HUD Environmental Review NEPA & 24 CFR Part 58 July 8, 2011

1. Missouri Department of Economic Development COMMUNITY DEVELOPMENT BLOCK GRANT HUD Environmental Review NEPA & 24 CFR Part 58July 8, 2011 Welcome!

2. Goals of Environmental Review • Protect the Environment • Endangered species, wetlands, historic properties, air and water quality…. • Protect theProject • Toxic contamination, explosive operations, noise, floods, airport hazards….

3. Tools & Resources • 24 CFR Part 58 Regulation • NEPA-related regulations • Chapter 4 CDBG Manual • PowerPoint notes • Environmental Agencies • Websites • Additional Guidebooks • CDBG Staff

4. It’s not always rainbows, sprinkles, butterflies, unicorns, puppies, ‘n stuff…

5. Overview of Environmental Review I. Statutory & Regulatory Structure II. Key Terms & Concepts III. Conducting the Review IV. Approval Procedures

6. I. Statutory & Regulatory Structure

7. Why do we conduct environmental reviews? • Avoid or mitigate environmental impacts that harm people. • Avoid or mitigate harm to the surrounding environment. • Avoid litigation that could stop project on environmental grounds. • Avoid monitoring findings & sanctions. • Secure the value of public investment. • IT’S THE LAW – Under NEPA & NEPA-related laws.

8. What is NEPA? • National Environmental Policy Act of 1969 • Basic national charter for protection of the environment • Established Council on Environmental Quality (CEQ) (40 CFR Chapter V, 1500 - 1518) • Federal agencies implement NEPA with their own regulations • “Environmental values SHALL be given appropriate consideration in decision making”

9. NEPA- continued • Ensures that environmental information is available to public officials and citizens BEFOREdecisions are made and BEFOREactions are taken. • Requires systematic, interdisciplinary approach. • Helps public officials make decisions with an understanding of environmental consequences.

10. NEPA Applies To… • All proposals for Federal actions that have the potential to affect the quality of the human environment. • No “trigger level” - All levels of Federal funding and assistance are covered: including small grants and loans, loan guarantees, permitting, and so on.

11. Consideration of Alternatives “The Heart of NEPA” Alternative Sites…Designs…Actions…Timeframes

12. NEPA – DirectImpacts PROJECT= DIRECT IMPACT: New Sewer Plant t

13. NEPA – IndirectImpacts New paper mill plant New residential sub-division Risks to current infrastructure Inadequate infrastructure to support growth More traffic thru town

14. NEPA – Cumulative Impacts + + + • CUMULATIVE IMPACTS: • Regional Sewer Project: • 3 new sewer plants • 3 phases • 3 communities along river

15. NEPA requires examination of ALL federal laws affecting the environment • Air • Water • Land • Flora • Fauna • Human Health

16. “Environmental Review” - the examination of a project relative to NEPA and its related laws… NEPA is the umbrella under which the review is conducted….Environmental topics and concerns are spokes of the umbrella…..

17. NEPA-Related Laws & Authorities (24 CFR Part 58.5) • Safe Drinking Water Act (1974) • Floodplain Management & Wetlands Protection E.O.s (1977) • Farmland Protection Policy Act (1981) • HUD Environ. Criteria & Standards (1984) • Environmental Justice E.O. (1994) • National Historic Preservation Act (1966) • Wild and Scenic Rivers Act (1968) • Clean Air Act (1970) • Coastal Zone Management Act (1972) • Noise Control Act (1972) • Endangered Species Act (1973)

18. Other Requirements (24 CFR 58.6) • Flood Disaster Protection Act – flood insurance • Coastal Barrier Resource Act –coastal development • Airport Runway Clear Zone – buyer notification

19. II. Basics of HUD Environmental Review

20. HUD Regulation24 CFR Part 58 Regulation for HUD’s implementation of NEPA & related authorities: • 24 CFR Part 58 “Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities” Become familiar with the regulation, found at http://www.access.gpo.gov/nara/cfr/waisidx_04/24cfr58_04.html

21. Terms & Definitions§58.2

22. “Project”§58.2(a)(4) • PROJECT- An activity, or a group of integrally related activities, designed by the recipient to accomplish, in whole or in part, a specific objective.

