Floodplain Management and Protection of Wetlands, 77162-77175 [2011-31629]
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Federal Register / Vol. 76, No. 238 / Monday, December 12, 2011 / Proposed Rules
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(1) 328 Support Services Service Bulletin
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Issued in Renton, Washington, on
December 5, 2011.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. 2011–31739 Filed 12–9–11; 8:45 am]
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DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Parts 50, 55, and 58
[Docket No. FR–5423–P–01]
RIN 2501–AD51
Floodplain Management and
Protection of Wetlands
Office of the Secretary, HUD.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: This proposed rule would
update and modify HUD’s regulations
governing the protection of wetlands
and floodplains. With respect to
wetlands, the proposed rule would
codify existing procedures for Executive
Order 11990 (E.O. 11990), Protection of
Wetlands. HUD’s current policy is to
require the use of E.O. 11990’s 8 Step
Process for floodplains for actions
performed by the Department or actions
performed with HUD financial
assistance. This rule will codify this
policy and thereby improve consistency
and increase transparency by placing
the E.O. requirements in regulation. In
certain instances, the new wetlands
procedures will allow recipients of HUD
assistance to use permits issued under
section 404 of the Clean Water Act in
lieu of five steps of the E.O. 11990’s 8
Step Process, thereby streamlining the
wetlands decision-making processes.
With respect to floodplains, the
proposed rule would prohibit HUD
funding (e.g., Community Development
Block Grants, HOME Investment
Partnerships Program, Choice
Neighborhoods, etc.) or Federal Housing
Administration (FHA) mortgage
insurance for the construction of new
structures in Coastal High Hazard Areas.
The current regulations allow for such
new construction so long as the
construction, is in accordance with
certain standards. This change is
anticipated to have minimal effect, since
HUD receives few requests to fund or
insure mortgages for new construction
in these areas.
The proposal would also make several
other changes to HUD’s floodplain and
wetland regulations; the changes are
designed to streamline floodplain and
wetland environmental procedures and
avoid unnecessary delays in processing.
The procedures proposed by this rule
would apply to HUD and to state, tribal,
and local governments when they are
responsible for environmental reviews
under HUD programs.
DATES: Comment Due Date: February 10,
2012.
ADDRESSES: Interested persons are
invited to submit comments regarding
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this proposed rule to the Regulations
Division, Office of General Counsel,
Department of Housing and Urban
Development, 451 7th Street SW., Room
10276, Washington, DC 20410–0500.
Communications must refer to the above
docket number and title. There are two
methods for submitting public
comments. All submissions must refer
to the above docket number and title.
1. Submission of Comments by Mail.
Comments may be submitted by mail to
the Regulations Division, Office of
General Counsel, Department of
Housing and Urban Development, 451
7th Street SW., Room 10276,
Washington, DC 20410–0500.
2. Electronic Submission of
Comments. Interested persons may
submit comments electronically through
the Federal eRulemaking Portal at
https://www.regulations.gov. HUD
strongly encourages commenters to
submit comments electronically.
Electronic submission of comments
allows the commenter maximum time to
prepare and submit a comment, ensures
timely receipt by HUD, and enables
HUD to make them immediately
available to the public. Comments
submitted electronically through the
https://www.regulations.gov Web site can
be viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
Note: To receive consideration as public
comments, comments must be submitted
through one of the two methods specified
above. Again, all submissions must refer to
the docket number and title of the rule.
No Facsimile Comments. Facsimile
(FAX) comments are not acceptable.
Public Inspection of Public
Comments. All properly submitted
comments and communications
submitted to HUD will be available for
public inspection and copying between
8 a.m. and 5 p.m. weekdays at the above
address. Due to security measures at the
HUD Headquarters building, an
appointment to review the public
comments must be scheduled in
advance by calling the Regulations
Division at (202) 708–3055 (this is not
a toll-free number). Individuals with
speech or hearing impairments may
access this number via TTY by calling
the Federal Relay Service at (800) 877–
8339. Copies of all comments submitted
are available for inspection and
downloading at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Charles Bien, Acting Director Office of
Environment and Energy, Office of
Community Planning and Development,
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Department of Housing and Urban
Development, 451 7th Street SW., Room
7250, Washington, DC 20410–8000. For
inquiry by phone or email, contact
Jerimiah Sanders, Environmental
Review Division, Office of Environment
and Energy, Office of Community
Planning and Development, at (202)
402–4571 (this is not a toll-free
number), or via email at
Jerimiah.J.Sanders@hud.gov. Persons
with hearing or speech impairments
may access this number through TTY by
calling the toll-free Federal Relay
Service at (800) 877–8339.
SUPPLEMENTARY INFORMATION:
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I. Background
Federal departments and agencies
(agencies) are charged by executive
orders with incorporating floodplain
management goals and wetland
protection considerations in their
respective agency’s planning,
regulatory, and decision-making
processes. A floodplain refers to the
lowland and relatively flat areas
adjoining inland and coastal waters
including flood-prone areas of offshore
islands that, at a minimum, are subject
to a one percent or greater chance of
flooding in any given year (often
referred to as the ‘‘100-year’’ flood).
Wetlands refer to those areas that are
inundated by surface or ground water
with a frequency sufficient to support
and under normal circumstances does
or would support a prevalence of
vegetative or aquatic life that requires
saturated or seasonally saturated soil
conditions for growth and reproduction.
Wetlands generally include swamps,
marshes, bogs, and similar areas such as
sloughs, potholes, wet meadows, river
overflows, mud flats, and natural ponds.
Executive Order 11988 (E.O. 11988)
entitled ‘‘Floodplain Management,’’
dated May 24, 1977 (42 FR 26951),
requires each Federal agency to identify
and evaluate practicable alternatives to
locating in the floodplain. If it is not
practicable to avoid the floodplain, then
each Federal agency must identify and
evaluate the potential effects of any
actions it may take in or affecting a
floodplain. The goals of the Executive
Order are: to avoid adversely impacting
the natural functions of floodplains
wherever possible; to ensure that the
agency’s planning programs and budget
requests reflect consideration of flood
hazards and floodplain management,
including the restoration and
preservation of such land areas as
natural undeveloped floodplains; and to
prescribe procedures to implement the
policies and procedures of this
Executive Order.
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Executive Order 11990 (E.O. 11990),
entitled ‘‘Protection of Wetlands,’’ dated
May 24, 1977, (42 FR 26961) directs
each agency to provide leadership and
take action to minimize the destruction,
loss, or degradation of wetlands. E.O.
11990 also directs each agency to
preserve and enhance the natural and
beneficial values of wetlands in carrying
out the agency’s responsibilities for: (1)
Acquiring, managing, and disposing of
Federal lands and facilities; (2)
providing federally undertaken,
financed, or assisted construction or
improvements; and (3) conducting
Federal activities and programs affecting
land use.
Although HUD has regulations on
floodplain management at 24 CFR part
55, these regulations do not codify
procedures for implementing E.O.
11990. Consistent with the intent of the
executive orders, as noted above, HUD
has relied to date on existing procedures
established for floodplain management
under 24 CFR part 55 to guide wetland
protection considerations in planning,
regulatory, and decision making
processes. This rule proposes to codify
in 24 CFR part 55 the procedures
applicable to wetlands and authorized
by E.O. 11990. Additionally, the
hurricanes of 2005, particularly
Hurricane Katrina, emphasized the need
to review existing procedures on the
protection of wetlands to determine
how such procedures may be made
more effective.
II. This Proposed Rule
Proposed Changes—Basis for Proposed
Changes
First, this rule proposes to codify
procedures authorized by E.O. 11990.
As noted in the preceding section of this
preamble, HUD has not promulgated
regulations to reflect E.O. 11990. E.O.
11990 was issued in furtherance of the
National Environmental Policy Act of
1969 (NEPA) as amended (42 U.S.C.
4321 et seq.). Through this rule, HUD
proposes to adopt in regulation the
procedures of E.O. 11990, in order to aid
in the consistent application of policy
and to increase compliance with it, by
making the policy readily available in
HUD’s environmental regulations.
The wetland procedures authorized
by E.O. 11990 require the completion of
an eight-step process, referred to below
as the ‘‘8 Step Process.’’ The 8 Step
Process is administered by HUD, state
governments, or units of local or tribal
governments. Step 1 requires a
determination of whether or not the
proposed project to be developed with
HUD financial assistance will be in a
wetland. If so, Step 2 requires that a
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public notice be issued to inform
interested parties that a proposal to
consider an action in a wetland has
been made. Following this notice, Step
3 requires the identification and
evaluation of practicable alternatives to
avoid locating the project in a wetland.
Such an evaluation of alternatives shall
include, for example, alternative
locations outside the floodplain, feasible
technological alternatives, and social
values such as aesthetics, historic and
cultural values, and land use patterns.
Step 4 requires the identification and
evaluation of the potential direct and
indirect impacts associated with the
occupancy or modification of wetlands.
Step 4 also requires the identification of
the potential direct and indirect support
of floodplain and wetlands development
that could result from the proposed
action. Direct support consists of
projects located in the floodplain such
as housing, public service structures, or
office buildings that require additional
investment such as food service or
parking. Indirect support for floodplain
or wetland development can be caused
by infrastructure that can induce further
development due to proximity to the
floodplain or wetland. Examples of
indirect support include water and
waste water systems, power supplies,
roads, airports, and mass transit
systems. Step 5 requires an analysis of
practicable modifications and changes
to the proposal to minimize adverse
impacts to the wetlands and to the
project as a result of its proposed
location in wetlands. Under Step 6, the
alternatives and the proposed wetland
site are then reevaluated. If it is
determined that there is no practicable
alternative to the proposed wetland
development, Step 7 requires a second
notice to be issued to the public stating
that the decision has been made and
providing details associated with the
decision. After this second notice, Step
8 implements the action, including any
mitigating measures that were
established during the decision-making
process. This evaluation process
requires the same eight steps as E.O.
11988, Floodplain Management, which
is currently being implemented by HUD
and other Federal agencies.
The rule also proposes to require
appropriate and practicable
compensatory mitigation for adverse
impacts to more than one acre of
wetlands. Compensatory mitigation
resulting from other Federal, state, or
local governmental requirements can be
used to fulfill this requirement.
Compensatory mitigation approaches
include permittee-responsible
mitigation, mitigation banking, in-lieu
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fee mitigation, the use of preservation
easements or protective covenants, and
any form promoted and approved by the
authority of the state governments or the
Federal Government. In certain
situations, compensatory mitigation
may not be practicable or appropriate
due to the cost of compensatory
mitigation in a state or watershed, a lack
of funds within the project, or other
reasons that make compensatory
mitigation impossible. One example
would be an Alaska Native village that
is mainly in a wetland and is
surrounded by Federal and state land.
The cost in this situation could make
compensatory mitigation inappropriate
or impracticable.
Second, this rule proposes to allow
HUD and HUD’s recipients of assistance
to use permits issued under section 404
of the Clean Water Act (33 U.S.C. 1344)
(Section 404) in lieu of performing the
first five steps of the 8 Step Process.
This streamlined option will reduce
costs and the processing time for
complying with parts of the 8 Step
Process for which adhering to the
standard process affords minimal
substantive benefit. The Clean Water
Act establishes the basic structure for
regulating discharges of pollutants into
the waters of the United States and
regulating water quality standards for
surface waters.1 Section 404 of the
Clean Water Act requires a landowner to
obtain a permit from the U.S. Army
Corps of Engineers (USACE) prior to
beginning any nonexempt activity
involving the placement of dredged or
fill material in waters of the United
States, including wetlands.
If the applicant has obtained an
individual USACE Section 404 permit
and submits the permit with its
application for a HUD program, then
HUD or the responsible entity will be
required to complete only the last three
steps of the 8 Step Process, and thus
will be able to skip § 55.20(a) through
(e). The last three steps include the
publication of a single public notice,
which will fulfill the early notice
requirement of E.O. 11990 and thereby
avoid the requirement under the usual
8 Step Process for the publication of two
notices. If HUD or the responsible entity
determines that a reevaluation or repeat
of any of the steps is necessary to
comply with E.O. 11990, HUD or the
responsible entity will reevaluate and
complete the necessary steps of the 8
Step Process. None of the 8 steps or any
provisions of this rule should be
1 The Federal Water Pollution Control Act
enacted in 1948 was significantly reorganized and
expanded in 1972. ‘‘Clean Water Act’’ became the
Act’s common name with amendments in 1977.
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interpreted as being requirements of the
USACE’s regulatory program. USACE
has its own regulations, policies, and
procedures, none of which are impacted
by this proposed rulemaking.
Although Section 1(b) of E.O. 11990
excludes the issuance of permits for
activities in nonfederal wetlands from
coverage under the Executive Order,
reliance on the Section 404 permitting
process fulfills the Executive Order’s
intent. The exclusion for permits
reflects the use of similar procedures
and criteria for approval of a permitting
action, including an initial public
notice, consideration of practicable
alternatives, and minimization of harm.
The issuance of a Section 404 permit
may not substitute for processing under
the 8 Step Process and compliance with
E.O. 11988 where the property is also
located in a floodplain. Section 404 of
the Clean Water Act also allows states
to administer an individual and general
permit program in lieu of the USACE
permit program. Section 404 permits
issued by state agencies may be used in
lieu of the first five steps of the E.O.
11990 process under this regulation.
All wetlands subject to Section 404 of
the Clean Water Act are wetlands for the
purposes of E.O. 11990. However, the
combined process proposed by this rule
will not apply in all instances, because
wetlands not considered waters of the
United States under Section 404 of the
Clean Water Act are typically wetlands
for the purposes of E.O. 11990.
Wetlands not subject to Section 404 of
the Clean Water Act must be processed
under the proposed 8 Step Process.
Third, the proposed rule would
broaden the use of the current 5 Step
Process for repairs, rehabilitations, and
improvements. The 5 Step Process is an
abbreviated 8 Step Process that omits
Steps 2, 3, and 7. Steps 2, 3, and 7
require the publication of two notices
and the consideration of alternative
sites. The 5 Step Process is currently
used for a variety of activities specified
in 24 CFR 55.12(a), such as disposition
of HUD-owned properties and mortgage
insurance for the purchase, refinancing,
or rehabilitation of existing multifamily
structures, which are not subject to
certain additional conditions. An 8 Step
Process is currently required for
financial assistance, other than mortgage
insurance, for rehabilitation of
nonresidential or residential structures
with more than four housing units
located in floodplains. Rehabilitations
subject to the 5 Step Process are any
repair, reconstruction, modernization,
or improvement of a structure that does
not result in a 20 percent increase in the
number of dwelling units or in the
average peak number of customers and
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employees. The proposed rule will
allow these rehabilitations of residential
properties and nonresidential
properties, including weatherization, to
forego Steps 2, 3, and 7 of the 8 Step
Process. As outlined above, Steps 2, 3,
and 7 are the consideration of
alternatives at Step 3 and the
publication of the preliminary and final
notice at Steps 2 and 7, respectively.
This change will streamline project
approvals and allow more resources to
be devoted toward projects with greater
impacts on floodplains and wetlands.
Fourth, the proposed rule would
update a provision in HUD’s regulations
to require the use of preliminary flood
maps and advisory base flood elevations
in post-disaster situations where the
Federal Emergency Management Agency
(FEMA) has determined that existing
Flood Insurance Rate Maps (FIRMs) may
not be the ‘‘best available information’’
for floodplain management purposes.
Currently, HUD’s regulations at 24 CFR
55.2(b)(1) indicate that FIRMs are the
only source of data for compliance with
the 8 Step Process. In the wake of
Hurricane Katrina, FEMA determined
that the existing FIRMs may not reflect
actual flood risk and issued Advisory
Base Flood Elevations and Preliminary
FIRMs. This change in map usage
requirements will bring HUD’s
regulations into alignment with the
requirement that agencies are to use the
‘‘best available information’’ located at
Section 2(a)(1) of E.O. 11988. In
addition, this change will provide
greater consistency with floodplain
management activities across HUD and
FEMA programs.
