30046 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

24 CFR Parts 50, 55 and 58

[Docket No. FR–4142–P–01]

RIN 2501–AC33

Floodplain Management and

Protection of Wetlands

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

SUMMARY: This proposed rule would

adopt procedures implementing

Executive Order 11990, Protection of

Wetlands. The rule proposes to codify

policies and procedures to avoid 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. The

procedures would apply to HUD and

certain State and local responsible

entities before their respective decisions

to approve a proposed action that

involves HUD financial assistance and

that would affect a wetland. The

wetland procedures would be

incorporated into HUD’s existing

floodplain management regulations.

The rule proposes several other

changes to HUD’s regulations that

govern floodplain management and that

would also govern the protection of

wetlands. These include, among others,

broadening the use of the abbreviated

four-step decision making 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, not just for

repairs financed under its mortgage

insurance programs. This rule would

also add a requirement that, for

residential new construction in a 100-

year floodplain, an applicant must

secure a final Letter of Map Amendment

or final Letter of Map Revision as a

condition for approval of HUD financial

assistance.

DATES: Comment due date: August 3,

1998.

ADDRESSES: Interested persons are

invited to submit comments regarding

this proposed rule to the Regulations

Division, Office of the General Counsel,

Room 10276, Department of Housing

and Urban Development, 451 Seventh

Street, SW, Washington, DC 20410–

0500. Comments should refer to the

above docket number and title.

Facsimile (FAX) comments are not

acceptable. A copy of each

communication submitted will be

available for public inspection and

copying during regular business hours

(7:30 a.m. to 5:30 p.m. Eastern time) at

the above address.

FOR FURTHER INFORMATION CONTACT:

Richard H. Broun, Director, Office of

Community Viability, Office of

Community Planning and Development,

Department of Housing and Urban

Development, Room 7240, 451 Seventh

Street, SW, Washington, DC 20410–

7000. For inquiry by phone or e-mail:

contact Walter Prybyla, Deputy Director

for Policy, Environmental Review

Division at (202) 708–1201, Ext. 4466 or

e-mail: WalterlPrybyla@hud.gov. This

phone number is not toll-free. Hearing

or speech-impaired individuals may

access this number via TTY by calling

the toll-free Federal Information Relay

Service at 1–800–877–8339.

SUPPLEMENTARY INFORMATION:

I. Discussion

Wetland-Related Amendments

This rule proposes to codify the

procedures for complying with

Executive Order 11990, Protection of

Wetlands (42 FR 26961, May 25, 1977).

The Executive Order directs each

agency to provide leadership and take

action to minimize the destruction, loss

or degradation of wetlands, and 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 and

improvements; and (3) conducting

Federal activities and programs affecting

land use, including but not limited to

water and related land resources

planning, regulating, and licensing

activities.

The Department published a proposed

rule on January 4, 1990 (55 FR 396) to

implement Executive Order 11990 and

also Executive Order 11988, Floodplain

Management (42 FR 26951, May 25,

1977). The January 4, 1990 rule

proposed to codify HUD’s policies and

procedures implementing these

Executive Orders in a new 24 CFR part

55. Because the wetland policies were

under review by the Administration, the

part 55 final rule (59 FR 19100, April

21, 1994) implemented only the

floodplain management Executive

Order. The Department advised the

public (59 FR at 19100) that it would

continue to follow outstanding

instructions in implementing the

wetlands Executive Order.

This proposed rule would amend 24

CFR part 55 to implement the

requirements of Executive Order 11990.

The proposed rule generally reflects

HUD’s current practices for complying

with the Executive Order.

The rule would amend § 55.2

(Terminology) by adding a definition of

the term ‘‘wetlands’’ (§ 55.2(b)(9)). The

proposed definition provides that

wetlands are designated wetland areas

identified or delineated on maps issued

by the Fish and Wildlife Service of the

U.S. Department of the Interior as areas

that are inundated by surface or ground

water with a frequency sufficient to

support, and under normal

circumstances do or would support, a

prevalence of vegetative or aquatic life

that requires saturated or seasonally

saturated soil conditions for growth or

reproduction. This definition would

encompass, but not be limited to,

swamps, marshes, bogs, and similar

areas such as sloughs, potholes, wet

meadows, river overflows, mud flats,

and natural ponds.

