Environmental Review Process NCCDA Fall Conference November 16, 2011 Monica Chevalier L. Marcela Vargas NC Department of Commerce Community Investment & Assistance
Purpose of the Workshop Update Environmental Review compliance requirements for the non-entitlements, local governments by CI Describe the importance of the compliance requirements Explain the forms and templates required by CI
Agenda Environmental Regulations & Responsibilities Environmental Process Level of Review Special Cases Questions The Environmental Review Record General Source Documentation and Guidance Tools Related Laws and Authorities Questions RROF/Environmental Certification New Templates Questions
Terminology CI= Community Investment & Assistance ERR= Environmental Review Record HUD= US Dept. of Housing and Urban Development RE= Responsible Entity CO= Certifying Officer CES/CENST= Categorically Excluded EA= Environmental Assessment
Key Concepts An Environmental Review (ER) is a study of the site, the grant program category A Finding of No Significant Impact (FONSI) cannot be made until completion of the ER Funds cannot be committed prior to completion of the ER process Physical activities cannot begin until completion of the ER process It is HUD policy to not allow bids for choice-limiting actions. The NEPA process requires agencies to keep alternatives open until the ER process is complete. The ER Process = ER Record + Release of Funds Documentation
Why Environmental Review? Protect health and safety, avoid or mitigate impacts that may harm our clients Avoid or mitigate any harm to the surrounding environment and project site Avoid litigation that could stop project on environmental grounds Avoid monitoring findings and/or loss of HUD financial assistance to your project REQUIRED by Federal Law & Regulation under the National Environmental Policy Act of 1969 (NEPA) and NEPA related laws
Regulations and Responsibilities Housing Act of 1949 The general welfare and security of the Nation and the health and living standards of its people require the realization of the goal of a decent home and a suitable living environment for every American family National Environmental Policy Act (NEPA) of 1969 Encourage harmony between man & environment Prevent environmental damage & stimulate health/welfare of man Increase understanding of environment Develop environmental review procedures Consider project alternatives Consider environment in decision-making Notify public and agencies of activities
Continued CEQ Regulations - 40 CFR Part 1500-1508 HUD Regulations - 24 CFR Part 58 Applies to responsible entities HUD Regulations - 24 CFR Part 50 Applies to HUD s completion of reviews for nongovernment entities
10 Environmental Review Regulations 24 CFR Part 58 HUD s regulation allows local units of government to perform NEPA responsibilities that would otherwise apply to HUD. Regulation titled Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities
Responsible Entity (RE) 24 CFR 58.2(a)(7) REs are - Units of local government Indian tribes REs are not - Housing Authorities Subrecipients Consulting firms
Certifying Officer 24 CFR 58.2(a)(2) & 58.13 Official with legal authority to represent the Responsible Entity in federal court Certifying officers include - City/County managers Mayors/County commissioners Tribal leaders Officer is function of govt. form
Steps 1) Define project scope(s)- 24 CFR 58.38 & 58.40, and 40 CFR 1508.9 Purpose and need, funding sources, time frame 2) Aggregate related activities - 24 CFR 58.32 & 40 CFR 1508.25 Group and concurrently evaluate related activities (geographic, functional, logical) 3) Determine Alternatives- 42 U.S.C. 4332(2)(E), 24 CFR 58.40(e), & 40 CFR 1501.2(c) Required by NEPA Used to indicate choice 4) Determine Level of Review
Steps of the Environmental Review Process, cont. Notify local/state/ Federal agencies for comment (the ERR is a public document) Request for Release of Funds if necessary (Publish/Post required notices according to level of review)- submit Certification to State Obtain letter Removing Environmental Conditions from State Proceed with Project Maintain documentation of compliance in the ERR
How Long Should the Process Take? Best case scenario for an Environmental Assessment ~35 days- Compiling information, requesting comments ~30-45 days Clearinghouse comments ~18 days posting public notice ~15 days CI objection period = 3 to 4 months before release of funds, depending on level of review and handling of comments from agencies
Timing of Review When do we start the process? 24 CFR 58.30 & 40 CFR 1501.2 As soon as possible, at planning, at application Why? 24 CFR 58.22 and 40 CFR 1502.2(f) & 1506.1 All participants (not just the RE) are prohibited from using federal or non-federal funds to take choice limiting actions until the Environmental Review is complete. Prohibition violation = loss of funds
Choice Limiting Actions Fed. Register 68,Vol.188,56121 Expending of federal or non-federal funds for: Acquisition Rehabilitation Conversion Repair Construction Execution of legally binding agreements (Committing to the activity) Choice-limiting actions will reduce or eliminate your opportunity to choose alternatives
Commitment Exceptions Exempt and CENST activities (after documentation) Option agreement 24 CFR 58.22(d) Purchased at nominal price; and Final purchase is based on ER results Required relocation Conditional Agreements CPD Notice 01-11, Pages 5 & 9 Funding not guaranteed Funding based on ER results Funding denied if choice limiting actions occur
Important Tips Change of scope in project might change review required DON T SPEND A DIME until your ER is complete and you have received Authority to Use Grant Funds from your state agency Even $.01 of CDBG money commits entire project to regulations When in doubt contact your Compliance staff!
