apply to the whole of section 102(2). The provisions of the Act and of these regulations must be read together as a whole in order to comply with the spirit and letter of the law. It is the Council's intention that judicial review of agency compliance with these regulations not occur before an agency has filed the final environmental impact statement, or has made a final finding of no significant impact (when such a finding will result in action affecting the environment), or takes action that will result in irreparable injury.

Furthermore, it is the Council's intention that any trivial violation of these regulations not give rise to any independent cause of action.

§1500.4 Reducing paperwork.

Agencies shall reduce excessive paperwork by:

(a) Reducing the length of environmental impact statements (§1502.2(c)), by means such as setting appropriate page limits (§1501.7(b)(1) and §1502.7).

(b) Preparing analytic rather than encyclopedic environmental impact statements (§1502.2(a)).

(d) Writing environmental impact statements in plain language (§1502.8).

(e) Following a clear format for environmental impact statements (§1502.10).

(f) Emphasizing the portions of the environmental impact statement that are useful to decisionmakers and the public (§1502.14 and §1502.15) and reducing emphasis on background material

(§1502.16).

(g) Using the scoping process, not only to identify significant environmental issues deserving of study, but also to deemphasize insignificant issues, narrowing the scope of the environmental impact statement process accordingly (§1501.7).

(h) Summarizing the environmental impact statement (§1502.12) and circulating the summary instead of the entire environmental impact statement if the latter is unusually long (§1502.19).

(i) Using program, policy, or plan environmental impact statements and tiering from statements of broad scope to those of narrower scope, to eliminate repetitive discussions of the same issues (§1502.4 and §1502.20).

(j) Incorporating by reference (§1502.21).

(k) Integrating NEPA requirements with other environmental review and consultation requirements (§1502.25).

(l) Requiring comments to be as specific as possible (§1503.3).

(m) Attaching and circulating only changes to the draft environmental impact statement, rather than rewriting and circulating the entire statement when changes are minor (§1503.4(c)).

(n) Eliminating duplication with State and local procedures, by providing for joint preparation (§1506.2), and with other Federal procedures, by providing that an agency may adopt appropriate environmental documents prepared by another agency (§1506.3).

(o) Combining environmental documents with other documents (§1506.4).

(p) Using categorical exclusions to define categories of actions which do not individually or cumulatively have a significant effect on the human environment and which are therefore exempt from requirements to prepare an environmental impact statement (§1508.4).

(q) Using a finding of no significant impact when an action not otherwise excluded will not have a significant effect on the human environment and is therefore exempt from requirements to prepare an environmental impact statement (§1508.13).

§1500.5 Reducing delay.

Agencies shall reduce delay by:

(a) Integrating the NEPA process into early planning (§1501.2).

(b) Emphasizing interagency cooperation before the environmental impact statement is prepared, rather than submission of adversary comments on a completed document (§1501.6).

Appendix A – CEQ Regulations

(d) Using the scoping process for an early identification of what are and what are not the real issues (§1501.7).

(e) Establishing appropriate time limits for the environmental impact statement process (§1501.7(b)(2) and §1501.8).

(f) Preparing environmental impact statements early in the process (§1502.5).

(g) Integrating NEPA requirements with other environmental review and consultation requirements (§1502.25).

(h) Eliminating duplication with State and local procedures by providing for joint preparation (§1506.2) and with other Federal procedures by providing that an agency may adopt appropriate environmental documents prepared by another agency (§1506.3).

(i) Combining environmental documents with other documents (§1506.4).

(j) Using accelerated procedures for proposals for legislation (§1506.8).

(k) Using categorical exclusions to define categories of actions which do not individually or cumulatively have a significant effect on the human environment (§1508.4) and which are therefore exempt from requirements to

prepare an environmental impact statement.

(l) Using a finding of no significant impact when an action not otherwise excluded will not have a significant effect on the human environment (§1508.13) and is therefore exempt from requirements to prepare an environmental impact statement.

§1500.6 Agency authority.

Each agency shall interpret the provisions of the Act as a supplement to its existing authority and as a mandate to view traditional policies and missions in the light of the Act's national environmental objectives. Agencies shall review their policies, procedures, and regulations accordingly and revise them as necessary to insure full compliance with the purposes and provisions of the Act. The phrase "to the fullest extent possible" in section 102 means that each agency of the Federal Government shall comply with that section unless existing law applicable to the agency's operations expressly prohibits or makes compliance impossible.

40 CFR Part 1501 -- NEPA AND AGENCY PLANNING

§1501.1 Purpose.

The purposes of this part include:

(a) Integrating the NEPA process into early planning to insure appropriate consideration of NEPA's policies and to eliminate delay.

(b) Emphasizing cooperative consultation among agencies before the environmental impact statement is prepared rather than submission of adversary comments on a completed document.

(d) Identifying at an early stage the significant environmental issues deserving of study and deemphasizing insignificant issues, narrowing the scope of the environmental impact statement accordingly.

(e) Providing a mechanism for putting appropriate time limits on the environmental impact statement process.

§1501.2 Apply NEPA early in the process.

Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off

potential conflicts. Each agency shall:

(a) Comply with the mandate of section 102(2)(A) to "utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment," as specified by §1507.2.

(b) Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses.

(c) Environmental documents and appropriate analyses shall be circulated and reviewed at the same time as other planning documents.

(d) Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources as provided by section 102(2)(E) of the Act.

Appendix A – CEQ Regulations

(e) Provide for cases where actions are planned by private applicants or other non- Federal entities before Federal involvement so that:

(1) Policies or designated staff are available to advise potential applicants of studies or other information foreseeably required for later Federal action.

(2) The Federal agency consults early with appropriate State and local agencies and Indian tribes and with interested private persons and organizations when its own involvement is reasonably foreseeable.

(3) The Federal agency commences its NEPA process at the earliest possible time.

§1501.3 When to prepare an environmental assessment.

(a) Agencies shall prepare an environmental assessment (§1508.9) when necessary under the procedures adopted by individual agencies to supplement these regulations as described in §1507.3. An assessment is not necessary if the agency has decided to prepare an environmental impact statement.

(b) Agencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.

§1501.4 Whether to prepare an environmental impact statement.

In determining whether to prepare an environmental impact statement the Federal agency shall:

(a) Determine under its procedures supplementing these regulations (described in

§1507.3) whether the proposal is one which:

(1) Normally requires an environmental impact statement, or

(2) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion).

(b) If the proposed action is not covered by paragraph (a) of this section, prepare an environmental assessment (§1508.9). The agency shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments required by §1508.9(a)(1).

(d) Commence the scoping process (§1501.7), if the agency will prepare an environmental impact statement.

(e) Prepare a finding of no significant impact (§1508.13), if the agency determines on the basis of the environmental assessment not to prepare a statement.

(1) The agency shall make the finding of no significant impact available to the affected public as specified in §1506.6.

(2) In certain limited circumstances, which the agency may cover in its procedures under §1507.3, the agency shall make the finding of no significant impact available for public review (including State and areawide clearinghouses) for 30 days before the agency makes its final determination whether to prepare an environmental impact statement and before the action may begin. The circumstances are:

(i) The proposed action is, or is closely similar to, one which normally requires the preparation of an environmental impact statement under the procedures adopted by the agency pursuant to §1507.3, or

(ii) The nature of the proposed action is one without precedent.

§1501.5 Lead agencies.

(a) A lead agency shall supervise the preparation of an environmental impact statement if more than one Federal agency either:

(1) Proposes or is involved in the same action; or

(2) Is involved in a group of actions directly related to each other because of their functional interdependence or geographical proximity.

(b) Federal, State, or local agencies, including at least one Federal agency, may act as joint lead agencies to prepare an environmental impact statement (§1506.2).

(c) If an action falls within the provisions of paragraph (a) of this section the potential lead agencies shall determine by letter or memorandum which agency shall be the lead agency and which shall be cooperating

Appendix A – CEQ Regulations

agencies. The agencies shall resolve the lead agency question so as not to cause delay. If there is disagreement among the agencies, the following factors (which are listed in order of descending importance) shall determine lead agency designation:

(1) Magnitude of agency's involvement.

(2) Project approval/disapproval authority.

(3) Expertise concerning the action's environmental effects.

(4) Duration of agency's involvement.

(5) Sequence of agency's involvement.

(d) Any Federal agency, or any State or local agency or private person substantially affected by the absence of lead agency designation, may make a written request to the potential lead agencies that a lead agency be designated.

(e) If Federal agencies are unable to agree on which agency will be the lead agency or if the procedure described in paragraph (c) of this section has not resulted within 45 days in a lead agency designation, any of the agencies or persons concerned may file a request with the Council asking it to determine which Federal agency shall be the lead agency.

A copy of the request shall be transmitted to each potential lead agency. The request shall consist of:

(1) A precise description of the nature and extent of the proposed action.

(2) A detailed statement of why each potential lead agency should or should not be the lead agency under the criteria specified in paragraph (c) of this section.

(f) A response may be filed by any potential lead agency concerned within 20 days after a request is filed with the Council. The Council shall determine as soon as possible but not later than 20 days after receiving the request and all responses to it which Federal agency shall be the lead agency and which other Federal agencies shall be cooperating agencies.

§1501.6 Cooperating agencies.

The purpose of this section is to emphasize agency cooperation early in the NEPA process. Upon request of the lead agency, any other Federal agency which has

jurisdiction by law shall be a cooperating agency. In addition any other Federal agency which has special expertise with respect to any environmental issue, which should be addressed in the statement may be a cooperating agency upon request of the lead agency. An agency may request the lead agency to designate it a cooperating agency.

(a) The lead agency shall:

(1) Request the participation of each cooperating agency in the NEPA process at the earliest possible time.

(2) Use the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent possible consistent with its responsibility as lead agency.

(3) Meet with a cooperating agency at the latter's request.

(b) Each cooperating agency shall:

(1) Participate in the NEPA process at the earliest possible time.

(2) Participate in the scoping process (described below in §1501.7).

(3) Assume on request of the lead agency responsibility for developing information and preparing environmental analyses including portions of the environmental impact statement concerning which the cooperating agency has special expertise.

(4) Make available staff support at the lead agency's request to enhance the latter's interdisciplinary capability.

(5) Normally use its own funds. The lead agency shall, to the extent available funds permit, fund those major activities or analyses it requests from cooperating agencies. Potential lead agencies shall include such funding requirements in their budget requests.

(c) A cooperating agency may in response to a lead agency's request for assistance in preparing the environmental impact statement (described in paragraph (b)(3),

(4), or (5) of this section) reply that other program commitments preclude any involvement or the degree of involvement requested in the action that is the subject of the environmental impact statement. A copy of this reply shall be submitted to the Council.

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§1501.7 Scoping.

There shall be an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action. This process shall be termed scoping. As soon as practicable after its decision to prepare an environmental impact statement and before the scoping process the lead agency shall publish a notice of intent (§1508.22) in the FEDERAL REGISTER except as provided in

§1507.3(e).

(a) As part of the scoping process the lead agency shall:

(1) Invite the participation of affected Federal, State, and local agencies, any affected Indian tribe, the proponent of the action, and other interested persons (including those who might not be in accord with the action on environmental grounds), unless there is a limited exception under

§1507.3(c). An agency may give notice in accordance with §1506.6.

(2) Determine the scope (§1508.25) and the significant issues to be analyzed in depth in the environmental impact statement.

(3) Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review (§1506.3), narrowing the discussion of these issues in the statement to a brief presentation of why they will not have a significant effect on the human environment or providing a reference to their coverage elsewhere.

(4) Allocate assignments for preparation of the environmental impact statement among the lead and cooperating agencies, with the lead agency retaining responsibility for the statement.

(5) Indicate any public environmental assessments and other environmental impact statements which are being or will be prepared that are related to but are not part of the scope of the impact statement under consideration.

(6) Identify other environmental review and consultation requirements so the lead and cooperating agencies may prepare other required analyses and studies concurrently with, and integrated with, the environmental impact statement as provided in §1502.25.

(7) Indicate the relationship between the timing of the preparation of environmental analyses and the agency's tentative planning and decisionmaking schedule.

(b) As part of the scoping process the lead agency may:

(1) Set page limits on environmental documents (§1502.7).

(2) Set time limits (§1501.8).

(3) Adopt procedures under §1507.3 to combine its environmental assessment process with its scoping process.

(4) Hold an early scoping meeting or meetings which may be integrated with any other early planning meeting the agency has. Such a scoping meeting will often be appropriate when the impacts of a particular action are confined to specific sites.

(c) An agency shall revise the determinations made under paragraphs (a) and (b) of this section if substantial changes are made later in the proposed action, or if significant new circumstances or information arise which bear on the proposal or its impacts.

§1501.8 Time limits.

Although the Council has decided that prescribed universal time limits for the entire NEPA process are too inflexible, Federal agencies are encouraged to set time limits appropriate to individual actions (consistent with the time intervals required by §1506.10). When multiple agencies are involved the reference to agency below means lead agency.

(a) The agency shall set time limits if an applicant for the proposed action requests them: Provided, That the limits are consistent with the purposes of NEPA and other essential considerations of national policy.

(b) The agency may:

(1) Consider the following factors in determining time limits:

(i) Potential for environmental harm.

(ii) Size of the proposed action.

(iii) State of the art of analytic techniques.

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(iv) Degree of public need for the proposed action, including the consequences of delay.

(v) Number of persons and agencies affected.

(vi) Degree to which relevant information is known and if not known the time required for obtaining it.

(vii) Degree to which the action is controversial.

(viii) Other time limits imposed on the agency by law, regulations, or executive order.

(2) Set overall time limits or limits for each constituent part of the NEPA process, which may include:

(i) Decision on whether to prepare an environmental impact statement (if not already decided).

(ii) Determination of the scope of the environmental impact statement.

(iii) Preparation of the draft environmental impact statement.

(iv) Review of any comments on the draft environmental impact statement from the public and agencies.

(v) Preparation of the final environmental impact statement.

(vi) Review of any comments on the final environmental impact statement.

(vii) Decision on the action based in part on the environmental impact

statement.

(3) Designate a person (such as the project manager or a person in the agency's office with NEPA responsibilities) to expedite the NEPA process.

40 CFR PART 1502--ENVIRONMENTAL IMPACT STATEMENT

§1502.1 Purpose.

The primary purpose of an environmental impact statement is to serve as an action- forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government. It shall provide full and fair

discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses. An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with

other relevant material to plan actions and make decisions.

§1502.2 Implementation.

To achieve the purposes set forth in

§1502.1 agencies shall prepare environmental impact statements in the following manner:

(a) Environmental impact statements shall be analytic rather than encyclopedic.

(b) Impacts shall be discussed in proportion to their significance. There shall be only brief discussion of other than significant issues. As in a finding of no significant impact, there should be only enough discussion to show why more study is not warranted.

(c) Environmental impact statements shall be kept concise and shall be no longer than absolutely necessary to comply with NEPA and with these regulations. Length should vary first with potential environmental problems and then with project size.

(d) Environmental impact statements shall state how alternatives considered in it and decisions based on it will or will not achieve the requirements of sections 101 and 102(1) of the Act and other environmental laws and policies.

(e) The range of alternatives discussed in environmental impact statements shall encompass those to be considered by the ultimate agency decisionmaker.

(f) Agencies shall not commit resources prejudicing selection of alternatives before making a final decision (§1506.1).

(g) Environmental impact statements shall serve as the means of assessing the

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environmental impact of proposed agency actions, rather than justifying decisions already made.

§1502.3 Statutory requirements for statements.

As required by sec. 102(2)(C) of NEPA environmental impact statements (§1508.11) are to be included in every recommendation or report:

On proposals (§1508.23).

For legislation and (§1508.17).

Other major Federal actions (§1508.18). Significantly (§1508.27).

Affecting (§1508.3, §1508.8).

The quality of the human environment (§1508.14).

§1502.4 Major Federal actions requiring the preparation of environmental impact statements.

(a) Agencies shall make sure the proposal which is the subject of an environmental impact statement is properly defined. Agencies shall use the criteria for scope (§1508.25) to determine which proposal(s) shall be the subject of a particular statement. Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.

(b) Environmental impact statements may be prepared, and are sometimes required, for broad Federal actions such as the adoption of new agency programs or regulations (§1508.18). Agencies shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking.

(c) When preparing statements on broad actions (including proposals by more than one agency), agencies may find it useful to evaluate the proposal(s) in one of the following ways:

(1) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area.

(2) Generically, including actions which have relevant similarities, such as common timing, impacts, alternatives, methods of implementation, media, or subject matter.

(3) By stage of technological development including federal or federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the human environment. Statements shall be prepared on such programs and shall be available before the program has reached a stage of investment or commitment to implementation likely to determine subsequent development or restrict later

alternatives.

(d) Agencies shall as appropriate employ scoping (§1501.7), tiering (§1502.20), and other methods listed in §1500.4 and §1500.5 to relate broad and narrow actions and to avoid duplication and delay.

§1502.5 Timing.

An agency shall commence preparation of an environmental impact statement as close as possible to the time the agency is developing or is presented with a proposal (§1508.23) so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The statement shall

be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made (§1500.2(c), §1501.2, and

§1502.2). For instance:

(a) For projects directly undertaken by Federal agencies the environmental impact statement shall be prepared at the feasibility analysis (go-no go) stage and may be supplemented at a later stage if necessary.

(b) For applications to the agency appropriate environmental assessments or statements shall be commenced no later than immediately after the application is received. Federal agencies are encouraged to begin preparation of such assessments or statements earlier, preferably jointly with applicable State or local agencies.

(c) For adjudication, the final environmental impact statement shall normally precede the final staff recommendation and that portion of the public hearing related to the impact study. In appropriate circumstances the statement may follow preliminary hearings designed to gather information for use in the statements.

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(d) For informal rulemaking the draft environmental impact statement shall normally accompany the proposed rule.

§1502.6 Interdisciplinary preparation.

Environmental impact statements shall be prepared using an inter- disciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts (section 102(2)(A) of the Act). The disciplines of the preparers shall be appropriate to the scope and issues identified in the scoping process (§1501.7).

1502.7 Page limits.

The text of final environmental impact statements (e.g., paragraphs (d) through (g) of §1502.10) shall normally be less than 150 pages and for proposals of unusual scope or complexity shall normally be less than 300 pages.

§1502.8 Writing.

Environmental impact statements shall be written in plain language and may use appropriate graphics so that decisionmakers and the public can readily understand them. Agencies should employ writers of clear prose or editors to write, review, or edit statements, which will be based upon the analysis and supporting data from the natural and social sciences and the environmental design arts.

§1502.9 Draft, final, and supplemental statements.

Except for proposals for legislation as provided in §1506.8 environmental impact statements shall be prepared in two stages and may be supplemented.

(a) Draft environmental impact statements shall be prepared in accordance with the scope decided upon in the scoping process. The lead agency shall work with the cooperating agencies and shall obtain comments as required in part 1503 of this chapter. The draft statement must fulfill and satisfy to the fullest extent possible the requirements established for final statements in section 102(2)(C) of the Act. If a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a revised draft of the appropriate portion. The agency shall make every effort to disclose and discuss at appropriate points in the draft statement all major points of view on the environmental

impacts of the alternatives including the proposed action.

(b) Final environmental impact statements shall respond to comments as required in part 1503 of this chapter. The agency shall discuss at appropriate points in the final statement any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised.

(1) Shall prepare supplements to either draft or final environmental impact statements if:

(i)The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or

(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

(2) May also prepare supplements when the agency determines that the purposes of the Act will be furthered by doing so.

(3) Shall adopt procedures for introducing a supplement into its formal administrative record, if such a record exists.

(4) Shall prepare, circulate, and file a supplement to a statement in the same fashion (exclusive of scoping) as a draft and final statement unless alternative procedures are approved by the Council.

§1502.10 Recommended format.

Agencies shall use a format for environmental impact statements which will encourage good analysis and clear presentation of the alternatives including the proposed action. The following standard format for environmental impact statements should be followed unless the

agency determines that there is a compelling reason to do otherwise:

(a) Cover sheet.

(b) Summary.

(d) Purpose of and need for action.

(e) Alternatives including proposed action (sections 102(2)(C)(iii) and 102(2)(E) of the Act).

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(f) Affected environment.

(g) Environmental consequences (especially sections 102(2)(C)(i), (ii), (iv), and (v) of the Act).

(h) List of preparers.

(i) List of Agencies, Organizations, and persons to whom copies of the statement are sent.

(j) Index.

(k) Appendices (if any).

If a different format is used, it shall include paragraphs (a), (b), (c), (h), (i), and (j), of this section and shall include the substance of paragraphs (d), (e), (f), (g), and (k) of this section, as further described in §1502.11 through §1502.18, in any appropriate

format.

§1502.11 Cover sheet.

The cover sheet shall not exceed one page. It shall include:

(a) A list of the responsible agencies including the lead agency and any cooperating agencies.

(b) The title of the proposed action that is the subject of the statement (and if appropriate the titles of related cooperating agency actions), together with the State(s) and county(ies) (or other jurisdiction if applicable) where the action is located.

(d) A designation of the statement as a draft, final, or draft or final supplement.

(e) A one paragraph abstract of the statement.

(f) The date by which comments must be received (computed in cooperation with EPA under §1506.10).

The information required by this section may be entered on Standard Form 424 (in items 4, 6, 7, 10, and 18).

§1502.12 Summary.

Each environmental impact statement shall contain a summary which adequately and accurately summarizes the statement. The summary shall stress the major conclusions, areas of controversy (including issues raised by agencies and the public), and the issues to

be resolved (including the choice among alternatives). The summary will normally not exceed 15 pages.

§1502.13 Purpose and need.

The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.

§1502.14 Alternatives including the proposed action.

This section is the heart of the environmental impact statement. Based on the information and analysis presented in the sections on the Affected Environment (§1502.15) and the Environmental Consequences (§1502.16), it should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. In this section agencies shall:

(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.

(d) Include the alternative of no action.

(e) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference.

(f) Include appropriate mitigation measures not already included in the proposed action or alternatives.

§1502.15 Affected environment.

The environmental impact statement shall succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration. The descriptions shall be no longer than is necessary to understand the effects of the alternatives. Data and analyses in a statement shall be commensurate with the

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importance of the impact, with less important material summarized, consolidated, or simply referenced. Agencies shall avoid useless bulk in statements and shall concentrate effort and attention on important issues. Verbose descriptions of the affected environment are themselves no measure of the adequacy of an environmental impact statement.