The proposed rule would also make

several conforming amendments to 24

CFR part 55 to reflect the

implementation of Executive Order

11990. For example, § 55.1, which

describes the purpose of 24 CFR part 55,

would be amended to state that part 55

implements the requirements of

Executive Order 11990. The proposed

rule would also make conforming

amendments to HUD’s environmental

regulations at 24 CFR part 50 (Protection

and Enhancement of Environmental

Quality) and 24 CFR part 58

(Environmental Review Procedures for

Entities Assuming HUD Environmental

Responsibilities) to reflect the

amendments made to 24 CFR part 55.

Other Amendments

Abbreviated decision making process.

HUD’s current regulations at § 55.12(a)

authorize HUD or the responsible entity

(as applicable) to use an abbreviated

decision making process when

considering the impact on floodplain

management in connection with several

listed categories of actions. The steps

currently include identifying floodplain

location (and wetland location under

this proposed rule), determining impact,

considering minimization of impact,

reevaluating the proposed action, and

deciding on the action.

This rule proposes two changes to this

procedure. The first proposed revision

is a clarification. As § 55.12(a) is

currently drafted, step 6 (§ 55.20(f)),

reevaluate proposed action, is part of

the abbreviated process. A major

component of that reevaluation,

however, is to reconsider alternatives to
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules 30047

1Even if avoiding encroachment is impracticable,

the change requires increasing the elevation to

minimize potential financial loss due to flooding

damage for uninsurable elements under the

National Flood Insurance Program (NFIP), which

include outdoor playgrounds and recreational

amenities, vehicular parking and freight access

areas, public plazas and walkways, landscaping,

and the land itself.

locating the proposed action in the

floodplain or wetland that had been

addressed under step 3 (§ 55.20(c)). The

reference to step 3 in the context of the

abbreviated process is confusing

because step 3 is not a part of the

abbreviated process. The rule,

accordingly, would add step 6 to the list

of steps in § 55.12(a) that do not apply

under the abbreviated process.

For proposed actions covered by the

abbreviated decision making process,

the balance of reevaluation described in

step 6 (§ 55.20(f)(1)) can be addressed in

considering minimization of impact in

step 5. Therefore, step 5 (§ 55.20(e))

would be revised to provide that actions

covered by § 55.12(a) must be rejected if

the proposed minimization is

financially or physically unworkable.

The second proposed revision

concerns § 55.12(a)(3), which currently

applies the abbreviated decision making

process to HUD mortgage insurance

actions for the repair, rehabilitation,

modernization or improvement of

existing multifamily housing projects.

This procedure has proven to be

efficient and effective for the covered

programs. The Department, therefore,

proposes to include all of its programs

that involve repair, rehabilitation,

modernization or improvement of

existing multifamily housing projects.

The proposed rule also would add a

reference to § 55.12(a) in the

introductory text of § 55.20 to make it

clearer that not all actions are subject to

all eight steps in the decision making

process.

The rule also would revise paragraph

(b) of § 55.12 to exclude the leasing of

not more than a total of four units of

existing housing located in a building in

a 100-year floodplain (or the 500-year

floodplain for Critical Actions) from the

floodplain management decision

making process at § 55.20. For example,

such exclusion would occur under

HUD’s programs providing assistance to

the homeless. This exclusion would

cover leasing of not more than four units

in a building under the circumstances

described in § 582.100(c) for sponsorbased rental assistance under the

Shelter Plus Care Program regulations as

well as in § 583.115 for grants for

leasing under the Supportive Housing

Program regulations. Under

§ 582.100(c), a sponsor, itself, may lease

from an owner the housing in which the

program participants will reside. The

exclusion would not apply, however, if

the sponsor owned the project. Under

§ 583.115, HUD may provide grants to

support the recipient’s cost of leasing

structures or a portion of a structure that

is to be used to provide the supportive

housing or supportive services.