Project Aggregation 24 CFR 58.32 RE s must group together and evaluate, as a single project, all individual activities that are related either geographically or functionally, or are logical parts of a composite of contemplated actions Regardless of source of funding If multiple activities- ER Review must be highest level of review relative to the activities included in the project
Important Notes/Updates: No requirement to send EA drafts to Compliance Staff. No prior approval of the ERR by the Compliance Section. No prior approval of the ERR by Compliance Staff before the public notice. Compliance staff will not review the ERR until the State RROF objection period. If you need technical assistance, it is recommended to email inquiries to compliance@nccommerce.com. The ERR still needs to be submitted to CI for our grant records and monitoring. Local government to send EAs directly to the Clearinghouse. FONSI should be determined before SCH, but publication of the FONSI and RROF occur after receiving and reconciling SCH comments. After receiving agency comments, complete the FONSI/RROF public notices and submit the original RROF documentation to CI.
ER Process Overview Exempt or CENST CES Compliance action triggered EA Fulfill compliance with requirements and complete assessment No compliance action triggered Fulfill compliance with requirements FONSI and NOI/RROF FOSI Comply with 58.6 and Document in File NOI/RROF Publish 7 days; Post 10 days Combined NOI/RROF and FONSI Publish 15 days; Post 18 days Go to Work Submit RROF To CI and wait for 15 day objection period EIS CALL STATE/HUD
Determining the Level of Review Exempt Part 58 Programs Only Categorically Excluded not subject to laws and authorities at 58.5 (CENST) Categorically Excluded and subject to laws and authorities at 58.5 (CES) Subject to with no compliance triggered Subject to with compliance triggered Environmental Assessment (EA) Environmental Impact Statement (EIS)
Exempt 24 CFR 58.34(a) Project planning/review Administrative activities Non-physical public services Imminent threats Converted CES activities
Imminent Threats 24 CFR 58.34(a)(10) Repair or restoration activities to - Control effects from disasters Threats to public safety Limitations - Do not alter environmental conditions (i.e., do not bring up to current code) Only necessary activities
Exempt Process RE documents in writing that the project is Exempt and meets conditions in 58.34 Complete- Determination of Exemption checklist Document compliance with 24 CFR 58.6 (Document compliance with these requirements by attaching maps or other source documentation showing the project in relation to these areas or facilities.) Certifying Officer signs and dates Send information to State For these activities, no public Notice of Intent to Request for Release of Funds (NOI/RROF) is required. Wait for release of other funding conditions - Authority to Use Grant Funds- from Grant Rep using standard procedures Begin work
24 CFR 58.6 Flood insurance for activities in floodplains No assistance in Coastal Barriers Resources Systems Disclosure of Runway Clear Zones or Clear Zones
Categorically Excluded not subject to 58.5 (CENST) 24 CFR 58.35(b), & 40 CFR 1500.4 & 1508.4 Rental assistance Supportive services Operating costs Development assistance Home acquisition assistance Pre-development costs Supplemental assistance
Operating Costs 24 CFR 58.35(b)(3) Includes following hard costs- Acquiring furnishings Acquiring equipment Maintenance
Maintenance Activities to maintain a building - Painting Fixing gutters or floors Mending leaks or plastering Replacing broken fixtures Not improvements Not renovations or conversions
Supplemental Assistance 24 CFR 58.35(b)(7) A project was previously approved under Part 58, that approval was done by the same RE, and reevaluation not required per 24 CFR 58.47
CENST Process RE documents in writing that the project is CENST and meets conditions in 58.35(b) Complete- Determination of Exemption checklist CENST checklist Document compliance with 24 CFR 58.6 (Document compliance with these requirements by attaching maps or other source documentation showing the project in relation to these areas or facilities.) Certifying Officer signs and dates Send information to State For these activities, no public Notice of Intent to Request for Release of Funds (NOI/RROF) is required. Wait for release of other funding conditions- Authority to Use Grant Funds- from Grant Rep using standard procedures Begin work
Categorically Excluded subject to 58.5 (CES) 24 CFR 58.35(a), & 40 CFR 1500.4 & 1508.4 Public facility improvement < %20 Accessibility projects Rehabilitation Individual actions Acquisition w/out change in use Combination of above activities
Rehabilitation 24 CFR 58.35(a)(3) Residential (1-4 units) - No increase beyond 4-units No floodplain/wetland impacts Multifamily and non-residential - < %20 density or capacity change No change in use Rehab cost < %75 replacement cost (multifamily)
Individual Actions 24 CFR 58.35(a)(4) 1-4 residential units on a site > 5 residential units on scattered sites. Individual actions (68 FR 56124) - New construction Development Demolition Disposition Refinancing
CES Process RE makes written determination of the finding that a given activity or program is Categorically Excluded subject to 58.5 under 24 CFR 58.35(a). Complete- Determination of Exemption checklist CENST checklist (if applicable) CI s CES template (or HUD Statutory Checklist format) with source documentation Document compliance with 24 CFR 58.6 (Document compliance with these requirements by attaching maps or other source documentation showing the project in relation to these areas or facilities.) Determination of the project triggers compliance mitigation Certifying Officer signs and dates
CES - No Compliance Triggered 24 CFR 58.34(a)12 & 58.38 Document no compliance required findings Convert activity to Exempt Comply with 24 CFR 58.6 For these activities, no public Notice of Intent to Request for Release of Funds (NOI/RROF) is required. Wait for release of other funding conditions- Authority to Use Grant Funds- from Grant Rep using standard procedures Begin work
CES Compliance Triggered 24 CFR 58.22(a), 58.38 & 58.70-77 Document completion of applicable compliance process(es) Publish/Post NOI/RROF and Await end of local comment period Certifying Officer signs RROF/EC form Submit NOI/RROF & RROF/EC form Wait for confirmation of release of all funding conditions- Authority to Use Grant Funds- from Grant Rep using standard procedures Commit funds and begin working
Environmental Assessment (EA) 24 CFR 58.36 Activities not listed as - Exempt Categorically Excluded not subject Categorically Excluded but subject
EA Definition 40 CFR 1508.9 Concise document that - Supports FONSI or preparation of EIS Aids with NEPA compliance Facilitates completion of EIS Must include alternative analysis Must include list of consulting parties Not a Phase I per ASTM E1527-05
EA vs. CES CES requires compliance with laws and authorities. Must follow statutory and regulatory requirements. EA requires compliance and consideration of environmental impacts. Must consider effect of activity and alternatives during decision making.
