Topic Question
Endangered Species

How do you know whether a project is likely to jeopardize a species?

The Department of Interior (Fish and Wildlife Service) or the Department of Commerce (National Marine Fisheries Service) will make this determination during formal consultation. Once the Responsible Entity, as the action agency, has made the determination that a species is likely to adversely affect listed species and initiate formal consultation, it is up to the Services to make this finding and prepare a biological opinion discussing their conc...
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Endangered Species

How do we know when to call in an expert to help make our finding?

It can be hard to pinpoint the stage where calling in an expert is necessary. In cases where a survey is necessary, you will have to hire a professional. However, in many or most cases, you should be able to trust your own judgment and make a finding without calling in a professional. If you’re working on a project type that has no potential to affect species or in an area without any potential habitat, there will generally not be a need to hir...
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Endangered Species

When is a project considered Not Likely to Adversely Affect?

A project can be considered Not Likely to Adversely Affect protected resources if all potential effects are beneficial, discountable, or insignificant. Beneficial effects are contemporaneous positive impacts without any adverse effect. Discountable effects are defined as effects that are extremely unlikely to occur. To be defined as Insignificant, the size of the potential effect should be so small that it should never reach the scale where take ...
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Endangered Species

My project is not in a critical habitat. Is it in compliance with the Endangered Species Act?

Not necessarily. You must consult with the Department of Interior (Fish and Wildlife Service) or the Department of Commerce (National Marine Fisheries Service) even when the project is outside of a critical habitat area to ensure that it will not adversely affect any endangered or threatened species. Critical habitats are geographic areas that have been found to be essential to the conservation of a threatened or endangered species and that may r...
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Endangered Species

How does the Section 7 consultation apply to HUD-assisted projects?

Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536 et seq.) mandates consultation to resolve potential impacts to endangered and threatened species and critical habitats—both those listed and those proposed for listing on the Federal list. The Department of Interior has issued implementing regulations at 50 CFR part 402 which are the procedures for consultation with the Department of Interior (Fish and Wildlife Service) or the Depa...
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Endangered Species

Can I use my state’s diversity database to determine whether there are listed species in my project area?

Many states maintain reliable online inventories of listed species within the state, and these tools are acceptable sources for species lists so long as federally listed species are included and the database is updated regularly. Please read the instructions and information on your state database carefully to be sure that it satisfies the requirements of a federal species list. Endangered Species
Farmlands Protection

What is the authority for the requirement to protect farmland?

The authority to protect farmland is the Farmland Protection Policy Act of 1981 (7 U.S.C. 4201 et seq.), particularly sections 1540(b) and 1541 (7 U.S.C. 4201(b) and 4202). For Department of Agriculture regulations, see 7 CFR Part 658. Farmlands Protection
Farmlands Protection

Can zoning be used to determine if a project is in an urban area?

No. Although zoning has been used in the past to make that determination, the Act was changed in 1994; it now specifies that zoning alone cannot be used to determine that a project is in an urban area for purposes of this analysis. Farmlands Protection
Flood Insurance

What if the property owner failed to maintain flood insurance on a Special Flood Hazards Areas (SFHA) property previously assisted with Federal disaster relief assistance?

No Federal disaster relief assistance made available in a flood disaster area may be used to make a payment (including any loan assistance payment) to a person for repair, replacement, or restoration for damage to any personal, residential, or commercial property if that person at any time has received flood disaster assistance that was conditional on the person first having obtained flood insurance under the applicable Federal law and subsequent...
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Flood Insurance

What if flood insurance is not any longer available in the community in which the assisted Special Flood Hazards Areas (SFHA) property is located?

Section 202(a) of the Act prohibits the approval of HUD assistance for a property located within the SFHA unless the community in which the SFHA is situated is then participating in the National Flood Insurance Program (NFIP). Check the NFIP website for a community's status in the NFIP and dates of the current flood insurance rate maps. Information is also available from the FEMA Regional Office serving that community or from local planning agenc...
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Flood Insurance

Are there any exceptions to the flood insurance purchase requirements?

There are four exceptions: (a) formula grants made to States; (b) State-owned property; (c) small loans ($5,000 or less); and (d) assisted leasing that does not involve repairs, improvements, and acquisition. Each category of exception is explained as follows: HUD State-administered assistance such as Community Development Block Grants (CDBG), Emergency Shelter Grants (ESG), and HOME Investment Partnership Grants are considered "formula grants...
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Flood Insurance

Where are Special Flood Hazards Areas (SFHA) located?

Information on where SFHA are located is available on Flood Insurance Rate Maps (FIRM) published by the Federal Emergency Management Agency (FEMA). The SFHA is represented on the flood map by darkly shaded areas designated with the letter "A" or "V." FEMA uses engineering studies to determine the delineation of these areas or zones subject to flooding. The flood maps are available for public review at the local planning agency or building permit ...
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Flood Insurance

When HUD recipients comply with the flood insurance purchase requirements, is that sufficient, or must recipients also comply with HUD's floodplain management requirements?