This exclusion from the floodplain

management decision making process at

§ 55.20 would apply only if the existing

housing is located outside the floodway

or coastal high hazard area, the

community is participating and in good

standing in the Regular Program of the

National Flood Insurance Program

(NFIP) and the financial assistance does

not pay for repair or rehabilitation.

Leasing of four units or less under these

conditions should have minimal

impacts (if any) for which the floodplain

management decision making process at

§ 55.20 would be warranted.

Obsolete Provisions. This proposed

rule would remove §§ 55.12(c)(9) and

55.12(c)(10). Paragraph (c)(9) currently

provides that part 55 does not apply to

HUD’s acceptance of a housing

subdivision approval action by the

Department of Veterans Affairs (DVA) or

Farmers Home Administration (now the

Rural Housing and Community

Development Service (RHCDS)). The

Department is removing the paragraph

because neither the DVA nor the RHCDS

currently approves subdivisions.

Paragraph (c)(10) provides guidance

on the effect of part 55 on actions

pending on May 23, 1994, the effective

date of the part 55 final rule published

on April 21, 1994 at 59 FR 19100. The

paragraph would be removed as

unnecessary. Its removal would not

substantively alter the requirements of

the part.

Revisions to step 3 for multifamily

insurance projects. HUD proposes to

revise § 55.20(c), Step 3, to add a new

paragraph (c)(2) to address the

consideration of practicable alternatives

to floodplains and wetlands projects

proposed by third parties that involve

multifamily mortgage insurance. In

these cases, HUD’s consideration of

practicable alternatives is limited to a

particular site identified in the

application. HUD cannot require

applicants to develop another site that

is beyond the floodplain or wetland. In

such cases, HUD’s option in reviewing

practicable alternatives is limited to

proceeding to the next step in the

decision making process. This includes

either considering design modifications

under Step 5 or rejecting the

application.

Residential new construction in 100-

year floodplain. This proposed rule

would add a requirement that HUD

financial assistance involving

residential new construction in a 100-

year floodplain may not be approved

unless the applicant secures a final

Letter of Map Amendment (LOMA) or

final Letter of Map Revision (LOMR).

These are letters issued by the Federal

Emergency Management Agency

(FEMA) indicating that the property is

not, or is no longer, located within the

special flood hazard area (100-year

floodplain). The proposed rule would

similarly amend § 55.20(g), step 7 of the

decision making process, to require

whenever a reevaluation of proposed

residential new construction results in a

determination that there is no

practicable alternative to locating the

proposal in the 100-year floodplain, a

statement that a final Letter of Map

Amendment (LOMA) or a final Letter of

Map Revision (LOMR) will be secured

by the applicant.

The reasons for this change are to

encourage: (i) public safety, in that the

potential threat to the loss of life from

flooding would be diminished for

prospective residents and visitors; (ii)

site selection and planning, which

avoids encroachment on the

floodplain;1 (iii) early coordination

between the HUD applicant and FEMA

for the purpose of obtaining a LOMA or

LOMR in that FEMA has jurisdiction

both by law for designation of special

flood hazard areas (SFHA) and by

Executive Order 11988 for advising

Federal agencies on implementation of

the Order; and (iv) cost savings that

result once the LOMA or LOMR

excludes the property from the SFHA

and eliminates the applicant’s legal

obligation to obtain and maintain flood

insurance coverage for the term of the

loan or life of the building being

proposed for HUD financial assistance.

The savings may make the property

more affordable for low- and moderateincome housing.

Other amendments. This proposed

rule would make several other

amendments to conform to earlier

amendments to 24 CFR parts 50 and 58.

The rule would replace ‘‘grant

recipient’’ with ‘‘responsible entity’’ in

several places where the term occurs in

part 55. Section 55.3, Assignment of

responsibilities, would be revised to

specify the respective responsibilities of

responsible entities and recipients.

These amendments would conform part

55 to the change in terminology adopted

in the final rule that revised 24 CFR part

58 (61 FR 19122, April 30, 1996).

Section 55.12(c) describes the

categories of activities that are not

subject to part 55. This proposed rule

would revise paragraph (c) to conform
30048 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules

to amendments to parts 50 and 55.