EA Requirements 24 CFR 58.38 & 58.40 Site Conditions Present and future without project All potential environmental impacts Negative and beneficial Documentation of compliance Mitigation options Alternatives analysis Finding
Finding 24 CFR 58.40 & 40 CFR 1508.13 of No Significant Impact (FONSI)- Indicates no significant impact to environment Negates preparation of EIS of Significant Impact (FOSI)- Indicates significant impact to environment Requires preparation of EIS Made by Certifying Officer
EA Process The EA must support a decision making process and provide a clear rationale, justification and documentation for ratings assigned and always requires a FONSI and RROF public notice process. Complete- Determination of Exemption checklist CENST checklist (if applicable) Documentation determination in writing CI s Environmental Assessment template (or HUD equivalent template) with source documentation Document compliance with 24 CFR 58.6 (Document compliance with these requirements by attaching maps or other source documentation showing the project in relation to these areas or facilities.) Certifying Officer signs and dates
EA Process cont. Document Finding- significant impact or not? (FONSI/FOSI) Certifying Officer (24 CFR 58.13) executes the Finding Submit the ERR to the State Environmental Clearinghouse (more on SCH later) Publish/Post the combined FONSI and NOI/RROF after receiving comments from SCH Submit the RROF and Environmental Certification (RROF&EC) form to the State with evidence of public notice Wait for confirmation to receive Authority to Use Grant Funds- and any other funding conditions- from Grant Rep using standard procedures Commit funds and begin working
EA Process- Clearinghouse When the EA is complete, follow one of the procedures: The local governments submits the ERR to the SCH on their own. After receiving agency comments, complete the FONSI/RROF public notices, and submit one of the following to CI with a copy of the SCH comments and RROF documentation: 1 copy and 1 CD (preferred) 1 original and 1 CD The local government needs additional technical assistance and uses CI to submit to the SCH. (Technical Assistance Track) 3 copies and 17 CD s (preferred) 1 original, 3 copies, and 17 CD s 1 original and 17 copies 18 copies
Clearinghouse- Assessments Only The State Clearinghouse (SCH) is a process to notify state/local agencies and the public of proposed state development activities that need to follow SEPA, and to assist federal agencies in meeting requirements under NEPA. When a project triggers SEPA compliance, that environmental assessment must go to the SCH. EISs must go to SCH. Since North Carolina opted out of Executive Order 12372, in 2002, NEPA documents are not required to go to the Clearinghouse, however it is recommended. NC Commerce uses this partnership as a procedure in accordance with 04 NCAC 19L. Exempt and Categorically Excluded projects will not go to the SCH For CI/CFC projects, all EAs go to Clearinghouse (even amendments)
SCH does not determine the FONSI Scoping/draft process optional (30-45 days) Follow the guidance from the SCH for submitting- 16 total 16 hard copies 2 hard copies and 14 compact disks/dvd 2 hard copies and a website address where the document can be accessed
Clearinghouse Process, cont. Cover letter with CDBG grant information All appropriate contact information Complete ERR Must have email address to send comments to Allow 30-45 days for review Reconcile any comments After receipt of comments, publish/post FONSI and NOI/RROF Send documents to State with RROF&EC For amendments, state in the cover letter what action is amended and make reference to original SCH case number
Environmental Impact Statement (EIS) 24 CFR 58.37 & 58.55-60 An EIS may be required when: The project is so large that it triggers density thresholds, and common sense suggests it may have a substantial environmental impact A Finding of Significant Impact (FOSI) is found as a result of completing an environmental assessment for the project Examples: Provision of at least 2,500 hospital or nursing home beds Activities affecting or providing 2,500 or more housing units Provision of water and sewer capacity for 2,500 or more housing units CI/CFC typically does not fund EIS projects CALL FOR ASSISTANCE
Environmental Amendments Remember, the ERR is a study of the site, not the grant program category. Thus, anytime an environmental amendment occurs it is of the site, not the grant program category or grant number. If the size or scope of the CDBG project changes significantly or if the location changes, the recipient must reassess the project's environmental impact and update the ERR (24 CFR 58.47). The purpose of the reevaluation is to determine if the original environmental finding is still valid.