Fifth, the proposed rule would
exempt certain activities from the 8 Step
Process for floodplain management
compliance. Exempted activities
include leasing structures insured with
the National Flood Insurance Program
(NFIP) 2 and not located in a floodway
or Coastal High Hazard Area. The
exemption for leased structures also
2 Congress established the National Flood
Insurance Program with the passage of the National
Flood Insurance Act of 1968. The NFIP is a Federal
program enabling property owners in participating
communities to purchase insurance as a protection
against flood losses in exchange for state and
community floodplain management regulations that
reduce future flood damages. Participation in the
NFIP is based on an agreement between
communities and the Federal Government. If a
community adopts and enforces a floodplain
management ordinance to reduce future flood risk
to new construction in floodplains, the Federal
Government will make flood insurance available
within the community as a financial protection
against flood losses. This insurance is designed to
provide an insurance alternative to disaster
assistance to reduce the escalating costs of repairing
damage to buildings and their contents caused by
floods. See https://www.fema.gov/library/
viewRecord.do?id=1480.
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requires that: (1) The leased structure is
an existing structure; and (2) the
structure is insured for its total value or
up to the NFIP maximum as of the
commencement of the lease term. If
HUD or the grantee does not want to
obtain flood insurance for the leased
structure, the project can proceed by
performing the 8 Step Process. Critical
actions (e.g., hospitals, nursing homes,
and emergency services) in a 100- or
500-year floodplain are not covered by
this exemption. Other exempt activities
include special projects to increase
access for those with special needs,
activities involving ships or water-borne
vessels, and activities that restore and
preserve natural and beneficial
functions of floodplains and wetlands.
These changes will reduce unnecessary
delays.
Sixth, the proposed rule would
prohibit HUD funding or FHA mortgage
insurance for the construction of new
structures in Coastal High Hazard Areas.
This change would not affect existing
structures. Existing structures would be
eligible to receive funding, and disaster
assistance would continue to be
available for reconstruction of structures
destroyed by a disaster. FHA mortgage
insurance would continue to be
available as long as the mortgage
insurance is not used to finance new
construction. HUD’s current regulations
allow new construction in Coastal High
Hazard Areas, if new structures are
constructed to FEMA’s standards at 44
CFR 60.3(e) and are not critical actions.
(‘‘Critical action’’ refers to any activity
for which even a slight chance of
flooding would be too great, because
such flooding might result in loss of life,
injury to persons, or damage to
property. See 24 CFR 55.2.) This change
will prevent new development in
Coastal High Hazard Areas, which will
result in less development in areas of
higher risk to lives and property.
However, as discussed later in this
preamble, HUD currently receives few
requests to fund new construction or
provide FHA mortgage insurance for
new construction in Coastal High
Hazard Areas. The change will also
further align HUD’s development
standards with those of FEMA grant
programs.
Seventh, 24 CFR 55.26 would be
amended to make clear that under the
executive orders, HUD or a responsible
entity may adopt previous review
processes that were performed by
another responsible entity or HUD. This
change will prevent duplicative
processing in cases where a project may
have multiple recipients contributing
funding or has funding that may not
allow the responsible entity to perform
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the review. Nothing in the proposed
rule or part is binding or applicable to
the USACE or USACE processes.
USACE has its own regulations,
policies, and procedures, which are not
impacted by this part.
Finally, the proposed rule will amend
24 CFR 58.35(a)(3)(i) by modifying the
categorical exclusion from
environmental review under the
National Environmental Policy Act of
1969 (42 U.S.C. 4321) for minor
rehabilitation of one- to four-unit
residential properties, by removing the
qualification that the footprint of the
structure may not be increased in a
floodplain or wetland. Currently, four
units can be constructed in a floodplain
or wetland as an individual action
under the categorical exclusion in
§ 58.35(a)(4)(i), but rehabilitated
structures in a floodplain or wetland
require a full environmental assessment.
It is logically inconsistent to require a
greater review for minor rehabilitations
than for new construction. The
proposed rule resolves this
inconsistency but will still require part
55 processing for construction in
floodplains and wetlands. HUD believes
that this change will eliminate needless
assessments without contributing to
environmental degradation. HUD is
basing its conclusion on a recent survey
of its environmental experts.
Solicitation of Specific Comment
In addition to these proposed
changes, HUD is also specifically
soliciting public comment regarding a
potential change to § 55.20(e). The
change would require that all new
construction of ‘‘critical actions’’ in the
100- or 500-year floodplain be elevated
to the 500-year base flood elevation. A
‘‘critical action’’ is ‘‘any activity for
which even a slight chance of flooding
would be too great, because such
flooding might result in loss of life,
injury to persons, or damage to
property.’’ Examples of critical actions
include hospitals, nursing homes,
emergency response centers, and
flammable or explosive materials
storage facilities. This potential change
would make HUD’s regulations in 24
CFR part 55 more consistent with
guidance documents issued by the
Water Resources Council and consistent
with FEMA’s E.O. 11988 regulations at
44 CFR 9.11(d)(3). This change would
increase the current elevation standard
for critical actions from the 100-year
base flood level to the 500-year level.
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Specific Regulations Proposed for
Amendment
The specific regulatory revisions
proposed to be made to HUD’s
regulations are as follows:
Protection and Enhancement of
Environmental Quality (Part 50)
Section 50.4 of HUD’s regulations in
24 CFR part 50, which address related
Federal laws and authorities, would be
amended to have § 50.4(b), which
addresses flood insurance, floodplain
management, and wetlands protection,
reflect the change in the title of 24 CFR
part 55 to include ‘‘Protection of
Wetlands’’ and reflect implementation
of E.O. 11990 in 24 CFR part 55.
Floodplain Management (Part 55)
A. Purpose and Basic Responsibility
Section 55.1, which addresses the
purpose and basic responsibilities of
floodplain management, would be
updated to better describe how to
evaluate impacts on floodplains and
wetlands and to provide that part 50
now explicitly address procedures on
wetland protection. The mandatory
purchase of flood insurance under the
Flood Disaster Protection Act of 1973
(42 U.S.C. 4001–4128) is currently
required for federally funded
construction and acquisition in FEMA’s
identified special flood hazard areas.
The requirements of section 582 of the
National Flood Insurance Reform Act of
1994 (42 U.S.C. 5154a), currently stated
in HUD’s regulations at 24 CFR 58.6,
would be added to 24 CFR part 55 to
support compliance with the mandatory
purchase of flood insurance. Finally, the
prohibition on floodway activities
would be edited to allow for activities
that support beneficial floodplain
functions.
B. Terminology
Section 55.2, which defines terms
used in floodplain management, would
be amended to update existing terms in
this section and add new terminology.
To the extent that the names of these
terms as designated by FEMA’s
regulations need to be updated, the
proposed amendments would do so
without any change to the basic
meaning of these terms. With respect to
new terms, the term ‘‘Compensatory
mitigation’’ would be added consistent
with the definition of the term
promulgated by the Environmental
Protection Agency and the United States
Army Corps of Engineers (USACE) in
2008 (See Compensatory Mitigation for
Losses of Aquatic Resources, 73 FR
19594). The terms ‘‘Wetlands’’ and
‘‘New Construction’’ would be added
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consistent with those defined by E.O.
11990. The definition of wetlands also
includes a process for identifying
wetlands and utilizing appropriate
wetlands professionals. These are the
only new terms added under the
proposed rule.
C. Assignment of Responsibilities
Section 55.3, which delineates
floodplain management responsibilities,
would be amended to reflect the
existence of ‘‘responsible entities’’
under 24 CFR part 58 (Environmental
Review Procedures for Entities
Assuming HUD Environmental
Responsibilities) and the addition of
E.O. 11990 wetland procedures.
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D. Environmental Review Procedures
Section 55.10, which addresses the
environmental review procedures under
24 CFR parts 50 and 58, would be
amended to explicitly add wetland
protection and reflect implementation of
E.O. 11990 in part 55 as an element of
the environmental review process.
Section 55.11, which addresses the
applicability of floodplain management
decision making as provided in 24 CFR
part 55, subpart C, would be amended
to incorporate the purpose of floodplain
management, as provided in E.O. 11988,
and the purpose of wetlands protection,
as provided in E.O. 11990. The
proposed rule also amends this section
to adopt the previously explained 8 Step
Process for wetlands. This process will
provide a standardized and efficient
method for addressing E.O. 11990. The
proposed rule also would address
adverse effects to floodplains and
wetlands.
E. Inapplicability
Section 55.12, which addresses the
inapplicability of floodplain
management to certain categories of
proposed actions, would be amended to
remove HUD programs that no longer
exist and add exemptions from the full
process. Financial assistance for
weatherizations and rehabilitations of
multifamily structures would be granted
the use of a shortened 5 Step Process
that currently applies to mortgage
insurance actions for rehabilitation and
improvements. Floodplain and wetland
restoration activities, including
demolition, would be exempt from
§ 55.20 processing. Leasing of an
existing structure would also be granted
an exemption from the 8 Step Process,
so long as the structure is not in a
floodway or Coastal High Hazard Area,
and the structure is insured with the
National Flood Insurance Program.
Additionally, the leasing exemption
does not apply to critical actions in the
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100- or 500-year floodplain. An
exemption also would be added for
special projects directed to the removal
of material and architectural barriers
that restrict the mobility of and
accessibility to elderly and persons with
disabilities. Financial assistance for
ships and water-borne vessels would
also be exempt from § 55.20 processing.
These changes would reduce
unnecessary processing and result in a
decreased amount of analysis for
projects that have no or little adverse
impact or have beneficial effects.
F. Decision Making Process
Section 55.20, which currently
addresses the decision making process
for floodplain management, would be
amended to include the decision
making process for wetlands protection.
Step 3 of the 8 Step Process, which
requires the consideration of practicable
alternatives, would also be amended to
require that mitigation costs be
considered.
G. Conveyance Restrictions
Section 55.22, which addresses
conveyance restrictions for the
disposition of multifamily real property,
would be amended by adding the word
‘‘wetland’’ in each place where the term
floodplains is addressed by the section.
H. Documentation
Section 55.27, which addresses
documentation required in floodplain
management, would add ‘‘wetlands’’
and remove a reference to 24 CFR 570.3
to allow for a general definition of ‘‘unit
of general local government.’’
I. Responsible Entities
Sections 55.21, 55.25, 55.26, and
55.27, which address notification of
floodplain hazard, areawide
compliance, adoption of another
agency’s review under the executive
orders, and documentation,
respectively, would change the terms
‘‘grant recipient’’ to ‘‘responsible
entity.’’ This would add specificity and
consistency to 24 CFR part 55. Section
55.26 will also be edited to make it clear
that HUD can adopt a review performed
by a responsible entity, and that a
responsible entity may adopt a review
performed by HUD or another
responsible entity.
J. Use of Individual Permits Under
Section 404 of the Clean Water Act for
EO 11990 Processing
A new § 55.28 would be added to
allow for HUD to process wetlands
impacts and for recipients of HUD
assistance to use permits issued under
section 404 of the Clean Water Act in
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lieu of five steps of the E.O. 11990’s
eight-step process. Processing under this
section will reduce the time devoted to
environmental processes, by allowing
an existing individual Section 404
permit to substitute for the first five
steps of the 8 Step Process for wetlands
located outside the floodplain.
K. Environmental Review Procedures
for Entities Assuming HUD
Environmental Responsibilities (Part 58)
Section 58.5 of HUD’s regulations,
which address related Federal laws and
authorities, would be amended to have
§ 58.5(b), which addresses flood
insurance, floodplain management, and
wetlands protection, reflect the change
in the title of 24 CFR part 55 to include
‘‘Protection of Wetlands’’ and reflect
implementation of E.O. 11990 in 24 CFR
part 55. This proposed rule would also
amend § 58.6, which addresses other
requirements, by adding a new
paragraph (a)(4) that would state that
flood insurance requirements cannot be
fulfilled by self-insurance except as
authorized by law for assistance to stateowned projects within states approved
by the FEMA Administrator consistent
with 44 CFR 75.11. Additionally, HUD
also proposes to amend § 58.35, which
addresses Categorical Exclusions, by
revising the categorical exclusion from
environmental assessment under NEPA
for minor rehabilitation of one- to fourunit residential properties by removing
in § 58.35(a)(3)(i) the qualification that
the footprint of the structure may not be
increased in a floodplain or wetland.
III. Findings and Certifications
E.O. 12866, Regulatory Planning and
Review
The Office of Management and Budget
(OMB) reviewed this proposed rule
under E.O. 12866 (entitled ‘‘Regulatory
Planning and Review’’). The proposed
rule has been determined to be a
‘‘significant regulatory action,’’ as
defined in section 3(f) of the Order, but
not economically significant, as
provided in section 3(f)(1) of the Order.
The majority of the regulatory changes
proposed by this rule will have minor
economic effects. The primary purpose
of this rule is to streamline the existing
procedures pertaining to floodplain
management and protection of wetlands
that are already in place. However, two
changes proposed by HUD are
anticipated to have some economic
effect. These two changes are: (1) HUD’s
proposal to streamline the approval
process for rehabilitations, repairs, and
improvements of HUD-funded
properties in floodplains and wetlands;
and (2) HUD’s proposal to prohibit new
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construction that would either be
funded by HUD or have mortgages
insured by FHA in Coastal High Hazard
Areas. The proposed streamlined
process for rehabilitations will lower
costs for projects, which could induce
more improvement activities. The
proposal to prohibit new construction in
Coastal High Hazard Areas could affect
the siting of properties, but these
projects are rarely proposed or approved
even in the absence of a prohibition.
Streamlined Procedures for
Rehabilitations, Repairs, and
Improvements of Multifamily Properties
in Floodplains. HUD or responsible
entities reviewing proposals for
rehabilitations, repairs, and
improvements to multifamily properties
located in floodplains are required to
follow the 8 Step Process to minimize
the impact to floodplains. The proposed
change would abbreviate the process for
these proposals, because the process no
longer requires public notices or the
consideration of alternatives for
floodplain executive order compliance.
The benefits of this proposed change
arise from the reduced compliance costs
associated with the eliminated steps.
Total labor compliance costs for the
entire 8 Step Process have been
estimated at $320 per project. A more
detailed step-by-step cost estimate is not
available. However, if eliminating the
three steps saves 10 to 15 percent of the
total labor cost of compliance, then each
rehabilitation project would save
between $32 and $48. Costs to publish
the notices would be added to this
amount for the overall cost of
compliance. The precise number of
proposed rehabilitation, repair, and
improvement projects is not available,
although the overall number is
estimated to be less than 100 annually.
Although the reduced compliance costs
could, on the margin, induce an
increase in the requests for funding, that
increase is unlikely considering that the
cost of these projects generally range
from thousands to millions of dollars.
For this analysis, HUD estimates an
annual total of 100 projects, including
the induced projects. One hundred such
projects would produce benefits ranging
from $3,200 and $4,800 plus minimal
costs of publication. Since these
assessments rarely lead to a different
outcome for rehabilitation, repair, and
improvement projects, the lost benefits
of not conducting a full floodplain
assessment—the cost of this provision—
are negligible.
Prohibition on New Construction in
Coastal High Hazard Areas. Prohibiting
new construction in Coastal High
Hazard Areas would force developers to
locate HUD-funded or FHA-insured
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properties out of hazard areas subject to
high velocity waters. This prohibition
would not affect developments that are
destroyed by floods and that need to be
rebuilt. Existing property owners
interested in developing in Coastal High
Hazard Areas would either incur
transaction costs from selling the
existing property and purchasing an
alternative site, or obtain a more
expensive source of funding/assistance.
However, based on HUD’s records, it is
extremely rare for HUD to fund, or
provide mortgage insurance for, a new
construction proposal in these coastal
areas. HUD found only one project that
that been completed in a Coastal High
Hazard Area, and one additional project
is currently under review. These
projects were approximately 6 years
apart. Thus, HUD believes that this
provision will not have a significant
impact.
Accordingly, this proposed rule is
expected to create an annual economic
impact ranging from $3,200 to $4,800,
which are avoided costs resulting from
a streamlined approval process for
rehabilitations of properties located in
floodplains. Thus, the implementation
of this rule will not create an impact
exceeding the $100 million threshold
established by E.O. 12866.