Paragraph (c)(1) would be revised to

reflect the fact that the activities that are

not subject to review under

environmental authorities such as

Executive Orders 11988 and 11990

include activities listed in 24 CFR

58.35(b) as well as those listed in

§ 58.34. A new paragraph (c)(2) would

be added to include the activities

described in 24 CFR 50.19 (which was

revised by a final rule published at 61

FR 50914 on September 27, 1996).

Section 50.19 lists those activities that

are categorically excluded from the

environmental assessment required by

NEPA and are not subject to the

individual compliance requirements of

the related laws and authorities referred

to in § 50.4.

A new paragraph (c)(12) (which is

similar to § 50.20(a)(1)) would be added

to provide that special projects directed

to the removal of material and

architectural barriers that restrict the

mobility of and accessibility to elderly

and persons with disabilities are not

subject to part 55.

Finally, the proposed rule would add

an exclusion from the requirements of

the part for the approval of financial

assistance for acquisition, leasing,

construction, rehabilitation, repair,

maintenance, or operation of ships and

other water-borne vessels that will be

used for transportation or cruises and

will not be permanently moored.

II. Findings and Certifications

Paperwork Reduction Act Statement

The proposed information collection

requirements contained at §§ 55.21,

55.22 and 55.27 of this rule have been

submitted to the Office of Management

and Budget (OMB) for review, under

section 3507(d) of the Paperwork

Reduction Act of 1995 (44 U.S.C.

Chapter 35). 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 valid control number.

The public reporting burden for each

of these collections of information is

estimated to include the time for

reviewing instructions, searching

existing data sources, gathering and

maintaining the data needed, and

completing and reviewing the collection

of information. Information on the

estimated public reporting burden is

provided in the following table.

FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS

Information collection Number of

respondents

Responses

per respondent

Total annual

responses

Hours per

response Total hours Regulatoryreference

Notification of floodplain hazard ....................................... 300 1 300 1 300 55.21

Owner notice to tenants concerning Critical Action flood

hazard ............................................................................ 1 50 50 1⁄20 2.5 55.22

Documentation of compliance ....................................... 300 1 300 8 2,400 55.27

Total Annual Burden .............................................. .................... .................... .................... .................... 2,702

In accordance with 5 CFR

1320.8(d)(1), the Department is

soliciting comments from members of

the public and affected agencies

concerning the proposed 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 proposal. Comments must be

received within sixty (60) days from the

date of this proposal. Comments must

refer to the proposal by name and

docket number (FR–3447) and must be

sent to: Joseph F. Lackey, Jr., HUD Desk

Officer, Office of Management and

Budget, New Executive Office Building,

Washington, DC 20503.

Environmental Impact

A Finding of No Significant Impact

with respect to the environment has

been made in accordance with HUD

regulations at 24 CFR part 50, which

implement section 102(2)(C) of the

National Environmental Policy Act of

1969. The Finding of No Significant

Impact is available for public inspection

between 7:30 a.m. and 5:30 p.m.

weekdays in the Office of the Rules

Docket Clerk at the above address.

Regulatory Planning and Review

This rule has been reviewed in

accordance with Executive Order 12866,

issued by the President on September

30, 1993 (58 FR 51735, October 4, 1993).

Any changes to the rule resulting from

this review are available for public

inspection between 7:30 a.m. and 5:30

p.m. weekdays in the Office of the Rules

Docket Clerk.

Regulatory Flexibility Act

The Secretary, in accordance with the

Regulatory Flexibility Act (5 U.S.C.

605(b)), has reviewed and approved this

proposed rule, and in so doing certifies

that this proposed 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

Executive Order 11990, Protection of

Wetlands. The goal of the Executive

Order is to prevent the adverse impacts

associated with the destruction or

modification of wetlands. Executive

Order 11990 establishes a uniform set of

requirements designed to meet this goal,

and which are applicable to both large

and small entities. However, in

developing the proposed rule HUD has

attempted to minimize the regulatory

burden placed on responsible entities.

For example, the proposed rule would

broaden the use of the abbreviated

decision making 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 decision making process to

repairs financed under HUD’s mortgage

insurance programs.
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules 30049

Notwithstanding HUD’s

determination that this rule would not

have a significant economic impact on

a substantial number of small entities,

HUD specifically invites comment

regarding any less burdensome

alternatives to this rule that will meet

HUD’s objectives as described in this

preamble.