23. “Environmental Review” (ER) • Used in this program to apply to the review of: • Any HUD assisted action & its relationship to NEPA & related environmental laws. • We review “projects” not funds. Environmental approval (often called “clearance” or “release of funds”) is for theproject, not the source of HUD funds.

24. “Responsible Entity” (RE) §58.2(a)(7) • Section 104(g) of Housing and Community Development Act of 1974 authorizes HUD Secretary to allow units of general local government and States to assume the status of federal officialunder NEPA & NEPA-related environmental laws & authorities. • This “assumption authority” allows cities, counties, states, & Indian tribes to act as Responsible Entity(RE) in lieu of HUD for the purposes of NEPA review, decision-making and action.

25. “Assumption Authority” §58.4 • RE assumes HUD’s authority by executing grant agreement (as Recipient) and by certification of the RROF/C. • RE assumes responsibility for: • Environmental review • Environmental decision-making • Environmental actionthat would apply to HUD under NEPA and related laws

26. “Assumption Authority” §58.4 - Continued • Responsibility - The environmental “buck” stops w/ the Responsible Entity. ER responsibilities cannot be delegated to another party/entity. • Responsible Entity - Ensures all conditions, procedures, & requirements resulting from environmental review process are incorporated into project plans & implemented.

27. “Assumption Authority” §58.4 - continued State CDBG Programs: • Under State-administered CDBG program (e.g., Small Cities CDBG program), the State exercises HUD’s approval responsibilities (RROF).

28. Sub-Recipient • Sub-recipients of CDBG funds may include: • Non-profits • Water/sewer districts • Ambulance districts • Fire protection districts • Main street organizations • Others in which RE (unit of local government) applies for CDBG funds on their behalf.

29. Sub-Recipient Role • Provides RE w/ project & environmental information • Does not undertake activities prior to receiving authorization by RE & HUD • Notifies RE immediatelyabout: • changes to proposed project, or • new alternative is selected • Implements all special conditions, procedures & requirements of environmental review

30. RE role when a project involves aSub-Recipient • RE must independently evaluate information provided by Sub-Recipient • RE performs environmental review & submits the equestforRelease of Funds/ Certification (RROF) for DED/CDBG approval, when required

31. “Certifying Officer” §58.2(a)(2) • Chief Executive Officer of jurisdiction, or official designee (with formal, written delegation of authority) • “Responsible Federal Official” as used in section 102 of NEPA & in statutory provisions • Authorized to execute Request for Release of Funds and Certification (RROF) • Accepts jurisdiction of Federal Courts for Responsible Entity (RE) in environmental matters

32. “Limitation on Activities Prior to Clearance”§58.22(a) • Recipient may not commitHUD/CDBG orNon-HUD/CDBG fundson an activity prior to approval if the activity would have an adverse environmental impact or limit the choice of reasonable alternatives. • This limitation is rooted in all NEPA-related authorities • Don’t take action until compliance is achieved.

33. Importance of Early Start • Begin ER as soon as possible once project is substantially known! • Do not commit HUD/CDBGfunds on activities prior to environmental approval. • Do not commit Non-HUD/CDBG funds prior to environmental approval if activity/project would have adverse environmental impacts or limit choice of reasonable alternatives. • Projects not requiring RROF - applicable environmental review forms must be complete before starting activity or project

34. “Limitation on Third Parties” 58.22(a) • Part 58 extends this prohibition to third parties: • “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 [prior to RROF]. . . . or non-HUD funds. . .if the activity or project would have an adverse environmental impact or limit the choice of reasonable alternatives.”

35. “Affirmative Responsibility” §58.22(c) • RE considering an application from a prospective sub-recipient or contractor & is aware they are about to take action prohibited by 58.22(a), RE must take “appropriate action” to ensure compliance w/ NEPA • Choice-limiting actions include real property acquisition, leasing, demolition, rehabilitation, construction & site improvements.