The docket file is available for public
inspection in the Regulations Division,
Office of General Counsel, Department
of Housing and Urban Development,
451 7th Street SW., Room 10276,
Washington, DC 20410–0500. Due to
security measures at the HUD
Headquarters building, please schedule
an appointment to review the docket file
by calling the Regulations Division at
(202) 402–3055 (this is not a toll-free
number). Individuals with speech or
hearing impairments may access this
number via TTY by calling the Federal
Relay Service at (800) 877–8339.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.) generally requires
an agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements, unless the agency certifies
that the rule would not have a
significant economic impact on a
substantial number of small entities.
The proposed rule would codify
HUD’s policies and procedures
implementing E.O. 11990, Protection of
Wetlands. The goal of the Executive
Order is to prevent adverse impacts
associated with the destruction or
modification of wetlands. E.O. 11990
establishes a uniform set of
requirements designed to meet this goal
and that are applicable to both large and
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77167
small entities. The proposed rule would
also broaden the use of the abbreviated
8 Step Process also known as the 5 Step
Process, used by HUD and responsible
entities when considering the impact on
floodplains in connection with the
repair of existing structures.
Specifically, the rule proposes to
authorize the use of the abbreviated
process for all of HUD’s rehabilitation
programs. The current regulations limit
the use of the abbreviated process to
repairs financed under HUD’s mortgage
insurance programs.
The proposed rule clarifies existing
requirements, streamlines processes,
and increases access to expedited
approval procedures in certain
circumstances. These changes would
decrease burdens on small entities.
Therefore, the undersigned has
determined that the proposed rule will
not have a significant economic impact
on a substantial number of small
entities. Notwithstanding HUD’s
determination that this rule will not
have a significant effect on a substantial
number of small entities, HUD
specifically invites comments regarding
any less burdensome alternatives to this
rule that will meet HUD’s objectives as
described in the preamble to this rule.
Environmental Impact
A Finding of No Significant Impact
(FONSI) with respect to environment
has been made in accordance with HUD
regulations at 24 CFR part 50, which
implement section 102(2)(C) of NEPA
(42 U.S.C. 4332(2)(C)). The Finding of
No Significant Impact is available for
public inspection between the hours of
8 a.m. and 5 p.m. weekdays in the
Regulations Division, Office of General
Counsel, Department of Housing and
Urban Development, 451 7th Street SW.,
Room 10276, Washington, DC 20410.
Due to security measures at the HUD
Headquarters building, please schedule
an appointment to review the FONSI by
calling the Regulations Division at (202)
708–3055 (this is not a toll-free
number). Individuals with speech or
hearing impairments may access this
number via TTY by calling the toll-free
Federal Relay Service at (800) 877–8339.
E.O. 13132 Federalism
E.O. 13132 (entitled ‘‘Federalism’’)
prohibits an agency from publishing any
rule that has federalism implications if
the rule either imposes substantial
direct compliance costs on state and
local governments and is not required
by statute, or preempts state law, unless
the agency meets the consultation and
funding requirements of section 6 of the
Order. This rule does not have
federalism implications and would not
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impose substantial direct compliance
costs on state and local governments nor
preempt state law within the meaning of
the Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531–
1538) (UMRA) establishes requirements
for Federal agencies to assess the effects
of their regulatory actions on state,
local, and tribal governments, and on
the private sector. This rule does not
impose any Federal mandates on any
state, local, or tribal governments, or on
the private sector, within the meaning of
UMRA.
Paperwork Reduction Act
The information collection
requirements contained in this proposed
rule have been submitted to the Office
of Management and Budget (OMB)
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3520). In
accordance with the Paperwork
Reduction Act, an agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information, unless the collection
displays a currently valid OMB control
number.
The burden of the information
collections in this proposed rule is
estimated as follows:
REPORTING AND RECORDKEEPING BURDEN
Estimated annual
burden
(in hours)
Decisionmaking process ...................................................
Notification of floodplain hazard .......................................
275
300
1
1
8
1
2,200
300
Totals ........................................................................................
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§ 55.20
§ 55.21
Estimated
average time for
requirement
(in hours)
Number of
responses per
respondent
Number of
respondents
Section reference
575
2
9
2,500
In accordance with 5 CFR
1320.8(d)(1), HUD is soliciting
comments from members of the public
and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated collection
techniques or other forms of information
technology; e.g., permitting electronic
submission of responses.
Interested persons are invited to
submit comments regarding the
information collection requirements in
this rule. Comments must refer to the
proposal by name and docket number
(FR–5423–P–01) and be sent to:
HUD Desk Officer, Office of
Management and Budget, New
Executive Office Building,
Washington, DC 20503, Fax number:
(202) 395–6947, and
Reports Liaison Officer, Office of
Community Planning and
Development, Department of Housing
and Urban Development, 451 Seventh
Street SW., Washington, DC 20410–
8000.
Interested persons may submit
comments regarding the information
collection requirements electronically
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through the Federal eRulemaking Portal
at https://www.regulations.gov. HUD
strongly encourages commenters to
submit comments electronically.
Electronic submission of comments
allows the commenter maximum time to
prepare and submit comments, ensures
timely receipt by HUD, and enables
HUD to make them immediately
available to the public. Comments
submitted electronically through the
https://www.regulations.gov Web site can
be viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
List of Subjects
24 CFR Part 50
Environmental impact statements.
24 CFR Part 55
Environmental impact statements,
Floodplains, Wetlands.
24 CFR Part 58
Community development block
grants, Environmental impact
statements, Grant programs—housing
and community development, Reporting
and recordkeeping requirements.
Accordingly, for the reasons stated in
the preamble above, HUD proposes to
amend 24 CFR parts 50, 55, and 58 as
follows:
PART 50—PROTECTION AND
ENHANCEMENT OF ENVIRONMENTAL
QUALITY
1. The authority citation for part 50 is
revised to read as follows:
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Authority: 42 U.S.C. 3535(d) and 4332; and
Executive Order 11991, 3 CFR, 1977 Comp.,
p. 123.
2. Revise § 50.4(b)(2) and (b)(3) to read
as follows:
§ 50.4
Related federal laws and authorities.
*
*
*
*
*
(b) * * *
(2) HUD procedure for the
implementation of E.O. 11988
(Floodplain Management), (3 CFR, 1977
Comp., p. 117)—24 CFR part 55,
Floodplain Management and Protection
of Wetlands.
(3) HUD procedure for the
implementation of E.O. 11990
(Protection of Wetlands), (3 CFR, 1977
Comp., p. 121)—24 CFR part 55,
Floodplain Management and Protection
of Wetlands.
*
*
*
*
*
3. Revise the part heading for part 55
to read as set forth below.
PART 55—FLOODPLAIN
MANAGEMENT AND PROTECTION OF
WETLANDS
4. The authority citation for part 55 is
revised to read as follows:
Authority: 42 U.S.C. 3535(d), 4001–4128
and 5154a; E.O. 11988, 42 FR 26951, 3 CFR,
1977 Comp., p. 117; E.O. 11990, 42 FR 26961,
3 CFR, 1977 Comp., p. 121.
5. Amend § 55.1 as follows:
a. Revise paragraph (a);
b. Redesignate paragraph (b) as
paragraph (b)(1);
c. Add a new paragraph (b)(2);
d. Revise paragraphs (c)(1);
e. Revise paragraphs of (c)(3) and
(c)(3)(i), to read as follows:
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§ 55.1
Purpose and basic responsibility.
(a)(1) The purpose of Executive Order
11988—Floodplain Management is ‘‘to
avoid to the extent possible the long and
short-term adverse impacts associated
with the occupancy and modification of
floodplains and to avoid direct or
indirect support of floodplain
development wherever there is a
practicable alternative.’’
(2) The purpose of Executive Order
11990—Protection of Wetlands is ‘‘to
avoid to the extent possible the long and
short-term adverse impacts associated
with the destruction or modification of
wetlands and to avoid direct or indirect
support of new construction in wetlands
wherever there is a practicable
alternative.’’
(3) This part implements the
requirements of Executive Order 11988,
Floodplain Management, and Executive
Order 11990, Protection of Wetlands,
and employs the principles of the
Unified National Program for
Floodplain Management. These
regulations apply to all HUD (or
responsible entity) actions that are
subject to potential harm by location in
floodplains or wetlands. Covered
actions include the proposed
acquisition, construction, demolition,
improvement, disposition, financing,
and use of properties located in a
floodplain or wetlands for which
approval is required either from HUD
under any applicable HUD program or
from a responsible entity authorized by
24 CFR part 58.
(4) This part does not prohibit
approval of such actions (except for
certain actions in high hazard areas), but
provides a consistent means for
implementing the Department’s
interpretation of the Executive Orders in
the project approval decision making
processes of HUD and of responsible
entities subject to 24 CFR part 58. The
implementation of Executive Orders
11988 and 11990 under this part shall
be conducted by HUD for Departmentadministered programs subject to
environmental review under 24 CFR
part 50 and by authorized responsible
entities that are responsible for
environmental review under 24 CFR
part 58.
(5) Non-structural alternatives to
floodplain development and the
destruction of wetlands are both favored
and encouraged to reduce the loss of life
and property caused by floods, and to
restore the natural resource and
functions of floodplains and wetlands.
Nonstructural alternatives should be
discussed in the decision making where
practicable.
(b) * * *
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(2) 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 of damage to
any personal, residential, or commercial
property if:
(i) The person had previously
received Federal flood disaster
assistance conditioned on obtaining and
maintaining flood insurance; and
(ii) The person failed to obtain and
maintain the flood insurance.
(c) * * *
(1) Any action other than a
functionally dependent use or
floodplain function restoration activity,
located in a floodway;
(2) * * *
(3) Any non-critical action located in
a Coastal High Hazard Area, unless the
action is a functionally dependent use,
an improvement of an existing structure,
or reconstruction of a structure
destroyed by a disaster. If the action is
not a functionally dependent use, the
action must be designed for location in
a Coastal High Hazard Area. An action
will be considered designed for a
Coastal High Hazard Area if:
(i) In the case of reconstruction or
substantial improvement, the work
meets the current standards for V zones
in FEMA regulations (44 CFR 60.3(e))
and, if applicable, the Minimum
Property Standards for such
construction in 24 CFR
200.926d(c)(4)(iii); or
*
*
*
*
*
6. Amend § 55.2 to:
a. Revise paragraph (a);
b. Revise paragraphs (b) and (b)(1);
c. Redesignate existing paragraphs
(b)(2), (b)(3), (b)(4), (b)(5), (b)(6), (b)(7),
and (b)(8) as paragraphs (b)(3), (b)(4),
(b)(5), (b)(6), (b)(7), (b)(9), and (b)(10),
respectively;
d. Add new paragraphs (b)(2) and
(b)(8);
e. Revise newly designated paragraph
(b)(9); and
f. Add new paragraph (b)(11) to read
as follows:
§ 55.2
Terminology.
(a) With the exception of those terms
defined in paragraph (b) of this section,
the terms used in this part shall follow
the definitions contained in section 6 of
E.O. 11988, section 7 of E.O. 11990, and
the Floodplain Management Guidelines
for Implementing Executive Order
11988 (43 FR 6030, February 10, 1978),
issued by the Water Resources Council;
the terms ‘‘special flood hazard area,’’
‘‘criteria,’’ and ‘‘Regular Program’’ shall
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77169
follow the definitions contained in
FEMA regulations at 44 CFR 59.1; and
the terms ‘‘Letter of Map Revision’’ and
‘‘Letter of Map Amendment’’ shall refer
to letters issued by FEMA as provided
in 44 CFR part 65 and 44 CFR part 70,
respectively.
(b) For purposes of this part, the
following definitions apply:
(1) Coastal high hazard area means
the area subject to high velocity waters,
including but not limited to hurricane
wave wash or tsunamis. The area is
designated on a Flood Insurance Rate
Map (FIRM) under FEMA regulations.
FIRMs are also relied upon for the
designation of ‘‘100-year floodplains’’
(§ 55.2(b)(9)), ‘‘500-year floodplains’’
(§ 55.2(b)(4)), and ‘‘floodways’’
(§ 55.2(b)(5)). Where FIRMs are declared
by FEMA not to be the ‘‘best available
information’’, the latest interim FEMA
information, such as an Advisory Base
Flood Elevation (ABFE), shall be used as
the source of these designations. If
FEMA information is unavailable or
insufficiently detailed, other Federal,
state, or local data may be used as ‘‘best
available information’’ in accordance
with E.O. 11988. However, a base flood
elevation from an interim or preliminary
or non-FEMA source cannot be used if
it is lower than the current FIRM.
(2) Compensatory mitigation means
the restoration (re-establishment or
rehabilitation), establishment (creation),
enhancement, and/or in certain
circumstances preservation of aquatic
resources for the purposes of offsetting
unavoidable adverse impacts that
remain after all appropriate and
practicable avoidance and minimization
has been achieved.
Examples include, but are not limited
to:
(i) Permittee-Responsible Mitigation:
On-site or off-site mitigation undertaken
by the holder of a wetlands permit
under Section 404 of the Clean Water
Act (or an authorized agent or
contractor), for which the permittee
retains full responsibility;
(ii) Mitigation Banking: A permittee’s
purchase of credits from a wetlands
mitigation bank, comprising wetlands
that have been set aside to compensate
for conversions of other wetlands; the
mitigation obligation is transferred to
the sponsor of the mitigation bank; and
(iii) In-Lieu Fee Mitigation: A
permittee’s provision of funds to an inlieu fee sponsor (public agency or
nonprofit organization) that builds and
maintains a mitigation site, often after
the permitted adverse wetland impacts
have occurred; the mitigation obligation
is transferred to the in-lieu fee sponsor.
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*
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(8) New construction includes
draining, dredging, channelizing, filling,
diking, impounding, and related
activities and any structures or facilities
begun after the effective date of E.O.
11990. (See Section 7(b) of E.O. 11990.)
(9) 100-year floodplain means the
floodplain of concern for this part and
is the area subject to inundation from a
flood having a one percent or greater
chance of flooding in any given year.
(See § 55.2(b)(1) for appropriate data
sources.)
*
*
*
*
*
(11) Wetlands means those areas that
are inundated by surface or ground
water with a frequency sufficient to
support, and under normal
circumstances does or would support, a
prevalence of vegetative or aquatic life
that requires saturated or seasonally
saturated soil conditions for growth and
reproduction. Wetlands generally
include swamps, marshes, bogs, and
similar areas such as sloughs, potholes,
wet meadows, river overflows, mud
flats, and natural ponds. This definition
includes those wetlands areas separated
from their natural supply of water as a
result of activities such as the
construction of structural flood
protection methods or solid-fill road
beds and activities such as mineral
extraction and navigation
improvements. This definition includes
both wetlands subject to and those not
subject to section 404 of the Clean Water
Act. The following process shall be
followed in making the wetlands
determination:
(i) HUD or, for programs subject to 24
CFR part 58, the responsible entity,
shall make a determination whether the
action is new construction that is
located in a wetland. These actions are
subject to processing under the § 55.20
decision-making process for the
protection of wetlands.
(ii) As primary screening, HUD or the
responsible entity shall verify whether
the project area is located in proximity
to wetlands identified on the National
Wetlands Inventory (NWI). If so, HUD or
the responsible entity should make a
reasonable attempt to consult with the
Department of the Interior, Fish and
Wildlife Service (FWS) for information
concerning the location, boundaries,
scale, and classification of wetlands
within the area. If an NWI map indicates
the presence of wetlands, FWS staff, if
available, must find that no wetland is
present in order for the action to
proceed without further processing.
Where FWS staff is unavailable to
resolve any NWI map ambiguity or
controversy, an appropriate wetlands
professional must find that no wetland
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is present in order for the action to
proceed without § 55.20 processing.
(iii) As secondary screening used in
conjunction with NWI maps, HUD or
the responsible entity is encouraged to
use the Department of Agriculture,
Natural Resources Conservation Service
(NRCS) National Soil Survey (NSS) and
any state and local information
concerning the location, boundaries,
scale, and classification of wetlands
within the action area.