§1502.16 Environmental consequences.

This section forms the scientific and analytic basis for the comparisons under

§1502.14. It shall consolidate the discussions of those elements required by sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA which are within the scope of the statement and as much of section 102(2)(C)(iii) as is necessary to support the comparisons. The discussion will include the environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable

commitments of resources which would be involved in the proposal should it be implemented. This section should not duplicate discussions in §1502.14. It shall include discussions of:

(a) Direct effects and their significance (§1508.8).

(b) Indirect effects and their significance (§1508.8).

(c) Possible conflicts between the proposed action and the objectives of Federal, regional, State, and local (and in the case of a reservation, Indian tribe) land use plans, policies and controls for the area concerned. (See §1506.2(d).)

(d) The environmental effects of alternatives including the proposed action. The comparisons under §1502.14 will be based on this discussion.

(e) Energy requirements and conservation potential of various alternatives and mitigation measures.

(f) Natural or depletable resource requirements and conservation potential of various alternatives and mitigation measures.

(g) Urban quality, historic and cultural resources, and the design of the built environment, including the reuse and conservation potential of various alternatives and mitigation measures.

(h) Means to mitigate adverse environmental impacts (if not fully covered under §1502.14(f)).

§1502.17 List of preparers.

The environmental impact statement shall list the names, together with their qualifications (expertise, experience, professional disciplines), of the persons who were primarily responsible for preparing the environmental impact statement or significant background papers, including basic components of the statement (§1502.6 and §1502.8).

Where possible the persons who are responsible for a particular analysis, including analyses in background papers, shall be identified. Normally the list will not exceed two pages.

§1502.18 Appendix.

If an agency prepares an appendix to an environmental impact statement the appendix shall:

(a) Consist of material prepared in connection with an environmental impact statement (as distinct from material which is not so prepared and which is incorporated by reference (§1502.21)).

(b) Normally consist of material which substantiates any analysis fundamental to the impact statement.

(d) Be circulated with the environmental impact statement or be readily available on request.

§1502.19 Circulation of the environmental impact statement.

Agencies shall circulate the entire draft and final environmental impact statements except for certain appendices as provided in

§1502.18(d) and unchanged statements as provided in §1503.4(c). However, if the statement is unusually long, the agency may circulate the summary instead, except that the entire statement shall be furnished to:

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(a) Any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved and any appropriate Federal, State or local agency authorized to develop and enforce environmental standards.

(b) The applicant, if any.

(d) In the case of a final environmental impact statement any person, organization, or agency which submitted substantive comments on the draft.

If the agency circulates the summary and thereafter receives a timely request for the entire statement and for additional time to comment, the time for that requestor only shall be extended by at least 15 days beyond the minimum period.

§1502.20 Tiering.

Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review (§1508.28). Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action. The subsequent document shall state where the earlier document is available. Tiering may also be appropriate for different stages of actions. (Section

§1508.28).

§1502.21 Incorporation by reference.

Agencies shall incorporate material into an environmental impact statement by reference when the effect will be to cut down on bulk without impeding agency and public review of the action. The incorporated material shall be cited in the statement and its content briefly described. No material may be incorporated by reference unless it is

reasonably available for inspection by potentially interested persons within the time allowed for comment. Material based on proprietary data which is itself not available for review and comment shall not be incorporated by reference.

§1502.22 Incomplete or unavailable information.

When an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and there is incomplete or unavailable information, the agency shall always make clear that such information is lacking.

(a) If the incomplete information relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impact statement.

(b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known, the agency shall include within the environmental impact

statement:

(1) A statement that such information is incomplete or unavailable;

(2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment;

(3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and

(4) the agency's evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. For the purposes of this section, "reasonably foreseeable" includes impacts which have catastrophic consequences, even if their probability of occurrence is low, provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.

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CFR 1508.22) is published in the FEDERAL REGISTER on or after May 27, 1986. For environmental impact statements in progress, agencies may choose to comply with the requirements of either the original or amended regulation.

§1502.23 Cost-benefit analysis.

If a cost-benefit analysis relevant to the choice among environmentally different alternatives is being considered for the proposed action, it shall be incorporated by reference or appended to the statement as an aid in evaluating the environmental consequences. To assess the adequacy of compliance with section 102(2)(B) of the Act the statement shall, when a cost-benefit analysis is prepared, discuss the relationship between that analysis and any analyses of unquantified environmental impacts, values, and amenities. For purposes of complying with the Act, the weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost- benefit analysis and should not be when there are important qualitative considerations. In any event, an environmental impact statement should at least indicate those considerations, including factors not related to environmental quality, which are likely to be relevant and important to a decision.

§1502.24 Methodology and scientific accuracy.

Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix.

§1502.25 Environmental review and consultation requirements.

(a) To the fullest extent possible, agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact analyses and related surveys and studies required by the Fish and Wildlife Coordination Act (16

U.S.C. 661 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and other environmental review laws and executive orders.

(b) The draft environmental impact statement shall list all Federal permits, licenses, and other entitlements which must be obtained in implementing the proposal. If it is uncertain whether a Federal permit, license, or other entitlement is necessary, the draft environmental impact statement shall so indicate.

40 CFR PART 1503--COMMENTING

(a) After preparing a draft environmental impact statement and before preparing a final environmental impact statement the agency shall:

(1) Obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved or which is authorized to develop and enforce environmental standards.

Request the comments of:

(i) Appropriate State and local agencies which are authorized to develop and enforce environmental standards;

(ii) Indian tribes, when the effects may be on a reservation; and

(iii) Any agency which has requested that it receive statements on actions of the kind proposed. Office of Management and Budget Circular A-95 (Revised), through its system of clearinghouses, provides a means of securing the views of State and local environmental agencies. The clearinghouses may be used, by mutual agreement of the lead agency and the clearinghouse, for securing State and local reviews of the draft environmental impact statements.

(3) Request comments from the applicant, if any.

(4) Request comments from the public, affirmatively soliciting comments from those persons or organizations who may be interested or affected.

(b) An agency may request comments on a final environmental impact statement before the decision is finally made. In any case other agencies or persons may make comments before the final decision unless a different time is provided under §1506.10.

§1503.2 Duty to comment.

Federal agencies with jurisdiction by law or special expertise with respect to any

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environmental impact involved and agencies which are authorized to develop and enforce environmental standards shall comment on statements within their jurisdiction, expertise, or authority. Agencies shall comment within the time period specified for comment in §1506.10. A Federal agency may reply that it has no comment. If a cooperating agency is satisfied that its views are adequately reflected in the environmental impact statement, it should reply that it has no comment.

§1503.3 Specificity of comments.

(a) Comments on an environmental impact statement or on a proposed action shall be as specific as possible and may address either the adequacy of the statement or the merits of the alternatives discussed or both.

(b) When a commenting agency criticizes a lead agency's predictive methodology, the commenting agency should describe the alternative methodology which it prefers and why.

(c) A cooperating agency shall specify in its comments whether it needs additional information to fulfill other applicable environmental reviews or consultation requirements and what information it needs. In particular, it shall specify any additional information it needs to comment adequately on the draft statement's analysis of significant site-specific effects associated with the granting or approving by that cooperating agency of necessary Federal permits, licenses, or entitlements.

(d) When a cooperating agency with jurisdiction by law objects to or expresses reservations about the proposal on grounds of environmental impacts, the agency expressing the objection or reservation shall specify the mitigation measures it considers necessary to allow the agency to grant or approve applicable permit, license, or related requirements or concurrences.

§1503.4 Response to comments.

(a) An agency preparing a final environmental impact statement shall assess and consider comments both individually and collectively, and shall respond by one or more of the means listed below, stating its response in the final statement. Possible responses are to:

(1) Modify alternatives including the proposed action.

(2) Develop and evaluate alternatives not previously given serious consideration by the agency.

(3) Supplement, improve, or modify its analyses.

(4) Make factual corrections.

(5) Explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency's position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response.

(b) All substantive comments received on the draft statement (or summaries thereof where the response has been exceptionally voluminous), should be attached to the final statement whether or not the comment is thought to merit individual discussion by the agency in the text of the statement.

(c) If changes in response to comments are minor and are confined to the responses described in paragraphs (a)(4) and (5) of this section, agencies may write them on errata sheets and attach them to the statement instead of rewriting the draft statement. In such cases only the comments, the responses, and the changes and not the final statement need be circulated (§1502.19). The entire document with a new cover sheet shall be filed as the final statement

(§1506.9).

40 CFR PART 1504--PREDECISION REFERRALS TO THE COUNCIL OF PROPOSED FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY

§1504.1 Purpose.

(a) This part establishes procedures for referring to the Council Federal interagency disagreements concerning proposed major Federal actions that might cause unsatisfactory environmental effects. It provides means for early resolution of such disagreements.

(b) Under section 309 of the Clean Air Act (42 U.S.C. 7609), the Administrator of the Environmental Protection Agency is directed to review and comment publicly on the environmental impacts of Federal

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activities, including actions for which environmental impact statements are prepared. If after this review the Administrator determines that the matter is "unsatisfactory from the standpoint of public health or welfare or environmental quality," section 309 directs that the matter be referred to the Council (hereafter "environmental referrals").

(c) Under section 102(2)(C) of the Act other Federal agencies may make similar reviews of environmental impact statements, including judgments on the acceptability of anticipated environmental impacts. These reviews must be made available to the President, the Council and the public.

§1504.2 Criteria for referral.

Environmental referrals should be made to the Council only after concerted, timely (as early as possible in the process), but unsuccessful attempts to resolve differences with the lead agency. In determining what environmental objections to the matter are appropriate to refer to the Council, an agency should weigh potential adverse environmental impacts, considering:

(a) Possible violation of national environmental standards or policies.

(b) Severity.

(d) Duration.

(e) Importance as precedents.

(f) Availability of environmentally preferable alternatives.

§1504.3 Procedure for referrals and response.

(a) A Federal agency making the referral to the Council shall:

(1) Advise the lead agency at the earliest possible time that it intends to refer a matter to the Council unless a satisfactory agreement is reached.

(2) Include such advice in the referring agency's comments on the draft environmental impact statement, except when the statement does not contain adequate information to permit an assessment of the matter's environmental acceptability.

(3) Identify any essential information that is lacking and request that it be made available at the earliest possible time.

(4) Send copies of such advice to the Council.

(b) The referring agency shall deliver its referral to the Council not later than twenty-five (25) days after the final environmental impact statement has been made available to the Environmental Protection Agency, commenting agencies,

and the public. Except when an extension of this period has been granted by the lead agency, the Council will not accept a referral after that date.

(1) A copy of the letter signed by the head of the referring agency and delivered to the lead agency informing the lead agency of the referral and the reasons for it, and requesting that no action be taken to implement the matter until the Council acts upon the referral. The letter shall include a copy of the statement referred to in (c)(2) of this section.

(2) A statement supported by factual evidence leading to the conclusion that the matter is unsatisfactory from the standpoint of public health or welfare or environmental quality. The statement shall:

(i) Identify any material facts in controversy and incorporate (by reference if appropriate) agreed upon facts,

(ii) Identify any existing environmental requirements or policies which would be violated by the matter,

(iii) Present the reasons why the referring agency believes the matter is environmentally unsatisfactory,

(iv) Contain a finding by the agency whether the issue raised is of national importance because of the threat to national environmental resources or policies or for some other reason,

(v) Review the steps taken by the referring agency to bring its concerns to the attention of the lead agency at the earliest possible time, and

(vi) Give the referring agency's recommendations as to what mitigation alternative, further study, or other course of action (including abandonment of the

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matter) are necessary to remedy the situation.

(d) Not later than twenty-five (25) days after the referral to the Council the lead agency may deliver a response to the Council, and the referring agency. If the lead agency requests more time and gives assurance that the matter will not go forward in the interim, the Council may grant an extension. The response shall:

(1) Address fully the issues raised in the referral.

(2) Be supported by evidence.

(3) Give the lead agency's response to the referring agency's recommendations.

(e) Interested persons (including the applicant) may deliver their views in writing to the Council. Views in support of the referral should be delivered not later than the referral. Views in support of the response shall be delivered not later than the response.

(f) Not later than twenty-five (25) days after receipt of both the referral and any response or upon being informed that there will be no response (unless the lead agency agrees to a longer time), the Council may take one or more of the following actions:

(1) Conclude that the process of referral and response has successfully resolved the problem.

(2) Initiate discussions with the agencies with the objective of mediation with referring and lead agencies.

(3) Hold public meetings or hearings to obtain additional views and information.

(4) Determine that the issue is not one of national importance and request the referring and lead agencies to pursue their decision process.

(5) Determine that the issue should be further negotiated by the referring and lead agencies and is not appropriate for Council consideration until one or more heads of agencies report to the Council that the agencies' disagreements are irreconcilable.

(6) Publish its findings and recommendations (including where appropriate a finding that the submitted evidence does not support the position of an agency).

(7) When appropriate, submit the referral and the response together with the Council's recommendation to the President for action.

(g) The Council shall take no longer than 60 days to complete the actions specified in paragraph (f)(2), (3), or (5) of this section.

(h) When the referral involves an action required by statute to be determined on the record after opportunity for agency hearing, the referral shall be conducted in a manner consistent with 5 U.S.C. 557(d) (Administrative Procedure Act).

40 CFR PART 1505--NEPA AND AGENCY DECISIONMAKING

§1505.1 Agency decisionmaking procedures.

Agencies shall adopt procedures (§1507.3) to ensure that decisions are made in accordance with the policies and purposes of the Act. Such procedures shall include but not be limited to:

(a) Implementing procedures under section 102(2) to achieve the requirements of sections 101 and 102(1).

(b) Designating the major decision points for the agency's principal programs likely to have a significant effect on the human environment and assuring that the NEPA process corresponds with them.

(c) Requiring that relevant environmental documents, comments, and responses be part of the record in formal rulemaking or adjudicatory proceedings.

(d) Requiring that relevant environmental documents, comments, and responses accompany the proposal through existing agency review processes so that agency officials use the statement in making decisions.

(e) Requiring that the alternatives considered by the decisionmaker are encompassed by the range of alternatives discussed in the relevant environmental documents and that the decisionmaker consider the alternatives described in the environmental impact statement. If another decision document accompanies the relevant environmental documents to the decisionmaker, agencies are encouraged to make available to the public before the decision is made any part of that document that relates to the comparison of alternatives.

§1505.2 Record of decision in cases requiring

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environmental impact statements.

At the time of its decision (§1506.10) or, if appropriate, its recommendation to Congress, each agency shall prepare a concise public record of decision. The record, which may be integrated into any other record prepared by the agency, including that required by OMB Circular A- 95 (Revised), part I, sections 6(c) and (d), and part II, section 5(b)(4), shall:

(a) State what the decision was.

(b) Identify all alternatives considered by the agency in reaching its decision, specifying the alternative or alternatives which were considered to be environmentally preferable. An agency may discuss preferences among alternatives based on relevant factors including economic and technical considerations and agency statutory missions. An agency shall identify and discuss all such factors including any essential considerations of national policy which were balanced by the agency in making its decision and state how those considerations entered into its decision.

(c) State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. A monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation.

§1505.3 Implementing the decision.

Agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. Mitigation (§1505.2(c)) and other conditions established in the environmental impact statement or during its review and committed as part of the decision shall be implemented by the lead agency or other appropriate consenting agency. The lead agency shall:

(a) Include appropriate conditions in grants, permits or other approvals.

(b) Condition funding of actions on mitigation.

(c) Upon request, inform cooperating or commenting agencies on progress in carrying out mitigation measures which they have proposed and which were adopted by the agency making the decision.

(d) Upon request, make available to the public the results of relevant monitoring.

40 CFR PART 1506--OTHER REQUIREMENTS OF NEPA

§1506.1 Limitations on actions during NEPA process.

(a) Until an agency issues a record of decision as provided in §1505.2 (except as provided in paragraph (c) of this section), no action concerning the proposal shall be taken which would:

(1) Have an adverse environmental impact; or

(2) Limit the choice of reasonable alternatives.

(b) If any agency is considering an application from a non- Federal entity, and is aware that the applicant is about to take an action within the agency's jurisdiction that would meet either of the criteria in paragraph (a) of this section, then the agency shall promptly notify the applicant that the agency will take appropriate action to insure that the objectives and procedures of NEPA are achieved.

(c) While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not undertake in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action:

(1) Is justified independently of the program;

(2) Is itself accompanied by an adequate environmental impact statement; and

(3) Will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limit

alternatives.

(d) This section does not preclude development by applicants of plans or designs or performance of other work necessary to support an application for Federal, State or local permits or assistance. Nothing in this section shall preclude Rural Electrification Administration approval of minimal expenditures not affecting the environment (e.g. long leadtime equipment

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and purchase options) made by non- governmental entities seeking loan guarantees from the Administration.

§1506.2 Elimination of duplication with State and local procedures.

(a) Agencies authorized by law to cooperate with State agencies of statewide jurisdiction pursuant to section 102(2)(D) of the Act may do so.

(b) Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements, unless the agencies are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include:

(1) Joint planning processes.

(2) Joint environmental research and studies.

(3) Joint public hearings (except where otherwise provided by statute).

(4) Joint environmental assessments.

(c) Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements, unless the agencies are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include joint environmental impact statements. In such cases one or more Federal agencies and one or more State or local agencies shall be joint lead agencies. Where State laws or local ordinances have environmental impact statement requirements in addition to but not in conflict with those in NEPA, Federal agencies shall cooperate in fulfilling these requirements as well as those of Federal laws so that one document will comply with all applicable laws.

(d) To better integrate environmental impact statements into State or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the statement should describe the extent to

which the agency would reconcile its proposed action with the plan or law.

§1506.3 Adoption.

(a) An agency may adopt a Federal draft or final environmental impact statement or portion thereof provided that the statement or portion thereof meets the standards for an adequate statement under these regulations.

(b) If the actions covered by the original environmental impact statement and the proposed action are substantially the same, the agency adopting another agency's statement is not required to recirculate it except as a final statement. Otherwise the adopting agency shall treat the statement as a draft and recirculate it (except as provided in paragraph (c) of this section).

(c) A cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied.

(d) When an agency adopts a statement which is not final within the agency that prepared it, or when the action it assesses is the subject of a referral under part 1504, or when the statement's adequacy is the subject of a judicial action which is not final, the agency shall so specify.

§1506.4 Combining documents.

Any environmental document in compliance with NEPA may be combined with any other agency document to reduce duplication and paperwork.

§1506.5 Agency responsibility.

(a) Information. If an agency requires an applicant to submit environmental information for possible use by the agency in preparing an environmental impact statement, then the agency should assist the applicant by outlining the types of information required. The agency shall independently evaluate the information submitted and shall be responsible for its accuracy. If the agency chooses to use the information submitted by the applicant in the environmental impact statement, either directly or by reference, then the names of the persons responsible for the independent

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evaluation shall be included in the list of preparers (§1502.17). It is the intent of this paragraph that acceptable work not be redone, but that it be verified by the agency.

(b) Environmental assessments. If an agency permits an applicant to prepare an environmental assessment, the agency, besides fulfilling the requirements of paragraph (a) of this section, shall make its own evaluation of the environmental issues and take responsibility for the scope and content of the environmental assessment.

(c) Environmental impact statements. Except as provided in §1506.2 and §1506.3 any environmental impact statement prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency or where appropriate under §1501.6(b), a cooperating agency. It is the intent of these regulations that the contractor be chosen solely by the lead agency, or by the lead agency in cooperation with cooperating agencies, or where appropriate by a cooperating agency to avoid any conflict of interest. Contractors shall execute a disclosure statement prepared by the lead agency, or where appropriate the cooperating agency, specifying that they have no financial or other interest in the outcome of the project. If the document is prepared by contract, the responsible Federal official shall furnish guidance and participate in the preparation and shall independently evaluate the statement prior to its approval and take responsibility for its scope and contents. Nothing in this section is intended to prohibit any agency from requesting any person to submit information to it or to prohibit any person from submitting information to any agency.

§1506.6 Public involvement.

Agencies shall:

(a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures.

(b) Provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected.

(1) In all cases the agency shall mail notice to those who have requested it on an individual action.

(2) In the case of an action with effects of national concern notice shall include publication in the Federal Register and notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor. An agency engaged in rulemaking may provide notice by mail to national organizations who have requested that notice regularly be provided. Agencies shall maintain a list of such organizations.

(3) In the case of an action with effects primarily of local concern the notice may include:

(i) Notice to State and areawide clearinghouses pursuant to OMB Circular A- 95 (Revised).

(ii) Notice to Indian tribes when effects may occur on reservations.

(iii) Following the affected State's public notice procedures for comparable actions.

(iv) Publication in local newspapers (in papers of general circulation rather than legal papers).

(v) Notice through other local media.

(vi) Notice to potentially interested community organizations including small business associations.

(vii) Publication in newsletters that may be expected to reach potentially interested persons.

(viii) Direct mailing to owners and occupants of nearby or affected property.

(ix) Posting of notice on and off site in the area where the action is to be located.

(c) Hold or sponsor public hearings or public meetings whenever appropriate or in accordance with statutory requirements applicable to the agency. Criteria shall include whether there is:

(1) Substantial environmental controversy concerning the proposed action

or substantial interest in holding the hearing.

(2) A request for a hearing by another agency with jurisdiction over the action supported by reasons why a hearing will be helpful. If a draft environmental impact statement is to be considered at a public hearing, the agency should make the statement available to the public at least 15

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days in advance (unless the purpose of the hearing is to provide information for the draft environmental impact statement).

(d) Solicit appropriate information from the public.

(e) Explain in its procedures where interested persons can get information or status reports on environmental impact statements and other elements of the NEPA process.

(f) Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action. Materials to be made available to the public shall be provided to the public without charge to the extent practicable, or at a fee which is not more than the actual costs of reproducing copies required to be sent to other Federal agencies, including the Council.

§1506.7 Further guidance.

The Council may provide further guidance concerning NEPA and its procedures including:

(a) A handbook which the Council may supplement from time to time, which shall in plain language provide guidance and instructions concerning the application of NEPA and these regulations.

(b) Publication of the Council's Memoranda to Heads of Agencies.

(1) Research activities;

(2) Meetings and conferences related to NEPA; and

(3) Successful and innovative procedures used by agencies to implement NEPA.

§1506.8 Proposals for legislation.