36. Reducing Exposure to Legal Liability • Follow all required steps in decision-making process • Carefully document compliance w/ NEPA & related authorities • Exercise due diligence in investigations • Use reasonable approaches that are neither arbitrary nor capricious

37. Cost of Performing the Review • Grant funds may be used for ER after execution of grant agreement • Environmental responsibility should not require significant local funds if project is well-planned • Environmental review assists in developing project budget • Others may prepare reviews, but RE remains responsible • If CDBG funds are proposed to pay any contract, Federal procurement rules apply

38. “RE’s Capacity” §58.12 RE must develop capacity to conduct the review: • Technical Capacity = procedural expertise, use of in-house staff or outside entity • Administrative Capability = thorough record keeping & clear documentation of compliance with Part 58

39. Interaction with Other Entities §58.14 • Consult w/ appropriate agencies (State, Federal, local) & the public. The NEPA review is an interdisciplinary process. • Cooperate w/ other agencies to reduce duplication. • May participate in a joint, lead, or cooperating agency capacity.

40. “Environmental Review Record”(ERR) §58.38 • Written record of the ER undertaken for each project • Shall be available for public review • Shall contain all environmental review documents, public notices, determinations or findings as evidence of review, decision making & action pertaining to a particular project

41. Contents of ERR §58.38 • PER/PAR • Project description including precise location or target area, & mapped • Photographs, site plans, elevations • Documentation of compliance w/ §58.5 authorities & HUD §58.6 requirements • Forms, reports, environmental assessments • Written determinations & findings • Public notices, RROF, correspondence, Authority to Use Grant Funds

42. How long are ERRs current? • How old is it? • Prior project vs. what is now proposed? • What has occurred on the site since the ER? • What has changed around the site? • What is likely to occur around the site? • Everything ages – what wasn’t historic will be. • Know when to surrender & start anew.

43. The ERR is a legal record • The ERR: • may be subpoenaed & subjected to scrutiny by a court of law • is the only proof of compliance w/ procedural provisions of Federal environmental law • is your only defense if project is challenged

44. Conducting the Environmental Review

45. Steps of Environmental Review • Determine scope of project • Aggregate activities into project • Determine level of review • Conduct review • Publish notices & observe comment periods • Submit RROF/C, if required • Commit funds & carry out preferred alternative • Implement & document conditions, as applicable

46. Determining the Scope of a Project • “Project” is an activity, or group of integrally related activities, designed by the recipient to accomplish, in whole or in part, a specific objective [§58.2(a)(4)] • For purposes of environmental review, the project includes both HUD& non-HUD funds • Project may span several funding years

47. Project Aggregation §58.32 The RE must group together & evaluate as a single project, ALL individual activities related either on a geographical or functional basis, or are logical parts of a composite of contemplated actions. ALLactivities by ALLfunding sources make up a project.

48. Public Participation & Environmental Review • CEQ Regulation – Early and open scoping process • NEPA Regulation – Make efforts to provide meaningful public involvement • HUDRegulation– Inform affected public about NEPA-related hearings and meetings, and environmental documents • Section 106 Review - 36 CFR 800.2(d) – Involving the Public The type of public involvement depends on the nature and complexity of actions, their potential impacts, and the likely interest of the public.

49. Field Visit Checklist & Site Evaluation Updated! • KNOW THE PROJECT AREA! • Complete one or more & attach. • Color photographs are practically a necessity • Existing Conditions – What does the site look like now? What is located on & around the site? • Access (Ingress/Egress) – How do you get to the site? How do you leave? Is it safe & easy? • Interviews – Did you talk to anyone? When? Their relationship to the project/area? What was discussed? • Existing Infrastructure – What is at the site now – water, sewer, electric, gas, roads, parking, storm water, etc. • Potential for contamination

50. Levels of Environmental Review Environmental Impact Statement (EIS), 58.37 Environmental Assessment (EA), 58.36 Categorically Excluded -CEST (Subject To), 58.35(a) -CENST (Not Subject To), 58.35(b) Exempt Activity, 58.34(a)