(iv) Any challenges from the public or
other interested parties to the wetlands
determinations made under this part
must be made in writing to HUD (or the
responsible entity authorized under 24
CFR part 58) during the commenting
period and must be substantiated with
verifiable scientific information.
Commenters may request a reasonable
extension of the time for the
commenting period for the purpose of
substantiating any objections with
verifiable scientific information. HUD or
the responsible entity shall consult FWS
staff, if available, on the validity of the
challenger’s scientific information prior
to making a final wetlands
determination.
7. In § 55.3, revise paragraphs (a)(1),
(b)(1), (b)(2), and (c); and add new
paragraph (d), to read as follows:
§ 55.3
Assignment of responsibilities.
(a)(1) The Assistant Secretary for
Community Planning and Development
(CPD) shall oversee:
(i) The Department’s implementation
of Executive Orders 11988 and 11990
and this part in all HUD programs; and
(ii) The implementation activities of
HUD program managers and, for HUD
financial assistance subject to 24 CFR
part 58, of grant recipients and
responsible entities.
*
*
*
*
*
(b) Other HUD Assistant Secretaries,
the General Counsel, and the President
of the Government National Mortgage
Association (Ginnie Mae) shall:
(1) Ensure compliance with this part
for all actions under their jurisdiction
that are proposed to be conducted,
supported, or permitted in a floodplain
or wetland;
(2) Ensure that actions approved by
HUD or responsible entities are
monitored and that any prescribed
mitigation is implemented;
*
*
*
*
*
(c) Responsible Entity Certifying
Officer. Certifying Officers of
responsible entities administering or
reviewing activities subject to 24 CFR
part 58 shall comply with part 55 in
carrying out HUD-assisted programs.
Certifying Officers of responsible
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entities subject to 24 CFR part 58 shall
monitor approved actions and ensure
that any prescribed mitigation is
implemented.
(d) Recipient. Recipients subject to 24
CFR part 58 shall monitor approved
actions and ensure that any prescribed
mitigation is implemented. Recipients
shall:
(1) Supply HUD (or the responsible
entity authorized by 24 CFR part 58)
with all available, relevant information
necessary for HUD (or the responsible
entity) to perform the compliance
required by this part; and
(2) Implement mitigating measures
required by HUD (or the responsible
entity authorized by 24 CFR part 58)
under this part or select alternate
eligible property.
8. The heading for subpart B is
revised to read as follows:
Subpart B—Application of Executive
Orders on Floodplain Management and
Protection of Wetlands
9. Revise § 55.10 to read as follows:
§ 55.10 Environmental review procedures
under 24 CFR parts 50 and 58.
(a) Where an environmental review is
required under the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321), and 24 CFR
part 50 or part 58, compliance with this
part shall be completed before the
completion of an environmental
assessment (EA), including a finding of
no significant impact (FONSI), or an
environmental impact statement (EIS),
in accordance with the decision points
listed in 24 CFR 50.17(a)–(h), or before
the preparation of an EA under 24 CFR
58.40 or an EIS under 24 CFR 58.37. For
types of proposed actions that are
categorically excluded from NEPA
requirements under 24 CFR part 50 (or
part 58), compliance with this part shall
be completed before the Department’s
initial approval (or approval by a
responsible entity authorized by 24 CFR
part 58) of proposed actions in a
floodplain or wetland.
(b) The categorical exclusion of
certain proposed actions from
environmental review requirements
under NEPA and 24 CFR parts 50 and
58 (see 24 CFR 50.20 and 58.35(a)) does
not exclude those actions from
compliance with this part.
10. Revise § 55.11 to read as follows:
§ 55.11 Applicability of Subpart C decision
making process.
(a) Before reaching the decision points
described in § 55.10(a), HUD (for
Department-administered programs) or
the responsible entity (for HUD
financial assistance subject to 24 CFR
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part 58) shall determine whether E.O.
11988, E.O. 11990, and this part apply
to the proposed action.
(b) If E.O. 11988 or 11990 and this
part apply, the approval of a proposed
action or initial commitment shall be
made in accordance with this part. The
primary purpose of E.O. 11988 is ‘‘to
avoid to the extent possible the long and
short term adverse impacts associated
with the occupancy and modification of
floodplains and to avoid direct or
indirect support of floodplain
development wherever there is a
practicable alternative.’’ The primary
purpose of E.O. 11990 is ‘‘to avoid to the
extent possible the long and short-term
adverse impacts associated with the
destruction or modification of wetlands
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and to avoid direct or indirect support
of new construction in wetlands
wherever there is a practicable
alternative.’’
(c) The following table indicates the
applicability, by location and type of
action, of the decision making process
for implementing E.O. 11988 and E.O.
11990 under subpart C of this part.
TABLE 1
Type of proposed action
Type of proposed action
(new reviewable action or
an amendment) 1
Floodways
Coastal high hazard areas
Critical actions as defined
in § 55.12(b)(2).
Critical actions not allowed
Critical actions not allowed
Non-critical actions not excluded under § 55.12(b)
or (c).
Allowed only if the proposed non-critical action
is a functionally dependent use and processed
under § 55.20 2.
Allowed only if the proposed non-critical action:
(A)(1) Is either
(a) reconstruction of a
structure destroyed
by a disaster, or
(b) an improvement of
an existing structure;
(2) is designed for a
Coastal High Hazard Area under
§ 55.1(c)(3); and
(3) is processed under
§ 55.20; 2 or
(B) Is a functionally
dependent use
processed under
§ 55.20
Allowed if proposed noncritical action is processed under § 55.20 2.
Wetlands or 100-year
floodplain outside coastal
high hazard area and
floodways
Allowed if the proposed
critical action is processed under § 55.20 2.
Any non-critical action is
allowed without processing under this part..
Non-wetlands area outside
of the 100-year and within
the 500-year floodplain
Allowed if the proposed
critical action is processed under § 55.20 2.
1 Under
2 Or
E.O. 11990, the decision making process in § 55.20 only applies to Federal assistance for new construction in wetlands locations.
those paragraphs of § 55.20 that are applicable to an action listed in § 55.12(a).
11. Revise 55.12 to read as follows:
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§ 55.12 Inapplicability of 24 CFR part 55 to
certain categories of proposed actions.
(a) The decision making steps in
§ 55.20(b), (c), and (g) (steps 2, 3, and 7)
do not apply to the following categories
of proposed actions:
(1) HUD’s or the recipient’s actions
involving the disposition of acquired
multifamily housing projects or ‘‘bulk
sales’’ of HUD-acquired (or under part
58 of recipients’) one- to four-family
properties in communities that are in
the Regular Program of the National
Flood Insurance Program and in good
standing (i.e., not suspended from
program eligibility or placed on
probation under 44 CFR 59.24). For
programs subject to part 58, this
subsection applies only to recipients’
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disposition activities that are subject to
review under 24 CFR part 58.
(2) HUD’s actions under the National
Housing Act (12 U.S.C. 1701) for the
purchase or refinancing of existing
multifamily housing projects, hospitals,
nursing homes, assisted living facilities,
board and care facilities, and
intermediate care facilities, in
communities that are in good standing
under the NFIP.
(3) HUD’s or the recipient’s actions
under any HUD program involving the
repair, rehabilitation, modernization,
weatherization, or improvement of
existing multifamily housing projects,
hospitals, nursing homes, assisted living
facilities, board and care facilities,
intermediate care facilities, and one- to
four-family properties, in communities
that are in the Regular Program of the
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National Flood Insurance Program
(NFIP) and are in good standing,
provided that the number of units is not
increased more than 20 percent, the
action does not involve a conversion
from nonresidential to residential land
use, and the footprint of the structure
and paved areas is not significantly
increased.
(4) HUD’s (or the recipient’s) actions
under any HUD program involving the
repair, rehabilitation, modernization,
weatherization, or improvement of
existing nonresidential buildings and
structures, in communities that are in
the Regular Program of the NFIP and are
in good standing, and provided that the
footprint of the structure and paved
areas are not significantly increased.
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(b) The decision making process in
§ 55.20 shall not apply to the following
categories of proposed actions:
(1) HUD’s mortgage insurance actions
and other financial assistance for the
purchasing, mortgaging or refinancing of
existing one- to four-family properties in
communities that are in the Regular
Program of the NFIP and in good
standing (i.e., not suspended from
program eligibility or placed on
probation under 44 CFR 59.24), where
the action is not a critical action and the
property is not located in a floodway or
Coastal High Hazard Area;
(2) Financial assistance for minor
repairs or improvements on one- to fourfamily properties that do not meet the
thresholds for ‘‘substantial
improvement’’ under § 55.2(b)(10);
(3) HUD or a recipient’s actions
involving the disposition of individual
HUD-acquired, one- to four-family
properties; and
(4) HUD guarantees under the Loan
Guarantee Recovery Fund Program (24
CFR part 573) of loans that refinance
existing loans and mortgages, where any
new construction or rehabilitation
financed by the existing loan or
mortgage has been completed prior to
the filing of an application under the
program, and the refinancing will not
allow further construction or
rehabilitation, nor result in any physical
impacts or changes except for routine
maintenance.
(5) The approval of financial
assistance to lease an existing structure
located within the floodplain, but only
if—
(i) The structure is located outside the
floodway or Coastal High Hazard Area,
and is in a community that is in the
Regular Program of the NFIP and in
good standing (i.e., not suspended from
program eligibility or placed on
probation under 44 CFR 59.24);
(ii) The project is not a critical action;
and
(iii) The entire structure is or will be
fully insured or insured to the
maximum under the NFIP for at least
the term of the lease.
(c) This part shall not apply to the
following categories of proposed HUD
actions:
(1) HUD-assisted activities described
in 24 CFR 58.34 and 58.35(b);
(2) HUD-assisted activities described
in 24 CFR 50.19, except as otherwise
indicated in § 50.19;
(3) HUD’s implementation of the full
disclosure and other registration
requirements of the Interstate Land
Sales Disclosure Act (15 U.S.C. 1701–
1720);
(4) An action involving a
repossession, receivership, foreclosure,
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or similar acquisition of property to
protect or enforce HUD’s financial
interests under previously approved
loans, grants, mortgage insurance, or
other HUD assistance;
(5) Policy-level actions described at
24 CFR 50.16 that do not involve sitebased decisions;
(6) A minor amendment to a
previously approved action with no
additional adverse impact on or from a
floodplain or wetland;
(7) HUD’s or the responsible entity’s
approval of a project site, an incidental
portion of which is situated in an
adjacent floodplain, including the
floodway or Coastal High Hazard Area,
or wetland, but only if:
(i) The proposed construction and
landscaping activities (except for minor
grubbing, clearing of debris, pruning,
sodding, seeding, or other similar
activities) do not occupy or modify the
100-year floodplain (or the 500-year
floodplain for critical actions) or the
wetland;
(ii) Appropriate provision is made for
site drainage, that would not have an
adverse effect on a wetland; and
(iii) A permanent covenant or
comparable restriction is placed on the
property’s continued use to preserve the
floodplain or wetland;
(8) HUD’s or the responsible entity’s
approval of financial assistance for a
project on any nonwetland site in a
floodplain for which the Federal
Emergency Management Agency
(FEMA) has issued:
(i) A final Letter of Map Amendment
(LOMA), final Letter of Map Revision
(LOMR), or final Letter of Map Revision
Based on Fill (LOMR–F) that removed
the property from a FEMA-designated
floodplain location; or
(ii) A conditional LOMA, conditional
LOMR, or conditional LOMR–F if HUD
or the responsible entity’s approval is
subject to the requirements and
conditions of the conditional LOMA or
conditional LOMR;
(9) Issuance or use of Housing
Vouchers, Certificates under the Section
8 Existing Housing Program, or other
forms of rental subsidy where HUD, the
awarding community, or the public
housing agency that administers the
contract awards rental subsidies that are
not project-based (i.e., do not involve
site-specific subsidies);
(10) Special projects directed to the
removal of material and architectural
barriers that restrict the mobility of and
accessibility to the elderly and persons
with disabilities;
(11) The approval of financial
assistance for acquisition, leasing,
construction, rehabilitation, repair,
maintenance, or operation of ships and
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other water-borne vessels that will be
used for transportation or cruises and
will not be permanently moored; and
(12) The approval of financial
assistance for restoring and preserving
the natural and beneficial functions and
values of floodplains and wetlands,
including through acquisition of such
floodplain and wetlands property, but
only if:
(i) The property is cleared of all
existing structures and related
improvements;
(ii) The property is dedicated for
permanent use for flood control,
wetlands protection, park land, or open
space; and
(iii) A permanent covenant or
comparable restriction is placed on the
property’s continued use to preserve the
floodplain or wetlands from future
development.
12. The heading for subpart C is
revised to read as follows:
Subpart C—Procedures for Making
Determinations on Floodplain
Management and Protection of
Wetlands
13. Amend § 55.20 as follows:
a. Revise the introductory paragraph;
b. Revise paragraph (a);
c. Revise paragraphs (b) and (b)(3);
d. Revise paragraphs (c), (d), and (e);
e. Revise paragraphs (f), (g)(1), and (h)
to read as follows:
§ 55.20
Decision making process.
Except for actions covered by
§ 55.12(a), the decision making process
for compliance with this part contains
eight steps, including public notices and
an examination of practicable
alternatives when addressing
floodplains and wetlands. The steps to
be followed in the decision making
process are as follows:
(a) Step 1. Determine whether the
proposed action is located in wetlands
or the 100-year floodplain (500-year
floodplain for critical actions). If the
action does not occur in a floodplain or
wetland, then no further compliance
with this part is required. The following
process shall be followed by HUD (or
the responsible entity) in making
wetlands determinations.
(1) Refer to § 55.28(a) where an
applicant has submitted with its
application to HUD (or to the recipient
under programs subject to 24 CFR part
58) an individual Section 404 permit
(including approval conditions and
related environmental review).
(2) Refer to § 55.2(b)(11) for making
wetlands determinations under this
part.
(3) For proposed actions occurring in
both wetlands and a floodplain,
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completion of the decision making
process under § 55.20 is required
regardless of the issuance of a Section
404 permit. In such a case, the wetlands
will be considered among the primary
natural and beneficial functions and
values of the floodplain.
(b) Step 2. Notify the public and
agencies responsible for floodplain
management or wetlands protection at
the earliest possible time of a proposal
to consider an action in a 100-year
floodplain (or a 500-year floodplain for
a critical action) or wetlands and
involve the affected and interested
public and agencies in the decision
making process.
*
*
*
*
*
(3) A notice under this paragraph
shall state: The name, proposed
location, and description of the activity;
the total number of acres of floodplain
or wetlands involved; the related
natural and beneficial functions and
values of the floodplain or wetlands that
may be adversely affected by the
proposed activity; the HUD approving
official (or the Certifying Officer of the
responsible entity authorized by 24 CFR
part 58); and phone number to contact
for information. The notice shall
indicate the hours and the HUD or
responsible entity’s office, and any Web
site at which a full description of the
proposed action may be reviewed.
(c) Step 3. Identify and evaluate
practicable alternatives to locating the
proposed action in a 100-year floodplain
(or a 500-year floodplain for a critical
action) or wetland.
(1) Except as provided in paragraph
(c)(2) of this section, HUD’s or the
responsible entity’s consideration of
practicable alternatives to the proposed
site selected for a project should
include:
(i) Locations outside and not affecting
the 100-year floodplain (or the 500-year
floodplain for a critical action) or
wetland;
(ii) Alternative methods to serve the
identical project objective, including
feasible technological alternatives; and
(iii) A determination not to approve
any action proposing the occupancy or
modification of floodplains or wetland.
(2) Practicability of alternative sites
should be addressed in light of the
following:
(i) Natural values such as topography,
habitat, and hazards;
(ii) Social values such as aesthetics,
historic and cultural values, land use
patterns, and environmental justice; and
(iii) Economic values such as the cost
of space, construction, services, and
relocation.
(3) For multifamily projects involving
HUD mortgage insurance that are
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initiated by third parties, HUD’s
consideration of practicable alternatives
should include a determination not to
approve the request.