(a) The NEPA process for proposals for legislation (§1508.17) significantly affecting the quality of the human environment shall be integrated with the legislative process of the Congress. A legislative environmental

impact statement is the detailed statement required by law to be included in a recommendation or report on a legislative proposal to Congress. A legislative environmental impact statement shall be considered part of the formal transmittal of a legislative proposal to Congress; however, it may be transmitted to Congress up to 30 days later in order to allow time for completion of an accurate statement which can serve as the basis for public and Congressional debate. The statement must be available in time for Congressional hearings and deliberations.

(b) Preparation of a legislative environmental impact statement shall conform to the requirements of these regulations except as follows:

(1) There need not be a scoping process.

(2) The legislative statement shall be prepared in the same manner as a draft statement, but shall be considered the "detailed statement" required by statute; Provided, that when any of the following conditions exist both the draft and final environmental impact statement on the legislative proposal shall be prepared and circulated as provided by §1503.1 and

§1506.10.

(i) A Congressional Committee with jurisdiction over the proposal has a rule requiring both draft and final environmental impact statements.

(ii) The proposal results from a study process required by statute (such as those required by the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.) and the Wilderness Act (16 U.S.C. 1131 et seq.)).

(iii) Legislative approval is sought for Federal or federally assisted construction or other projects which the agency recommends be located at specific geographic locations. For proposals requiring an environmental impact statement for the acquisition of space by the General Services Administration, a draft statement shall accompany the Prospectus or the 11(b) Report of Building Project Surveys to the Congress, and a final statement shall be completed before site acquisition.

(iv) The agency decides to prepare draft and final statements.

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(c) Comments on the legislative statement shall be given to the lead agency which shall forward them along with its own responses to the Congressional committees with jurisdiction.

§1506.9 Filing requirements.

Environmental impact statements together with comments and responses shall be filed with the Environmental Protection Agency, attention Office of Federal Activities (A- 104), 401 M Street SW., Washington, DC 20460. Statements shall be filed with EPA no earlier than they are also transmitted to commenting agencies and made available to the public. EPA shall deliver one copy of each statement to the Council, which shall satisfy the requirement of availability to the President. EPA may issue guidelines to agencies to implement its responsibilities under this section and §1506.10.

§1506.10 Timing of agency action.

(a) The Environmental Protection Agency shall publish a notice in the FEDERAL REGISTER each week of the environmental impact statements filed during the preceding week. The minimum time periods set forth in this section shall be calculated from the date of publication of this notice.

(b) No decision on the proposed action shall be made or recorded under §1505.2 by a Federal agency until the later of the following dates:

(1) Ninety (90) days after publication of the notice described above in paragraph (a) of this section for a draft environmental

impact statement.

(2) Thirty (30) days after publication of the notice described above in paragraph (a) of this section for a final environmental impact statement. An exception to the rules on timing may be made in the case of an agency decision which is subject to a formal internal appeal. Some agencies have a formally established appeal process which allows other agencies or the public to take appeals on a decision and make their views known, after publication of the final environmental impact statement. In such cases, where a real opportunity exists to alter the decision, the decision may be made and recorded at the same time the environmental impact statement is

published. This means that the period for appeal of the decision and the 30-day period prescribed in paragraph (b)(2) of this section may run concurrently. In such cases the environmental impact statement shall explain the timing and the public's right of appeal. An agency engaged in rulemaking under the Administrative Procedure Act or other statute for the purpose of protecting the public health or safety, may waive the time period in paragraph (b)(2) of this section and publish a decision on the final rule simultaneously with publication of the notice of the availability of the final environmental impact statement as described in paragraph (a) of this section.

(c) If the final environmental impact statement is filed within ninety (90) days after a draft environmental impact statement is filed with the Environmental Protection Agency, the minimum thirty

(30) day period and the minimum ninety

(90) day period may run concurrently. However, subject to paragraph (d) of this section agencies shall allow not less than 45 days for comments on draft statements.

(d) The lead agency may extend prescribed periods. The Environmental Protection Agency may upon a showing by the lead agency of compelling reasons of national policy reduce the prescribed periods and may upon a showing by any other Federal agency of compelling reasons of national policy also extend prescribed periods, but only after consultation with the lead agency. (Also see

§1507.3(d).) Failure to file timely comments shall not be a sufficient reason for extending a period. If the lead agency does not concur with the extension of time, EPA may not extend it for more than 30 days. When the Environmental Protection Agency reduces or extends any period of time it shall notify the Council.

§1506.11 Emergencies.

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

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§1506.12 Effective date.

The effective date of these regulations is July 30, 1979, except that for agencies that administer programs that qualify under section 102(2)(D) of the Act or under section 104(h) of the Housing and Community Development Act of 1974 an additional four months shall be allowed for the State or local agencies to adopt their implementing procedures.

(a) These regulations shall apply to the fullest extent practicable to ongoing activities and environmental documents begun before the effective date. These regulations do not apply to an environmental impact statement or supplement if the draft statement was filed before the effective date of these regulations. No completed environmental documents need be redone by reasons of these regulations. Until these regulations are applicable, the Council's guidelines published in the FEDERAL REGISTER of August 1, 1973, shall continue to be applicable. In cases where these regulations are applicable the guidelines are superseded. However, nothing shall prevent an agency from proceeding under these regulations at an earlier time.

(b) NEPA shall continue to be applicable to actions begun before January 1, 1970, to the fullest extent possible.

40 CFR PART 1507--AGENCY COMPLIANCE

§1507.1 Compliance.

All agencies of the Federal Government shall comply with these regulations. It is the intent of these regulations to allow each agency flexibility in adapting its implementing procedures authorized by

§1507.3 to the requirements of other applicable laws.

§1507.2 Agency capability to comply.

Each agency shall be capable (in terms of personnel and other resources) of complying with the requirements enumerated below.

Such compliance may include use of other's resources, but the using agency shall itself have sufficient capability to evaluate what others do for it. Agencies shall:

(a) Fulfill the requirements of section 102(2)(A) of the Act to utilize a systematic, interdisciplinary approach which will insure

the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on the human environment. Agencies shall designate a person to be responsible for overall review of agency NEPA compliance.

(b) Identify methods and procedures required by section 102(2)(B) to insure that presently unquantified environmental amenities and values may be given appropriate consideration.

(c) Prepare adequate environmental impact statements pursuant to section 102(2)(C) and comment on statements in the areas where the agency has jurisdiction by law or special expertise or is authorized to develop and enforce environmental standards.

(d) Study, develop, and describe alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. This requirement of section 102(2)(E) extends to all such proposals, not just the more limited scope of section 102(2)(C)(iii) where the discussion of alternatives is confined to impact

statements.

(e) Comply with the requirements of section 102(2)(H) that the agency initiate and utilize ecological information in the planning and development of resource- oriented projects.

(f) Fulfill the requirements of sections 102(2)(F), 102(2)(G), and 102(2)(I), of the Act and of Executive Order 11514, Protection and Enhancement of Environmental Quality, Sec. 2.

§1507.3 Agency procedures.

(a) Not later than eight months after publication of these regulations as finally adopted in the FEDERAL REGISTER, or five months after the establishment of an agency, whichever shall come later, each agency shall as necessary adopt procedures to supplement these regulations. When the agency is a department, major subunits are encouraged (with the consent of the department) to adopt their own procedures. Such procedures shall not paraphrase these regulations. They shall confine themselves to implementing procedures. Each agency shall consult with the Council while developing its procedures and before

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publishing them in the FEDERAL REGISTER for comment. Agencies with similar programs should consult with each other and the Council to coordinate their procedures, especially for programs requesting similar information from applicants. The procedures shall be adopted only after an opportunity for public review and after review by the Council for conformity with the Act and these regulations. The Council shall complete its review within 30 days. Once in effect they shall be filed with the Council and made readily available to the public. Agencies are encouraged to publish explanatory guidance for these regulations and their own procedures. Agencies shall continue to review their policies and procedures and in consultation with the Council to revise them as necessary to ensure full compliance with the purposes and provisions of the Act.

(b) Agency procedures shall comply with these regulations except where compliance would be inconsistent with statutory requirements and shall include:

(1) Those procedures required by

§1501.2(d), §1502.9(c)(3), §1505.1,

§1506.6(e), and §1508.4.

(2) Specific criteria for and identification of those typical classes of action:

(i) Which normally do require environmental impact statements.

(ii) Which normally do not require either an environmental impact statement or an environmental assessment (categorical exclusions (§1508.4)).

(iii) Which normally require environmental assessments but not necessarily environmental impact statements.

(c) Agency procedures may include specific criteria for providing limited exceptions to the provisions of these regulations for classified proposals. They are proposed actions which are specifically authorized under criteria established by an Executive Order or statute to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant

to such Executive Order or statute. Environmental assessments and environmental impact statements which address classified proposals may be safeguarded and restricted from public

dissemination in accordance with agencies' own regulations applicable to classified information. These documents may be organized so that classified portions can be included as annexes, in order that the unclassified portions can be made available to the public.

(d) Agency procedures may provide for periods of time other than those presented in §1506.10 when necessary to comply with other specific statutory requirements.

(e) Agency procedures may provide that where there is a lengthy period between the agency's decision to prepare an environmental impact statement and the time of actual preparation, the notice of intent required by §1501.7 may be published at a reasonable time in advance of preparation of the draft statement.

40 CFR PART 1508--TERMINOLOGY AND INDEX

§1508.1 Terminology.

The terminology of this part shall be uniform throughout the Federal

Government.

§1508.2 Act.

Act means the National Environmental Policy Act, as amended (42 U.S.C. 4321, et seq.) which is also referred to as “NEPA.”

§1508.3 Affecting.

“Affecting” means will or may have an effect on.

§1508.4 Categorical exclusion.

“Categorical exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in

§1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.

§1508.5 Cooperating agency.

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“Cooperating agency” means any Federal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a reasonable alternative) for legislation or other major Federal action significantly affecting the quality of the human environment. The selection and responsibilities of a cooperating agency are described in §1501.6. A State or local agency of similar qualifications or, when the effects are on a reservation, an Indian Tribe, may by agreement with the lead agency become a cooperating agency.

§1508.6 Council.

“Council” means the Council on Environmental Quality established by title II of the Act.

§1508.7 Cumulative impact.

“Cumulative impact” is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

§1508.8 Effects.

“Effects” include:

(a) Direct effects, which are caused by the action and occur at the same time and place.

(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on

balance the agency believes that the effect will be beneficial.

§1508.9 Environmental assessment.

“Environmental assessment”:

(a) Means a concise public document for which a Federal agency is responsible that serves to:

(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.

(2) Aid an agency's compliance with the Act when no environmental impact statement is necessary.

(3) Facilitate preparation of a statement when one is necessary.

(b) Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.

§1508.10 Environmental document.

“Environmental document” includes the documents specified in §1508.9 (environmental assessment), §1508.11 (environmental impact statement),

§1508.13 (finding of no significant impact), and §1508.22 (notice of intent).

§1508.11 Environmental impact statement.

“Environmental impact statement” means a detailed written statement as required by section 102(2)(C) of the Act.

§1508.12 Federal agency.

“Federal agency” means all agencies of the Federal Government. It does not mean the Congress, the Judiciary, or the President, including the performance of staff functions for the President in his Executive Office. It also includes for purposes of these regulations States and units of general local government and Indian tribes assuming NEPA responsibilities under section 104(h) of the Housing and Community Development Act of 1974.

§1508.13 Finding of no significant impact.

“Finding of no significant impact” means a document by a Federal agency briefly presenting the reasons why an action, not otherwise excluded (§1508.4), will not have

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a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. It shall include the environmental assessment or a summary of it and shall note any other environmental documents related to it (§1501.7(a)(5)). If the assessment is included, the finding need not repeat any of the discussion in the assessment but may incorporate it by

reference.

1508.14 Human environment.

“Human environment” shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. (See the definition of "effects" (§1508.8).) This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human

environment.

§1508.15 Jurisdiction by law.

“Jurisdiction by law” means agency authority to approve, veto, or finance all or part of the proposal.

§1508.16 Lead agency.

“Lead agency” means the agency or agencies preparing or having taken primary responsibility for preparing the environmental impact statement.

§1508.17 Legislation.

“Legislation” includes a bill or legislative proposal to Congress developed by or with the significant cooperation and support of a Federal agency, but does not include requests for appropriations. The test for significant cooperation is whether the proposal is in fact predominantly that of the agency rather than another source. Drafting does not by itself constitute significant cooperation. Proposals for legislation include requests for ratification of treaties. Only the agency which has primary responsibility for the subject matter involved will prepare a legislative environmental impact statement.

§1508.18 Major Federal action.

“Major Federal action” includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (§1508.27). Actions include the circumstance where the responsible officials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action.

(a) Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals (§1506.8,

§1508.17). Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq., with no Federal agency control over the subsequent use of such funds. Actions do not include bringing judicial or administrative civil or criminal enforcement actions.

(b) Federal actions tend to fall within one of the following categories:

(1)Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency's policies which will result in or substantially alter agency programs.

(2) Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based.

(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.

(4) Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit

Appendix A – CEQ Regulations

or other regulatory decision as well as federal and federally assisted activities.

§1508.19 Matter.

“Matter” includes for purposes of part 1504:

(a) With respect to the Environmental Protection Agency, any proposed legislation, project, action or regulation as those terms are used in section 309(a) of the Clean Air Act (42 U.S.C. 7609).

(b) With respect to all other agencies, any proposed major federal action to which section 102(2)(C) of NEPA applies.

§1508.20 Mitigation.

“Mitigation” includes:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action.

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(e) Compensating for the impact by replacing or providing substitute resources or environments.

§1508.21 NEPA process.

“NEPA process” means all measures necessary for compliance with the requirements of section 2 and Title I of NEPA.

§1508.22 Notice of intent.

“Notice of intent” means a notice that an environmental impact statement will be prepared and considered. The notice shall briefly:

(a) Describe the proposed action and possible alternatives.

(b) Describe the agency's proposed scoping process including whether, when, and where any scoping meeting will be held.

(c) State the name and address of a person within the agency who can answer questions about the proposed action and the environmental impact statement.

§1508.23 Proposal.

“Proposal” exists at that stage in the development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing

that goal and the effects can be meaningfully evaluated. Preparation of an environmental impact statement on a proposal should be timed (§1502.5) so that the final statement may be completed in time for the statement to be included in any recommendation or report on the proposal. A proposal may exist in fact as well as by agency declaration that one exists.

§1508.24 Referring agency.

“Referring agency” means the federal agency which has referred any matter to the Council after a determination that the matter is unsatisfactory from the standpoint of public health or welfare or environmental quality.

§1508.25 Scope.

Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. The scope of an individual statement may depend on its relationships to other statements (§1502.20 and §1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact

statements.

(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact

statement.

Appendix A – CEQ Regulations

(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.

(b) Alternatives, which include: (1) No action alternative. (2) Other reasonable courses of actions. (3) Mitigation measures (not in the proposed action).

§1508.26 Special expertise.

“Special expertise” means statutory responsibility, agency mission, or related program experience.

§1508.27 Significantly.

“Significantly” as used in NEPA requires considerations of both context and

intensity:

(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands,

prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component

parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

§1508.28 Tiering.

“Tiering” refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is:

Appendix A – CEQ Regulations

(a) From a program, plan, or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis.

(b) From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe.

Index

Act	1508.2
Action	1508.18, 1508.25
Action-forcing	1500.1, 1502.1
Adoption	1500.4(n), 1500.5(h), 1506.3
Affected environment	1501.10(f), 1502.15
Affecting	1502.3, 1508.3
Agency authority	1500.6
Agency capability	1501.2(a), 1507.2
Agency compliance	1507.1
Agency procedures	1505.1, 1507.3
Agency responsibility	1506.5
Alternatives	1501.2(c), 1502.2, 1502.10(e), 1502.14, 1505.1(e), 1505.2, 1507.2(d), 1508.25(b)
Appendices	1502.10(k), 1502.18, 1502.24
Applicant	1501.2(d)(1), 1501.4(b), 1501.8(a), 1502.19(b), 1503.1(a)(3), 1504.3(e), 1506.1(d), 1506.5(a), 1506.5(b)
Apply NEPA early	1501.2
Categorical exclusion	1500.4(p), 1500.5(k), 1501.4(a), 1507.3(b), 1508.4
Circulating of EIS	1502.19, 1506.3
Classified information	1507.3(c)

Clean Air Act	1504.1, 1508.19(a)
Combining documents	1500.4(o), 1500.5(I), 1506.4
Commenting	1502.19, 1503.1, 1503.2, 1503.3, 1503.4, 1506.6(f)
Consultation requirement	1500.4(k), 1500.5(g), 1501.7(a)(6), 1502.25
Context	1508.27(a)
Cooperating agency	1500.5(b), 1501.1(b), 1501.5(c), 1501.5(f), 1501.6, 1503.1(a)(1), 1503.2, 1503.3, 1506.3(c), 1506.5(a), 1508.5
Cost-benefit	1502.23
Council on Environmental Quality	1500.3, 1501.5(e), 1501.5(f), 1501.6(c), 1502.9(c)(4), 1504.1, 1504.2, 1504.3, 1506.6(f), 1506.9, 1506.10(e), 1506.11, 1507.3, 1508.6, 1508.24
Cover sheet	1502.10(a), 1502.11
Cumulative impact	1508.7, 1508.25(a), 1508.25(c)
Decisionmaking	1505.1, 1506.1
Decision points	1505.1(b)
Dependent	1508.25(a)
Draft EIS	1502.9(a)
Economic effects	1508.8
Effective date	1506.12
Effects	1502.16, 1508.8
Emergencies	1506.11
Endangered Species Act	1502.25, 1508.27(b)(9)
Energy	1502.16(e)
Environmental Assessment	1501.3, 1501.4(b), 1501.4(c), 1501.7(b)(3), 1506.2(b)(4), 1506.5(b), 1508.4, 1508.9, 1508.10, 1508.13
Environmental consequences	1502.10(g), 1502.16
Environmental consultation requirements	1500.4(k), 1500.5(g), 1501.7(a)(6), 1502.25, 1503.3(c)
Environmental documents	1508.10
Environmental impact statements	1500.4, 1501.4(c), 1501.7, 1501.3, 1502.1, 1502.2,

Appendix A – CEQ Regulations

	1502.3, 1502.4, 1502.5, 1502.6, 1502.7, 1502.8, 1502.9, 1502.10, 1502.11, 1502.12, 1502.13, 1502.14, 1502.15, 1502.16, 1502.17, 1502.18, 1502.19, 1502.20, 1502.21, 1502.22, 1502.23, 1502.24, 1502.25, 1506.2(b)(4), 1506.3, 1506.8, 1508.11
Environmental Protection Agency	1502.11(f), 1504.1, 1504.3, 1506.7(c), 1506.9, 1506.10, 1508.19(a)
Environmental review requirements	1500.4(k), 1500.5(g), 1501.7(a)(6), 1502.25, 1503.3(c)
Expediter	1501.8(b)(2)
Federal agency	1508.12
Filing	1506.9
Final EIS	1502.9(b), 1503.1, 1503.4(b)
Finding of No Significant Impact	1500.3, 1500.4(q), 1500.5(1), 1501.4(e), 1508.13
Fish and Wildlife Coordination Act	1502.25
Format for EIS	1502.10
Freedom of Information Act	1506.6(f)
Further guidance	1506.7
Generic	1502.4(c)(2)
General Services Administration	1506.8(b)(5)
Geographic	1502.4(c)(1)
Graphics	1502.8
Handbook	1506.7(a)
Housing and Community Development Act	1506.12, 1508.12
Human environment	1502.3, 1502.22, 1508.14
Impacts	1508.8, 1508.25(c)
Implementing the decision	1505.3
Incomplete or unavailable information	1502.22
Incorporation by reference	1500.4(j), 1502.21
Index	1502.10(j)

Indian tribes	1501.2(d)(2), 1501.7(a)(1), 1502.15(c), 1503.1(a)(2)(ii), 1506.6(b)(3)(ii), 1506.5, 1508.12
Intensity	1508.27(b)
Interdisciplinary preparation	1502.6, 1502.17
Interim actions	1506.1
Joint lead agency	1501.5(b), 1506.2
Judicial review	1500.3
Jurisdiction by law	1508.15
Lead agency	1500.5(c), 1501.1(c), 1501.5, 1501.6, 1501.7, 1501.8, 1504.3, 1506.2(b)(4), 1506.8(a), 1506.10(e), 1508.16
Legislation	1500.5(j), 1502.3, 1506.8, 1508.17, 1508.18(a)
Limitation on action during NEPA process	1506.1
List of preparers	1502.10(h), 1502.17
Local or State	1500.4(n), 1500.5(h), 1501.2(d)(2), 1501.5(b), 1501.5(d), 1501.7(a)(1), 1501.8(c), 1502.16(c), 1503.1(a)(2), 1506.2(b), 1506.6(b)(3), 1508.5, 1508.12, 1508.18
Major federal action	1502.3, 1508.18
Mandate	1500.3
Matter	1504.1, 1504.2, 1504.3, 1508.19
Methodology	1502.24
Mitigation	1502.14(h), 1502.16(h), 1503.3(d), 1505.2(c), 1505.3, 1508.20
Monitoring	1505.2(c), 1505.3
National Historic Preservation Act	1502.25
National Register of Historic Places	1508.27(b)(8)
Natural or depletable resource requirements	1502.16(f)
Need for action	1502.10(d), 1502.13
NEPA process	1508.21
Non-Federal sponsor	1501.2(d)

Appendix A – CEQ Regulations

Notice of Intent	1501.7, 1507.3(e), 1508.22
OMB Circular A-95	1503.1(a)(2)(iii), 1505.2, 1506.6(b)(3)(i)
102 Monitor	1506.6(b)(2), 1506.7(c)
Ongoing activities	1506.12
Page limits	1500.4(a), 1501.7(b), 1502.7
Planning	1500.5(a), 1501.2(b), 1502.4(a), 1508.18
Policy	1500.2, 1502.4(b), 1508.18(a)
Program EIS	1500.4(i), 1502.4, 1502.20, 1508.18
Programs	1502.4, 1508.18(b)
Projects	1508.18
Proposal	1502.4, 1502.5, 1506.8, 1508.23
Proposed action	1502.10(e), 1502.14, 1506.2(c)
Public health and welfare	1504.1
Public involvement	1501.4(e), 1503.1(a)(3), 1506.6
Purpose	1500.1, 1501.1, 1502.1, 1504.1
Purpose of action	1502.10(d), 1502.13
Record of Decision	1505.2, 1506.1
Referrals	1504.1, 1504.2, 1504.3, 1506.3(d)
Referring agency	1504.1, 1504.2, 1504.3
Response to comments	1503.4
Rural Electrification Administration	1506.1(d)
Scientific accuracy	1502.24
Scope	1502.4(a), 1502.9(a), 1508.25
Scoping	1500.4(b), 1501.1(d), 1501.4(d), 1501.7, 1502.9(a), 1506.8(a)

Significantly	1502.3, 1508.27
Similar	1508.25
Small business associations	1506.6(b)(3)(vi)
Social effects	1508.8
Special expertise	1508.26
Specificity of comments	1500.4(1), 1503.3
State and area-wide clearinghouses	1501.4(e)(2), 1503.1(a)(2)(iii), 1506.6(b)(3)(i)
State and local	1500.4(n), 1500.5(h), 1501.2(d)(2), 1501.5(b), 1501.5(d), 1501.7(a)(1), 1501.8(c), 1502.16(c), 1503.1(a)(2), 1506.2(b), 1506.6(b)(3), 1508.5, 1508.12, 1508.18
State and Local Fiscal Assistance Act	1508.18(a)
Summary	1500.4(h), 1502.10(b), 1502.12
Supplements	1502.9(c)
Table of contents	1502.10(c)
Technological development	1502.4(c)(3)
Terminology	1508.1
Tiering	1500.4(I), 1502.4(d), 1502.20, 1508.28
Time limits	1500.5(e), 1501.1(e), 1501.7(b)(2), 1501.8
Timing	1502.4, 1502.5, 1506.10
Treaties	1508.17
When to prepare EIS	1501.3
Wild and Scenic Rivers Act	1506.8(b)(ii)
Wilderness Act	1506.8(b)(ii)
Writing	1502.8

3. 24 CFR Part 58: Housing and Urban Development--Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities

Title 24: Housing and Urban Development

PART 58—ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD ENVIRONMENTAL RESPONSIBILITIES

Contents

Subpart A—Purpose, Legal Authority, Federal Laws and Authorities

§58.1 Purpose and applicability.