Unfunded Mandates Reform Act

The Secretary has reviewed this rule

before publication and by approving it

certifies, in accordance with the

Unfunded Mandates Reform Act of 1995

(2 U.S.C. 1532), that this rule does not

impose a Federal mandate that will

result in the expenditure by State, local,

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more in any one year.

Federalism

The General Counsel, as the

Designated Official under section 6(a) of

Executive Order 12612, Federalism, has

determined that the policies contained

in this rule will not have substantial

direct effects on States or their political

subdivisions, on the relationship

between the Federal Government and

the States, or on the distribution of

power and responsibilities among the

various levels of government. HUD’s

regulations at 24 CFR part 58,

implementing section 104(g) of the HCD

Act of 1974 and other similar statutory

provisions, have long provided for State

and local governmental assumption of

NEPA, Executive Order, and other

environmental review responsibilities.

State and local governments thus

already have been assuming and

carrying out these responsibilities for

many years. These amendments to part

55 merely describe and codify more

specifically the implementing policies

and procedures under Executive Order

11990.

Catalog of Federal Domestic Assistance

Number

The programs affected by this rule are

listed in the Catalog of Federal Domestic

Assistance under program numbers

14.108 through 14.900.

List of Subjects

24 CFR Part 50

Environmental assessments,

Environmental impact statements,

Environmental policies and review

procedures.

24 CFR Part 55

Environmental impact statements,

Flood plains, Wetlands.

24 CFR Part 58

Community development block

grants, Environmental impact

statements, Grant programs—housing

and community development, Reporting

and recordkeeping requirements.

Accordingly, 24 CFR parts 50, 55, and

58 are proposed to be amended as

follows:

PART 50—PROTECTION AND

ENHANCEMENT OF ENVIRONMENTAL

QUALITY

1. The authority citation for part 50

continues to read as follows:

Authority: 42 U.S.C. 3535(d) and 4332; and

Executive Order 11991, 3 CFR, 1997 Comp.,

p. 123.

2. In § 50.4, paragraph (b)(2) is revised

and paragraph (b)(3) is removed and

reserved, to read as follows:

§ 50.4 Related Federal laws and

authorities.

* * * * *

(b) * * *

(2) HUD Procedure for the

Implementation of Executive Order

11988 (Floodplain Management) (3 CFR,

1977 Comp., p. 117) and Executive

Order 11990 (Protection of Wetlands) (3

CFR, 1977 Comp., p. 121)—24 CFR part

55, Floodplain Management and

Protection of Wetlands.

* * * * *

PART 55—FLOODPLAIN

MANAGEMENT AND PROTECTION OF

WETLANDS

3. The heading for part 55 is revised

to read as set forth above.

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. Section 55.1 is amended by revising

paragraph (a), redesignating paragraph

(b) as paragraph (b)(1), adding a new

paragraph (b)(2), and adding a new

paragraph (d), to read as follows:

§ 55.1 Purpose and basic responsibility.

(a) This part implements the

requirements of Executive Order 11988,

Floodplain Management (3 CFR, 1977

Comp., p. 117), and Executive Order

11990, Protection of Wetlands (3 CFR,

1977 Comp., p. 121), and employs the

principles of the Unified National

Program for Floodplain Management. It

covers the proposed acquisition,

construction, improvement, disposition,

financing and use of properties located

in a floodplain or a wetland for which

approval is required either from HUD

under any applicable HUD program or

from a responsible entity subject to 24

CFR part 58. 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 responsible entities for

financial assistance subject to

environmental review under 24 CFR

part 58.

(b)(1) * * *

(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.

* * * * *

(d) No HUD financial assistance

(including mortgage insurance) may be

approved for residential new

construction in a 100-year floodplain

unless a final Letter of Map Amendment

(LOMA) or final Letter of Map Revision

(LOMR) will be secured by the applicant

as a condition of HUD’s or the

responsible entity’s approval of the

assistance.