(d) Step 4. Identify and evaluate the
potential direct and indirect impacts
associated with the occupancy or
modification of the 100-year floodplain
(or the 500-year floodplain for a critical
action) or the wetlands and the potential
direct and indirect support of floodplain
and wetlands development that could
result from the proposed action.
(1) Floodplain evaluation: The focus
of the floodplain evaluation should be
on adverse impacts to lives and
property, and on natural and beneficial
floodplain values. Natural and
beneficial values include:
(i) Water resources such as natural
moderation of floods, water quality
maintenance, and groundwater
recharge;
(ii) Living resources such as flora and
fauna;
(iii) Cultural resources such as
archaeological, historic, and recreational
aspects; and
(iv) Agricultural, aquacultural, and
forestry resources.
(2) Wetlands evaluation: In
accordance with Section 5 of E.O.
11990, the decision maker shall
consider factors relevant to a proposal’s
effect on the survival and quality of the
wetlands. Among these factors that
should be evaluated are:
(i) Public health, safety, and welfare,
including water supply, quality,
recharge, and discharge; pollution; flood
and storm hazards and hazard
protection; and sediment and erosion;
(ii) Maintenance of natural systems,
including conservation and long-term
productivity of existing flora and fauna;
species and habitat diversity and
stability; natural hydrologic function;
wetland type; fish; wildlife; timber; and
food and fiber resources;
(iii) Cost increases attributed to
wetland-required new construction and
mitigation measures to minimize harm
to wetlands that may result from such
use; and
(iv) Other uses of wetlands in the
public interest, including recreational,
scientific, and cultural uses.
(e) Step 5. Where practicable, design
or modify the proposed action to
minimize the potential adverse impacts
to and from the 100-year floodplain (or
the 500-year floodplain for a Critical
Action) or the wetlands and to restore
and preserve its natural and beneficial
functions and values.
(1) Minimization techniques for
floodplain and wetlands purposes
include, but are not limited to: the use
of permeable surfaces, natural landscape
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enhancements that maintain or restore
natural hydrology through infiltration,
native plant species, bioswales,
evapotranspiration, stormwater capture
and reuse, green or vegetative roofs with
drainage provisions, and Natural
Resource Conservation Service
conservation easements. Floodproofing
and elevating structures, including
freeboarding above the required base
flood elevations, are also minimization
techniques for floodplain purposes.
(2) Appropriate and practicable
compensatory mitigation is
recommended for unavoidable adverse
impacts to more than one acre of
wetlands. Compensatory mitigation
includes, but is not limited to: permiteeresponsible mitigation, mitigation
banking, in-lieu fee mitigation, the use
of preservation easements or protective
covenants, and any form of mitigation
promoted by state or Federal agencies.
The use of compensatory mitigation
may not substitute for the requirement
to avoid and minimize impacts to the
maximum extent practicable.
(3) Actions covered by § 55.12(a) must
be rejected if the proposed minimization
is financially or physically unworkable.
All critical actions in the 500-year
floodplain shall be designed and built at
or above the 100-year floodplain (in the
case of new construction) and modified
to include:
(i) Preparation of and participation in
an early warning system;
(ii) An emergency evacuation and
relocation plan;
(iii) Identification of evacuation
route(s) out of the 500-year floodplain;
and
(iv) Identification marks of past or
estimated flood levels on all structures.
(f) Step 6. Reevaluate the proposed
action to determine:
(1) Whether the action is still
practicable in light of exposure to flood
hazards in the floodplain or wetland,
possible adverse impacts on the
floodplain or wetland, the extent to
which it will aggravate the current
hazards to other floodplains or
wetlands, and the potential to disrupt
the natural and beneficial functions and
values of floodplains or wetlands; and
(2) Whether alternatives preliminarily
rejected at Step 3 (paragraph (c)) of this
section are practicable in light of
information gained in Steps 4 and 5
(paragraphs (d) and (e)) of this section.
(i) The reevaluation of alternatives
shall include the potential impacts
avoided or caused inside and outside
the floodplain or wetlands area. The
impacts should include the protection
of human life, real property, and the
natural and beneficial functions and
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values served by the floodplain or
wetland.
(ii) A reevaluation of alternatives
under this step should include a
discussion of economic costs. For
floodplains, the cost estimates should
include savings or the costs of flood
insurance, where applicable, flood
proofing, and elevation to at least the
base flood elevation for sites located in
floodplains, as appropriate. For
wetlands, the cost estimates should
include the cost of filling the wetlands
and mitigation.
(g) Step 7. (1) If the reevaluation
results in a determination that there is
no practicable alternative to locating the
proposal in the 100-year floodplain (or
the 500-year floodplain for a Critical
Action) or the wetland, publish a final
notice that includes:
(i) The reasons why the proposal must
be located in the floodplain or wetland;
(ii) A list of the alternatives
considered in accordance with
§ 55.20(c)(1) and (2); and
(iii) All mitigation measures to be
taken to minimize adverse impacts and
to restore and preserve natural and
beneficial functions and values.
*
*
*
*
*
(h) Step 8. Upon completion of the
decision making process in Steps 1
through 7, implement the proposed
action. There is a continuing
responsibility on HUD (or on the
responsible entity authorized by 24 CFR
part 58) and the recipient (if other than
the responsible entity) to ensure that the
mitigating measures identified in Step 7
are implemented.
§ 55.21
[Amended]
14. Amend § 55.21 by removing the
term ‘‘grant recipient’’ and adding in its
place the term ‘‘responsible entity.’’
15. Revise § 55.24 to read as follows:
mstockstill on DSK4VPTVN1PROD with PROPOSALS
§ 55.24
Aggregation.
Where two or more actions have been
proposed, require compliance with
subpart C of this part, affect the same
floodplain or wetland, and are currently
under review by HUD (or by a
responsible entity authorized by 24 CFR
part 58), individual or aggregated
approvals may be issued. A single
compliance review and approval under
this section is subject to compliance
with the decision making process in
§ 55.20.
§ 55.25
[Amended]
16. Revise § 55.25 as follows:
a. Remove, in paragraph (c), the term
‘‘grant recipient’’ and add in its place
the term ‘‘responsible entity’’; and
b. Remove in paragraph (d)(2) the
term ‘‘grant recipients’’ and add in its
place the term ‘‘responsible entities.’’
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17. In § 55.26, revise the introductory
paragraph and paragraph (a), to read as
follows:
§ 55.26 Adoption of another agency’s
review under the Executive Orders.
If a proposed action covered under
this part is already covered in a prior
review performed under either or both
of the executive orders by another
agency, including HUD or a different
responsible entity, that review may be
adopted by HUD or by a responsible
entity authorized under 24 CFR part 58,
provided that:
(a) There is no pending litigation
relating to the other agency’s review for
floodplain management or wetlands
protection;
*
*
*
*
*
18. Amend § 55.27 as follows:
a. Revise paragraph (a);
b. Remove, in paragraph (b), the term
‘‘grant recipient’’ and add, in its place,
the words ‘‘responsible entity’’ and;
c. Remove, in paragraph (c), the term
‘‘grant recipients’’ and add, in its place,
the words ‘‘responsible entities’’, to read
as follows:
§ 55.27
Documentation.
(a) For purposes of compliance with
§ 55.20, the responsible HUD official
who would approve the proposed action
(or Certifying Officer for a responsible
entity authorized by 24 CFR part 58)
shall require that the following actions
be documented:
(1) When required by § 55.20(c),
practicable alternative sites have been
considered outside the floodplain or
wetland, but within the local housing
market area, the local public utility
service area, or the jurisdictional
boundaries of a recipient unit of general
local government, whichever geographic
area is most appropriate to the proposed
action. Actual sites under review must
be identified and the reasons for the
nonselection of those sites as practicable
alternatives must be described; and
(2) Under § 55.20(e)(2), measures to
minimize the potential adverse impacts
of the proposed action on the affected
floodplain or wetland as identified in
§ 55.20(d) have been applied to the
design for the proposed action.
*
*
*
*
*
19. Add new § 55.28 to read as
follows:
§ 55.28 Use of individual permits under
section 404 of the Clean Water Act for HUD
11990 processing where all wetlands are
covered by the permit.
(a) Processing requirements. HUD (or
the responsible entity subject to 24 CFR
part 58) shall not be required to perform
the steps at § 55.20(a), (b), (c), (d), and
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Fmt 4702
Sfmt 4702
(e) upon adoption by HUD (or the
responsible entity) of the terms and
conditions of a Section 404 permit so
long as:
(1) The project involves new
construction on a property located
outside of the 100-year floodplain (or
the 500-year floodplain for critical
actions);
(2) The applicant has submitted, with
its application to HUD (or to the
recipient under programs subject to 24
CFR part 58), an individual Section 404
permit (including approval conditions)
issued by the Army Corps of Engineers
(USACE) for the proposed project; and
(3) All wetlands adversely affected by
the action are covered by the permit.
(b) Unless a project is excluded under
§ 55.12, processing under all of § 55.20
is required for new construction in
wetlands that are not subject to USACE
jurisdiction and for new construction
for which the USACE issues a general
permit under Section 404.
PART 58—ENVIRONMENTAL REVIEW
PROCEDURES FOR ENTITIES
ASSUMING HUD ENVIRONMENTAL
RESPONSIBILITIES
20. The authority citation for part 58
continues to read as follows:
Authority: 12 U.S.C. 1707 note; 42 U.S.C.
1437o(i)(1) and (2), 1437x, 3535(d), 3547,
4332, 4852, 5304(g), 11402, and 12838; E.O.
11514, 3 CFR, 1966–1970, Comp., p. 902, as
amended by E.O. 11991, 3 CFR, 1977 Comp.,
p. 123.
21. Revise § 58.5(b)(2) to read as
follows:
§ 58.5
Related federal laws and authorities.
*
*
*
*
*
(b) * * *
(2) E.O. 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.
*
*
*
*
*
22. Add § 58.6(a)(4).
§ 58.6
Other requirements.
*
*
*
*
*
(a) * * *
(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 FEMA
Administrator consistent with 44 CFR
75.11.
*
*
*
*
*
23. Revise § 58.35(a)(3)(i) to read as
follows:
§ 58.35
*
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Categorical exclusions.
*
*
12DEP1
*
*
Federal Register / Vol. 76, No. 238 / Monday, December 12, 2011 / Proposed Rules
(a) * * *
(3) * * *
(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;
*
*
*
*
*
Dated: November 14, 2011.
´
Mercedes M. Marquez,
Assistant Secretary for Community Planning
and Development.
[FR Doc. 2011–31629 Filed 12–9–11; 8:45 am]
FOR FURTHER INFORMATION CONTACT: If
you have questions on this proposed
rule, call or email Lieutenant Eunice
James, Coast Guard Sector New York
Waterways Management Division; (718)
354–4163, email
Eunice.A.James@uscg.mil. If you have
questions on viewing or submitting
material to the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
BILLING CODE 4210–67–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2011–0999]
RIN 1625–AA00
New York Fun Factory Fireworks
Display, Western Long Island Sound;
Mamaroneck, NY
Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
AGENCY:
mstockstill on DSK4VPTVN1PROD with PROPOSALS
SUMMARY: The Coast Guard proposes to
establish a temporary safety zone on the
navigable waters of western Long Island
Sound in the vicinity of Mamaroneck,
NY in support of the New York Fun
Factory Fireworks display. This action
is necessary to provide for the safety of
life on the navigable waters and to
protect mariners and spectators from the
hazards associated with fireworks
display. Vessels will be prohibited from
entering, transiting, mooring or
anchoring within the proposed zone
during the enforcement period unless
authorized by the Captain of the Port
(COTP) New York or the designated
representative.
DATES: Comments and related material
must be received by the Coast Guard on
or before February 10, 2012.
Requests for public meetings must be
received by the Coast Guard on or before
January 3, 2012.
ADDRESSES: You may submit comments
identified by docket number USCG–
2011–0999 using any one of the
following methods:
(1) Federal eRulemaking Portal:
https://www.regulations.gov.
(2) Fax: (202) 493–2251.
(3) Mail: Docket Management Facility
(M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001.
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15:54 Dec 09, 2011
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(4) Hand delivery: Same as mail
address above, between 9 a.m. and
5 p.m., Monday through Friday, except
Federal holidays. The telephone number
is (202) 366–9329.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
Public Participation and Request for
Comments
We encourage you to participate in
this rulemaking by submitting
comments and related materials. All
comments received will be posted
without change to https://
www.regulations.gov and will include
any personal information you have
provided.
Submitting Comments
If you submit a comment, please
include the docket number for this
rulemaking (USCG–2011–0999),
indicate the specific section of this
document to which each comment
applies, and provide a reason for each
suggestion or recommendation. You
may submit your comments and
material online (via https://
www.regulations.gov) or by fax, mail, or
hand delivery, but please use only one
of these means. If you submit a
comment online via https://
www.regulations.gov, it will be
considered received by the Coast Guard
when you successfully transmit the
comment. If you fax, hand deliver, or
mail your comment, it will be
considered as having been received by
the Coast Guard when it is received at
the Docket Management Facility. We
recommend that you include your name
and a mailing address, an email address,
or a telephone number in the body of
your document so that we can contact
you if we have questions regarding your
submission.
To submit your comment online, go to
https://www.regulations.gov, click on the
‘‘submit a comment’’ box, which will
then become highlighted in blue. In the
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Fmt 4702
Sfmt 4702
77175
‘‘Document Type’’ drop down menu
select ‘‘Proposed Rule’’ and insert
‘‘USCG–2011–0999’’ in the ‘‘Keyword’’
box. Click ‘‘Search’’ then click on the
balloon shape in the ‘‘Actions’’ column.
If you submit your comments by mail or
hand delivery, submit them in an
unbound format, no larger than 81⁄2 by
11 inches, suitable for copying and
electronic filing. If you submit
comments by mail and would like to
know that they reached the Facility,
please enclose a stamped, self-addressed
postcard or envelope. We will consider
all comments and material received
during the comment period and may
change the rule based on your
comments.
Viewing Comments and Documents
To view comments, as well as
documents mentioned in this preamble
as being available in the docket, go to
https://www.regulations.gov, click on the
‘‘read comments’’ box, which will then
become highlighted in blue. In the
‘‘Keyword’’ box insert ‘‘USCG–2011–
0999’’ and click ‘‘Search.’’ Click the
‘‘Open Docket Folder’’ in the ‘‘Actions’’
column. You may also visit the Docket
Management Facility in Room W12–140
on the ground floor of the Department
of Transportation West Building, 1200
New Jersey Avenue SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays. We have an agreement with
the Department of Transportation to use
the Docket Management Facility.
Privacy Act
Anyone can search the electronic
form of comments received into any of
our dockets by the name of the
individual submitting the comment (or
signing the comment, if submitted on
behalf of an association, business, labor
union, etc.). You may review a Privacy
Act notice regarding our public dockets
in the January 17, 2008, issue of the
Federal Register (73 FR 3316).
Public Meeting
We do not now plan to hold a public
meeting. But you may submit a request
for one on or before January 3, 2012,
using one of the four methods specified
under ADDRESSES. Please explain why
you believe a public meeting would be
beneficial. If we determine that one
would aid this rulemaking, we will hold
one at a time and place announced by
a later notice in the Federal Register.
Basis and Purpose
The legal basis for the proposed rule
is 33 U.S.C. 1226, 1231, 1233; 46 U.S.C.
Chapter 454, 701, 3306, 3703; 50 U.S.C.
191, 195; Public Law 107–295, 116 Stat.