§58.2 Terms, abbreviations and definitions.

§58.4 Assumption authority.

§58.5 Related Federal laws and authorities.

§58.6 Other requirements.

Subpart B—General Policy: Responsibilities of Responsible Entities

§58.10 Basic environmental responsibility.

§58.11 Legal capacity and performance.

§58.12 Technical and administrative capacity.

§58.13 Responsibilities of the certifying officer.

§58.14 Interaction with State, Federal and non-Federal entities.

§58.15 Tiering.

§58.17 [Reserved]

§58.18 Responsibilities of States assuming HUD environmental responsibilities.

Subpart C—General Policy: Environmental Review Procedures

§58.21 Time periods.

§58.22 Limitations on activities pending clearance.

§58.23 Financial assistance for environmental review.

Subpart D—Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification

§58.30 Environmental review process.

§58.32 Project aggregation.

§58.33 Emergencies.

§58.34 Exempt activities.

§58.35 Categorical exclusions.

§58.36 Environmental assessments.

§58.37 Environmental impact statement determinations.

§58.38 Environmental review record.

Subpart E—Environmental Review Process: Environmental Assessments (EA's)

§58.40 Preparing the environmental assessment.

§58.43 Dissemination and/or publication of the findings of no significant impact.

§58.45 Public comment periods.

§58.46 Time delays for exceptional circumstances.

§58.47 Re-evaluation of environmental assessments and other environmental findings.

Subpart F—Environmental Review Process: Environmental Impact Statement Determinations

§58.52 Adoption of other agencies' EISs.

§58.53 Use of prior environmental impact statements.

Subpart G—Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements

§58.55 Notice of intent to prepare an EIS.

§58.56 Scoping process.

§58.57 Lead agency designation.

§58.59 Public hearings and meetings.

§58.60 Preparation and filing of environmental impact statements.

Subpart H—Release of Funds for Particular Projects

§58.70 Notice of intent to request release of funds.

§58.71 Request for release of funds and certification.

§58.72 HUD or State actions on RROFs and certifications.

§58.73 Objections to release of funds.

§58.74 Time for objecting.

§58.75 Permissible bases for objections.

§58.76 Procedure for objections.

§58.77 Effect of approval of certification.

AUTHORITY: 12 U.S.C. 1707 note, 1715z-13a(k); 25 U.S.C. 4115 and 4226; 42 U.S.C. 1437x,

3535(d), 3547, 4332, 4852, 5304(g), 11402, 12838, and 12905(h); title II of Pub. L. 105-276; E.O. 11514

as amended by E.O 11991, 3 CFR 1977 Comp., p. 123.

SOURCE: 61 FR 19122, Apr. 30, 1996, unless otherwise noted.

Subpart A—Purpose, Legal Authority, Federal Laws and Authorities

§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 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 Pilot Program under section 542(c) of the Housing and Community Development Act of 1992, in accordance with section 542(c)(9)(12 U.S.C. 1707 note);

(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 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.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56127, Sept. 29, 2003]

§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 §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 §58.1(b):

(i) A State that does not distribute HUD assistance under the program to a unit of general local government;

(ii) Guam, the Northern Mariana Islands, the Virgin Islands, American Samoa, and Palau;

(iii) A unit of general local government;

(iv) An Indian tribe;

(v) With respect to Public Housing Programs under §58.1(b)(6)(i), fiscal year 1999 and prior HOPE VI grants under §58.1(b)(6)(ii) or Section 8 assistance under §58.1(b)(6)(iii), a public housing agency;

(vi) Any direct grantee of HUD for a special project under §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 §58.1(b)(9), any direct grantee of HUD.

(ix)(A) With respect to NAHASDA assistance under §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 §58.1(b)(11), the Indian tribe.

(x) With respect to the Shelter Plus Care and Supportive Housing Programs under §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

§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 §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 §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 §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

§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 §58.1(b)(11). Regional Corporations in Alaska are considered Indian tribes in this part. Non-recipient responsible entities are designated as follows:

(A) For qualified housing finance agencies, the State or a unit of general local government, Indian tribe or Alaska native village whose jurisdiction contains the project site;

(B) For public housing agencies, the unit of general local government within which the project is located that exercises land use responsibility, or if HUD determines this infeasible, the county, or if HUD determines this infeasible, the State;

(C) For non-profit organizations and other entities, the unit of general local government, Indian tribe or Alaska native village within which the project is located that exercises land use responsibility, or if HUD determines this infeasible, the county, or if HUD determines this infeasible, the State;

(8) Unit Density refers to a change in the number of dwelling units. Where a threshold is identified as a percentage change in density that triggers review requirements, no distinction is made between an increase or a decrease in density.

(9) Tiering means the evaluation of an action or an activity at various points in the development process as a proposal or event becomes ripe for an Environment Assessment or Review.

(10) Vacant Building means a habitable structure that has been vacant for more than one year.

(b) The following abbreviations are used throughout this part:

(1) CDBG—Community Development Block Grant;

(2) CEQ—Council on Environmental Quality;

(3) EA—Environmental Assessment;

(4) EIS—Environmental Impact Statement;

(5) EPA—Environmental Protection Agency;

(6) ERR—Environmental Review Record;

(7) FONSI—Finding of No Significant Impact;

(8) HUD—Department of Housing and Urban Development;

(9) NAHA—Cranston-Gonzalez National Affordable Housing Act of 1990;

(10) NEPA—National Environmental Policy Act of 1969, as amended;

(11) NOI/EIS—Notice of Intent to Prepare an EIS;

(12) NOI/RROF—Notice of Intent to Request Release of Funds;

(13) ROD—Record of Decision;

(14) ROF—Release of Funds; and

(15) RROF—Request for Release of Funds.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56128, Sept. 29, 2003]

§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 §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 §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 §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.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56128, Sept. 29, 2003]

§58.5 Related Federal laws and authorities.

In accordance with the provisions of law cited in §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 §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, as interpreted in HUD regulations at 24 CFR part 55, particularly sections 2 and 5 of the order.

(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 §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.

(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.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56128, Sept. 29, 2003; 78 FR 68734, Nov. 15, 2013]

§58.6 Other requirements.

In addition to the duties under the laws and authorities specified in §58.5 for assumption by the responsible entity under the laws cited in §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 §58.34(a)(12) and/or the applicability of §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 §58.34 or categorically excluded under §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.

(4) Flood insurance requirements cannot be fulfilled by self-insurance except as authorized by law for assistance to state-owned projects within states approved by the Federal Insurance Administrator consistent with 44 CFR 75.11.

(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:

(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; 78 FR 68734, Nov. 15, 2013]

Subpart B—General Policy: Responsibilities of Responsible Entities

§58.10 Basic environmental responsibility.

In accordance with the provisions of law cited in §58.1(b), except as otherwise provided in §58.4(c), the responsible entity must assume the environmental responsibilities for projects under programs cited in

§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.

[68 FR 56128, Sept. 29, 2003]

§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 §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.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56129, Sept. 29, 2003]

§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.

§58.13 Responsibilities of the certifying officer.

Under the terms of the certification required by §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 §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 §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.

§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 §58.5 and §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]

§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.

§58.17 [Reserved]

§58.18 Responsibilities of States assuming HUD environmental 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 §§58.70 and 58.71; accept objections from the public and from other agencies (§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.

[68 FR 56129, Sept. 29, 2003]

Subpart C—General Policy: Environmental Review Procedures

§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.

§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 §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 §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 §58.34, or is categorically excluded (except in extraordinary circumstances) under §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

§58.34(b) and §58.35(d), but the recipient must comply with applicable requirements under §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.

(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.

[68 FR 56129, Sept. 29, 2003]

§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 §58.5 and §58.6, are eligible costs to the extent allowable under the HUD assistance program regulations.

Subpart D—Environmental Review Process: Documentation, Range of Activities, Project Aggregation and Classification

§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 §58.32.

(b) The environmental review process should begin as soon as a recipient determines the projected use of HUD assistance.

§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.

(1) Address adequately and analyze, in a single environmental review, the separate and combined impacts of activities that are similar, connected and closely related, or that are dependent upon other activities and actions. (See 40 CFR 1508.25(a)).

(2) Consider reasonable alternative courses of action.

(3) Schedule the activities to resolve conflicts or mitigate the individual, combined and/or cumulative effects.

(4) Prescribe mitigation measures and safeguards including project alternatives and modifications to individual activities.

(d) Multi-year project aggregation—(1) Release of funds. When a recipient's planning and program development provide for activities to be implemented over two or more years, the responsible entity's environmental review should consider the relationship among all component activities of the multi-year project regardless of the source of funds and address and evaluate their cumulative environmental effects. The estimated range of the aggregated activities and the estimated cost of the total project must be listed and described by the responsible entity in the environmental review and included in the RROF. The release of funds will cover the entire project period.

(2) When one or more of the conditions described in §58.47 exists, the recipient or other responsible entity must re-evaluate the environmental review.

§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.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56129, Sept. 29, 2003]

§58.34 Exempt activities.

(a) Except for the applicable requirements of §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 §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 §58.35(a) provided that there are no circumstances which require compliance with any other Federal laws and authorities cited in §58.5.

(b) A recipient does not have to submit an RROF and certification, and no further approval from HUD or the State will be needed by the recipient for the drawdown of funds to carry out exempt activities and projects. However, the responsible entity must document in writing its determination that each activity or project is exempt and meets the conditions specified for such exemption under this section.

[61 FR 19122, Apr. 30, 1996, as amended at 63 FR 15271, Mar. 30, 1998]

§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 §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 §58.5 is required for any categorical exclusion listed in paragraph (a) of this section.

(a) Categorical exclusions subject to §58.5. The following activities are categorically excluded under NEPA, but may be subject to review under authorities listed in §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, and the land use is not changed;

(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.

(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 §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 §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 §58.6.

(1) Tenant-based rental assistance;

(2) Supportive services including, but not limited to, health care, housing services, permanent housing placement, day care, nutritional services, short-term payments for rent/mortgage/utility costs, and assistance in gaining access to local, State, and Federal government benefits and services;

(3) Operating costs including maintenance, security, operation, utilities, furnishings, equipment, supplies, staff training and recruitment and other incidental costs;

(4) Economic development activities, including but not limited to, equipment purchase, inventory financing, interest subsidy, operating expenses and similar costs not associated with construction or expansion of existing operations;

(5) Activities to assist 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 §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; 68 FR 56129, Sept. 29, 2003;

78 FR 68734, Nov. 15, 2013]

§58.36 Environmental assessments.

If a project is not exempt or categorically excluded under §§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 §58.37, the responsible entity should proceed directly to an EIS.

§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 §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 §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.

§58.38 Environmental review record.

The responsible entity must maintain a written record of the environmental review undertaken under this part for each project. This document will be designated the “Environmental Review Record” (ERR), and shall be available for public review. The responsible entity must use the current HUD-recommended formats or develop equivalent formats.

(a) ERR Documents. The ERR shall contain all the environmental review documents, public notices and written determinations or environmental findings required by this part as evidence of review, decisionmaking and actions pertaining to a particular project of a recipient. The document shall:

(1) Describe the project and the activities that the recipient has determined to be part of the project;

(2) Evaluate the effects of the project or the activities on the human environment;

(3) Document compliance with applicable statutes and authorities, in particular those cited in §58.5 and 58.6; and

(4) Record the written determinations and other review findings required by this part (e.g., exempt and categorically excluded projects determinations, findings of no significant impact).

(b) Other documents and information. The ERR shall also contain verifiable source documents and relevant base data used or cited in EAs, EISs or other project review documents. These documents may be incorporated by reference into the ERR provided that each source document is identified and available for inspection by interested parties. Proprietary material and special studies prepared for the recipient that are not otherwise generally available for public review shall not be incorporated by reference but shall be included in the ERR.

Subpart E—Environmental Review Process: Environmental Assessments (EA's)

§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 §58.5 and §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 §§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 §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.

§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 §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.

§58.45 Public comment periods.

Required notices must afford the public the following minimum comment periods, counted in accordance with §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

[68 FR 56130, Sept. 29, 2003]

§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;

§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]

Subpart F—Environmental Review Process: Environmental Impact Statement Determinations

§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 §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.

§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 §58.40 that the proposed project is not a new major Federal action significantly affecting the quality of the human environment. The decision shall include:

(1) References to the prior EIS and its evaluation of the environmental factors affecting the proposed subsequent action subject to NEPA;

(2) An evaluation of any environmental factors which may not have been previously assessed, or which may have significantly changed;

(3) An analysis showing that the proposed project is consistent with the location, use, and density assumptions for the site and with the timing and capacity of the circulation, utility, and other supporting infrastructure assumptions in the prior EIS;

(4) Documentation showing that where the previous EIS called for mitigating measures or other corrective action, these are completed to the extent reasonable given the current state of development.

(b) The prior final EIS has been filed within five (5) years, and updated as follows:

(1) The EIS has been updated to reflect any significant revisions made to the assumptions under which the original EIS was prepared;

(2) The EIS has been updated to reflect new environmental issues and data or legislation and implementing regulations which may have significant environmental impact on the project area covered by the prior EIS.

(c) There is no litigation pending in connection with the prior EIS, and no final judicial finding of inadequacy of the prior EIS has been made.

Subpart G—Environmental Review Process: Procedures for Draft, Final and Supplemental Environmental Impact Statements

§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.

§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 §58.59. The responsible entity must wait at least 15 days after disseminating or publishing the NOI/EIS before holding a scoping meeting.

§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).

§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.

§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]

Subpart H—Release of Funds for Particular Projects

§58.70 Notice of intent to request release of funds.

The NOI/RROF must be disseminated and/or published in the manner prescribed by §58.43 and

§58.45 before the certification is signed by the responsible entity.

§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 §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 §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.

§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

§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 §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.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56130, Sept. 29, 2003]

§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 §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 §58.75. All decisions by HUD (or the State) regarding the RROF and the certification shall be final.

§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.

§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 §58.40 or to make the written determination required by §§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.

[61 FR 19122, Apr. 30, 1996, as amended at 68 FR 56130, Sept. 29, 2003]

§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.

(d) State when a copy of the objection was mailed or delivered to the responsible entity's Certifying Officer.

§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 §58.5 insofar as those responsibilities relate to the release of funds as authorized by the applicable provisions of law cited in §58.1(b).

(b) Public and agency redress. Persons and agencies seeking redress in relation to environmental reviews covered by an approved certification shall deal with the responsible entity and not with HUD. It is HUD's policy to refer all inquiries and complaints to the responsible entity and its Certifying Officer. Similarly, the State (where applicable) may direct persons and agencies seeking redress in relation to environmental reviews covered by an approved certification to deal with the responsible entity, and not the State, and may refer inquiries and complaints to the responsible entity and its Certifying Officer. Remedies for noncompliance are set forth in program regulations.

(c) Implementation of environmental review decisions. Projects of a recipient will require post- review monitoring and other inspection and enforcement actions by the recipient and the State or HUD (using procedures provided for in program regulations) to assure that decisions adopted through the environmental review process are carried out during project development and implementation.

(d) Responsibility for monitoring and training. (1) At least once every three years, HUD intends to conduct in-depth monitoring and exercise quality control (through training and consultation) over the environmental activities performed by responsible entities under this part. Limited monitoring of these environmental activities will be conducted during each program monitoring site visit. If through limited or in-depth monitoring of these environmental activities or by other means, HUD becomes aware of any environmental deficiencies, HUD may take one or more of the following actions:

(i) In the case of problems found during limited monitoring, HUD may schedule in-depth monitoring at an earlier date or may schedule in-depth monitoring more frequently;

(ii) HUD may require attendance by staff of the responsible entity at HUD-sponsored or approved training, which will be provided periodically at various locations around the country;

(iii) HUD may refuse to accept the certifications of environmental compliance on subsequent grants;

(iv) HUD may suspend or terminate the responsible entity's assumption of the environmental review responsibility;

(v) HUD may initiate sanctions, corrective actions, or other remedies specified in program regulations or agreements or contracts with the recipient.

(2) HUD's responsibilities and action under paragraph (d)(1) of this section shall not be construed to limit or reduce any responsibility assumed by a responsible entity with respect to any particular release of funds under this part. Whether or not HUD takes action under paragraph (d)(1) of this section, the Certifying Officer remains the responsible Federal official under §58.13 with respect to projects and activities for which the Certifying Officer has submitted a certification under this part.

[End]

4. 24 CFR Part 50: Housing and Urban Development--Protection and Enhancement of Environmental Quality

Pt. 50

h is o r h e r a ppe a l m ay s u b m i t a w r i tt e n r eq u es t fo r r eview of t ha t de t e r m i na- t io n t o t h e HUD field office ( o r t o t h e S t a t e i n t h e c a se of a un i t of ge n e ra l loc a l gove rn m e n t fun ded b y t h e S t a t e). If t h e fu ll r elief is n o t g ran t ed, t h e r e- cipie n t s ha ll a dvise t h e pe r so n of h is o r h e r r ig h t t o see k j u dici a l r eview.

PARTS 43–45 [RESERVED]

PART 50—PROTECTION AND EN- HANCEMENT OF ENVIRON- MENTAL QUALITY

Subpart A—General: Federal Laws and Authorities

S ec.

50.1 P ur pose, au t h o r i t y , an d a pplic a bili t y .

50.2 T e r m s an d a bb r evi a t io n s.

50.3 En vi r o n m e n t a l polic y .

50.4 R el a t ed F ede ra l l a ws an d au t h o r i t ies.

Subpart B—General Policy: Responsibilities and Program Coverage

50.10 B a sic e n vi r o n m e n t a l r espo n sibili t y .

50.11 R espo n sibili t y of t h e HUD a pp r ovi n g offici a l .

Subpart C—General Policy: Decision Points

50.16 Decisio n poi n t s fo r polic y a c t io n s.

50.17 Decisio n poi n t s fo r p r ojec t s.

Subpart D—General Policy: Environmental Review Procedures

50.18 Ge n e ra l .

50.19 Ca t ego r ic a l excl u sio n s n o t s u bjec t t o t h e F ede ra l l a ws an d au t h o r i t ies ci t ed i n

§ 50.4.

50.20 Ca t ego r ic a l excl u sio n s s u bjec t t o t h e F ede ra l l a ws an d au t h o r i t ies ci t ed i n

§ 50.4.

50.21 Agg r eg a t io n .

50.22 En vi r o n m e n t a l m ana ge m e n t an d m o n- i t o r i n g.

50.23 P u blic p ar t icip a t io n .

50.24 HUD r eview of an o t h e r a ge n c y’s E I S .

Subpart E—Environmental Assessments and Related Reviews

50.31 Th e E A.

50.32 R espo n sibili t y fo r e n vi r o n m e n t a l p r oc- essi n g.

50.33 Ac t io n r es u l t i n g f r o m t h e a ssess m e n t .

50.34 T i m e del ay s fo r excep t io na l ci r - c u m s t an ces.

50.35 Use of p r io r e n vi r o n m e n t a l a ssess- m e n t s.

50.36 Upd a t i n g of e n vi r o n m e n t a l r eviews.

24 CFR Subtitle A (4–1–00 Edition)

Subpart F—Environmental Impact Statements

50.41 E I S polic y .

50.42 Ca ses w h e n an E I S is r eq u i r ed.

50.43 E m e r ge n cies.

AU T HOR I T Y: 42 U. S .C. 3535( d) an d 4332; an d

E xec u t ive Or de r 11991, 3 C F R, 1977 Co m p., p. 123.

SOU RCE: 61 F R 50916, S ep t . 27, 1996, un less

o t h e r wise n o t ed.

Subpart A—General: Federal Laws and Authorities

§ 50.1 Purpose, authority, and applica- bility.

( a) Th is p ar t i m ple m e n t s t h e policies of t h e N a t io na l En vi r o n m e n t a l P olic y Ac t ( N E P A) an d o t h e r e n vi r o n m e n t a l r eq u i r e m e n t s ( a s specified i n § 50.4).

( b) N E P A (42 U. S .C. 4321 et seq.), es-

t a blis h es na t io na l polic y , go a ls an d p r oced ur es fo r p r o t ec t i n g, r es t o r i n g an d e nhan ci n g e n vi r o n m e n t a l q ua li t y . N E P A is i m ple m e n t ed b y E xec u t ive

Or de r 11514 of M ar c h 5, 1970, (3 C F R, 1966—1970 Co m p., p. 902) a s a m e n ded b y E xec u t ive Or de r 11991 of M ay 24, 1977, (3 C F R, 1977 Co m p., p. 123) an d b y t h e Co un cil o n En vi r o n m e n t a l Qua li t y

(CEQ) R eg u l a t io n s, 40 C F R p ar t s 1500– 1508.