Compliance with mandatory flood insurance purchase requirementsdoes not constitute compliance with floodplain management requirements discussed elsewhere under the heading of Floodplain Management. Flood Insurance
Historic Preservation

How can a member of the public comment in the Section 106 process?

A member of the public may comment in any stage of the Section 106 review process by submitting written comments, participating in a public meeting about the project, or discussing concerns with the agency official or their representative. Certain individuals and organizations with demonstrated interest in a project may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected propertie...
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Historic Preservation

How does Section 106 address disasters and other emergencies?

Section 106 regulations exempt immediate activities necessary to preserve life and property and provide for expedited review for other projects in the period immediately following a disaster declaration. Programmatic Agreements can also provide expedited procedures for disaster response and recovery.[36 CFR 800.12] Historic Preservation
Historic Preservation

What if my project may affect historic properties of religious and cultural significance to Indian tribes or Native Hawaiian organizations?

The agency official must consult with Indian tribes and Native Hawaiian Organizations to identify historic properties of religious and cultural significance to tribes. [36 CFR 800.2(c)(2)(ii)(A)] Consultation is required on historic properties on and off tribal lands, including ancestral homelands far removed from the lands that tribes currently occupy. Historic Preservation
Historic Preservation

What if more than one agency is involved with a project?

The agencies should designate a “lead agency.” [36 CFR 800.2(a)(2)] Historic Preservation
Historic Preservation

What if the SHPO/THPO does not respond within 30 days of receipt of a request for review of a finding or determination?

The agency official may either proceed to the next step in the process based on the finding/determination or consult with ACHP in lieu of the SHPO/THPO. [36 CFR 800.3(c)(4)] Historic Preservation
Historic Preservation

Who do I consult with for projects on tribal lands?

For projects on tribal lands, you must consult with tribal representatives. If the tribe has a Tribal HistoricPreservation Officer (THPO), generally, you consult with the THPO in lieu of the SHPO. However, if theproject may have effects that extend off tribal lands, an affected party may request that the SHPO also participate. [36 CFR 800.2(c)(2)(i)] Historic Preservation
Historic Preservation

What is "consultation"?

Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process [36 CFR 800.16(f)]. Historic Preservation
Historic Preservation

How do I coordinate Section 106 with NEPA?

The agency official should make every effort to coordinate its Section 106 review with its overall environmental assessment, per its established NEPA procedures. [36 CFR 800.8] The Council on Environmental Quality and the Advisory Council on Historic Preservation have published guidance on how to integrate NEPA and Section 106, through coordination or substitution. See the Handbook for Integrating NEPA and Section 106. The agency official shoul...
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Historic Preservation

How does a Programmatic Agreement (PA) change the Section 106 review process?

A Programmatic Agreement may contain additional exemptions, expedited timeframes, standard treatment measures to use instead of MOAs, disaster response and recovery stipulations, and other provisions negotiated with SHPO/THPO and consulting parties.If a PA covers the program(s) assisting the project, the agency official follows the provisions of the PA to complete Section 106. Historic Preservation
Historic Preservation

When does a project have “No Potential to Cause Effects”?

A project has No Potential to Cause Effects only when the project consists solely of types of activities that by their nature have no physical effect or consequences. When HUD makes such a determination, no further Section 106 review is required. [36 CFR 800.3(a)(1)] Historic Preservation
Historic Preservation

What are the general responsibilities of the agency official?

The agency official must complete the Section 106 process “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” In other words, the agency official should initiate Section 106 as early as possible in project planning. [800.1(c)] The agency official must ensure that all actions taken by employees and/or contractors meet professional standards as noted in the Secretary of th...
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Historic Preservation

Who is responsible for compliance with 36 CFR Part 800 [800.2(a)] as the “agency official”?

Under Part 50, it is HUD. Under Part 58, it is the Responsible Entity. Historic Preservation
Disaster Recovery

Do HUD regulations require an acceptable separation distance (ASD) analysis for disaster recovery projects that reconstruct or rehabilitate housing?

No, ASD requirements do not apply because the definition for HUD-assisted project at 24 CFR 51.201 is predicated on whether the HUD project increases the number of people exposed to hazardous operations. Disaster Recovery
Disaster Recovery

Do HUD regulations require a noise analysis for reconstruction and rehabilitation for disaster recovery projects?

No, a noise analysis is not required. HUD’s regulations at 24 CFR 51.101(a)(3) state that HUD’s noise policy does not apply to any action or emergency assistance under disaster assistance provisions or appropriations which are provided to save lives, protect property, protect public health and safety, remove debris and wreckage, or assistance that has the effect of restoring facilities substantially as they existed prior to the disaster. Disaster Recovery

 
 

Content current as of March 18, 2022.