E:\FR\FM\12DEP1.SGM
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Agencies
[Federal Register Volume 76, Number 238 (Monday, December 12, 2011)]
[Proposed Rules]
[Pages 77162-77175]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31629]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 50, 55, and 58
[Docket No. FR-5423-P-01]
RIN 2501-AD51
Floodplain Management and Protection of Wetlands
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would update and modify HUD's regulations
governing the protection of wetlands and floodplains. With respect to
wetlands, the proposed rule would codify existing procedures for
Executive Order 11990 (E.O. 11990), Protection of Wetlands. HUD's
current policy is to require the use of E.O. 11990's 8 Step Process for
floodplains for actions performed by the Department or actions
performed with HUD financial assistance. This rule will codify this
policy and thereby improve consistency and increase transparency by
placing the E.O. requirements in regulation. In certain instances, the
new wetlands procedures will allow recipients of HUD assistance to use
permits issued under section 404 of the Clean Water Act in lieu of five
steps of the E.O. 11990's 8 Step Process, thereby streamlining the
wetlands decision-making processes. With respect to floodplains, the
proposed rule would prohibit HUD funding (e.g., Community Development
Block Grants, HOME Investment Partnerships Program, Choice
Neighborhoods, etc.) or Federal Housing Administration (FHA) mortgage
insurance for the construction of new structures in Coastal High Hazard
Areas. The current regulations allow for such new construction so long
as the construction, is in accordance with certain standards. This
change is anticipated to have minimal effect, since HUD receives few
requests to fund or insure mortgages for new construction in these
areas.
The proposal would also make several other changes to HUD's
floodplain and wetland regulations; the changes are designed to
streamline floodplain and wetland environmental procedures and avoid
unnecessary delays in processing. The procedures proposed by this rule
would apply to HUD and to state, tribal, and local governments when
they are responsible for environmental reviews under HUD programs.
DATES: Comment Due Date: February 10, 2012.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW., Room 10276, Washington, DC 20410-0500. Communications must refer
to the above docket number and title. There are two methods for
submitting public comments. All submissions must refer to the above
docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW., Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
https://www.regulations.gov. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make them immediately
available to the public. Comments submitted electronically through the
https://www.regulations.gov Web site can be viewed by other commenters
and interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an appointment to review the public comments must be
scheduled in advance by calling the Regulations Division at (202) 708-
3055 (this is not a toll-free number). Individuals with speech or
hearing impairments may access this number via TTY by calling the
Federal Relay Service at (800) 877-8339. Copies of all comments
submitted are available for inspection and downloading at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Charles Bien, Acting Director Office
of Environment and Energy, Office of Community Planning and
Development,
[[Page 77163]]
Department of Housing and Urban Development, 451 7th Street SW., Room
7250, Washington, DC 20410-8000. For inquiry by phone or email, contact
Jerimiah Sanders, Environmental Review Division, Office of Environment
and Energy, Office of Community Planning and Development, at (202) 402-
4571 (this is not a toll-free number), or via email at
Jerimiah.J.Sanders@hud.gov. Persons with hearing or speech impairments
may access this number through TTY by calling the toll-free Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
Federal departments and agencies (agencies) are charged by
executive orders with incorporating floodplain management goals and
wetland protection considerations in their respective agency's
planning, regulatory, and decision-making processes. A floodplain
refers to the lowland and relatively flat areas adjoining inland and
coastal waters including flood-prone areas of offshore islands that, at
a minimum, are subject to a one percent or greater chance of flooding
in any given year (often referred to as the ``100-year'' flood).
Wetlands refer to those areas that are inundated by surface or ground
water with a frequency sufficient to support and under normal
circumstances does or would support a prevalence of vegetative or
aquatic life that requires saturated or seasonally saturated soil
conditions for growth and reproduction. Wetlands generally include
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet
meadows, river overflows, mud flats, and natural ponds.
Executive Order 11988 (E.O. 11988) entitled ``Floodplain
Management,'' dated May 24, 1977 (42 FR 26951), requires each Federal
agency to identify and evaluate practicable alternatives to locating in
the floodplain. If it is not practicable to avoid the floodplain, then
each Federal agency must identify and evaluate the potential effects of
any actions it may take in or affecting a floodplain. The goals of the
Executive Order are: to avoid adversely impacting the natural functions
of floodplains wherever possible; to ensure that the agency's planning
programs and budget requests reflect consideration of flood hazards and
floodplain management, including the restoration and preservation of
such land areas as natural undeveloped floodplains; and to prescribe
procedures to implement the policies and procedures of this Executive
Order.
Executive Order 11990 (E.O. 11990), entitled ``Protection of
Wetlands,'' dated May 24, 1977, (42 FR 26961) directs each agency to
provide leadership and take action to minimize the destruction, loss,
or degradation of wetlands. E.O. 11990 also directs each agency to
preserve and enhance the natural and beneficial values of wetlands in
carrying out the agency's responsibilities for: (1) Acquiring,
managing, and disposing of Federal lands and facilities; (2) providing
federally undertaken, financed, or assisted construction or
improvements; and (3) conducting Federal activities and programs
affecting land use.
Although HUD has regulations on floodplain management at 24 CFR
part 55, these regulations do not codify procedures for implementing
E.O. 11990. Consistent with the intent of the executive orders, as
noted above, HUD has relied to date on existing procedures established
for floodplain management under 24 CFR part 55 to guide wetland
protection considerations in planning, regulatory, and decision making
processes. This rule proposes to codify in 24 CFR part 55 the
procedures applicable to wetlands and authorized by E.O. 11990.
Additionally, the hurricanes of 2005, particularly Hurricane Katrina,
emphasized the need to review existing procedures on the protection of
wetlands to determine how such procedures may be made more effective.
II. This Proposed Rule
Proposed Changes--Basis for Proposed Changes
First, this rule proposes to codify procedures authorized by E.O.
11990. As noted in the preceding section of this preamble, HUD has not
promulgated regulations to reflect E.O. 11990. E.O. 11990 was issued in
furtherance of the National Environmental Policy Act of 1969 (NEPA) as
amended (42 U.S.C. 4321 et seq.). Through this rule, HUD proposes to
adopt in regulation the procedures of E.O. 11990, in order to aid in
the consistent application of policy and to increase compliance with
it, by making the policy readily available in HUD's environmental
regulations.
The wetland procedures authorized by E.O. 11990 require the
completion of an eight-step process, referred to below as the ``8 Step
Process.'' The 8 Step Process is administered by HUD, state
governments, or units of local or tribal governments. Step 1 requires a
determination of whether or not the proposed project to be developed
with HUD financial assistance will be in a wetland. If so, Step 2
requires that a public notice be issued to inform interested parties
that a proposal to consider an action in a wetland has been made.
Following this notice, Step 3 requires the identification and
evaluation of practicable alternatives to avoid locating the project in
a wetland. Such an evaluation of alternatives shall include, for
example, alternative locations outside the floodplain, feasible
technological alternatives, and social values such as aesthetics,
historic and cultural values, and land use patterns. Step 4 requires
the identification and evaluation of the potential direct and indirect
impacts associated with the occupancy or modification of wetlands. Step
4 also requires the identification of the potential direct and indirect
support of floodplain and wetlands development that could result from
the proposed action. Direct support consists of projects located in the
floodplain such as housing, public service structures, or office
buildings that require additional investment such as food service or
parking. Indirect support for floodplain or wetland development can be
caused by infrastructure that can induce further development due to
proximity to the floodplain or wetland. Examples of indirect support
include water and waste water systems, power supplies, roads, airports,
and mass transit systems. Step 5 requires an analysis of practicable
modifications and changes to the proposal to minimize adverse impacts
to the wetlands and to the project as a result of its proposed location
in wetlands. Under Step 6, the alternatives and the proposed wetland
site are then reevaluated. If it is determined that there is no
practicable alternative to the proposed wetland development, Step 7
requires a second notice to be issued to the public stating that the
decision has been made and providing details associated with the
decision. After this second notice, Step 8 implements the action,
including any mitigating measures that were established during the
decision-making process. This evaluation process requires the same
eight steps as E.O. 11988, Floodplain Management, which is currently
being implemented by HUD and other Federal agencies.
The rule also proposes to require appropriate and practicable
compensatory mitigation for adverse impacts to more than one acre of
wetlands. Compensatory mitigation resulting from other Federal, state,
or local governmental requirements can be used to fulfill this
requirement. Compensatory mitigation approaches include permittee-
responsible mitigation, mitigation banking, in-lieu
[[Page 77164]]
fee mitigation, the use of preservation easements or protective
covenants, and any form promoted and approved by the authority of the
state governments or the Federal Government. In certain situations,
compensatory mitigation may not be practicable or appropriate due to
the cost of compensatory mitigation in a state or watershed, a lack of
funds within the project, or other reasons that make compensatory
mitigation impossible. One example would be an Alaska Native village
that is mainly in a wetland and is surrounded by Federal and state
land. The cost in this situation could make compensatory mitigation
inappropriate or impracticable.
Second, this rule proposes to allow HUD and HUD's recipients of
assistance to use permits issued under section 404 of the Clean Water
Act (33 U.S.C. 1344) (Section 404) in lieu of performing the first five
steps of the 8 Step Process. This streamlined option will reduce costs
and the processing time for complying with parts of the 8 Step Process
for which adhering to the standard process affords minimal substantive
benefit. The Clean Water Act establishes the basic structure for
regulating discharges of pollutants into the waters of the United
States and regulating water quality standards for surface waters.\1\
Section 404 of the Clean Water Act requires a landowner to obtain a
permit from the U.S. Army Corps of Engineers (USACE) prior to beginning
any nonexempt activity involving the placement of dredged or fill
material in waters of the United States, including wetlands.
---------------------------------------------------------------------------
\1\ The Federal Water Pollution Control Act enacted in 1948 was
significantly reorganized and expanded in 1972. ``Clean Water Act''
became the Act's common name with amendments in 1977.
---------------------------------------------------------------------------
If the applicant has obtained an individual USACE Section 404
permit and submits the permit with its application for a HUD program,
then HUD or the responsible entity will be required to complete only
the last three steps of the 8 Step Process, and thus will be able to
skip Sec. 55.20(a) through (e). The last three steps include the
publication of a single public notice, which will fulfill the early
notice requirement of E.O. 11990 and thereby avoid the requirement
under the usual 8 Step Process for the publication of two notices. If
HUD or the responsible entity determines that a reevaluation or repeat
of any of the steps is necessary to comply with E.O. 11990, HUD or the
responsible entity will reevaluate and complete the necessary steps of
the 8 Step Process. None of the 8 steps or any provisions of this rule
should be interpreted as being requirements of the USACE's regulatory
program. USACE has its own regulations, policies, and procedures, none
of which are impacted by this proposed rulemaking.
Although Section 1(b) of E.O. 11990 excludes the issuance of
permits for activities in nonfederal wetlands from coverage under the
Executive Order, reliance on the Section 404 permitting process
fulfills the Executive Order's intent. The exclusion for permits
reflects the use of similar procedures and criteria for approval of a
permitting action, including an initial public notice, consideration of
practicable alternatives, and minimization of harm.
The issuance of a Section 404 permit may not substitute for
processing under the 8 Step Process and compliance with E.O. 11988
where the property is also located in a floodplain. Section 404 of the
Clean Water Act also allows states to administer an individual and
general permit program in lieu of the USACE permit program. Section 404
permits issued by state agencies may be used in lieu of the first five
steps of the E.O. 11990 process under this regulation.
All wetlands subject to Section 404 of the Clean Water Act are
wetlands for the purposes of E.O. 11990. However, the combined process
proposed by this rule will not apply in all instances, because wetlands
not considered waters of the United States under Section 404 of the
Clean Water Act are typically wetlands for the purposes of E.O. 11990.
Wetlands not subject to Section 404 of the Clean Water Act must be
processed under the proposed 8 Step Process.
Third, the proposed rule would broaden the use of the current 5
Step Process for repairs, rehabilitations, and improvements. The 5 Step
Process is an abbreviated 8 Step Process that omits Steps 2, 3, and 7.
Steps 2, 3, and 7 require the publication of two notices and the
consideration of alternative sites. The 5 Step Process is currently
used for a variety of activities specified in 24 CFR 55.12(a), such as
disposition of HUD-owned properties and mortgage insurance for the
purchase, refinancing, or rehabilitation of existing multifamily
structures, which are not subject to certain additional conditions. An
8 Step Process is currently required for financial assistance, other
than mortgage insurance, for rehabilitation of nonresidential or
residential structures with more than four housing units located in
floodplains. Rehabilitations subject to the 5 Step Process are any
repair, reconstruction, modernization, or improvement of a structure
that does not result in a 20 percent increase in the number of dwelling
units or in the average peak number of customers and employees. The
proposed rule will allow these rehabilitations of residential
properties and nonresidential properties, including weatherization, to
forego Steps 2, 3, and 7 of the 8 Step Process. As outlined above,
Steps 2, 3, and 7 are the consideration of alternatives at Step 3 and
the publication of the preliminary and final notice at Steps 2 and 7,
respectively. This change will streamline project approvals and allow
more resources to be devoted toward projects with greater impacts on
floodplains and wetlands.
Fourth, the proposed rule would update a provision in HUD's
regulations to require the use of preliminary flood maps and advisory
base flood elevations in post-disaster situations where the Federal
Emergency Management Agency (FEMA) has determined that existing Flood
Insurance Rate Maps (FIRMs) may not be the ``best available
information'' for floodplain management purposes. Currently, HUD's
regulations at 24 CFR 55.2(b)(1) indicate that FIRMs are the only
source of data for compliance with the 8 Step Process. In the wake of
Hurricane Katrina, FEMA determined that the existing FIRMs may not
reflect actual flood risk and issued Advisory Base Flood Elevations and
Preliminary FIRMs. This change in map usage requirements will bring
HUD's regulations into alignment with the requirement that agencies are
to use the ``best available information'' located at Section 2(a)(1) of
E.O. 11988. In addition, this change will provide greater consistency
with floodplain management activities across HUD and FEMA programs.
Fifth, the proposed rule would exempt certain activities from the 8
Step Process for floodplain management compliance. Exempted activities
include leasing structures insured with the National Flood Insurance
Program (NFIP) \2\ and not located in a floodway or Coastal High Hazard
Area. The exemption for leased structures also
[[Page 77165]]
requires that: (1) The leased structure is an existing structure; and
(2) the structure is insured for its total value or up to the NFIP
maximum as of the commencement of the lease term. If HUD or the grantee
does not want to obtain flood insurance for the leased structure, the
project can proceed by performing the 8 Step Process. Critical actions
(e.g., hospitals, nursing homes, and emergency services) in a 100- or
500-year floodplain are not covered by this exemption. Other exempt
activities include special projects to increase access for those with
special needs, activities involving ships or water-borne vessels, and
activities that restore and preserve natural and beneficial functions
of floodplains and wetlands. These changes will reduce unnecessary
delays.
---------------------------------------------------------------------------
\2\ Congress established the National Flood Insurance Program
with the passage of the National Flood Insurance Act of 1968. The
NFIP is a Federal program enabling property owners in participating
communities to purchase insurance as a protection against flood
losses in exchange for state and community floodplain management
regulations that reduce future flood damages. Participation in the
NFIP is based on an agreement between communities and the Federal
Government. If a community adopts and enforces a floodplain
management ordinance to reduce future flood risk to new construction
in floodplains, the Federal Government will make flood insurance
available within the community as a financial protection against
flood losses. This insurance is designed to provide an insurance
alternative to disaster assistance to reduce the escalating costs of
repairing damage to buildings and their contents caused by floods.
See https://www.fema.gov/library/viewRecord.do?id=1480.
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Sixth, the proposed rule would prohibit HUD funding or FHA mortgage
insurance for the construction of new structures in Coastal High Hazard
Areas. This change would not affect existing structures. Existing
structures would be eligible to receive funding, and disaster
assistance would continue to be available for reconstruction of
structures destroyed by a disaster. FHA mortgage insurance would
continue to be available as long as the mortgage insurance is not used
to finance new construction. HUD's current regulations allow new
construction in Coastal High Hazard Areas, if new structures are
constructed to FEMA's standards at 44 CFR 60.3(e) and are not critical
actions. (``Critical action'' refers to any activity for which even a
slight chance of flooding would be too great, because such flooding
might result in loss of life, injury to persons, or damage to property.
See 24 CFR 55.2.) This change will prevent new development in Coastal
High Hazard Areas, which will result in less development in areas of
higher risk to lives and property. However, as discussed later in this
preamble, HUD currently receives few requests to fund new construction
or provide FHA mortgage insurance for new construction in Coastal High
Hazard Areas. The change will also further align HUD's development
standards with those of FEMA grant programs.