( c) Th e r eg u l a t io n s iss u ed b y CEQ a t

40 C F R p ar t s 1500–1508 es t a blis h t h e b a sic p r oced ura l r eq u i r e m e n t s fo r co m - pli an ce wi t h N E P A. Th ese p r oced ur es ar e t o be followed b y a ll F ede ra l a ge n- cies an d ar e i n co r po ra t ed b y r efe r e n ce i n t o t h is p ar t . Th is p ar t , t h e r efo r e, p r ovides s u pple m e n t a l i n s t ru c t io n s t o r eflec t t h e p ar t ic u l ar na t ur e of HUD p r og ra m s, an d is t o be u sed i n t an de m wi t h 40 C F R p ar t s 1500–1508 an d r eg u l a- t io n s t ha t i m ple m e n t au t h o r i t ies ci t ed a t § 50.4.

( d) Th ese r eg u l a t io n s a ppl y t o a ll HUD polic y a c t io n s ( a s defi n ed i n

§ 50.16), an d t o a ll HUD p r ojec t a c t io n s ( see § 50.2( a)(2)). Also, t h e y a ppl y t o p r ojec t s an d a c t ivi t ies c arr ied o u t b y r ecipie n t s s u bjec t t o e n vi r o n m e n t a l polic y an d p r oced ur es of 24 C F R p ar t 58, w h e n t h e r ecipie n t t ha t is r eg u l a t ed

un de r 24 C F R p ar t 58 cl a i m s t h e l a c k of leg a l c a p a ci t y t o a ss u m e t h e S ec- r e t ary’s e n vi r o n m e n t a l r eview r espo n- sibili t ies an d t h e cl a i m is a pp r oved b y

Office of the Secretary, HUD § 50.3

HUD o r w h e n HUD de t e r m i n es t o co n- d u c t an e n vi r o n m e n t a l r eview i t self i n pl a ce of a n o nr ecipie n t r espo n sible e n-

t i t y . F o r p r og ra m s, a c t ivi t ies o r a c- t io n s n o t specific a ll y ide n t ified o r w h e n t h e r e ar e q u es t io n s r eg ar di n g t h e a pplic a bili t y of t h is p ar t , t h e Assis t an t S ec r e t ary fo r Co mm un i t y P l ann i n g an d Develop m e n t s ha ll be co n s u l t ed.

§ 50.2 Terms and abbreviations.

( a) Th e defi n i t io n s fo r m os t of t h e k e y t e r m s o r p hra ses co n t a i n ed i n t h is p ar t a ppe ar i n 40 C F R p ar t 1508 an d i n t h e au t h o r i t ies ci t ed i n § 50.4.

Th e followi n g defi n i t io n s a lso a ppl y t o t h is p ar t :

En vironmental review m e an s a p r ocess fo r co m pl y i n g wi t h N E P A ( t hr o u g h an E A o r E I S) an d/o r wi t h t h e l a ws an d au t h o r i t ies ci t ed i n § 50.4.

HUD approving official m e an s t h e HUD offici a l au t h o r ized t o m a k e t h e a pp r ov a l decisio n fo r any p r oposed pol-

ic y o r p r ojec t s u bjec t t o t h is p ar t .

Project m e an s an a c t ivi t y , o r a g r o u p of i n t eg ra ll y- r el a t ed a c t ivi t ies, un de r - t a k e n di r ec t l y b y HUD o r p r oposed fo r HUD a ssis t an ce o r i n s uran ce.

( b) Th e followi n g a bb r evi a t io n s ar e u sed t hr o u g h o u t t h is p ar t :

AS/CPD—Assis t an t S ec r e t ary fo r Co mm un i t y P l ann i n g an d Develop- m e n t .

CEQ—Co un cil o n En vi r o n m e n t a l Qua li t y

E A—En vi r o n m e n t a l Assess m e n t

EIS—En vi r o n m e n t a l I m p a c t S t a t e- m e n t

FONSI— F i n di n g of No S ig n ific an t I m p a c t

HUD—Dep ar tm e n t of Ho u si n g an d U r b an Develop m e n t

NEPA—N a t io na l En vi r o n m e n t a l P ol- ic y Ac t

NOI/EIS—No t ice of I n t e n t t o P r ep ar e an En vi r o n m e n t a l I m p a c t S t a t e m e n t

§ 50.3 Environmental policy.

( a) I t is t h e polic y of t h e Dep ar tm e n t t o r ejec t p r opos a ls w h ic h ha ve sig n ifi- c an t a dve r se e n vi r o n m e n t a l i m p a c t s an d t o e n co ura ge t h e m odific a t io n of p r ojec t s i n o r de r t o e nhan ce e n vi r o n- m e n t a l q ua li t y an d m i n i m ize e n vi r o n- m e n t a l har m .

( b) Th e HUD a pp r ovi n g offici a l s ha ll co n side r e n vi r o n m e n t a l an d o t h e r De-

p ar tm e n t a l objec t ives i n t h e decisio n- m a k i n g p r ocess.

( c) Wh e n E A’s o r E I S’s o r r eviews un de r § 50.4 r eve a l co n di t io n s o r s afe- g uar ds t ha t s h o u ld be i m ple m e n t ed o n ce a p r opos a l is a pp r oved i n o r de r t o p r o t ec t an d e nhan ce e n vi r o n m e n t a l q ua li t y o r m i n i m ize a dve r se e n vi r o n- m e n t a l i m p a c t s, s u c h co n di t io n s o r s afeg uar ds m u s t be i n cl u ded i n a g r ee- m e n t s o r o t h e r r elev an t doc u m e n t s.

( d) A s y s t e m a t ic, i n t e r discipli nary a pp r o a c h s ha ll be u sed t o a ss ur e t h e i n- t eg ra t ed u se of t h e na t ura l an d soci a l scie n ces an d t h e e n vi r o n m e n t a l desig n ar t s i n m a k i n g decisio n s.

( e) En vi r o n m e n t a l i m p a c t s s ha ll be ev a l ua t ed o n a s co m p r e h e n sive a sc a le a s is p ra c t ic a ble.

(f) HUD offices s ha ll begi n t h e e n vi- r o n m e n t a l r eview p r ocess a t t h e e ar- lies t possible t i m e so t ha t po t e n t i a l co nflic t s be t wee n p r og ra m p r oced ur es an d e n vi r o n m e n t a l r eq u i r e m e n t s ar e ide n t ified a t an e ar l y s t a ge.

( g) Applic an t s fo r HUD a ssis t an ce s ha ll be a dvised of e n vi r o n m e n t a l r e- q u i r e m e n t s an d co n s u l t a t io n wi t h gov- e rn m e n t a l a ge n cies an d i n divid ua ls s ha ll t a k e pl a ce a t t h e e ar lies t t i m e fe a sible.

( h) F o r HUD g ran t p r og ra m s i n w h ic h t h e fun di n g a pp r ov a l fo r an a pplic an t ’s p r og ra m m u s t occ ur befo r e t h e a ppli- c an t ’s selec t io n of p r ope r t ies, t h e a p- plic a t io n s ha ll co n t a i n an assurance t ha t t h e a pplic an t a g r ees t o a ssis t HUD t o co m pl y wi t h t h is p ar t an d t ha t t h e a pplic an t s ha ll:

(1) Su ppl y HUD wi t h a ll a v a il a ble, r elev an t i nfo r m a t io n n ecess ary fo r HUD t o pe r fo r m fo r e a c h p r ope r t y any e n vi r o n m e n t a l r eview r eq u i r ed b y t h is p ar t ;

(2) Carry o u t m i t ig a t i n g m e a s ur es r e- q u i r ed b y HUD o r selec t a l t e rna t e eligi- ble p r ope r t y; an d

(3) No t a cq u i r e, r e ha bili t a t e, co n ve r t , le a se, r ep a i r o r co n s t ru c t p r ope r t y , n o r co mm i t o r expe n d HUD o r loc a l fun ds fo r t h ese p r og ra m a c t ivi t ies wi t h r e- spec t t o any eligible p r ope r t y , un t il HUD a pp r ov a l of t h e p r ope r t y is r e- ceived.

( i)(1) I t is HUD polic y t ha t a ll p r op- e r t y p r oposed fo r u se i n HUD p r og ra m s be f r ee of hazar do u s m a t e r i a ls, co n- t a m i na t io n , t oxic c h e m ic a ls an d g a s- ses, an d ra dio a c t ive s u bs t an ces, w h e r e

§ 50.4

a hazar d co u ld affec t t h e h e a l t h an d s afe t y of occ u p an t s o r co nflic t wi t h t h e i n t e n ded u t iliza t io n of t h e p r ope r t y .

(2) HUD e n vi r o n m e n t a l r eview of m u l t ifa m il y an d n o n- r eside n t i a l p r op- e r t ies s ha ll i n cl u de ev a l ua t io n of p r e- vio u s u ses of t h e si t e an d o t h e r evi- de n ce of co n t a m i na t io n o n o r n e ar t h e si t e, t o a ss ur e t ha t occ u p an t s of p r o- posed si t es ar e n o t a dve r sel y affec t ed b y t h e hazar ds lis t ed i n p ara g ra p h ( i)(1) of t h is sec t io n .

(3) P ar t ic u l ar a tt e n t io n s h o u ld be give n t o any p r oposed si t e o n o r i n t h e ge n e ra l p r oxi m i t y of s u c h ar e a s a s d u m ps, l an dfills, i n d u s t r i a l si t es o r o t h e r loc a t io n s t ha t co n t a i n hazar do u s w a s t es.

(4) HUD s ha ll r eq u i r e t h e u se of c ur- r e n t t ec hn iq u es b y q ua lified p r ofes- sio na ls t o un de r t a k e i n ves t ig a t io n s de- t e r m i n ed n ecess ary .

§ 50.4 Related Federal laws and au- thorities.

HUD an d/o r a pplic an t s m u s t co m pl y , w h e r e a pplic a ble, wi t h a ll e n vi r o n- m e n t a l r eq u i r e m e n t s, g u ideli n es an d s t a t u t o ry oblig a t io n s un de r t h e fol- lowi n g au t h o r i t ies an d HUD s t an d ar ds:

( a) Historic properties. (1) Th e N a- t io na l His t o r ic P r ese r v a t io n Ac t of 1966 (16 U. S .C. 470 et seq.), a s a m e n ded.

(2) E xec u t ive Or de r 11593, P r o t ec t io n an d Enhan ce m e n t of t h e Cu l t ura l En vi-

r o n m e n t , M ay 13, 1971 (3 C F R, 1971— 1975 Co m p., p. 559).

(3) Th e A r c ha eologic a l an d His t o r ic P r ese r v a t io n Ac t of 1974, w h ic h a m e n ds t h e R ese r voi r Sa lv a ge Ac t of 1960 (16 U. S .C. 469 et seq.).

(4) P r oced ur es fo r t h e P r o t ec t io n of His t o r ic an d Cu l t ura l P r ope r t ies ( Advi- so ry Co un cil o n His t o r ic P r ese r v a- t io n—36 C F R p ar t 800).

( b) Flood insurance, floodplain manage- ment and wetland protection. (1) F lood Dis a s t e r P r o t ec t io n Ac t of 1973 (42 U. S .C. 4001–4128) an d t h e N a t io na l F lood I n s uran ce R efo r m Ac t of 1994 ( P u b. L . 103–325, 108 S t a t . 2160).

(2) HUD P r oced ur e fo r t h e I m ple m e n- t a t io n of E xec u t ive Or de r 11988 (3 C F R, 1977 Co m p., p. 117)—24 C F R p ar t 55, F loodpl a i n M ana ge m e n t .

(3) E xec u t ive Or de r 11990 ( P r o t ec t io n of We t l an ds), (3 C F R, 1977 Co m p., p.

121).

24 CFR Subtitle A (4–1–00 Edition)

( c) Coastal areas protection and man- agement. (1) Th e Co a s t a l B arr ie r R e- so ur ces Ac t , a s a m e n ded b y t h e Co a s t a l B arr ie r I m p r ove m e n t Ac t of 1990 (16 U. S .C. 3501 et seq.).

(2) Th e Co a s t a l Zo n e M ana ge m e n t Ac t of 1972 (16 U. S .C. 1451 et seq.), a s a m e n ded.

( d) Sole source aquifers. Th e Safe D r i n k i n g Wa t e r Ac t of 1974 (42 U. S .C. 201, 300 et seq., an d 21 U. S .C. 349), a s a m e n ded. ( S ee 40 C F R p ar t 149.)

( e) Endangered species. Th e En d an- ge r ed S pecies Ac t of 1973 (16 U. S .C. 1531 et seq.), a s a m e n ded. ( S ee 50 C F R p ar t

402.)

(f) Wild and scenic rivers. Th e Wild an d S ce n ic R ive r s Ac t (16 U. S .C 1271 et seq.), a s a m e n ded.

( g) W ater qualit y . Th e F ede ra l Wa t e r P oll u t io n Co n t r ol Ac t , a s a m e n ded b y t h e F ede ra l Wa t e r P oll u t io n Co n t r ol

Ac t A m e n d m e n t s of 1972 (33 U. S .C. 1251

et seq.), an d l a t e r e na c tm e n t s.

( h) Air qualit y . Th e Cle an Ai r Ac t (42 U. S .C. 7401 et seq.), a s a m e n ded. ( S ee 40 C F R p ar t s 6, 51, an d 93.)

( i) Solid waste management. (1) Th e S olid Wa s t e Dispos a l Ac t , a s a m e n ded b y t h e R eso ur ce Co n se r v a t io n an d R e- cove ry Ac t of 1976 (42 U. S .C. 6901 et seq.), an d l a t e r e na c tm e n t s.

(2) Th e Co m p r e h e n sive En vi r o n- m e n t a l R espo n se, Co m pe n s a t io n , an d L i a bili t y Ac t of 1980 (42 U. S .C. 9601 et seq.), a s a m e n ded.

( j) Farmlands protection. Th e F ar m - l an d P r o t ec t io n P olic y Ac t of 1981 (7 U. S .C. 4201 et seq.), a s a m e n ded. ( S ee 7 C F R p ar t 658.)

( k ) HUD en vironmental standards. Ap- plic a ble c r i t e r i a an d s t an d ar ds speci- fied i n HUD e n vi r o n m e n t a l r eg u l a t io n s (24 C F R p ar t 51).

( l) En vironmental justice. E xec u t ive Or de r 12898— F ede ra l Ac t io n s t o Ad- d r ess En vi r o n m e n t a l J u s t ice i n Mi n o r - i t y P op u l a t io n s an d L ow- I n co m e P op u- l a t io n s (3 C F R, 1994 Co m p., p. 859).

Subpart B—General Policy: Re- sponsibilities and Program Coverage

§ 50.10 Basic environmental responsi- bility.

( a) I t is t h e r espo n sibili t y of a ll As- sis t an t S ec r e t ar ies, t h e Ge n e ra l Co un- sel, an d t h e HUD a pp r ovi n g offici a l t o

Office of the Secretary, HUD § 50.17

a ss ur e t ha t t h e r eq u i r e m e n t s of t h is p ar t ar e i m ple m e n t ed.

( b) Th e Assis t an t S ec r e t ary fo r Co m - m un i t y P l ann i n g an d Develop m e n t ( A/ S C P D), r ep r ese n t ed b y t h e Office of Co mm un i t y Vi a bili t y , w h ose Di r ec t o r s ha ll se r ve a s t h e Dep ar tm e n t a l En vi- r o n m e n t a l Cle aran ce Office r ( D ECO), is a ssig n ed t h e ove ra ll Dep ar tm e n t a l r e- spo n sibili t y fo r e n vi r o n m e n t a l policies an d p r oced ur es fo r co m pli an ce wi t h N E P A an d t h e r el a t ed l a ws an d au- t h o r i t ies. T o t h e ex t e n t pe r m i tt ed b y a pplic a ble l a ws an d t h e CEQ r eg u l a- t io n s, t h e A/ S C P D s ha ll a pp r ove w a iv- e r s an d excep t io n s o r es t a blis h c r i t e r i a fo r excep t io n s f r o m t h e r eq u i r e m e n t s of t h is p ar t .

§ 50.11 Responsibility of the HUD ap- proving official.

( a) Th e HUD a pp r ovi n g offici a l s ha ll m a k e an i n depe n de n t ev a l ua t io n of t h e e n vi r o n m e n t a l iss u es, t a k e r espo n si- bili t y fo r t h e scope an d co n t e n t of t h e co m pli an ce fi n di n g, E A o r E I S , an d m a k e t h e e n vi r o n m e n t a l fi n di n g, w h e r e a pplic a ble. ( Also, see § 50.32.)

( b) Copies of e n vi r o n m e n t a l r eviews an d fi n di n gs s ha ll be m a i n t a i n ed i n t h e p r ojec t file fo r p r ojec t s, i n t h e ru les doc k e t files fo r F E D ER A L R E GI STER p u b- lic a t io n s, an d i n p r og ra m files fo r n o n- F E D ER A L R E GI STER polic y doc u m e n t s.

Subpart C—General Policy: Decision Points

§ 50.16 Decision points for policy ac- tions.

E i t h e r an E A an d F ON S I o r an E I S o n a ll polic y a c t io n s n o t m ee t i n g t h e c r i t e r i a of § 50.19 s ha ll be co m ple t ed p r io r t o t h e a pp r ov a l a c t io n . P olic y a c- t io n s i n cl u de a ll p r oposed F E D ER A L R E GI STER polic y doc u m e n t s an d o t h e r polic y- r el a t ed F ede ra l a c t io n s (40 C F R 1508.18). Th e decisio n a s t o w h e t h e r a p r oposed polic y a c t io n is c a t ego r ic a ll y

excl u ded f r o m an E A s ha ll be m a de b y t h e P r og ra m En vi r o n m e n t a l Cle aran ce Office r ( P ECO) i n He a dq uar t e r s a s e ar l y a s possible. Wh e r e t h e P ECO ha s any do u b t a s t o w h e t h e r a p r oposed a c- t io n q ua lifies fo r excl u sio n , t h e P ECO s ha ll r eq u es t a de t e r m i na t io n b y t h e A S/C P D. Th e E A an d F ON S I m ay be co m bi n ed i n t o a si n gle doc u m e n t .

§ 50.17 Decision points for projects.

E i t h e r an E A an d F ON S I o r an E I S fo r i n divid ua l p r ojec t s s ha ll be co m - ple t ed befo r e t h e a pplic a ble p r og ra m decisio n poi n t s below fo r p r ojec t s n o t m ee t i n g t h e c r i t e r i a of § 50.20. Co m pli- an ce wi t h a pplic a ble au t h o r i t ies ci t ed

i n § 50.4 s ha ll be co m ple t ed befo r e t h e a pplic a ble p r og ra m decisio n poi n t s below un less t h e p r ojec t m ee t s t h e c r i- t e r i a fo r excl u sio n un de r § 50.19.

( a) New Construction. (1) P r ojec t m o r t g a ge i n s uran ce o r o t h e r fi nan ci a l a ssis t an ce fo r m u l t ifa m il y h o u si n g p r ojec t s ( i n cl u di n g sec t io n s 202 an d 811), nur si n g h o m es, h ospi t a ls, g r o u p p ra c t ice fa cili t ies an d m anufa c t ur ed h o m e p ar k s: Iss uan ce of S i t e App ra is a l an d M ar k e t A na l y sis ( S AMA) L e tt e r o r i n i t i a l eq u iv a le n t i n dic a t io n of HUD a pp r ov a l of a specific si t e;

(2) Public Housing: HUD approval of t he proposal.

(3) Loan Guarantee Recovery Fund Pro- gram (24 CF R part 573). HUD iss uan ce of a le tt e r of co mm i tm e n t o r i n i t i a l eq u iv a le n t i n dic a t io n of HUD a pp r ov a l .

( b) Rehabilitation projects. Use t h e de- cisio n poi n t s un de r ‘‘n ew co n s t ru c t io n’’ fo r HUD p r og ra m s ci t ed i n p ara g ra p h ( a) of t h is sec t io n; o t h e r wise t h e deci- sio n poi n t is t h e HUD p r ojec t a pp r ov a l . ( c) Public housing modernization pro-

grams. HUD a pp r ov a l of t h e m ode rn iza- t io n g ran t s.

( d) Propert y Disposition. M u l t ifa m il y s t ru c t ur es, college h o u si n g, nur si n g h o m es, m anufa c t ur ed h o m es an d p ar k s, g r o u p p ra c t ice fa cili t ies, v a c an t l an d an d o n e t o fo ur fa m il y s t ru c t ur es: HUD a pp r ov a l of t h e Disposi t io n P r og ra m .

( e) HUD programs subject to 24 CF R part 58. F o r c a ses i n w h ic h HUD exe r - cises e n vi r o n m e n t a l r espo n sibili t y un de r t h is p ar t w h e r e a r ecipie n t l a c k s leg a l c a p a ci t y t o do so o r HUD de t e r -

m i n es t o do so i n pl a ce of a n o n- r ecipie n t r espo n sible e n t i t y un de r 24 C F R p ar t 58 ( see § 50.1( d)), t h e decisio n poi n t is: HUD’s exec u t io n of an a g r ee- m e n t o r co n t ra c t , w h ic h eve r co m es fi r s t , o r i n t h e c a se of S ec t io n 8 P r ojec t - B a sed Ce r t ific a t e Assis t an ce

an d Mode ra t e R e ha bili t a t io n , HUD n o- t ific a t io n t o t h e P u blic Ho u si n g Age n- c y t o p r oceed wi t h exec u t io n of an Ag r ee m e n t t o En t e r i n t o Ho u si n g As- sis t an ce P ay m e n t s ( HA P ) Co n t ra c t .

§ 50.18

(f) Section 50.3( h). No t wi t h s t an di n g t h e o t h e r p ara g ra p h s of t h is sec t io n , t h e decisio n poi n t fo r g ran t p r og ra m s i n w h ic h HUD a pp r ov a l of fun di n g fo r an a pplic an t ’s p r og ra m m u s t occ ur be- fo r e t h e a pplic an t ’s selec t io n of p r op- e r t ies fo r u se i n i t s p r og ra m is: HUD a pp r ov a l of specific p r ope r t ies.