Environmental Amendments, cont. Recipient must re-evaluate its assessment findings in any of the following situations: There is change of location or a substantial change or amendment in the nature, magnitude, or extent of a project, including adding new activities not covered in the original project scope There are new circumstances and environmental conditions that may affect the project or have a bearing on its impact or activity that is proposed to be continued The recipient selects an alternative approach not considered in the original assessment
Amendment Example: Scattered Site- Change of Work on a House
Scattered Site Example: Additional House Considered This is a program amendment, not an environmental amendment
Example: Infrastructure Environmental Assessment Amendment
Environmental Reviews Prepared by or for Other Federal Agencies It is recommended to review the original EA for HUD standards, compare it to the EA template, use the original EA as source documentation, and use the State or HUD template and fill in the gaps for information and appropriate source documentation. A recipient wishing to utilize an ERR prepared by or for another Federal funding agency shall:
Environmental Reviews Prepared by or for Other Federal Agencies, cont. Make an independent evaluation of the environmental issues Take responsibility for the scope and content of the environmental review Make an environmental finding Publish the applicable public notice (i.e. NOI/RROF or Combined FONSI/NOIRROF Submit a Request for Release of Funds and Certification and complete copy of the ERR to the State, with a request for a written determination of consistency with 24 CFR Part 58 requirements Upon receipt and review of the document, the State will issue a determination that the ERR meets HUD environmental requirements and is substantially equivalent or require additional review and public notices, as appropriate
Re-Evaluation of Previously Cleared Projects The purpose of the re-evaluation is to determine if the original findings are still valid. If the original findings are still valid but the data and conditions upon which they were based have changed, the RE must amend the original findings and update their ERR by including this re-evaluation and its determination based on its findings.
Re-Evaluation of Previously Cleared Projects, cont. If the RE determines that the original findings are no longer valid, it must prepare an EA or an EIS if the evaluation indicates potentially significant impacts. Prepare a written statement that documents how this reevaluation was conducted and document the results/conclusions document in the ERR, and send to the State with the RROF. The written statement must contain the following: Reference to the previous environmental review record. Description of both old and new projects activities and maps delineating both old and new project areas. Determination if FONSI is still valid. Signature of the certifying officer and date (and submit to the State)
What is the Level of Review? Activity Removal of barriers that restrict access/mobility for handicapped persons Water and Sewer Improvements Environmental studies & administrative costs Replacing of existing deteriorated sanitary sewer lines with new lines in the same right of way. The new lines are the same diameter as the previous lines. Supplemental Assistance to a previously approved project Public utilities, other than water/sewer- improvements Community Center/Facility Down payment Assistance Acquisition/Disposition Economic Development assistance not associated with construction or expansion New Construction Residential Rehabilitation Commercial Rehabilitation Level of Review CES CES or EA Exempt CES CES EA CES or EA CENST CES CENST EA CES or EA CES or EA
The Mayor signed the Environmental Review Record. Can we buy the property now, even if it s not using CDBG funds? No. Not until Authority to Use Grant Funds from Grants Management. Can the County s Planning Director sign the ERR? Not as the Certifying Officer unless it is the function of that government.
CDBG funds are used for water/sewer installation to support a NCHFA-financed apartment complex. Can we sign a contract to start construction on the apartments while the water/sewer environmental assessment is under review? No. Not until receiving Authority to Use Grant Funds. This needs to be viewed as an aggregate project and one EA can satisfy the whole project.
CDBG funds are used for water/sewer and DOT funds are used to for the road. We haven t started the public notice for the FONSI & NOI/RROF. Can we bid out for the DOT portion yet? No. Not until receiving Authority to Use Grant Funds. This is an aggregate project. A conditional agreement may be acceptable based on completion of the environmental process.
We want to add a house to our Scattered Site Grant. We already received Authority to Use Grant Funds for this grant. Do I need to do an environmental amendment? Adding a house is not an environmental amendment. It is a new site and therefore a new Environmental Review Record. If compliance mitigation is triggered, a NOI/RROF public notice is needed. Await Authority to Use Grant Funds from Grant Rep.
We did an environmental assessment for new installation of a sewer line. We still have money to spend and want to install a new line in another part of town. We already have Authority to Use Grant Funds for this grant. Do I need to do an environmental amendment? New infrastructure across town is not an amendment. It is a new site and therefore a new EA that needs to go through the Clearinghouse and have a FONSI and NOI/RROF.
The ERR Contains Project scope/description, location, activities, regardless of funding Evaluation of effects on the environment Documentation of compliance in writing Written determinations/findings Public notices and comments when applicable Continued compliance/monitoring after release of funds
Environmental Review Record Public Document Must contain the following: description of project and each activity maps photographs site plans correspondence studies
Equality in Project Descriptions Application Project Environmental Review Project
Environmental Review DO NOT APPROACH ARBITRARILY Be thorough Be responsible Be thoughtful Review for compliance needs using - Maps and Aerial photographs Qualified Data Sources Field Notes and Photographs
Source Documentation Attach any source documentation related to the applicable environmental concern in the ERR. Advise the agency of your preliminary findings and request a written determination of any potential project impacts from each agency. Allow a minimum of 30 days for comment, but never assume that if no comment has been received in 30 days that the organization has no comment. If you have not heard from a particular agency within this time frame, it is advisable to place a phone call to the applicable agency (or email or follow-up). 30 Days is a Benchmark
Examples of Data Sources (not all inclusive): Maps Field visits and site inspections by qualified experts Technical reports Special studies Phone call logs Email correspondence Site photos Technical planning agency Local housing and/or community development agency State/Federal Environmental Protection Agency SHPO officer
Examples of Map Sources (not all inclusive): Planning Area Historical Districts- GIS USGS Topographic maps FIRMs Soil surveys Aerial photographs Local road maps Census maps Topographic maps DOI Wetland survey maps EPA maps Local planning maps Local agency resource maps
Maps Clearly mark the project site on the map. The following are elements of a good map: Title Compass (e.g. north arrow) Scale (e.g. bar or ratio) Legend (there should not be something that is not represented on the legend, and vice versa) Source(s) of information (organization that made the map/compiled the data) Border Author/creator and date created Project area identified Must be legible In general, do not try to fit too many things on one map.