6. Section 55.2 is amended by revising

paragraph (a); revising the introductory

text of paragraph (b); removing, in

paragraph (b)(1), the term

‘‘(§ 55.2(b)(8))’’ and adding in its place

the term ‘‘(§ 55.2(b)(7))’’, and adding a

new paragraph (b)(9), 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

Executive Order 11988, in section 7 of

Executive Order 11990, and in the

Floodplain Management Guidelines for

Implementing Executive Order 11988

issued by the Water Resources Council

(copies of the Guidelines are available

from the Environmental Review

Division, Department of Housing and
30050 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules

Urban Development, 451 Seventh Street,

SW, Washington, DC 20410); and the

terms ‘‘special flood hazard area,’’

‘‘criteria’’ and ‘‘Regular Program’’ shall

follow the definitions contained in

FEMA regulations at 44 CFR 59.1.

(b) The definitions of the following

terms in Executive Order 11988,

Executive Order 11990, and related

documents affecting this part are

modified for purposes of this part:

* * * * *

(9) Wetlands means only those

designated wetland areas identified or

delineated on maps issued by the Fish

and Wildlife Service of the U.S.

Department of the Interior as areas that

are inundated by surface or ground

water with a frequency sufficient to

support, and under normal

circumstances do or would support, a

prevalence of vegetative or aquatic life

that requires saturated or seasonally

saturated soil conditions for growth or

reproduction. They are the areas subject

to coverage under this part.

7. Section 55.3 is amended by revising

paragraphs (a)(1)(i), (a)(1)(ii), (b)(1),

(b)(2), and (c) and adding a new

paragraph (d), to read as follows:

§ 55.3 Assignment of responsibilities.

(a)(1) * * *

(i) The Department’s implementation

of the orders 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) * * *

(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 this part 55

in carrying out HUD-assisted programs.

(d) Recipient. Recipients subject to 24

CFR part 58 shall monitor approved

actions and ensure that any prescribed

mitigation is implemented.

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. Section 55.10 is revised 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. 4332, 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 environmental 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 National Environmental

Policy Act (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 subject

to 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. Section 55.11 is revised 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

part 58) shall determine whether

Executive Order 11988 or 11990 and

this part apply to the proposed action.

(b) If Executive Order 11988 or 11990

applies, the approval of a proposed

action or initial commitment shall be

made in accordance with this part. The

primary purpose of Executive Order

11988 is to ‘‘avoid direct or indirect

support of floodplain development.’’

Consistent with section 2 of Executive

Order 11990, the decision making

process in § 55.20 only applies to

Federal assistance for new construction

in wetland locations.

(c) The following table indicates the

applicability, by location and type of

action, of the decision making process

for implementing Executive Orders

11988 and 11990 under subpart C of this

part:

TABLE 1

Type of proposed action

(new reviewable action

or an amendment) 1

Type of proposed action

Floodways Coastal high hazard areas

Wetland or 100-year

floodplain outside high

hazard area

Non-wetland area between 100-year and

500-year floodplain

Critical actions as defined in § 55.12(b)(2).Critical actions not allowed Critical actions not allowed ............ Allowed if the proposed

critical action is processed under

§ 55.20.2.

Allowed if the proposed

critical action is processed under

§ 55.20.2

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

§ 55.20.2.2

Allowed only if the proposed noncritical action: (1) Is either (a) designed for location in a high hazard area or (b) a functionally dependent use; and (2) is processed under § 55.20.2Allowed if the proposed

non-critical action is

processed under

§ 55.20.2

Any non-critical action

is allowed without

processing under this

part.

1 Under Executive Order 11990, the decision making process in § 55.20 only applies to Federal assistance for new construction in wetland locations. 2Or those paragraphs of § 55.20 that are applicable to an action listed in § 55.12(a).
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules 30051