( g) Stewart B. Mc Kinney Homeless As- sista nce Act Programs. Wh e r e t h e r ecipi- e n t s ar e n o n p r ofi t o r g an iza t io n s o r gove rn m e n t a l e n t i t ies wi t h speci a l o r li m i t ed p ur pose powe r s, t h e decisio n poi n t is: HUD p r ojec t a pp r ov a l .

( h) Programs not specifically covered in t his section. Co n s u l t wi t h t h e A S/C P D fo r decisio n poi n t s.

Subpart D—General Policy: Environmental Review Procedures

§ 50.18 General.

HUD m ay , f r o m t i m e t o t i m e, co m - ple t e p r og ra mm a t ic r eviews t ha t fur-

t h e r a void t h e n ecessi t y of co m pl y i n g wi t h t h e l a ws an d au t h o r i t ies i n § 50.4 o n a p r ope r t y- b y- p r ope r t y b a sis.

§ 50.19 Categorical exclusions not sub- ject to the Federal laws and au- thorities cited in § 50.4.

( a) General. Th e a c t ivi t ies an d r el a t ed a pp r ov a ls of polic y doc u m e n t s lis t ed i n p ara g ra p h s ( b) an d ( c) of t h is sec t io n ar e n o t s u bjec t t o t h e i n divid ua l co m - pli an ce r eq u i r e m e n t s of t h e F ede ra l l a ws an d au t h o r i t ies ci t ed i n § 50.4, un- less o t h e r wise i n dic a t ed below. Th ese a c t ivi t ies an d a pp r ov a ls of polic y doc u- m e n t s ar e a lso c a t ego r ic a ll y excl u ded f r o m t h e E A r eq u i r ed b y N E P A excep t i n ex t ra o r di nary ci r c u m s t an ces (§ 50.20( b)). HUD a pp r ov a l o r i m ple m e n- t a t io n of t h ese c a t ego r ies of a c t ivi t ies an d polic y doc u m e n t s does n o t r eq u i r e e n vi r o n m e n t a l r eview, bec au se t h e y do n o t a l t e r p hy sic a l co n di t io n s i n a m an- n e r o r t o an ex t e n t t ha t wo u ld r eq u i r e r eview un de r N E P A o r t h e o t h e r l a ws an d au t h o r i t ies ci t ed a t § 50.4.

( b) Activities. (1) En vi r o n m e n t a l an d o t h e r s t u dies, r eso ur ce ide n t ific a t io n an d t h e develop m e n t of pl an s an d s t ra t egies.

(2) I nfo r m a t io n an d fi nan ci a l a dvi- so ry se r vices.

(3) Ad m i n is t ra t ive an d m ana ge m e n t expe n ses.

24 CFR Subtitle A (4–1–00 Edition)

(4) P u blic se r vices t ha t will n o t ha ve a p hy sic a l i m p a c t o r r es u l t i n any p hy sic a l c han ges, i n cl u di n g b u t n o t li m i t ed t o se r vices co n ce rn ed wi t h e m - plo y m e n t , c r i m e p r eve n t io n , c h ild c ar e, h e a l t h , d ru g a b u se, ed u c a t io n , co un- seli n g, e n e r g y co n se r v a t io n an d welfar e o r r ec r e a t io na l n eeds.

(5) I n spec t io n s an d t es t i n g of p r op- e r t ies fo r hazar ds o r defec t s.

(6) P ur c ha se of i n s uran ce.

(7) P ur c ha se of t ools.

(8) En gi n ee r i n g o r desig n cos t s.

(9) T ec hn ic a l a ssis t an ce an d t ra i n i n g.

(10) Assis t an ce fo r t e m po rary o r pe r - m an e n t i m p r ove m e n t s t ha t do n o t a l t e r e n vi r o n m e n t a l co n di t io n s an d ar e li m i t ed t o p r o t ec t io n , r ep a i r o r r es t o ra- t io n a c t ivi t ies n ecess ary o n l y t o co n- t r ol o r arr es t t h e effec t s f r o m dis a s t e r s o r i mm i n e n t t hr e a t s t o p u blic s afe t y i n cl u di n g t h ose r es u l t i n g f r o m p hy sic a l de t e r io ra t io n .

(11) T e nan t - b a sed r e n t a l a ssis t an ce.

(12) Su ppo r t ive se r vices i n cl u di n g, b u t n o t li m i t ed t o, h e a l t h c ar e, h o u si n g se r vices, pe r m an e n t h o u si n g pl a ce- m e n t , d ay c ar e, nu t r i t io na l se r vices, s h o r t - t e r m p ay m e n t s fo r r e n t / m o r t - g a ge/u t ili t y cos t s, an d a ssis t an ce i n g a i n i n g a ccess t o loc a l , S t a t e, an d F ed- e ra l gove rn m e n t be n efi t s an d se r vices.

(13) Ope ra t i n g cos t s i n cl u di n g m a i n- t e nan ce, sec ur i t y , ope ra t io n , u t ili t ies,

furn is h i n gs, eq u ip m e n t , s u pplies, s t aff t ra i n i n g an d r ec ru i tm e n t an d o t h e r i n- cide n t a l cos t s; h oweve r , i n t h e c a se of eq u ip m e n t , co m pli an ce wi t h § 50.4( b)(1) is r eq u i r ed.

(14) E co n o m ic develop m e n t a c t ivi- t ies, i n cl u di n g b u t n o t li m i t ed t o, eq u ip m e n t p ur c ha se, i n ve n t o ry fi nan c- i n g, i n t e r es t s u bsid y , ope ra t i n g ex- pe n ses an d si m il ar cos t s n o t a ssoci a t ed wi t h co n s t ru c t io n o r p hy sic a l exp an- sio n of exis t i n g fa cili t ies; h oweve r , i n t h e c a se of eq u ip m e n t p ur c ha se, co m - pli an ce wi t h § 50.4( b)(1) is r eq u i r ed.

(15) Ac t ivi t ies t o a ssis t h o m eow n e r - s h ip of exis t i n g dwelli n g un i t s, i n cl u d- i n g closi n g cos t s an d dow n p ay m e n t a s- sis t an ce t o h o m e b uy e r s, i n t e r es t b uy dow n s an d si m il ar a c t ivi t ies t ha t

r es u l t i n t h e t ran sfe r of t i t le t o a p r op- e r t y; h oweve r , co m pli an ce wi t h §§ 50.4 ( b)(1) an d ( c)(1) an d 51.303( a)(3) is r e- q u i r ed.

(16) Ho u si n g p r e- develop m e n t cos t s i n cl u di n g leg a l , co n s u l t i n g, develope r

Office of the Secretary, HUD § 50.19

an d o t h e r cos t s r el a t ed t o si t e op t io n s, p r ojec t fi nan ci n g, a d m i n is t ra t ive cos t s an d fees fo r lo an co mm i tm e n t s, zo n i n g a pp r ov a ls, an d o t h e r r el a t ed a c t ivi t ies w h ic h do n o t ha ve a p hy sic a l i m p a c t .

(17) HUD’s i n s uran ce of o n e- t o-fo ur fa m il y m o r t g a ges un de r t h e Di r ec t En- do r se m e n t p r og ra m , t h e i n s uran ce of o n e- t o-fo ur fa m il y m o r t g a ges un de r t h e L e n de r I n s uran ce p r og ra m , an d HUD’s g uaran t ee of lo an s fo r o n e- t o-fo ur fa m - il y dwelli n gs un de r t h e Di r ec t G uar- an t ee p r oced ur e fo r t h e I n di an Ho u si n g lo an g uaran t ee p r og ra m , wi t h o u t any HUD r eview o r a pp r ov a l befo r e t h e co m ple t io n of co n s t ru c t io n o r r e ha bili- t a t io n an d t h e lo an closi n g; an d HUD’s a ccep t an ce fo r i n s uran ce of lo an s i n- s ur ed un de r T i t le I of t h e N a t io na l Ho u si n g Ac t ; h oweve r , co m pli an ce wi t h

§§ 50.4( b)(1) an d ( c)(1) an d 24 C F R 51.303( a)(3) is r eq u i r ed.

(18) HUD’s e n do r se m e n t of o n e- t o- fo ur fa m il y m o r t g a ge i n s uran ce fo r p r oposed co n s t ru c t io n un de r I m p r oved A r e a p r ocessi n g; h oweve r , t h e Ap- p ra ise r/R eview App ra ise r Ch ec k s h ee t

( F o r m HUD–54891) m u s t be co m ple t ed.

(19) Ac t ivi t ies of t h e Gove rn m e n t N a- t io na l Mo r t g a ge Associ a t io n un de r T i t le III of t h e N a t io na l Ho u si n g Ac t (12 U. S .C. 1716 et seq.).

(20) Ac t ivi t ies un de r t h e I n t e r s t a t e Lan d Sa les F u ll Disclos ur e Ac t (15 U. S .C. 1701 et seq.).

(21) R efi nan ci n g of HUD- i n s ur ed m o r t g a ges t ha t will n o t a llow n ew co n- s t ru c t io n o r r e ha bili t a t io n , n o r r es u l t i n any p hy sic a l i m p a c t s o r c han ges ex- cep t fo r r o u t i n e m a i n t e nan ce; h oweve r , co m pli an ce wi t h § 50.4( b)(1) is r eq u i r ed.

(22) App r ov a l of t h e s a le of a HUD- h eld m o r t g a ge.

(23) App r ov a l of t h e fo r eclos ur e s a le of a p r ope r t y wi t h a HUD- h eld m o r t - g a ge; h oweve r , a pp r op r i a t e r es t r ic t io n s will be i m posed t o p r o t ec t h is t o r ic p r ope r t ies.

(24) HUD g uaran t ees un de r t h e L o an G uaran t ee R ecove ry F un d P r og ra m (24 C F R p ar t 573) of lo an s t ha t r efi nan ce exis t i n g lo an s an d m o r t g a ges, w h e r e any n ew co n s t ru c t io n o r r e ha bili t a t io n fi nan ced b y t h e exis t i n g lo an o r m o r t - g a ge ha s bee n co m ple t ed p r io r t o t h e fili n g of an a pplic a t io n un de r t h e p r o- g ra m , an d t h e r efi nan ci n g will n o t a llow fur t h e r co n s t ru c t io n o r r e ha bili- t a t io n , n o r r es u l t i n any p hy sic a l i m -

p a c t s o r c han ges excep t fo r r o u t i n e m a i n t e nan ce; h oweve r , co m pli an ce wi t h §§ 50.4 ( b)(1) an d ( c)(1) an d 51.303( a) is r eq u i r ed.

( c) Approval of policy documents. (1)

App r ov a l of ru les an d n o t ices p r oposed

fo r p u blic a t io n i n t h e F E D ER A L R E G- I STER o r o t h e r polic y doc u m e n t s t ha t do n o t :

( i) Di r ec t , p r ovide fo r a ssis t an ce o r lo an an d m o r t g a ge i n s uran ce fo r , o r o t h e r wise gove rn o r r eg u l a t e, r e a l p r ope r t y a cq u isi t io n , disposi t io n , le a s- i n g ( o t h e r t han t e nan t - b a sed r e n t a l a s- sis t an ce), r e ha bili t a t io n , a l t e ra t io n , de m oli t io n , o r n ew co n s t ru c t io n; o r

( ii) E s t a blis h , r evise, o r p r ovide fo r s t an d ar ds fo r co n s t ru c t io n o r co n s t ru c- t io n m a t e r i a ls, m anufa c t ur ed h o u si n g, o r occ u p an c y .

(2) App r ov a l of polic y doc u m e n t s t ha t a m e n d an exis t i n g doc u m e n t w h e r e t h e exis t i n g doc u m e n t a s a w h ole wo u ld n o t fa ll wi t h i n an excl u sio n i n t h is p ara g ra p h ( c) b u t t h e a m e n d m e n t b y i t self wo u ld do so;

(3) App r ov a l of polic y doc u m e n t s t ha t se t o u t fa i r h o u si n g o r n o n disc r i m i na- t io n s t an d ar ds o r e nfo r ce m e n t p r oce- d ur es o r p r ovide fo r a ssis t an ce i n p r o- m o t i n g o r e nfo r ci n g fa i r h o u si n g o r n o n disc r i m i na t io n;

(4) App r ov a l of han dboo k s, n o t ices an d o t h e r doc u m e n t s t ha t p r ovide ope r - a t i n g i n s t ru c t io n s an d p r oced ur es i n co nn ec t io n wi t h a c t ivi t ies un de r a F E D- ER A L R E GI STER doc u m e n t t ha t ha s p r e- vio u sl y bee n s u bjec t t o a r eq u i r ed e n vi- r o n m e n t a l r eview.

(5) App r ov a l of a No t ice of F un di n g Av a il a bili t y ( NO F A) t ha t p r ovides fun di n g un de r , an d does n o t a l t e r any e n vi r o n m e n t a l r eq u i r e m e n t s of, a r eg u- l a t io n o r p r og ra m g u ideli n e t ha t w a s p r evio u sl y p u blis h ed i n t h e F E D ER A L R E GI STER , p r ovided t ha t

( i) Th e NO F A specific a ll y r efe r s t o t h e e n vi r o n m e n t a l r eview p r ovisio n s of t h e r eg u l a t io n o r g u ideli n e; o r

( ii) Th e r eg u l a t io n o r g u ideli n e co n- t a i n s n o e n vi r o n m e n t a l r eview p r ovi- sio n s bec au se i t co n ce rn s o n l y a c t ivi- t ies lis t ed i n p ara g ra p h ( b) of t h is sec- t io n .

(6) S t a t u t o r il y r eq u i r ed an d/o r disc r e- t io nary es t a blis h m e n t an d r eview of i n- t e r es t ra t es, lo an li m i t s, b u ildi n g cos t li m i t s, p r o t o t y pe cos t s, fa i r m ar k e t

§ 50.20

r e n t sc h ed u les, HUD- de t e r m i n ed p r e- v a ili n g w a ge ra t es, i n co m e li m i t s an d excl u sio n s wi t h r eg ar d t o eligibili t y fo r o r c a lc u l a t io n of HUD h o u si n g a ssis t - an ce o r r e n t a l a ssis t an ce, an d si m il ar ra t e an d cos t de t e r m i na t io n s an d r e- l a t ed ex t e rna l a d m i n is t ra t ive o r fisc a l r eq u i r e m e n t s o r p r oced ur es w h ic h do n o t co n s t i t u t e a develop m e n t decisio n t ha t affec t s t h e p hy sic a l co n di t io n of specific p r ojec t ar e a s o r b u ildi n g si t es.

[61 F R 50916, S ep t . 27, 1996, a s a m e n ded a t 62 F R 15802, Ap r . 2, 1997; 63 F R 48990, S ep t . 11,

1998]

§ 50.20 Categorical exclusions subject to the Federal laws and authorities cited in § 50.4.

( a) Th e followi n g a c t io n s, a c t ivi t ies an d p r og ra m s ar e c a t ego r ic a ll y ex- cl u ded f r o m t h e N E P A r eq u i r e m e n t s of t h is p ar t . Th e y ar e n o t excl u ded f r o m i n divid ua l co m pli an ce r eq u i r e m e n t s of o t h e r e n vi r o n m e n t a l s t a t u t es, E xec u- t ive o r de r s an d HUD s t an d ar ds ci t ed i n

§ 50.4, w h e r e a pp r op r i a t e. F o r m HUD– 4128 s ha ll be u sed t o doc u m e n t co m pli- an ce. Wh e r e t h e r espo n sible offici a l de-

t e r m i n es t ha t any i t e m ide n t ified below m ay ha ve an e n vi r o n m e n t a l ef- fec t bec au se of ex t ra o r di nary ci r -

c u m s t an ces (40 C F R 1508.4), t h e r e- q u i r e m e n t s of N E P A s ha ll a ppl y ( see p ara g ra p h ( b) of t h is sec t io n).

(1) S peci a l p r ojec t s di r ec t ed t o t h e r e m ov a l of m a t e r i a l an d ar c h i t ec t ura l b arr ie r s t ha t r es t r ic t t h e m obili t y of an d a ccessibili t y t o elde r l y an d pe r so n s wi t h dis a bili t ies.

(2) R e ha bili t a t io n of s t ru c t ur es w h e n t h e followi n g co n di t io n s ar e m e t :

( i) I n t h e c a se of r eside n t i a l b u ild- i n gs, t h e un i t de n si t y is n o t c han ged m o r e t han 20 pe r ce n t ;

( ii) Th e p r ojec t does n o t i n volve c han ges i n l an d u se (f r o m n o n- r eside n- t i a l t o r eside n t i a l o r f r o m r eside n t i a l t o n o n- r eside n t i a l); an d

( iii) Th e es t i m a t ed cos t of r e ha bili t a- t io n is less t han 75 pe r ce n t of t h e t o t a l es t i m a t ed cos t of r epl a ce m e n t af t e r r e- ha bili t a t io n .

(3) A n i n divid ua l a c t io n o n a o n e- t o fo ur-fa m il y dwelli n g o r an i n divid ua l a c t io n o n a p r ojec t of five o r m o r e un i t s developed o n sc a tt e r ed si t es w h e n

t h e si t es ar e m o r e t han 2,000 fee t a p ar t an d t h e r e ar e n o t m o r e t han fo ur un i t s o n any o n e si t e.

24 CFR Subtitle A (4–1–00 Edition)

(4) Acq u isi t io n o r disposi t io n of, o r eq u i t y lo an s o n , an exis t i n g s t ru c t ur e.

(5) P ur c ha sed o r r efi nan ced h o u si n g an d m edic a l fa cili t ies un de r sec t io n 223(f) of t h e N a t io na l Ho u si n g Ac t (12 U. S .C. 1715n).

(6) Mo r t g a ge p r ep ay m e n t s o r pl an s of a c t io n ( i n cl u di n g i n ce n t ives) un de r 24 C F R p ar t 248.

( b) F o r c a t ego r ic a l excl u sio n s ha vi n g t h e po t e n t i a l fo r sig n ific an t i m p a c t be- c au se of ex t ra o r di nary ci r c u m s t an ces, HUD m u s t p r ep ar e an E A i n a cco r d an ce wi t h s u bp ar t E . If i t is evide n t wi t h o u t p r ep ar i n g an E A t ha t an E I S is r e- q u i r ed p ur s uan t t o § 50.42, HUD s h o u ld p r oceed di r ec t l y t o t h e p r ep ara t io n of an E I S i n a cco r d an ce wi t h s u bp ar t F .

§ 50.21 Aggregation.

Ac t ivi t ies w h ic h ar e geog ra p h ic a ll y r el a t ed an d ar e logic a l p ar t s of a co m - posi t e of co n t e m pl a t ed HUD p r ojec t s s ha ll be ev a l ua t ed t oge t h e r .

§ 50.22 Environmental management and monitoring.

A n En vi r o n m e n t a l M ana ge m e n t an d Mo n i t o r i n g P r og ra m s ha ll be es t a b- lis h ed p r io r t o p r ojec t a pp r ov a l w h e n i t is dee m ed n ecess ary b y t h e HUD a p- p r ovi n g offici a l . Th e p r og ra m s ha ll be p ar t of t h e a pp r ov a l doc u m e n t an d m u s t :

( a) Be co n c urr ed i n b y t h e F ield En vi- r o n m e n t a l Cle aran ce Office r ( F ECO) ( i n t h e a bse n ce of a F ECO, b y t h e P r og ra m En vi r o n m e n t a l Cle aran ce Office r i n He a dq uar t e r s) an d any coope ra t i n g a ge n cies;

( b) Co n t a i n specific s t an d ar ds, s afe- g uar ds an d co mm i tm e n t s t o be co m - ple t ed d ur i n g p r ojec t i m ple m e n t a t io n;

( c) Ide n t ify t h e s t aff w h o will be r e- spo n sible fo r t h e pos t - a pp r ov a l i n spec- t io n; an d

( d) S pecify t h e t i m e pe r iods fo r co n- d u c t i n g t h e ev a l ua t io n an d m o n i t o r i n g t h e a pplic an t ’s co m pli an ce wi t h t h e p r ojec t a g r ee m e n t s.

§ 50.23 Public participation.

HUD s ha ll i nfo r m t h e affec t ed p u blic a bo u t N E P A- r el a t ed h e ar i n gs, p u blic m ee t i n gs, an d t h e a v a il a bili t y of e n vi- r o n m e n t a l doc u m e n t s ( see 40 C F R 1506.6( b)) i n a cco r d an ce wi t h t h is sec- t io n . Wh e r e p r ojec t a c t io n s r es u l t i n a F ON S I , t h e F ON S I will be a v a il a ble i n

Office of the Secretary, HUD § 50.33

t h e p r ojec t file. Th e loc a l HUD field of- fice m ay be co n t a c t ed b y pe r so n s w h o wis h t o r eview t h e F ON S I . I n a ll c a ses, HUD s ha ll m a il n o t ices t o t h ose w h o ha ve r eq u es t ed t h e m . Addi t io na l ef- fo r t s fo r i n volvi n g t h e p u blic i n spe- cific n o t ice o r co m pli an ce r eq u i r e- m e n t s s ha ll be m a de i n a cco r d wi t h t h e i m ple m e n t i n g p r oced ur es of t h e l a ws an d au t h o r i t ies ci t ed i n § 50.4. No t ices pe r t a i n i n g t o an E I S o r an a m e n d m e n t

t o an E I S o r a F ON S I s u bjec t t o § 50.34 s ha ll be give n t o t h e p u blic i n a cco r d- an ce wi t h p ara g ra p h s ( a) t hr o u g h ( d) of t h is sec t io n .

( a) A NOI/E I S s ha ll be fo r w ar ded t o t h e A S/C P D t o t h e a tt e n t io n of t h e De- p ar tm e n t a l En vi r o n m e n t a l Cle aran ce Office r fo r p u blic a t io n i n t h e F E D ER A L R E GI STER .

( b) No t ices will be bili n g ua l if t h e af- fec t ed p u blic i n cl u des a sig n ific an t po r - t io n of n o n- En glis h spe a k i n g pe r so n s an d will ide n t ify a d a t e w h e n t h e offi- ci a l p u blic i n volve m e n t ele m e n t of t h e p r oposed a c t io n is t o be co m ple t ed an d HUD i n t e rna l p r ocessi n g is t o co n t i nu e.