Note Taking Project Name Project Location - General Investigator Name Investigator Qualifications Date of Visit Time and Duration of Visit Signature with Date
Photographs Confirm field notes Inform qualified persons Photograph Rules - Provide date/time Key to features, cardinal directions, or photo log
7.5 USGS Topo Map Project Site Hospital Wilkesboro, NC. 1966.
US Geological Survey (USGS) Map: what to look for Noise - Is the property <1,000 feet from major highway? Is the property <3,000 feet from railroad? Runway Clearzone - <3,000 feet from airport? <2.5 miles from military airport? Farmland it is outside urban area? Hazardous Operation - large ASTs?
RnE =Rion find sandy loam, 25-60% slopes Soil Survey Project Site 1995 Aerial Photograph PaD= Pacolet Sandy Loam, 15-25% slopes PrC = Pacolet-Urban land complex, 2-15% slopes
Soil Survey Questions Wetlands - Wetland soils? Soils including wetland soils? Streams or ponds? Farmland - Prime farmland soils? T&E species - Favorable soils? Aerial photograph information
Project Site FIRM
FIRM Maps: what to look for.. Floodplain Requirements - Within 100-year floodplain? Within 500-year floodplain (Critical Action)? Within Floodway? Coastal Barrier Resource System?
Local Road Map
Local Road Map: what to look for Noise - Significant highway changes? Significant railway changes? Runway Clearzone - New or proposed airports?
Aerial Photo Project Site
Aerial Photo Noise -Highway/railway changes? Runway Clearzone -Airport Construction? Hazardous Operation large ASTs? Any significant landscape changes? Features vary with photo scale/type
Census Bureau Map Project Site
Census Map: what to look for Urban Area? No prime farmland. Non-urban Area? Consider prime farmland. Census Block 9607-3 Environmental Justice?
Related Laws/Authorities National Historic Preservation Act (1966) Floodplain Management & Wetlands Protection: Executive Orders (1977) Coastal Area Management Act (1972) Noise Control Act (1972) HUD Environmental Criteria & Standards at 24 CFR Part 51 Noise Abatement and Control Near Explosives or Flammable Sites Near Airport Runway Protection Zones Near Toxic Hazards
Related Laws/Authorities, cont. Safe Drinking Water Act (1974) Wild & Scenic Rivers Act (1968) Endangered Species Act (1973) Clean Air Act (1970) Farmland Protection Policy Act (1981) Environmental Justice E.O. (1994)
National Historic Preservation Act (1966)- Section 106 Must consider effect to historical properties [36 CFR 800], whether the activity is in, adjacent to, or contributing to a historic district. It is the local government's responsibility to settle any memorandum of agreements with SHPO/THPO. The SHPO flowchart is available from HUD s ATEC website. Timing of Historical Review: Initiate during planning process Integrate process into local procedures Consider program agreements Consider surveys
National Historic Preservation Act (1966), cont. Process of Historical Review: Initiate process Establish undertaking- cause effect to a historical property? Identify SHPO/THPO and consulting parties (NC- Catawba, Cherokee, Tuscarora) Plan public involvement Identify and Evaluate Historic Properties Allow SHPO/THPO at least 30 days for comment (if Assessment, recommended to do SHPO through Clearinghouse) Assess and resolve any adverse effects
Floodplain and Wetland Management 24 CFR Part 55, E.O. 11988, E.O. 11990 Avoid development in floodplains, adverse effects to floodplains and flood zones, and study alternatives to the project Applies to physical actions in a 100-year flood area for: 1-4 single family rehabilitation if the value increases more than 50% Buildings Road Pipelines Anything except minor clearing or grubbing In the 100-year floodplain or a wetland, or will be a critical action in a 500- year floodplain, the implementation of a specific decision-making process is required, is commonly referred to as the eight-step process.