Seventh, 24 CFR 55.26 would be amended to make clear that under the
executive orders, HUD or a responsible entity may adopt previous review
processes that were performed by another responsible entity or HUD.
This change will prevent duplicative processing in cases where a
project may have multiple recipients contributing funding or has
funding that may not allow the responsible entity to perform the
review. Nothing in the proposed rule or part is binding or applicable
to the USACE or USACE processes. USACE has its own regulations,
policies, and procedures, which are not impacted by this part.
Finally, the proposed rule will amend 24 CFR 58.35(a)(3)(i) by
modifying the categorical exclusion from environmental review under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321) for minor
rehabilitation of one- to four-unit residential properties, by removing
the qualification that the footprint of the structure may not be
increased in a floodplain or wetland. Currently, four units can be
constructed in a floodplain or wetland as an individual action under
the categorical exclusion in Sec. 58.35(a)(4)(i), but rehabilitated
structures in a floodplain or wetland require a full environmental
assessment. It is logically inconsistent to require a greater review
for minor rehabilitations than for new construction. The proposed rule
resolves this inconsistency but will still require part 55 processing
for construction in floodplains and wetlands. HUD believes that this
change will eliminate needless assessments without contributing to
environmental degradation. HUD is basing its conclusion on a recent
survey of its environmental experts.
Solicitation of Specific Comment
In addition to these proposed changes, HUD is also specifically
soliciting public comment regarding a potential change to Sec.
55.20(e). The change would require that all new construction of
``critical actions'' in the 100- or 500-year floodplain be elevated to
the 500-year base flood elevation. A ``critical action'' is ``any
activity for which even a slight chance of flooding would be too great,
because such flooding might result in loss of life, injury to persons,
or damage to property.'' Examples of critical actions include
hospitals, nursing homes, emergency response centers, and flammable or
explosive materials storage facilities. This potential change would
make HUD's regulations in 24 CFR part 55 more consistent with guidance
documents issued by the Water Resources Council and consistent with
FEMA's E.O. 11988 regulations at 44 CFR 9.11(d)(3). This change would
increase the current elevation standard for critical actions from the
100-year base flood level to the 500-year level.
Specific Regulations Proposed for Amendment
The specific regulatory revisions proposed to be made to HUD's
regulations are as follows:
Protection and Enhancement of Environmental Quality (Part 50)
Section 50.4 of HUD's regulations in 24 CFR part 50, which address
related Federal laws and authorities, would be amended to have Sec.
50.4(b), which addresses flood insurance, floodplain management, and
wetlands protection, reflect the change in the title of 24 CFR part 55
to include ``Protection of Wetlands'' and reflect implementation of
E.O. 11990 in 24 CFR part 55.
Floodplain Management (Part 55)
A. Purpose and Basic Responsibility
Section 55.1, which addresses the purpose and basic
responsibilities of floodplain management, would be updated to better
describe how to evaluate impacts on floodplains and wetlands and to
provide that part 50 now explicitly address procedures on wetland
protection. The mandatory purchase of flood insurance under the Flood
Disaster Protection Act of 1973 (42 U.S.C. 4001-4128) is currently
required for federally funded construction and acquisition in FEMA's
identified special flood hazard areas. The requirements of section 582
of the National Flood Insurance Reform Act of 1994 (42 U.S.C. 5154a),
currently stated in HUD's regulations at 24 CFR 58.6, would be added to
24 CFR part 55 to support compliance with the mandatory purchase of
flood insurance. Finally, the prohibition on floodway activities would
be edited to allow for activities that support beneficial floodplain
functions.
B. Terminology
Section 55.2, which defines terms used in floodplain management,
would be amended to update existing terms in this section and add new
terminology. To the extent that the names of these terms as designated
by FEMA's regulations need to be updated, the proposed amendments would
do so without any change to the basic meaning of these terms. With
respect to new terms, the term ``Compensatory mitigation'' would be
added consistent with the definition of the term promulgated by the
Environmental Protection Agency and the United States Army Corps of
Engineers (USACE) in 2008 (See Compensatory Mitigation for Losses of
Aquatic Resources, 73 FR 19594). The terms ``Wetlands'' and ``New
Construction'' would be added
[[Page 77166]]
consistent with those defined by E.O. 11990. The definition of wetlands
also includes a process for identifying wetlands and utilizing
appropriate wetlands professionals. These are the only new terms added
under the proposed rule.
C. Assignment of Responsibilities
Section 55.3, which delineates floodplain management
responsibilities, would be amended to reflect the existence of
``responsible entities'' under 24 CFR part 58 (Environmental Review
Procedures for Entities Assuming HUD Environmental Responsibilities)
and the addition of E.O. 11990 wetland procedures.
D. Environmental Review Procedures
Section 55.10, which addresses the environmental review procedures
under 24 CFR parts 50 and 58, would be amended to explicitly add
wetland protection and reflect implementation of E.O. 11990 in part 55
as an element of the environmental review process.
Section 55.11, which addresses the applicability of floodplain
management decision making as provided in 24 CFR part 55, subpart C,
would be amended to incorporate the purpose of floodplain management,
as provided in E.O. 11988, and the purpose of wetlands protection, as
provided in E.O. 11990. The proposed rule also amends this section to
adopt the previously explained 8 Step Process for wetlands. This
process will provide a standardized and efficient method for addressing
E.O. 11990. The proposed rule also would address adverse effects to
floodplains and wetlands.
E. Inapplicability
Section 55.12, which addresses the inapplicability of floodplain
management to certain categories of proposed actions, would be amended
to remove HUD programs that no longer exist and add exemptions from the
full process. Financial assistance for weatherizations and
rehabilitations of multifamily structures would be granted the use of a
shortened 5 Step Process that currently applies to mortgage insurance
actions for rehabilitation and improvements. Floodplain and wetland
restoration activities, including demolition, would be exempt from
Sec. 55.20 processing. Leasing of an existing structure would also be
granted an exemption from the 8 Step Process, so long as the structure
is not in a floodway or Coastal High Hazard Area, and the structure is
insured with the National Flood Insurance Program. Additionally, the
leasing exemption does not apply to critical actions in the 100- or
500-year floodplain. An exemption also would be added for special
projects directed to the removal of material and architectural barriers
that restrict the mobility of and accessibility to elderly and persons
with disabilities. Financial assistance for ships and water-borne
vessels would also be exempt from Sec. 55.20 processing. These changes
would reduce unnecessary processing and result in a decreased amount of
analysis for projects that have no or little adverse impact or have
beneficial effects.
F. Decision Making Process
Section 55.20, which currently addresses the decision making
process for floodplain management, would be amended to include the
decision making process for wetlands protection. Step 3 of the 8 Step
Process, which requires the consideration of practicable alternatives,
would also be amended to require that mitigation costs be considered.
G. Conveyance Restrictions
Section 55.22, which addresses conveyance restrictions for the
disposition of multifamily real property, would be amended by adding
the word ``wetland'' in each place where the term floodplains is
addressed by the section.
H. Documentation
Section 55.27, which addresses documentation required in floodplain
management, would add ``wetlands'' and remove a reference to 24 CFR
570.3 to allow for a general definition of ``unit of general local
government.''
I. Responsible Entities
Sections 55.21, 55.25, 55.26, and 55.27, which address notification
of floodplain hazard, areawide compliance, adoption of another agency's
review under the executive orders, and documentation, respectively,
would change the terms ``grant recipient'' to ``responsible entity.''
This would add specificity and consistency to 24 CFR part 55. Section
55.26 will also be edited to make it clear that HUD can adopt a review
performed by a responsible entity, and that a responsible entity may
adopt a review performed by HUD or another responsible entity.
J. Use of Individual Permits Under Section 404 of the Clean Water Act
for EO 11990 Processing
A new Sec. 55.28 would be added to allow for HUD to process
wetlands impacts and for recipients of HUD assistance to use permits
issued under section 404 of the Clean Water Act in lieu of five steps
of the E.O. 11990's eight-step process. Processing under this section
will reduce the time devoted to environmental processes, by allowing an
existing individual Section 404 permit to substitute for the first five
steps of the 8 Step Process for wetlands located outside the
floodplain.
K. Environmental Review Procedures for Entities Assuming HUD
Environmental Responsibilities (Part 58)
Section 58.5 of HUD's regulations, which address related Federal
laws and authorities, would be amended to have Sec. 58.5(b), which
addresses flood insurance, floodplain management, and wetlands
protection, reflect the change in the title of 24 CFR part 55 to
include ``Protection of Wetlands'' and reflect implementation of E.O.
11990 in 24 CFR part 55. This proposed rule would also amend Sec.
58.6, which addresses other requirements, by adding a new paragraph
(a)(4) that would state that 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 FEMA
Administrator consistent with 44 CFR 75.11. Additionally, HUD also
proposes to amend Sec. 58.35, which addresses Categorical Exclusions,
by revising the categorical exclusion from environmental assessment
under NEPA for minor rehabilitation of one- to four-unit residential
properties by removing in Sec. 58.35(a)(3)(i) the qualification that
the footprint of the structure may not be increased in a floodplain or
wetland.
III. Findings and Certifications
E.O. 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) reviewed this proposed
rule under E.O. 12866 (entitled ``Regulatory Planning and Review'').
The proposed rule has been determined to be a ``significant regulatory
action,'' as defined in section 3(f) of the Order, but not economically
significant, as provided in section 3(f)(1) of the Order.
The majority of the regulatory changes proposed by this rule will
have minor economic effects. The primary purpose of this rule is to
streamline the existing procedures pertaining to floodplain management
and protection of wetlands that are already in place. However, two
changes proposed by HUD are anticipated to have some economic effect.
These two changes are: (1) HUD's proposal to streamline the approval
process for rehabilitations, repairs, and improvements of HUD-funded
properties in floodplains and wetlands; and (2) HUD's proposal to
prohibit new
[[Page 77167]]
construction that would either be funded by HUD or have mortgages
insured by FHA in Coastal High Hazard Areas. The proposed streamlined
process for rehabilitations will lower costs for projects, which could
induce more improvement activities. The proposal to prohibit new
construction in Coastal High Hazard Areas could affect the siting of
properties, but these projects are rarely proposed or approved even in
the absence of a prohibition.
Streamlined Procedures for Rehabilitations, Repairs, and
Improvements of Multifamily Properties in Floodplains. HUD or
responsible entities reviewing proposals for rehabilitations, repairs,
and improvements to multifamily properties located in floodplains are
required to follow the 8 Step Process to minimize the impact to
floodplains. The proposed change would abbreviate the process for these
proposals, because the process no longer requires public notices or the
consideration of alternatives for floodplain executive order
compliance. The benefits of this proposed change arise from the reduced
compliance costs associated with the eliminated steps. Total labor
compliance costs for the entire 8 Step Process have been estimated at
$320 per project. A more detailed step-by-step cost estimate is not
available. However, if eliminating the three steps saves 10 to 15
percent of the total labor cost of compliance, then each rehabilitation
project would save between $32 and $48. Costs to publish the notices
would be added to this amount for the overall cost of compliance. The
precise number of proposed rehabilitation, repair, and improvement
projects is not available, although the overall number is estimated to
be less than 100 annually. Although the reduced compliance costs could,
on the margin, induce an increase in the requests for funding, that
increase is unlikely considering that the cost of these projects
generally range from thousands to millions of dollars. For this
analysis, HUD estimates an annual total of 100 projects, including the
induced projects. One hundred such projects would produce benefits
ranging from $3,200 and $4,800 plus minimal costs of publication. Since
these assessments rarely lead to a different outcome for
rehabilitation, repair, and improvement projects, the lost benefits of
not conducting a full floodplain assessment--the cost of this
provision--are negligible.
Prohibition on New Construction in Coastal High Hazard Areas.
Prohibiting new construction in Coastal High Hazard Areas would force
developers to locate HUD-funded or FHA-insured properties out of hazard
areas subject to high velocity waters. This prohibition would not
affect developments that are destroyed by floods and that need to be
rebuilt. Existing property owners interested in developing in Coastal
High Hazard Areas would either incur transaction costs from selling the
existing property and purchasing an alternative site, or obtain a more
expensive source of funding/assistance. However, based on HUD's
records, it is extremely rare for HUD to fund, or provide mortgage
insurance for, a new construction proposal in these coastal areas. HUD
found only one project that that been completed in a Coastal High
Hazard Area, and one additional project is currently under review.
These projects were approximately 6 years apart. Thus, HUD believes
that this provision will not have a significant impact.
Accordingly, this proposed rule is expected to create an annual
economic impact ranging from $3,200 to $4,800, which are avoided costs
resulting from a streamlined approval process for rehabilitations of
properties located in floodplains. Thus, the implementation of this
rule will not create an impact exceeding the $100 million threshold
established by E.O. 12866.
The docket file is available for public inspection in the
Regulations Division, Office of General Counsel, Department of Housing
and Urban Development, 451 7th Street SW., Room 10276, Washington, DC
20410-0500. Due to security measures at the HUD Headquarters building,
please schedule an appointment to review the docket file by calling the
Regulations Division at (202) 402-3055 (this is not a toll-free
number). Individuals with speech or hearing impairments may access this
number via TTY by calling the Federal Relay Service at (800) 877-8339.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule would not have
a significant economic impact on a substantial number of small
entities.
The proposed rule would codify HUD's policies and procedures
implementing E.O. 11990, Protection of Wetlands. The goal of the
Executive Order is to prevent adverse impacts associated with the
destruction or modification of wetlands. E.O. 11990 establishes a
uniform set of requirements designed to meet this goal and that are
applicable to both large and small entities. The proposed rule would
also broaden the use of the abbreviated 8 Step Process also known as
the 5 Step Process, used by HUD and responsible entities when
considering the impact on floodplains in connection with the repair of
existing structures. Specifically, the rule proposes to authorize the
use of the abbreviated process for all of HUD's rehabilitation
programs. The current regulations limit the use of the abbreviated
process to repairs financed under HUD's mortgage insurance programs.
The proposed rule clarifies existing requirements, streamlines
processes, and increases access to expedited approval procedures in
certain circumstances. These changes would decrease burdens on small
entities. Therefore, the undersigned has determined that the proposed
rule will not have a significant economic impact on a substantial
number of small entities. Notwithstanding HUD's determination that this
rule will not have a significant effect on a substantial number of
small entities, HUD specifically invites comments regarding any less
burdensome alternatives to this rule that will meet HUD's objectives as
described in the preamble to this rule.
Environmental Impact
A Finding of No Significant Impact (FONSI) with respect to
environment has been made in accordance with HUD regulations at 24 CFR
part 50, which implement section 102(2)(C) of NEPA (42 U.S.C.
4332(2)(C)). The Finding of No Significant Impact is available for
public inspection between the hours of 8 a.m. and 5 p.m. weekdays in
the Regulations Division, Office of General Counsel, Department of
Housing and Urban Development, 451 7th Street SW., Room 10276,
Washington, DC 20410. Due to security measures at the HUD Headquarters
building, please schedule an appointment to review the FONSI by calling
the Regulations Division at (202) 708-3055 (this is not a toll-free
number). Individuals with speech or hearing impairments may access this
number via TTY by calling the toll-free Federal Relay Service at (800)
877-8339.
E.O. 13132 Federalism
E.O. 13132 (entitled ``Federalism'') prohibits an agency from
publishing any rule that has federalism implications if the rule either
imposes substantial direct compliance costs on state and local
governments and is not required by statute, or preempts state law,
unless the agency meets the consultation and funding requirements of
section 6 of the Order. This rule does not have federalism implications
and would not
[[Page 77168]]
impose substantial direct compliance costs on state and local
governments nor preempt state law within the meaning of the Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for Federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments, and on the private sector. This rule does not
impose any Federal mandates on any state, local, or tribal governments,
or on the private sector, within the meaning of UMRA.
Paperwork Reduction Act
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In
accordance with the Paperwork Reduction Act, an agency may not conduct
or sponsor, and a person is not required to respond to, a collection of
information, unless the collection displays a currently valid OMB
control number.