( c) All r eq u i r ed n o t ices s ha ll be p u b- lis h ed i n an a pp r op r i a t e loc a l p r i n t ed n ews m edi u m , an d se n t t o i n divid ua ls an d g r o u ps k n ow n t o be i n t e r es t ed i n t h e p r oposed a c t io n .

( d) All n o t ices s ha ll i nfo r m t h e p u blic w h e r e a ddi t io na l i nfo r m a t io n m ay be ob t a i n ed.

§ 50.24 HUD review of another agen- cy’s EIS.

Wh e r e an o t h e r a ge n c y’s E I S is r e- fe rr ed t o t h e HUD F ield Office i n w h ose j ur isdic t io n t h e p r ojec t is loc a t ed, t h e F ield En vi r o n m e n t a l Cle aran ce Office r

s ha ll de t e r m i n e w h e t h e r HUD ha s an i n t e r es t i n t h e E I S an d, if so, will r e- view an d co mm e n t . A ny E I S r eceived f r o m an o t h e r F ede ra l a ge n c y r eq u es t - i n g co mm e n t o n legisl a t ive p r opos a ls,

r eg u l a t io n s, o r o t h e r polic y doc u m e n t s s ha ll be se n t t o t h e A S/C P D fo r co m - m e n t , an d t h e A S/C P D s ha ll p r ovide t h e Ge n e ra l Co un sel t h e oppo r t un i t y fo r co mm e n t .

Subpart E—Environmental Assessments and Related Reviews

§ 50.31 The EA.

( a) F o r m HUD–4128—En vi r o n m e n t a l Assess m e n t an d Co m pli an ce F i n di n gs

fo r t h e R el a t ed La ws—is t h e E A fo r m t o be u sed fo r ana l y sis an d doc u m e n t a- t io n b y HUD fo r p r ojec t s an d a c t ivi t ies un de r s u bp ar t E . Th e Dep ar tm e n t a l En vi r o n m e n t a l Cle aran ce Office r s ha ll a pp r ove t h e iss uan ce of eq u iv a le n t fo r - m a t s, if F o r m HUD–4128 does n o t m ee t specific p r og ra m n eeds.

( b) Th e p r og ra m r ep r ese n t a t ive s ha ll ob t a i n i n t e r discipli nary a ssis t an ce f r o m p r ofessio na l expe r t s an d o t h e r HUD s t aff a s n eeded. Addi t io na l i nfo r -

m a t io n m ay a lso be r eq u es t ed of t h e spo n so r/ a pplic an t . HUD is r espo n sible

fo r a ssessi n g an d doc u m e n t i n g t h e ex- t e n t of t h e e n vi r o n m e n t a l i m p a c t .

§ 50.32 Responsibility for environ- mental processing.

Th e p r og ra m s t aff i n t h e HUD office r espo n sible fo r p r ocessi n g t h e p r ojec t a pplic a t io n o r r eco mm e n di n g a polic y a c t io n is r espo n sible fo r co n d u c t i n g t h e co m pli an ce fi n di n g, E A, o r E I S . Th e collec t io n of d a t a an d s t u dies a s p ar t of

t h e i nfo r m a t io n co n t a i n ed i n t h e e n vi- r o n m e n t a l r eview m ay be do n e b y an a pplic an t o r t h e a pplic an t ’s co n t ra c t o r . Th e HUD p r og ra m s t aff m ay u se any i nfo r m a t io n s u pplied b y t h e a pplic an t o r co n t ra c t o r , p r ovided HUD i n depe n d- e n t l y ev a l ua t es t h e i nfo r m a t io n , will be r espo n sible fo r i t s a cc ura c y , s u pple- m e n t s t h e i nfo r m a t io n , if n ecess ary , t o co nfo r m t o t h e r eq u i r e m e n t s of t h is p ar t , an d p r ep ar es t h e e n vi r o n m e n t a l fi n di n g. Assess m e n t s fo r p r ojec t s ove r

200 lo t s/dwelli n g un i t s o r beds s ha ll be se n t t o t h e F ield En vi r o n m e n t a l Cle ar- an ce Office r ( F ECO) o r , i n t h e a bse n ce of a F ECO, t o t h e P r og ra m En vi r o n- m e n t a l Cle aran ce Office r i n He a d- q uar t e r s fo r r eview an d co mm e n t .

§ 50.33 Action resulting from the as- sessment.

( a) A p r opos a l m ay be a ccep t ed wi t h- o u t m odific a t io n s if t h e E A i n dic a t es t ha t t h e p r opos a l will n o t sig n ific an t l y ( see 40 C F R 1508.27) affec t t h e q ua li t y of t h e hu m an e n vi r o n m e n t an d a F ON S I is p r ep ar ed.

( b) A p r opos a l m ay be a ccep t ed wi t h m odific a t io n s p r ovided t ha t :

(1) Chan ges ha ve bee n m a de t ha t wo u ld r ed u ce a dve r se e n vi r o n m e n t a l i m p a c t t o a ccep t a ble an d i n sig n ific an t levels; an d

§ 50.34

(2) A n En vi r o n m e n t a l M ana ge m e n t an d Mo n i t o r i n g P r og ra m is developed i n a cco r d an ce wi t h § 50.22 w h e n i t is dee m ed n ecess ary b y t h e HUD a pp r ov- i n g offici a l .

( c) A p r opos a l s h o u ld be r ejec t ed if sig n ific an t an d una void a ble a dve r se e n- vi r o n m e n t a l i m p a c t s wo u ld s t ill exis t af t e r m odific a t io n s ha ve bee n m a de t o t h e p r opos a l an d an E I S is n o t p r e- p ar ed.

( d) A p r opos a l ( if n o t r ejec t ed) s ha ll r eq u i r e an E I S if t h e E A i n dic a t es t ha t sig n ific an t e n vi r o n m e n t a l i m p a c t s wo u ld r es u l t .

§ 50.34 Time delays for exceptional cir- cumstances.

( a) U n de r t h e ci r c u m s t an ces de- sc r ibed i n t h is sec t io n , t h e F ON S I m u s t be m a de a v a il a ble fo r p u blic r eview fo r

30 c a le n d ar d ay s befo r e a fi na l decisio n is m a de w h e t h e r t o p r ep ar e an E I S an d befo r e t h e HUD a c t io n is t a k e n . Th e ci r c u m s t an ces ar e:

(1) Wh e n t h e p r oposed a c t io n is, o r is closel y si m il ar t o, o n e w h ic h n o r m a ll y r eq u i r es t h e p r ep ara t io n of an E I S p ur- s uan t t o § 50.42( b) b u t i t is de t e r m i n ed, a s a r es u l t of an E A o r i n t h e co ur se of p r ep ara t io n of a d raf t E I S , t ha t t h e p r oposed a c t io n will n o t ha ve a sig n ifi- c an t i m p a c t o n t h e hu m an e n vi r o n- m e n t ; o r

(2) Wh e n t h e na t ur e of t h e p r oposed a c t io n is wi t h o u t p r ecede n t an d does n o t a ppe ar t o r eq u i r e m o r e t han an a s- sess m e n t .

( b) I n s u c h c a ses, t h e F ON S I m u s t be co n c urr ed i n b y t h e A S/C P D an d t h e P r og ra m En vi r o n m e n t a l Cle aran ce Of-

fice r . No t ice of t h e a v a il a bili t y of t h e F ON S I s ha ll be give n t o t h e p u blic i n a cco r d an ce wi t h p ara g ra p h s ( a) t hr o u g h ( d) of § 50.23.

§ 50.35 Use of prior environmental as- sessments.

Wh e n o t h e r F ede ra l , S t a t e, o r loc a l a ge n cies ha ve p r ep ar ed an E A o r o t h e r e n vi r o n m e n t a l ana l y sis fo r a p r oposed HUD p r ojec t , t h ese doc u m e n t s s h o u ld be r eq u es t ed an d u sed t o t h e ex t e n t possible. HUD m u s t , h oweve r , co n d u c t

t h e e n vi r o n m e n t a l ana l y sis an d p r e- p ar e t h e E A an d be r espo n sible fo r t h e r eq u i r ed e n vi r o n m e n t a l fi n di n g.

24 CFR Subtitle A (4–1–00 Edition)

§ 50.36 Updating of environmental re- views.

Th e e n vi r o n m e n t a l r eview m u s t be r e- ev a l ua t ed an d u pd a t ed w h e n t h e b a sis fo r t h e o r igi na l e n vi r o n m e n t a l o r co m pli an ce fi n di n gs is affec t ed b y a m a jo r c han ge r eq u i r i n g HUD a pp r ov a l i n t h e na t ur e, m a g n i t u de o r ex t e n t of a p r ojec t an d t h e p r ojec t is n o t y e t co m - ple t e. A c han ge o n l y i n t h e a m o un t of fi nan ci n g o r m o r t g a ge i n s uran ce i n- volved does n o t n o r m a ll y r eq u i r e t h e e n vi r o n m e n t a l r eview t o be r e- ev a l u- a t ed o r u pd a t ed.

Subpart F—Environmental Impact Statements

§ 50.41 EIS policy.

E I S’s will be p r ep ar ed an d co n side r ed i n p r og ra m de t e r m i na t io n s p ur s uan t t o t h e ge n e ra l e n vi r o n m e n t a l polic y s t a t -

ed i n § 50.3 an d 40 C F R 1505.2 ( b) an d ( c).

§ 50.42 Cases when an EIS is required.

( a) A n E I S is r eq u i r ed if t h e p r opos a l is de t e r m i n ed t o ha ve a sig n ific an t i m - p a c t o n t h e hu m an e n vi r o n m e n t p ur s u- an t t o s u bp ar t E .

( b) A n E I S will n o r m a ll y be r eq u i r ed if t h e p r opos a l:

(1) Wo u ld p r ovide a si t e o r si t es fo r h ospi t a ls o r nur si n g h o m es co n t a i n i n g a t o t a l of 2,500 o r m o r e beds; o r

(2) Wo u ld r e m ove, de m olis h , co n ve r t , o r s u bs t an t i a ll y r e ha bili t a t e 2,500 o r m o r e exis t i n g h o u si n g un i t s ( b u t n o t i n cl u di n g r e ha bili t a t io n p r ojec t s c a t - ego r ic a ll y excl u ded un de r § 50.20), o r w h ic h wo u ld r es u l t i n t h e co n s t ru c t io n o r i n s t a ll a t io n of 2,500 o r m o r e h o u si n g un i t s, o r w h ic h wo u ld p r ovide si t es fo r 2,500 o r m o r e h o u si n g un i t s.

( c) Wh e n t h e e n vi r o n m e n t a l co n ce rn s of o n e o r m o r e F ede ra l au t h o r i t ies ci t ed i n § 50.4 will be affec t ed b y t h e p r opos a l , t h e c u m u l a t ive i m p a c t of a ll s u c h effec t s s h o u ld be a ssessed t o de- t e r m i n e w h e t h e r an E I S is r eq u i r ed. Wh e r e a ll of t h e affec t ed au t h o r i t ies p r ovide a l t e rna t ive p r oced ur es fo r r eso-

l u t io n , t h ose p r oced ur es s h o u ld be u sed i n lie u of an E I S .

§ 50.43 Emergencies.

I n c a ses of na t io na l e m e r ge n c y an d dis a s t e r s o r c a ses of i mm i n e n t t hr e a t

Office of the Secretary, HUD § 51.4

t o h e a l t h an d s afe t y o r o t h e r e m e r - ge n c y w h ic h r eq u i r e t h e t a k i n g of an a c t io n wi t h sig n ific an t e n vi r o n m e n t a l

i m p a c t , t h e p r ovisio n s of 40 C F R 1506.11 an d of any a pplic a ble § 50.4 au t h o r i t ies w h ic h p r ovide fo r e m e r ge n cies s ha ll a ppl y .

PART 51—ENVIRONMENTAL CRITERIA AND STANDARDS

Subpart A—General Provisions

S ec.

51.1 P ur pose.

51.2 A u t h o r i t y .

51.3 R espo n sibili t ies.

51.4 P r og ra m cove ra ge.

Subpart B—Noise Abatement and Control

51.100 P ur pose an d au t h o r i t y .

51.101 Ge n e ra l polic y .

51.102 R espo n sibili t ies.

51.103 Cr i t e r i a an d s t an d ar ds.

51.104 S peci a l r eq u i r e m e n t s.

51.105 E xcep t io n s.

51.106 I m ple m e n t a t io n .

A PP E NDIX I TO S UB P A RT B TO P A RT 51— DE F I-

NI T ION O F ACOU ST ICA L QUAN T I T I ES

Subpart C—Siting of HUD-Assisted Projects Near Hazardous Operations Handling Conventional Fuels or Chemicals of an Explosive or Flammable Nature

51.200 P ur pose.

51.201 Defi n i t io n s.

51.202 App r ov a l of HUD- a ssis t ed p r ojec t s.

51.203 Safe t y s t an d ar ds.

51.204 HUD- a ssis t ed hazar do u s fa cili t ies.

51.205 Mi t ig a t i n g m e a s ur es.

51.206 I m ple m e n t a t io n .

51.207 S peci a l ci r c u m s t an ces.

51.208 R ese r v a t io n of a d m i n is t ra t ive an d leg a l r ig h t s.

A PP E NDIX I TO S UB P A RT C TO P A RT 51— S P E-

CI F IC HAZA R DOU S S UB ST ANCES

A PP E NDIX II TO S UB P A RT C TO P A RT 51—DE - V ELO P M E N T O F S T ANDA R D S ; CA LCU L A T ION M ET HOD S

Subpart D—Siting of HUD Assisted Projects in Runway Clear Zones at Civil Airports and Clear Zones and Accident Poten- tial Zones at Military Airfields

51.300 P ur pose.

51.301 Defi n i t io n s.

51.302 Cove ra ge.

51.303 Ge n e ra l polic y .

51.304 R espo n sibili t ies.

51.305 I m ple m e n t a t io n .

AU T HOR I T Y: 42 U. S .C. 3535( d), un less o t h e r - wise n o t ed.

SOU RCE: 44 F R 40861, J u l y 12, 1979, un less

o t h e r wise n o t ed.

Subpart A—General Provisions

§ 51.1 Purpose.

Th e Dep ar tm e n t of Ho u si n g an d U r b an Develop m e n t is p r ovidi n g p r o- g ra m Assis t an t S ec r e t ar ies an d a d m i n- is t ra t o r s an d field offices wi t h e n vi r o n- m e n t a l s t an d ar ds, c r i t e r i a an d g u ide- li n es fo r de t e r m i n i n g p r ojec t a ccep t - a bili t y an d n ecess ary m i t ig a t i n g m e a s- ur es t o i n s ur e t ha t a c t ivi t ies a ssis t ed b y t h e Dep ar tm e n t a c h ieve t h e go a l of a s u i t a ble livi n g e n vi r o n m e n t .

§ 51.2 Authority.

Th is p ar t i m ple m e n t s t h e Dep ar t - m e n t ’s r espo n sibili t ies un de r : Th e N a-

t io na l Ho u si n g Ac t (12 U. S .C. 1701 et seq.); sec. 2 of t h e Ho u si n g Ac t of 1949 (42 U. S .C. 1441); secs. 2 an d 7( d) of t h e Dep ar tm e n t of Ho u si n g an d U r b an De- velop m e n t Ac t (42 U. S .C. 3531 an d 3535( d)); t h e N a t io na l En vi r o n m e n t a l P olic y Ac t of 1969 (42 U. S .C. 4321); an d t h e o t h e r s t a t u t es t ha t ar e r efe rr ed t o i n t h is p ar t .

[61 F R 13333, M ar . 26, 1996]

§ 51.3 Responsibilities.

Th e Assis t an t S ec r e t ary fo r Co mm u- n i t y P l ann i n g an d Develop m e n t is r e- spo n sible fo r a d m i n is t e r i n g HUD’s e n- vi r o n m e n t a l c r i t e r i a an d s t an d ar ds a s se t fo r t h i n t h is p ar t . Th e Assis t an t S ec r e t ary fo r Co mm un i t y P l ann i n g an d Develop m e n t m ay be a ssis t ed b y HUD offici a ls i n i m ple m e n t i n g t h e r espo n- sibili t ies es t a blis h ed b y t h is p ar t . HUD will ide n t ify t h ese HUD offici a ls an d t h ei r specific r espo n sibili t ies t hr o u g h

F E D ER A L R E GI STER n o t ice.

[61 F R 13333, M ar . 26, 1996]

§ 51.4 Program coverage.

En vi r o n m e n t a l s t an d ar ds s ha ll a ppl y t o a ll HUD a c t io n s excep t w h e r e spe- ci a l p r ovisio n s an d exe m p t io n s ar e co n- t a i n ed i n e a c h s u bp ar t .

5. 24 CFR Part 51: Housing and Urban Development--Environmental Criteria and Standards

Office of the Secretary, HUD Pt. 51

(2) Wh e n t h e na t ur e of t h e p r oposed a c t io n is wi t h o u t p r ecede n t an d does n o t a ppe ar t o r eq u i r e m o r e t han an a s- sess m e n t .

( b) I n s u c h c a ses, t h e F ON S I m u s t be co n c urr ed i n b y t h e A S/C P D an d t h e P r og ra m En vi r o n m e n t a l Cle aran ce Of-

fice r . No t ice of t h e a v a il a bili t y of t h e F ON S I s ha ll be give n t o t h e p u blic i n a cco r d an ce wi t h p ara g ra p h s ( a) t hr o u g h ( d) of § 50.23.

§ 50.35 Use of prior environmental as- sessments.

t h e e n vi r o n m e n t a l ana l y sis an d p r e- p ar e t h e E A an d be r espo n sible fo r t h e r eq u i r ed e n vi r o n m e n t a l fi n di n g.

§ 50.36 Updating of environmental re- views.

Subpart F—Environmental Impact Statements

§ 50.41 EIS policy.

E I S’s will be p r ep ar ed an d co n side r ed i n p r og ra m de t e r m i na t io n s p ur s uan t t o t h e ge n e ra l e n vi r o n m e n t a l polic y s t a t -

ed i n § 50.3 an d 40 C F R 1505.2 ( b) an d ( c).

§ 50.42 Cases when an EIS is required.

( a) A n E I S is r eq u i r ed if t h e p r opos a l is de t e r m i n ed t o ha ve a sig n ific an t i m - p a c t o n t h e hu m an e n vi r o n m e n t p ur s u- an t t o s u bp ar t E .

( b) A n E I S will n o r m a ll y be r eq u i r ed if t h e p r opos a l:

(1) Wo u ld p r ovide a si t e o r si t es fo r h ospi t a ls o r nur si n g h o m es co n t a i n i n g a t o t a l of 2,500 o r m o r e beds; o r

l u t io n , t h ose p r oced ur es s h o u ld be u sed i n lie u of an E I S .

§ 50.43 Emergencies.

I n c a ses of na t io na l e m e r ge n c y an d dis a s t e r s o r c a ses of i mm i n e n t t hr e a t t o h e a l t h an d s afe t y o r o t h e r e m e r - ge n c y w h ic h r eq u i r e t h e t a k i n g of an a c t io n wi t h sig n ific an t e n vi r o n m e n t a l

i m p a c t , t h e p r ovisio n s of 40 C F R 1506.11 an d of any a pplic a ble § 50.4 au t h o r i t ies w h ic h p r ovide fo r e m e r ge n cies s ha ll a ppl y .

PART 51—ENVIRONMENTAL CRITERIA AND STANDARDS

Subpart A—General Provisions

S ec.

51.1 P ur pose.

51.2 A u t h o r i t y .

51.3 R espo n sibili t ies.

51.4 P r og ra m cove ra ge.

Subpart B—Noise Abatement and Control

51.100 P ur pose an d au t h o r i t y .

51.101 Ge n e ra l polic y .

51.102 R espo n sibili t ies.

51.103 Cr i t e r i a an d s t an d ar ds.

51.104 S peci a l r eq u i r e m e n t s.

51.105 E xcep t io n s.

51.106 I m ple m e n t a t io n .

§ 51.1

A PP E NDIX I TO S UB P A RT B TO P A RT 51—DE F I-

NI T ION O F ACOU ST ICA L QUAN T I T I ES

Subpart C—Siting of HUD-Assisted Projects Near Hazardous Operations Handling Conventional Fuels or Chemicals of an Explosive or Flammable Nature

51.200 P ur pose.

51.201 Defi n i t io n s.

51.202 App r ov a l of HUD- a ssis t ed p r ojec t s.

51.203 Safe t y s t an d ar ds.

51.204 HUD- a ssis t ed hazar do u s fa cili t ies.

51.205 Mi t ig a t i n g m e a s ur es.

51.206 I m ple m e n t a t io n .

51.207 S peci a l ci r c u m s t an ces.

51.208 R ese r v a t io n of a d m i n is t ra t ive an d leg a l r ig h t s.

A PP E NDIX I TO S UB P A RT C TO P A RT 51— S P E-

CI F IC HAZA R DOU S S UB ST ANCES

A PP E NDIX II TO S UB P A RT C TO P A RT 51—DE- V ELO P M E N T O F S T ANDA R D S ; CA LCU L A T ION M ET HOD S

Subpart D—Siting of HUD Assisted Projects in Runway Clear Zones at Civil Airports and Clear Zones and Accident Poten- tial Zones at Military Airfields

51.300 P ur pose.

51.301 Defi n i t io n s.

51.302 Cove ra ge.

51.303 Ge n e ra l polic y .

51.304 R espo n sibili t ies.

51.305 I m ple m e n t a t io n .

AU T HOR I T Y: 42 U. S .C. 3535( d), un less o t h e r - wise n o t ed.

SOU RCE: 44 F R 40861, J u l y 12, 1979, un less

o t h e r wise n o t ed.

Subpart A—General Provisions

§ 51.1 Purpose.

§ 51.2 Authority.

Th is p ar t i m ple m e n t s t h e Dep ar t - m e n t ’s r espo n sibili t ies un de r : Th e N a-

24 CFR Subtitle A (4–1–04 Edition)

3535( d)); t h e N a t io na l En vi r o n m e n t a l P olic y Ac t of 1969 (42 U. S .C. 4321); an d t h e o t h e r s t a t u t es t ha t ar e r efe rr ed t o i n t h is p ar t .

[61 F R 13333, M ar . 26, 1996]

§ 51.3 Responsibilities.

F E D ER A L R E GI STER n o t ice.

[61 F R 13333, M ar . 26, 1996]

§ 51.4 Program coverage.