8 Step Process Involves 2 public notices (don t forget LEP element) - 15 days & 7 days published Send to FEMA and other interested agencies It is important for local governments to enforce their own flood management regulations to not jeopardize participation in National Flood Insurance Program Needs to be complete before FONSI is determined DOI Wetland maps only show jurisdictional wetlands that have been surveyed and cannot be sole source documentation
8 Step Process, cont. The 8 step process is generally NOT applicable in the following cases: 1-4 family dwelling less than 50% change in value Minor repairs (NOT rehabilitation)- see HUD memo rehabilitation versus repair Incidental portion in the floodplain (can do deed restriction) Imminent threats to health/safety Minor amendment to approved action Down payment assistance to existing structure Areas with LOMA/LOMR (FEMA Letter of Map Amendment (LOMA) and Letter of Map Revision-Based on Fill (LOMR-F)) Mortgage Insurance (for single family)
8 Step Process Examples Assume whole area is property and action is reconstruction of a single family home Since both the property and the building are in the floodplain, the 8 Step Process is required. Building Not in Floodplain- do 8 step or deed restriction
Coastal Area Management Act of 1972 15 CFR Part 930 (Subpart F) Does not apply to actions involving existing single-family homes where additional construction will not occur Applicable to: New construction (reconstruction too) Conversion of land use Major rehabilitation Acquisition of undeveloped land Analyze how the proposed project, when constructed, would be consistent with the State s coastal program - Consistency Reviews
Noise Control Act (1972) Must Consider: Civilian airports within 5 miles (servicing jets) - airport layout plan Military airports within 15 miles- Air Installations Compatible Use Zones (AICUZ) study Railroads within 3,000 feet contact railroad of local planning department Major roadways 1,000 feet Roads: 10,000 traffic count for a baseline or artery for community
Noise Control Act (1972), cont Modernization area: HUD shall encourage noise attenuation in all noise exposed areas 24 CFR 51.101(a)(4) Major or substantial rehabilitation projects in normally unacceptable or unacceptable zones, HUD shall actively seek noise attenuations. 24 CFR 51.101(a)(5) New construction (this includes reconstruction), mitigation is required 24 CFR 51.101 (a)(3)
Thermal and Explosive Hazards 24 CFR Part 51, Subpart C Activities: Industrial, commercial, residential, institutional, recreational o Increased density/capacity o New construction Pressurized/unpressurized Flammable liquid/gas Above ground 100+ gallons 1 mile of site
Phase I & II Regulations 24 CFR 58.5 (i) last updated in 2004; 40 CFR part 312 (EPA regulations from 2005) All property proposed for use in HUD programs be free of hazardous materials, contamination, toxic chemicals and gasses, and radioactive substances, where a hazard could affect the health and safety of occupants or conflict with the intended utilization of the property. Environmental reviews of multifamily and non-residential properties shall include evaluation of previous uses of the site and other evidence of contamination on or near the site, to assure that occupants of proposed sites are not adversely affected by aforementioned hazards, regardless of whether the environmental review level is categorically excluded or assessment.
Phase I Process Check with your Grant Representative on any bidding/procurement requirements. Because the contracts are less than $25,000, a small purchase is the most used. FONSI cannot be concluded until Phase I is done Asbestos and lead testing is after release of grant funds. For guidance on lead/asbestos, you need to consult with our rehabilitation specialists at CI. For more information use the guidance Choosing and environmental safe site by HUD and Federal Register guidance for 40 CFR part 312
Others There are no sole source aquifers in NC Rivers: Determine if the project will impact a listed River or it s tributaries (within 1 mile) for new construction, change of use, major rehab, land acquisition. Contact USFWS or National Park Service for help. Air Quality: Does the project involve new emission sources, or new transportation facilities? Is it in a EPA non-attainment area? Farmland: Is its new construction, land acquisition, land conversion outside urban areas with prime, unique, or important farmland? Contact NRCS for help.
Others Species: Review the FWS county listing. Is there ground disturbance or unusually loud noise? Will the footprint be expanded? Natural Heritage Pgrm can be used as supplemental documentation. Env. Justice (EJ Mapper!): Is the project in a concentrated minority/low income area? Is there an environmental impact or condition in this area disproportionate to the community as a whole? Applicable to acquisition, new development.
Compliance Requirement Historic Properties Floodplains & Wetlands Coastal Management (CZM) Sole Source Aquifers Species Wild & Scenic Rivers Air Quality Farmlands Noise Thermal/Explosive Hazards Runway Protection zones Accidental Potential Zones Toxins Environmental Justice Qualified Date Source SHPO concurrence or memorandum of understanding Copies of required notices, record of 8 step analysis; or record of restriction/covenant or protection; USACE or Wetland Specialist CAMA map for non- coastal counties; consistency determination for CAMA counties Map of sole source aquifer location is source documentation to prove that the regulation is inapplicable to the project (such as in NC) USFWS concurrence, qualified biological opinion Documentation of compliance Permit or consistency determination Written record of analysis Noise assessment and mitigation requirements/methods Hazards assessment and mitigation requirements/methods project will not add or increase people, and non-acquisition assurance is obtained Record of compatibility review Phase I and if needed, Phase II; remediation plan/record, or institutional control Documentation of mitigation or absence of better sites
Sole Source Aquifers: No Impact Environmental Justice: N/A Not This This There a no sole source aquifers designated by U.S. Environmental Protection Agency within the City of Apton. (See attached photocopy of U.S. EPA, Region V aquifers, August 1, 2005.) The project site is compatible with the surrounding residential use. Neither the project site nor surrounding area is adversely affected by environmental hazards. (See attached Phase I Environmental Site Assessment, BioChem Engineering, Atwater, AZ, (607) 533-6700, June 30, 2005) Airport Clear Zones /Accident Potential Zones: N/A Not relevant due to project location. There are no FAAregulated airports within 2500 feet of the project. The residential buildings are 2 miles from the Rickover Naval Air Station, but not within the Clear Zone or Accident Potential Zone. (See attached Air Installation Compatibility Use Zone (AICUZ) map for Rickover NAS, January 1995.)
Explosive/Flammable Operations: N/A The project does not meet the definition of a HUD-Assisted Project for purposes of this regulation. Rehabilitation of these residential buildings will not increase the unit density, make a vacant buildings become habitable, or convert buildings to habitation (24 CFR 51.201, HUD-Assisted Project ) No impact. N/A Project not located near hazardous operations. The project is for construction of sewer and water systems that will replace the septic systems within the Cypress Flats neighborhood. Therefore, it does not meet the definition of a HUD-Assisted Project, according to 24 CFR 51.201, concerning projects that are intended to develop, construct, rehabilitate, modernize or convert land or buildings for residential, institutional, recreational, commercial or industrial uses. There are no stationary aboveground hazardous operations. storage tanks more than 100 gallons in size within line of site of the proposed housing construction project. (Refer to letter from Fire Chief for the Afton Fire Department, dated 6/9/09, attached.)