The burden of the information collections in this proposed rule is
estimated as follows:
Reporting and Recordkeeping Burden
----------------------------------------------------------------------------------------------------------------
Estimated
Number of Number of average time for Estimated annual
Section reference respondents responses per requirement burden (in
respondent (in hours) hours)
----------------------------------------------------------------------------------------------------------------
Sec. 55.20 Decisionmaking process..... 275 1 8 2,200
Sec. 55.21 Notification of floodplain 300 1 1 300
hazard.................................
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Totals.............................. 575 2 9 2,500
----------------------------------------------------------------------------------------------------------------
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
collection techniques or other forms of information technology; e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this rule. Comments must refer
to the proposal by name and docket number (FR-5423-P-01) and be sent
to:
HUD Desk Officer, Office of Management and Budget, New Executive Office
Building, Washington, DC 20503, Fax number: (202) 395-6947, and
Reports Liaison Officer, Office of Community Planning and Development,
Department of Housing and Urban Development, 451 Seventh Street SW.,
Washington, DC 20410-8000.
Interested persons may submit comments regarding the information
collection requirements electronically through the Federal eRulemaking
Portal at https://www.regulations.gov. HUD strongly encourages
commenters to submit comments electronically. Electronic submission of
comments allows the commenter maximum time to prepare and submit
comments, ensures timely receipt by HUD, and enables HUD to make them
immediately available to the public. Comments submitted electronically
through the https://www.regulations.gov Web site can be viewed by other
commenters and interested members of the public. Commenters should
follow the instructions provided on that site to submit comments
electronically.
List of Subjects
24 CFR Part 50
Environmental impact statements.
24 CFR Part 55
Environmental impact statements, Floodplains, Wetlands.
24 CFR Part 58
Community development block grants, Environmental impact
statements, Grant programs--housing and community development,
Reporting and recordkeeping requirements.
Accordingly, for the reasons stated in the preamble above, HUD
proposes to amend 24 CFR parts 50, 55, and 58 as follows:
PART 50--PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY
1. The authority citation for part 50 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d) and 4332; and Executive Order
11991, 3 CFR, 1977 Comp., p. 123.
2. Revise Sec. 50.4(b)(2) and (b)(3) to read as follows:
Sec. 50.4 Related federal laws and authorities.
* * * * *
(b) * * *
(2) HUD procedure for the implementation of E.O. 11988 (Floodplain
Management), (3 CFR, 1977 Comp., p. 117)--24 CFR part 55, Floodplain
Management and Protection of Wetlands.
(3) HUD procedure for the implementation of E.O. 11990 (Protection
of Wetlands), (3 CFR, 1977 Comp., p. 121)--24 CFR part 55, Floodplain
Management and Protection of Wetlands.
* * * * *
3. Revise the part heading for part 55 to read as set forth below.
PART 55--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS
4. The authority citation for part 55 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 4001-4128 and 5154a; E.O. 11988,
42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990, 42 FR 26961, 3
CFR, 1977 Comp., p. 121.
5. Amend Sec. 55.1 as follows:
a. Revise paragraph (a);
b. Redesignate paragraph (b) as paragraph (b)(1);
c. Add a new paragraph (b)(2);
d. Revise paragraphs (c)(1);
e. Revise paragraphs of (c)(3) and (c)(3)(i), to read as follows:
[[Page 77169]]
Sec. 55.1 Purpose and basic responsibility.
(a)(1) The purpose of Executive Order 11988--Floodplain Management
is ``to avoid to the extent possible the long and short-term adverse
impacts associated with the occupancy and modification of floodplains
and to avoid direct or indirect support of floodplain development
wherever there is a practicable alternative.''
(2) The purpose of Executive Order 11990--Protection of Wetlands is
``to avoid to the extent possible the long and short-term adverse
impacts associated with the destruction or modification of wetlands and
to avoid direct or indirect support of new construction in wetlands
wherever there is a practicable alternative.''
(3) This part implements the requirements of Executive Order 11988,
Floodplain Management, and Executive Order 11990, Protection of
Wetlands, and employs the principles of the Unified National Program
for Floodplain Management. These regulations apply to all HUD (or
responsible entity) actions that are subject to potential harm by
location in floodplains or wetlands. Covered actions include the
proposed acquisition, construction, demolition, improvement,
disposition, financing, and use of properties located in a floodplain
or wetlands for which approval is required either from HUD under any
applicable HUD program or from a responsible entity authorized by 24
CFR part 58.
(4) This part does not prohibit approval of such actions (except
for certain actions in high hazard areas), but provides a consistent
means for implementing the Department's interpretation of the Executive
Orders in the project approval decision making processes of HUD and of
responsible entities subject to 24 CFR part 58. The implementation of
Executive Orders 11988 and 11990 under this part shall be conducted by
HUD for Department-administered programs subject to environmental
review under 24 CFR part 50 and by authorized responsible entities that
are responsible for environmental review under 24 CFR part 58.
(5) Non-structural alternatives to floodplain development and the
destruction of wetlands are both favored and encouraged to reduce the
loss of life and property caused by floods, and to restore the natural
resource and functions of floodplains and wetlands. Nonstructural
alternatives should be discussed in the decision making where
practicable.
(b) * * *
(2) 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 of damage to any personal, residential, or
commercial property if:
(i) The person had previously received Federal flood disaster
assistance conditioned on obtaining and maintaining flood insurance;
and
(ii) The person failed to obtain and maintain the flood insurance.
(c) * * *
(1) Any action other than a functionally dependent use or
floodplain function restoration activity, located in a floodway;
(2) * * *
(3) Any non-critical action located in a Coastal High Hazard Area,
unless the action is a functionally dependent use, an improvement of an
existing structure, or reconstruction of a structure destroyed by a
disaster. If the action is not a functionally dependent use, the action
must be designed for location in a Coastal High Hazard Area. An action
will be considered designed for a Coastal High Hazard Area if:
(i) In the case of reconstruction or substantial improvement, the
work meets the current standards for V zones in FEMA regulations (44
CFR 60.3(e)) and, if applicable, the Minimum Property Standards for
such construction in 24 CFR 200.926d(c)(4)(iii); or
* * * * *
6. Amend Sec. 55.2 to:
a. Revise paragraph (a);
b. Revise paragraphs (b) and (b)(1);
c. Redesignate existing paragraphs (b)(2), (b)(3), (b)(4), (b)(5),
(b)(6), (b)(7), and (b)(8) as paragraphs (b)(3), (b)(4), (b)(5),
(b)(6), (b)(7), (b)(9), and (b)(10), respectively;
d. Add new paragraphs (b)(2) and (b)(8);
e. Revise newly designated paragraph (b)(9); and
f. Add new paragraph (b)(11) to read as follows:
Sec. 55.2 Terminology.
(a) With the exception of those terms defined in paragraph (b) of
this section, the terms used in this part shall follow the definitions
contained in section 6 of E.O. 11988, section 7 of E.O. 11990, and the
Floodplain Management Guidelines for Implementing Executive Order 11988
(43 FR 6030, February 10, 1978), issued by the Water Resources Council;
the terms ``special flood hazard area,'' ``criteria,'' and ``Regular
Program'' shall follow the definitions contained in FEMA regulations at
44 CFR 59.1; and the terms ``Letter of Map Revision'' and ``Letter of
Map Amendment'' shall refer to letters issued by FEMA as provided in 44
CFR part 65 and 44 CFR part 70, respectively.
(b) For purposes of this part, the following definitions apply:
(1) Coastal high hazard area means the area subject to high
velocity waters, including but not limited to hurricane wave wash or
tsunamis. The area is designated on a Flood Insurance Rate Map (FIRM)
under FEMA regulations. FIRMs are also relied upon for the designation
of ``100-year floodplains'' (Sec. 55.2(b)(9)), ``500-year
floodplains'' (Sec. 55.2(b)(4)), and ``floodways'' (Sec. 55.2(b)(5)).
Where FIRMs are declared by FEMA not to be the ``best available
information'', the latest interim FEMA information, such as an Advisory
Base Flood Elevation (ABFE), shall be used as the source of these
designations. If FEMA information is unavailable or insufficiently
detailed, other Federal, state, or local data may be used as ``best
available information'' in accordance with E.O. 11988. However, a base
flood elevation from an interim or preliminary or non-FEMA source
cannot be used if it is lower than the current FIRM.
(2) Compensatory mitigation means the restoration (re-establishment
or rehabilitation), establishment (creation), enhancement, and/or in
certain circumstances preservation of aquatic resources for the
purposes of offsetting unavoidable adverse impacts that remain after
all appropriate and practicable avoidance and minimization has been
achieved.
Examples include, but are not limited to:
(i) Permittee-Responsible Mitigation: On-site or off-site
mitigation undertaken by the holder of a wetlands permit under Section
404 of the Clean Water Act (or an authorized agent or contractor), for
which the permittee retains full responsibility;
(ii) Mitigation Banking: A permittee's purchase of credits from a
wetlands mitigation bank, comprising wetlands that have been set aside
to compensate for conversions of other wetlands; the mitigation
obligation is transferred to the sponsor of the mitigation bank; and
(iii) In-Lieu Fee Mitigation: A permittee's provision of funds to
an in-lieu fee sponsor (public agency or nonprofit organization) that
builds and maintains a mitigation site, often after the permitted
adverse wetland impacts have occurred; the mitigation obligation is
transferred to the in-lieu fee sponsor.
* * * * *
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(8) New construction includes draining, dredging, channelizing,
filling, diking, impounding, and related activities and any structures
or facilities begun after the effective date of E.O. 11990. (See
Section 7(b) of E.O. 11990.)
(9) 100-year floodplain means the floodplain of concern for this
part and is the area subject to inundation from a flood having a one
percent or greater chance of flooding in any given year. (See Sec.
55.2(b)(1) for appropriate data sources.)
* * * * *
(11) Wetlands means those areas that are inundated by surface or
ground water with a frequency sufficient to support, and under normal
circumstances does or would support, a prevalence of vegetative or
aquatic life that requires saturated or seasonally saturated soil
conditions for growth and reproduction. Wetlands generally include
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet
meadows, river overflows, mud flats, and natural ponds. This definition
includes those wetlands areas separated from their natural supply of
water as a result of activities such as the construction of structural
flood protection methods or solid-fill road beds and activities such as
mineral extraction and navigation improvements. This definition
includes both wetlands subject to and those not subject to section 404
of the Clean Water Act. The following process shall be followed in
making the wetlands determination:
(i) HUD or, for programs subject to 24 CFR part 58, the responsible
entity, shall make a determination whether the action is new
construction that is located in a wetland. These actions are subject to
processing under the Sec. 55.20 decision-making process for the
protection of wetlands.
(ii) As primary screening, HUD or the responsible entity shall
verify whether the project area is located in proximity to wetlands
identified on the National Wetlands Inventory (NWI). If so, HUD or the
responsible entity should make a reasonable attempt to consult with the
Department of the Interior, Fish and Wildlife Service (FWS) for
information concerning the location, boundaries, scale, and
classification of wetlands within the area. If an NWI map indicates the
presence of wetlands, FWS staff, if available, must find that no
wetland is present in order for the action to proceed without further
processing. Where FWS staff is unavailable to resolve any NWI map
ambiguity or controversy, an appropriate wetlands professional must
find that no wetland is present in order for the action to proceed
without Sec. 55.20 processing.
(iii) As secondary screening used in conjunction with NWI maps, HUD
or the responsible entity is encouraged to use the Department of
Agriculture, Natural Resources Conservation Service (NRCS) National
Soil Survey (NSS) and any state and local information concerning the
location, boundaries, scale, and classification of wetlands within the
action area.
(iv) Any challenges from the public or other interested parties to
the wetlands determinations made under this part must be made in
writing to HUD (or the responsible entity authorized under 24 CFR part
58) during the commenting period and must be substantiated with
verifiable scientific information. Commenters may request a reasonable
extension of the time for the commenting period for the purpose of
substantiating any objections with verifiable scientific information.
HUD or the responsible entity shall consult FWS staff, if available, on
the validity of the challenger's scientific information prior to making
a final wetlands determination.
7. In Sec. 55.3, revise paragraphs (a)(1), (b)(1), (b)(2), and
(c); and add new paragraph (d), to read as follows:
Sec. 55.3 Assignment of responsibilities.
(a)(1) The Assistant Secretary for Community Planning and
Development (CPD) shall oversee:
(i) The Department's implementation of Executive Orders 11988 and
11990 and this part in all HUD programs; and
(ii) The implementation activities of HUD program managers and, for
HUD financial assistance subject to 24 CFR part 58, of grant recipients
and responsible entities.
* * * * *
(b) Other HUD Assistant Secretaries, the General Counsel, and the
President of the Government National Mortgage Association (Ginnie Mae)
shall:
(1) Ensure compliance with this part for all actions under their
jurisdiction that are proposed to be conducted, supported, or permitted
in a floodplain or wetland;
(2) Ensure that actions approved by HUD or responsible entities are
monitored and that any prescribed mitigation is implemented;
* * * * *
(c) Responsible Entity Certifying Officer. Certifying Officers of
responsible entities administering or reviewing activities subject to
24 CFR part 58 shall comply with part 55 in carrying out HUD-assisted
programs. Certifying Officers of responsible entities subject to 24 CFR
part 58 shall monitor approved actions and ensure that any prescribed
mitigation is implemented.
(d) Recipient. Recipients subject to 24 CFR part 58 shall monitor
approved actions and ensure that any prescribed mitigation is
implemented. Recipients shall:
(1) Supply HUD (or the responsible entity authorized by 24 CFR part
58) with all available, relevant information necessary for HUD (or the
responsible entity) to perform the compliance required by this part;
and
(2) Implement mitigating measures required by HUD (or the
responsible entity authorized by 24 CFR part 58) under this part or
select alternate eligible property.
8. The heading for subpart B is revised to read as follows:
Subpart B--Application of Executive Orders on Floodplain Management
and Protection of Wetlands
9. Revise Sec. 55.10 to read as follows:
Sec. 55.10 Environmental review procedures under 24 CFR parts 50 and
58.
(a) Where an environmental review is required under the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321), and 24 CFR
part 50 or part 58, compliance with this part shall be completed before
the completion of an environmental assessment (EA), including a finding
of no significant impact (FONSI), or an environmental impact statement
(EIS), in accordance with the decision points listed in 24 CFR
50.17(a)-(h), or before the preparation of an EA under 24 CFR 58.40 or
an EIS under 24 CFR 58.37. For types of proposed actions that are
categorically excluded from NEPA requirements under 24 CFR part 50 (or
part 58), compliance with this part shall be completed before the
Department's initial approval (or approval by a responsible entity
authorized by 24 CFR part 58) of proposed actions in a floodplain or
wetland.
(b) The categorical exclusion of certain proposed actions from
environmental review requirements under NEPA and 24 CFR parts 50 and 58
(see 24 CFR 50.20 and 58.35(a)) does not exclude those actions from
compliance with this part.
10. Revise Sec. 55.11 to read as follows:
Sec. 55.11 Applicability of Subpart C decision making process.
(a) Before reaching the decision points described in Sec.
55.10(a), HUD (for Department-administered programs) or the responsible
entity (for HUD financial assistance subject to 24 CFR
[[Page 77171]]
part 58) shall determine whether E.O. 11988, E.O. 11990, and this part
apply to the proposed action.
(b) If E.O. 11988 or 11990 and this part apply, the approval of a
proposed action or initial commitment shall be made in accordance with
this part. The primary purpose of E.O. 11988 is ``to avoid to the
extent possible the long and short term adverse impacts associated with
the occupancy and modification of floodplains and to avoid direct or
indirect support of floodplain development wherever there is a
practicable alternative.'' The primary purpose of E.O. 11990 is ``to
avoid to the extent possible the long and short-term adverse impacts
associated with the destruction or modification of wetlands and to
avoid direct or indirect support of new construction in wetlands
wherever there is a practicable alternative.''
(c) The following table indicates the applicability, by location
and type of action, of the decision making process for implementing
E.O. 11988 and E.O. 11990 under subpart C of this part.