En vi r o n m e n t a l s t an d ar ds s ha ll a ppl y t o a ll HUD a c t io n s excep t w h e r e spe- ci a l p r ovisio n s an d exe m p t io n s ar e co n- t a i n ed i n e a c h s u bp ar t .

Subpart B—Noise Abatement and Control

§ 51.100 Purpose and authority.

( a) I t is t h e p ur pose of t h is s u bp ar t B t o:

(1) Ca ll a tt e n t io n t o t h e t hr e a t of n oise poll u t io n;

(2) En co ura ge t h e co n t r ol of n oise a t i t s so ur ce i n coope ra t io n wi t h o t h e r F ede ra l dep ar tm e n t s an d a ge n cies;

(3) En co ura ge l an d u se p a tt e rn s fo r h o u si n g an d o t h e r n oise se n si t ive ur b an n eeds t ha t will p r ovide a s u i t - a ble sep ara t io n be t wee n t h e m an d m a jo r n oise so ur ces;

(4) Ge n e ra ll y p r o h ibi t HUD s u ppo r t fo r n ew co n s t ru c t io n of n oise se n si t ive u ses o n si t es ha vi n g una ccep t a ble n oise expos ur e;

(5) P r ovide polic y o n t h e u se of s t ru c- t ura l an d o t h e r n oise a tt e nua t io n m e a s ur es w h e r e n eeded; an d

(6) P r ovide polic y t o g u ide i m ple m e n- t a t io n of v ar io u s HUD p r og ra m s.

( b) Au t horit y . S pecific au t h o r i t ies fo r n oise a b a t e m e n t an d co n t r ol ar e co n- t a i n ed i n t h e Noise Co n t r ol Ac t of 1972, a s a m e n ded (42 U. S .C. 4901 et seq.); an d t h e Ge n e ra l S e r vices Ad m i n is t ra t io n , F ede ra l M ana ge m e n t Ci r c u l ar 75–2;

Office of the Secretary, HUD § 51.101

Compatible L and Uses at Federal Air- fields.

[44 F R 40861, J u l y 12, 1979, a s a m e n ded a t 61 F R 13333, M ar . 26, 1996]

§ 51.101 General policy.

( a) I t is HUD’s ge n e ra l polic y t o p r o- vide m i n i m u m na t io na l s t an d ar ds a p- plic a ble t o HUD p r og ra m s t o p r o t ec t ci t ize n s a g a i n s t excessive n oise i n t h ei r co mm un i t ies an d pl a ces of r eside n ce.

(1) Planning assista nce. HUD r eq u i r es t ha t g ran t ees give a deq ua t e co n side r - a t io n t o n oise expos ur es an d so ur ces of n oise a s an i n t eg ra l p ar t of t h e ur b an e n vi r o n m e n t w h e n HUD a ssis t an ce is p r ovided fo r pl ann i n g p ur poses, a s fol- lows:

( i) P ar t ic u l ar e m p ha sis s ha ll be pl a ced o n t h e i m po r t an ce of co m p a t ible l an d u se pl ann i n g i n r el a t io n t o a i r - po r t s, h ig h w ay s an d o t h e r so ur ces of h ig h n oise.

( ii) Applic an t s s ha ll t a k e i n t o co n sid- e ra t io n HUD e n vi r o n m e n t a l s t an d ar ds i m p a c t i n g t h e u se of l an d.

(2) Activities subject to 24 CF R part 58. ( i) R espo n sible e n t i t ies un de r 24 C F R p ar t 58 m u s t t a k e i n t o co n side ra t io n t h e n oise c r i t e r i a an d s t an d ar ds i n t h e e n vi r o n m e n t a l r eview p r ocess an d co n- side r a m elio ra t ive a c t io n s w h e n n oise se n si t ive l an d develop m e n t is p r oposed

i n n oise exposed ar e a s. R espo n sible e n- t i t ies s ha ll a dd r ess devi a t io n s f r o m t h e

s t an d ar ds i n t h ei r e n vi r o n m e n t a l r e- views a s r eq u i r ed i n 24 C F R p ar t 58.

( ii) Wh e r e a c t ivi t ies ar e pl ann ed i n a n ois y ar e a , an d HUD a ssis t an ce is co n- t e m pl a t ed l a t e r fo r h o u si n g an d/o r o t h e r n oise se n si t ive a c t ivi t ies, t h e r e- spo n sible e n t i t y r is k s de n i a l of t h e HUD a ssis t an ce un less t h e HUD s t an d- ar ds ar e m e t .

(3) HUD support for new construction. HUD a ssis t an ce fo r t h e co n s t ru c t io n of n ew n oise se n si t ive u ses is p r o h ibi t ed ge n e ra ll y fo r p r ojec t s wi t h una ccep t - a ble n oise expos ur es an d is disco ura ged

fo r p r ojec t s wi t h n o r m a ll y una ccep t - a ble n oise expos ur e. ( S t an d ar ds of a c- cep t a bili t y ar e co n t a i n ed i n § 51.103( c).) Th is polic y a pplies t o a ll HUD p r o- g ra m s p r ovidi n g a ssis t an ce, s u bsid y o r i n s uran ce fo r h o u si n g, m anufa c t ur ed h o m e p ar k s, nur si n g h o m es, h ospi t a ls, an d a ll p r og ra m s p r ovidi n g a ssis t an ce o r i n s uran ce fo r l an d develop m e n t , r e- develop m e n t o r any o t h e r p r ovisio n of

fa cili t ies an d se r vices w h ic h ar e di- r ec t ed t o m a k i n g l an d a v a il a ble fo r h o u si n g o r n oise se n si t ive develop- m e n t . Th e polic y does n o t a ppl y t o r e- se ar c h de m o n s t ra t io n p r ojec t s w h ic h

do n o t r es u l t i n n ew co n s t ru c t io n o r r e- co n s t ru c t io n , flood i n s uran ce, i n t e r - s t a t e l an d s a les egis t ra t io n , o r any a c- t io n o r e m e r ge n c y a ssis t an ce un de r dis- a s t e r a ssis t an ce p r ovisio n s o r a pp r o- p r i a t io n s w h ic h ar e p r ovided t o s a ve lives, p r o t ec t p r ope r t y , p r o t ec t p u blic h e a l t h an d s afe t y , r e m ove deb r is an d w r ec k a ge, o r a ssis t an ce t ha t ha s t h e ef- fec t of r es t o r i n g fa cili t ies s u bs t an t i a ll y a s t h e y exis t ed p r io r t o t h e dis a s t e r .

(4) HUD support for existing construc- tion. Noise expos ur e b y i t self will n o t

r es u l t i n t h e de n i a l of HUD s u ppo r t fo r t h e r es a le an d p ur c ha se of o t h e r wise a ccep t a ble exis t i n g b u ildi n gs. Howeve r ,

e n vi r o n m e n t a l n oise is a m ar k e t a bili t y fa c t o r w h ic h HUD will co n side r i n de- t e r m i n i n g t h e a m o un t of i n s uran ce o r o t h e r a ssis t an ce t ha t m ay be give n .

(5) HUD support of modernization and rehabilitation. F o r m ode rn iza t io n p r ojec t s loc a t ed i n a ll n oise exposed ar e a s, HUD s ha ll e n co ura ge n oise a t - t e nua t io n fe a t ur es i n a l t e ra t io n s. F o r m a jo r o r s u bs t an t i a l r e ha bili t a t io n p r ojec t s i n t h e No r m a ll y U na ccep t a ble an d U na ccep t a ble n oise zo n es, HUD a c- t ivel y s ha ll see k t o ha ve p r ojec t spo n- so r s i n co r po ra t e n oise a tt e nua t io n fe a- t ur es, give n t h e ex t e n t an d na t ur e of t h e r e ha bili t a t io n bei n g un de r t a k e n an d t h e level o r ex t e r io r n oise expo- s ur e. I n U na ccep t a ble n oise zo n es, HUD s ha ll s t r o n gl y e n co ura ge co n ve r sio n of n oise- exposed si t es t o l an d u ses co m - p a t ible wi t h t h e h ig h n oise levels.

(6) Research, guidance and publica- tions. HUD s ha ll m a i n t a i n a co n t i nu i n g p r og ra m desig n ed t o p r ovide n ew k n owledge of n oise a b a t e m e n t an d co n- t r ol t o p u blic an d p r iv a t e bodies, t o de- velop i m p r oved m e t h ods fo r an t ici- p a t i n g n oise e n c r o a c h m e n t , t o develop n oise a b a t e m e n t m e a s ur es t hr o u g h l an d u se an d b u ildi n g co n s t ru c t io n p ra c t ices, an d t o fos t e r be tt e r un de r - s t an di n g of t h e co n seq u e n ces of n oise. I t s ha ll be HUD’s polic y t o iss u e g u id- an ce doc u m e n t s pe r iodic a ll y t o a ssis t HUD pe r so nn el i n a ssig n i n g an a ccep t - a bili t y c a t ego ry t o p r ojec t s i n a cco r d- an ce wi t h n oise expos ur e s t an d ar ds, i n ev a l ua t i n g n oise a tt e nua t io n m e a s ur es,

§ 51.102

an d i n a dvisi n g loc a l a ge n cies a bo u t n oise a b a t e m e n t s t ra t egies. Th e g u id- an ce doc u m e n t s s ha ll be u pd a t ed pe r i- odic a ll y i n a cco r d an ce wi t h a dv an ces i n t h e s t a t e- of- t h e- ar t .

(7) Construction equipment, building equipment and appliances. HUD s ha ll e n- co ura ge t h e u se of q u ie t e r co n s t ru c t io n eq u ip m e n t an d m e t h ods i n pop u l a t io n ce n t e r s, t h e u se of q u ie t e r eq u ip m e n t an d a ppli an ces i n b u ildi n gs, an d t h e u se of a pp r op r i a t e n oise a b a t e m e n t t ec hn iq u es i n t h e desig n of r eside n t i a l s t ru c t ur es wi t h po t e n t i a l n oise p r ob- le m s.

(8) Exterior noise goals. I t is a HUD go a l t ha t ex t e r io r n oise levels do n o t exceed a d ay- n ig h t a ve ra ge so un d level of 55 decibels. Th is level is r ec-

o mm e n ded b y t h e En vi r o n m e n t a l P r o- t ec t io n Age n c y a s a go a l fo r o u t doo r s i n r eside n t i a l ar e a s. Th e levels r ec-

o mm e n ded b y E P A ar e n o t s t an d ar ds an d do n o t t a k e i n t o a cco un t cos t o r fe a sibili t y . F o r t h e p ur poses of t h is r eg u l a t io n an d t o m ee t o t h e r p r og ra m objec t ives, si t es wi t h a d ay- n ig h t a ve r - a ge so un d level of 65 an d below ar e a c- cep t a ble an d ar e a llow a ble ( see S t an d- ar ds i n § 51.103( c)).

(9) I n terior noise goals. I t is a HUD go a l t ha t t h e i n t e r io r au di t o ry e n vi- r o n m e n t s ha ll n o t exceed a d ay- n ig h t a ve ra ge so un d level of 45 decibels. A t -

t e nua t io n m e a s ur es t o m ee t t h ese i n t e- r io r go a ls s ha ll be e m plo y ed w h e r e fe a- sible. E m p ha sis s ha ll be give n t o n oise se n si t ive i n t e r io r sp a ces s u c h a s bed- r oo m s. Mi n i m u m a tt e nua t io n r eq u i r e- m e n t s ar e p r esc r ibed i n § 51.104( a).

(10) Acoustical privacy in multifamily buildings. HUD s ha ll r eq u i r e t h e u se of b u ildi n g desig n an d a co u s t ic a l t r e a t - m e n t t o affo r d a co u s t ic a l p r iv a c y i n m u l t ifa m il y b u ildi n gs p ur s uan t t o r e- q u i r e m e n t s of t h e Mi n i m u m P r ope r t y S t an d ar ds.

[44 F R 40861, J u l y 12, 1979, a s a m e n ded a t 50 F R 9268, M ar . 7, 1985; 61 F R 13333, M ar . 26,

1996]

§ 51.102 Responsibilities.

( a) Surveillance of noise problem areas. App r op r i a t e field s t aff s ha ll m a i n t a i n s ur veill an ce of po t e n t i a l n oise p r oble m ar e a s an d a dvise loc a l offici a ls, devel- ope r s, an d pl ann i n g g r o u ps of t h e una ccep t a bili t y of si t es bec au se of n oise expos ur e a t t h e e ar lies t possible

24 CFR Subtitle A (4–1–04 Edition)

t i m e i n t h e decisio n p r ocess. E ve ry a t - t e m p t s ha ll be m a de t o i n s ur e t ha t a p- plic an t s’ si t e c h oices ar e co n sis t e n t wi t h t h e polic y an d s t an d ar ds co n- t a i n ed h e r ei n .

( b) Notice to applicants. A t t h e e ar lies t possible s t a ge, HUD p r og ra m s t aff s ha ll:

(1) De t e r m i n e t h e s u i t a bili t y of t h e a co u s t ic a l e n vi r o n m e n t of p r oposed p r ojec t s;

(2) No t ify a pplic an t s of any a dve r se o r q u es t io na ble si t ua t io n s; an d

(3) Ass ur e t ha t p r ospec t ive a pplic an t s ar e a pp r ised of t h e s t an d ar ds co n t a i n ed h e r ei n so t ha t fu t ur e si t e c h oices will be co n sis t e n t wi t h t h ese s t an d ar ds.

( c) I n terdepartmental coordination. HUD s ha ll fos t e r a pp r op r i a t e coo r di na- t io n be t wee n field offices an d o t h e r de- p ar tm e n t s an d a ge n cies, p ar t ic u l ar l y t h e En vi r o n m e n t a l P r o t ec t io n Age n c y , t h e Dep ar tm e n t of Tran spo r t a t io n , De- p ar tm e n t of Defe n se r ep r ese n t a t ives, an d t h e Dep ar tm e n t of Ve t e ran s Af-

fa i r s. HUD s t aff s ha ll u t ilize t h e a c- cep t a bili t y s t an d ar ds i n co mm e n t i n g o n t h e p r ospec t ive i m p a c t s of t ran spo r - t a t io n fa cili t ies an d o t h e r n oise ge n- e ra t o r s i n t h e En vi r o n m e n t a l I m p a c t S t a t e m e n t r eview p r ocess.

[44 F R 40861, J u l y 12, 1979, a s a m e n ded a t 54 F R 39525, S ep t . 27, 1989; 61 F R 13333, M ar . 26,

1996]

§ 51.103 Criteria and standards.

Th ese s t an d ar ds a ppl y t o a ll p r o- g ra m s a s i n dic a t ed i n § 51.101.

( a) Measure of external noise en viron- ments. Th e m a g n i t u de of t h e ex t e rna l n oise e n vi r o n m e n t a t a si t e is de t e r - m i n ed b y t h e v a l u e of t h e d ay- n ig h t a v- e ra ge so un d level p r od u ced a s t h e r e- s u l t of t h e a cc u m u l a t io n of n oise f r o m a ll so ur ces co n t r ib u t i n g t o t h e ex t e rna l n oise e n vi r o n m e n t a t t h e si t e. D ay- n ig h t a ve ra ge so un d level, a bb r evi a t ed

a s DN L an d s y m bolized a s L dn, is t h e 24- h o ur a ve ra ge so un d level, i n decibels,

ob t a i n ed af t e r a ddi t io n of 10 decibels t o so un d levels i n t h e n ig h t f r o m 10 p. m . t o 7 a . m . M a t h e m a t ic a l exp r essio n s fo r a ve ra ge so un d level an d d ay- n ig h t a v- e ra ge so un d level ar e s t a t ed i n t h e Ap- pe n dix I t o t h is s u bp ar t .

( b) Loud impulsive sounds. On an i n- t e r i m b a sis, w h e n lo u d i m p u lsive so un ds, s u c h a s explosio n s o r so n ic boo m s, ar e expe r ie n ced a t a si t e, t h e

Office of the Secretary, HUD § 51.104

d ay- n ig h t a ve ra ge so un d level p r od u ced b y t h e lo u d i m p u lsive so un ds a lo n e s ha ll ha ve 8 decibels a dded t o i t i n a s- sessi n g t h e a ccep t a bili t y of t h e si t e ( see Appe n dix I t o t h is s u bp ar t ). Al t e r - na t ivel y , t h e C-weig h t ed d ay- n ig h t a v- e ra ge so un d level ( L Cdn) m ay be u sed wi t h o u t t h e 8 decibel a ddi t io n , a s i n di- c a t ed i n § 51.106( a)(3). Me t h ods fo r a s- sessi n g t h e co n t r ib u t io n of lo u d i m p u l- sive so un ds t o d ay- n ig h t a ve ra ge so un d

level a t a si t e an d m a t h e m a t ic a l ex- p r essio n s fo r de t e r m i n i n g w h e t h e r a so un d is cl a ssed a s ‘‘lo u d i m p u lsive’’ ar e p r ovided i n t h e Appe n dix I t o t h is s u bp ar t .

( c) Exterior standards. (1) Th e deg r ee of a ccep t a bili t y of t h e n oise e n vi r o n- m e n t a t a si t e is de t e r m i n ed b y t h e so un d levels ex t e rna l t o b u ildi n gs o r

o t h e r fa cili t ies co n t a i n i n g n oise se n- si t ive u ses. Th e s t an d ar ds s ha ll u s ua ll y

a ppl y a t a loc a t io n 2 m e t e r s (6.5 fee t ) f r o m t h e b u ildi n g h o u si n g n oise se n- si t ive a c t ivi t ies i n t h e di r ec t io n of t h e p r edo m i nan t n oise so ur ce. Wh e r e t h e b u ildi n g loc a t io n is un de t e r m i n ed, t h e s t an d ar ds s ha ll a ppl y 2 m e t e r s (6.5 fee t ) f r o m t h e b u ildi n g se t b a c k li n e n e ar es t t o t h e p r edo m i nan t n oise so ur ce. Th e s t an d ar ds s ha ll a lso a ppl y a t o t h e r lo- c a t io n s w h e r e i t is de t e r m i n ed t ha t q u ie t o u t doo r sp a ce is r eq u i r ed i n an ar e a an cill ary t o t h e p r i n cip a l u se o n t h e si t e.

(2) Th e n oise e n vi r o n m e n t i n side a b u ildi n g is co n side r ed a ccep t a ble if: ( i) Th e n oise e n vi r o n m e n t ex t e rna l t o t h e b u ildi n g co m plies wi t h t h ese s t an d ar ds, an d ( ii) t h e b u ildi n g is co n s t ru c t ed i n a m ann e r co mm o n t o t h e ar e a o r , if of un co mm o n co n s t ru c t io n , ha s a t le a s t t h e eq u iv a le n t n oise a tt e nua t io n c har- a c t e r is t ics.

SITE ACCEPTABILITY STANDARDS

Day-night average sound level (in decibels)

Special approvals and require- ments

Acceptable .............................................................

Normally Unacceptable .........................................

Unacceptable ........................................................

Not exceeding 65 dB(1) ...............................

Above 65 dB but not exceeding 75 dB ........

Above 75 dB ................................................

None.

Special Approvals (2)

Environmental Review (3).

Attenuation (4).

Special Approvals (2).

Environmental Review (3).

Attenuation (5).

Notes: (1) Acceptable threshold may be shifted to 70 dB in special circumstances pursuant to § 51.105(a).

(2) See § 51.104(b) for requirements.

(3) See § 51.104(b) for requirements.

(4) 5 dB additional attenuation required for sites above 65 dB but not exceeding 70 dB and 10 dB additional attenuation re- quired for sites above 70 dB but not exceeding 75 dB. (See § 51.104(a).)

(5) Attenuation measures to be submitted to the Assistant Secretary for CPD for approval on a case-by-case basis.

[44 F R 40861, J u l y 12, 1979, a s a m e n ded a t 49 F R 12214, M ar . 29, 1984]

§ 51.104 Special requirements.

( a)(1) Noise attenuation. Noise a tt e nu- a t io n m e a s ur es ar e t h ose r eq u i r ed i n a ddi t io n t o a tt e nua t io n p r ovided b y b u ildi n gs a s co mm o n l y co n s t ru c t ed i n t h e ar e a , an d r eq u i r i n g ope n wi n dows fo r ve n t il a t io n . Me a s ur es t ha t r ed u ce ex t e rna l n oise a t a si t e s ha ll be u sed w h e r eve r p ra c t ic a ble i n p r efe r e n ce t o t h e i n co r po ra t io n of a ddi t io na l n oise a tt e nua t io n i n b u ildi n gs. B u ildi n g de- sig n s an d co n s t ru c t io n t ec hn iq u es t ha t p r ovide m o r e n oise a tt e nua t io n t han t y pic a l co n s t ru c t io n m ay be e m plo y ed a lso t o m ee t t h e n oise a tt e nua t io n r e- q u i r e m e n t s.

(2) Normally unacceptable noise zones and unacceptable noise zones. App r ov a ls

i n No r m a ll y U na ccep t a ble Noise Zo n es r eq u i r e a m i n i m u m of 5 decibels a ddi- t io na l so un d a tt e nua t io n fo r b u ildi n gs ha vi n g n oise- se n si t ive u ses if t h e d ay- n ig h t a ve ra ge so un d level is g r e a t e r t han 65 decibels b u t does n o t exceed 70 decibels, o r a m i n i m u m of 10 decibels of a ddi t io na l so un d a tt e nua t io n if t h e d ay- n ig h t a ve ra ge so un d level is g r e a t - e r t han 70 decibels b u t does n o t exceed 75 decibels. Noise a tt e nua t io n m e a s ur es i n U na ccep t a ble Noise Zo n es r eq u i r e t h e a pp r ov a l of t h e Assis t an t S ec r e t ary fo r Co mm un i t y P l ann i n g an d Develop-

m e n t , o r t h e Ce r t ify i n g Office r fo r a c- t ivi t ies s u bjec t t o 24 C F R p ar t 58. ( S ee

§ 51.104( b)(2).)

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Table of Contents

SEPTEMBER 2015

1. National Environmental Policy Act of 1969

2. 40 CFR Part 1500-1508: Protection of the Environment-President’s Council on Environmental Quality, Appendix A, CEQ Regulations

3. 24 CFR Part 58: Housing and Urban Development--Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities

4. 24 CFR Part 50: Housing and Urban Development--Protection and Enhancement of Environmental Quality

5. 24 CFR Part 51: Housing and Urban Development--Environmental Criteria and Standards

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