Conformance with Comprehensive Plans & Zoning: County Planning and Zoning N/A This housing project is compatible with the surrounding land uses. The general area is composed of mixed residential uses (R-1 and R-2---single family and multifamily units). Residential buildings in the area are one-, two- and threestories in height. Houses constructed on the project site will be one-and two-stories in height. Land use along major roadways in the area include offices and commercial/retails services. The findings of the Phase I ESA were that there are no environmental hazards affecting the project area. (Sandra Atwood, Senior Planner, Blaine Planning Dept. Also, see attached map M-14, from the City of Blaine 2015: A Comprehensive Land Management Plan, July 2000) and Phase I ESA, dated June 1, 2005) The project is for construction of sewer and water systems that will replace the septic systems within the Cypress Flats neighborhood. Current land use will not be changed as a result, and the proposed project meets Objective 190 of the City of Afton s Water and Sewer Plan, approved by the Afton City Council, June 30, 2007, Pages 12-13 (Attached). Slope: N/A The project area is level, and slopes will not be created by excavation and fill required for site preparation. (See attached Soils and Geological Report, Geo-Design Corp., June 16, 2005)
Waste Water: County Health Department The project area is served by City sewer systems and will not impact the existing sewer capacity. In 1995, the City extended its sewer system to the project area to provide sufficient capacity for additional development in the area. [Sam Davenport, Engineer, Water and Sewer Division, Public Works Dept., (808) 979-7071, June 5, 2005. See attached telephone record.] Educational Facilities: N/A The project is for construction of sewer and water systems to replace septic systems within the Cypress Flats neighborhood. The neighborhood is completely built out, so the project will cause an increase unit density. Consequently, the capacity of the schools in the area will not be affected. [Christine Chow, District Administrator, Mayfly School District, (808) 979-4444]
Alternatives and Project Modifications Considered N/A Currently, the septic systems within the Cypress Flats neighborhood do not conform to the City s Uniform Building Code, adopted August 2008. During the summer months, water quality standards are marginal. Occasionally, the drinking water supply must be treated to meet drinking water standards. The combination of septic systems and wells on acre sized lots has become problematic. This situation will continue and may become worse as a result of atypical summer temperatures if the proposed project is not undertaken so that residential units in this area are connected to the City s sewer and water systems. There is no other alternative but this one. Consideration had been given to developing the housing units on scattered sites throughout the City. However, the higher cost of individual parcels outside the Kendall neighborhood limited the number of affordable units that could be constructed for low income families. In addition, some of the more affordable parcels had less desirable environmental conditions----e.g., close proximity to freeways, light industrial facilities, and the City treatment plant.
ATEC-HUD
Avoid 129
Unqualified Data Sources County Planning Engineer stated no historic properties. Is this person qualified? - Check SOQ or CV. Is a qualified data source required? The state wildlife program stated no protected species. Must consult with federal agency May be used as supplemental resource
Poor Site Visit Decisions No Contamination -buried toxics No Historic Structures -archeological site or viewshed issue Nearby school -not in school district Nearby playground -high crime site Fire hydrant on site -not functional
Undocumented Opinions Undocumented - Noise will not be an issue. Schools will not be adversely impacted. Documented - Per HUD NAG procedures the site DNL is 64 dbl. Study results are in Attachment X. Ms. Jane Doe of Any County School Board indicated No Anticipated Deficiency.
Private vs. Federal But Deaf Developer Corporation built 100 feet from the interstate! NEPA only applies to federal activities Is this a suitable living environment? Do you want to live in this development?
If CDBG funds are used for water/sewer and NCHFA is funding an apartment complex, is a Phase I needed? Yes If my project involves rehabilitation of a community center for economic development, do I need a Phase I? Yes
A project involves a house that is less than 50 years old and not in a historical district. But a famous person lived there. (Example- President Obama s house in Hawaii). Do I need to contact SHPO? Yes. 50 years is a general benchmark, but if a historic event happened there in the last 50 years, may qualify the location for the national register. When in doubt, contact SHPO.
The project involves stream restoration. USACE has already done their own floodplain/wetland management process for the whole area. Do I need an 8 step process? No The project involves single-family housing disaster repair. The house itself is in the floodplain. Do I need an 8 step process? No. But they still need Flood Insurance.
The project is single family housing reconstruction. There is a railroad 2,000 feet away. Do I need to conduct a DNL? Yes The decibels are below 65 DNL? Do I need a NOI/RROF? No
My project involves reconstruction of singlefamily homes in a coastal county. Do I need a consistency review? Yes This project is categorically excluded. What do I do? Send the entire ERR to CZM for review
A project involves single family rehabilitation within 3,000 feet of an airport clear zone. What source documentation do I need? For minor rehab, - owner/buyer notification that they acknowledge that their property could be bought by the airport later. For major rehab/reconstruction- HUD does not allow it.
The project involves new construction of a community building on vacant land. What source documentation do I need for Farmlands? Soil/USGS map and possibly consultation to see Does the area have important potential farmland? Is area urbanized Already zoned to non-agricultural use
A project involves new construction of apartment building on vacant land with associated infrastructure. A soil study/erosion test is needed to see if the land is stable enough to carry the weight of the new bldg. This study will involve some clearance (ground disturbance). Can we do this study before receiving Authority to Use Grant Funds? Not necessarily. It cannot occur unless it is determined to be an Exempt activity. There could be endangered species or floodplain. The developer should hold off until sufficient information is available to determine any adverse environmental impact.
In regard to Endangered Species, what finding could be made for the following: Rehabilitation w/o expansion Demolition w/o unusual noise Reconstruction w/o expansion and unusual noise No Effect since no major ground disturbance, vegetation removal, or unusual noise generation
Terminology NOI/RROF: Notice of Intent to Request Release of Funds FONSI: Finding of No Significant Impact RROF&EC: Request for Release of Funds and Environmental Certification form Certifying Officer: 24 CFR 58.2(a)(2) & 58.13- Official with legal authority to represent the Responsible Entity in federal court (typically the Chief Elected Official).
Responsibilities For certain levels of environmental review, grantees need to do public notices. Level of Environmental Review Exempt CENST CES, mitigation not triggered CES, mitigation triggered Environmental Assessment Public Notice No Public Notice No Public Notice No Public Notice NOI/RROF (7/10 days) Combined FONSI and NOI/RROF (15/18 days)
NOI/RROF 24 CFR 58.45 & 58.70-77 Complete, sign, & date ERR Local comment period: 7 days published or 10 days posted Certifying Officer signs and dates RROF/EC form Send documentation to the State State has minimum 15 day objection period Compliance reviews documentation; Grant Rep releases Authority to Use Grant Funds
Combined FONSI/NOI/RROF 24 CFR 58.43-45 & 58.70-77 Complete, sign, & date ERR Wait for comments back from Clearinghouse Local Comment: 15 days published or 18 days posted Certifying Officer signs and dates RROF/EC form Send documentation to the State State has minimum 15 day objection period Compliance reviews documentation; Grant Rep releases Authority to Use Grant Funds
Publishing Documentation to submit to State: Original signed/dated hardcopy RROF&EC form by Certifying Officer Legible copy of publisher affidavits Legible copy of newspaper clipping
Posting Documentation to submit to State: Original signed/dated hardcopy RROF&EC form by Certifying Officer Legible copy of posting Letter from Certifying Officer indicating at least 3 prominent public places of where the notice was posted (this serves as the affidavit)
Request for Release of Funds Timeline Example for NOI/RROF Date of posting or publication 1st day of local comment period Last day of local comment period On or about date CI receives document 1st day of CI objection period Estimated last day of CI objection period Estimated earliest date funds can be released Publish 03/01/10 03/02/10 03/08/10 03/09/10 03/10/10 03/24/10 03/25/10 Post 03/01/10 03/02/10 03/11/10 03/12/10 03/13/10 03/27/10 03/28/10
The Public Notice Local comment period starts the day after the notice Accessible to those with limited English proficiency Physical and mailing address for comment Copies disseminated to the appropriate local, state and Federal agencies, and any other agencies, groups, or persons who may have an interest in the project Correct dates specified Mitigation measures to be undertaken (recommended) Highly recommended to disseminate electronically as well (regulations are under review)
Limited English Proficiency If Posting, we recommend to post the full document in both English and Spanish (if have capacity to do so), but must include the phrasing the same as publishing. If Publishing, must include a clause at the end of the publishing that states that the information in the published ad is available in Spanish and other languages upon request, with contact information
LEP/LAP Phrase This information is available in Spanish or any other language upon request. Please contact (Insert Name) at (Insert Phone Number) or at (Insert physical location) for accommodations for this request. Esta información está disponible en español o en cualquier otro idioma bajo petición. Por favor, póngase en contacto con (Insert Name) al (Insert Phone Number) o en (Insert physical location) de alojamiento para esta solicitud. *Please note that the actual names, phone numbers, and physical addresses are not translated **Floodplain Notices need this too!**
RROF & Environmental Certification Same Certifying Officer mentioned in the public notice signs this form and the Environmental Review Record Form not complete until all documentation is attached State has minimum 15 day objection period, starting the day after receipt of documentation Faxes/emailed forms are only accepted for technical assistance Remember, the Environmental Review process= ERR & RROF; thus no choice limiting actions can occur until after receiving Authority to Use Grant Funds
Certifying Officer As part of CDBG grant agreement, the Chief Elected Official of the jurisdiction assumes responsibility for environmental review and must sign the Request for Release of Funds /Certification (RROF/C) and findings. CO accepts the jurisdiction of the Federal Courts for the responsible entity in environmental matters for this certification.
Why a Revised Template? Grantee Feedback HUD Feedback State Clearinghouse, Coastal Management, NC Emergency Management, SHPO feedback Researched other Region IV States Clarify/updated information
Exempt or CENST One template has been created to satisfy both of these levels Coversheet Exempt Checklist CENST Checklist 58.6 Checklist
Exempt or CENST Template Complete information Use checklists to indicate project activities Once sites have been selected, document compliance with 58.6 Submit 1 original OR 1 double-sided copy to State (maps in color)
Categorically Excluded (CES) Subject to 58.5 Use this template only for CES projects Coversheet Determination Questions Exempt Checklist CENST Checklist (if applicable) CES checklist 58.6 Checklist