11. Section 55.12 is amended by:

a. Revising the introductory text to

paragraph (a);

b. Revising paragraph (a)(3);

c. Removing ‘‘and’’ at the end of

paragraph (b)(3);

d. Removing the period at the end of

paragraph (b)(4) and adding ‘‘; and’’ in

its place;

e. Adding a new paragraph (b)(5);

f. Revising paragraph (c)(1);

g. Removing paragraphs (c)(9) and

(c)(10);

h. Redesignating paragraphs (c)(2),

(c)(3), (c)(4), (c)(5), (c)(6), (c)(7), (c)(8),

(c)(11), and (c)(12) as paragraphs (c)(3),

(c)(4), (c)(5), (c)(6), (c)(7), (c)(8), (c)(9),

(c)(10), and (c)(11), respectively;

i. Adding a new paragraph (c)(2);

j. Revising newly redesignated

paragraphs (c)(6) and (c)(7);

k. Revising the introductory text to

newly redesignated paragraph (c)(9);

l. Removing ‘‘and’’ at the end of

newly redesignated paragraph (c)(10);

m. Removing the period at the end of

newly redesignated paragraph (c)(11)

and adding a semicolon in its place; and

n. Adding new paragraphs (c)(12) and

(c)(13), to read as follows:

§ 55.12 Inapplicability of this part 55 to

certain categories of proposed actions.

(a) The decision making steps in

§ 55.20(b), (c), (f), and (g) (steps 2, 3, 6,

and 7) do not apply to the following

categories of proposed actions:

* * * * *

(3) HUD actions under any HUD

program involving the repair,

rehabilitation, modernization or

improvement of existing multifamily

housing projects (including nursing

homes, board and care facilities and

intermediate care facilities) and existing

one-to four-family properties, in

communities that are in the Regular

Program of the 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.

(b) * * *

(5) The approval of financial

assistance to lease not more than a total

of four units of existing housing in a

building located within the 100-year

floodplain (or the 500-year floodplain

for Critical Actions), but only if—

(i) The housing is located outside the

floodway or coastal high hazard area,

and is in a community that is in the

Regular Program of the National Flood

Insurance Program (NFIP) and in good

standing (i.e., not suspended from

program eligibility or placed on

probation under 44 CFR 59.24);

(ii) The leasing is in a structure

insured under the NFIP; and

(iii) The financial assistance does not

pay for repair or rehabilitation.

(c) * * *

(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;

* * * * *

(6) A minor amendment to a

previously approved action with no

additional adverse impact on or from a

floodplain or wetland;

(7) HUD’s approval of a project site,

an incidental portion of which is

situated in an adjacent floodplain 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; and

(iii) A covenant or comparable

restriction is placed on the property’s

continued use to preserve the floodplain

or wetland;

* * * * *

(9) HUD’s approval of financial

assistance for a project on any nonwetland site in a floodplain for which

FEMA has issued:

* * * * *

(12) Special projects directed to the

removal of material and architectural

barriers that restrict the mobility of and

accessibility to elderly and persons with

disabilities; and

(13) The approval of financial

assistance for acquisition, leasing,

construction, rehabilitation, repair,

maintenance, or operation of ships and

other water-borne vessels that will be

used for transportation or cruises and

will not be permanently moored.

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. Section 55.20 is amended by

revising the introductory text; revising

paragraph (a); revising the introductory

text of paragraph (b); revising paragraph

(b)(3); revising paragraph (c); revising

paragraph (d); revising the introductory

text of paragraph (e); revising paragraph

(f)(1); revising paragraph (g); and

revising paragraph (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. The steps to be followed in

the decision making process are:

(a) Step 1. Determine whether the

proposed action is located in a 100-year

floodplain (or a 500-year floodplain for

a Critical Action) or a wetland. If the

proposed action would not be

conducted in one of those locations,

then no further compliance with this

part is required.

(b) Step 2. Notify the public 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 a wetland and

involve the affected and interested

public in the decision making process.

* * * * *

(3) A notice under this paragraph (b)

shall state: the name, proposed location

and description of the activity; the total

number of acres of floodplain or

wetland involved; and the HUD official

and phone number to contact for

information. The notice shall indicate

the hours and the HUD office or

responsible entity’s office 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. The evaluation shall

focus on the potential impacts inside

and outside the floodplain or wetland

area as such impacts relate to the

protection of human life, real property,

and the natural and beneficial values

served by the floodplain 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 sites

which they select for a project should

include:

(i) Locations outside 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.

(2) For multifamily projects involving

HUD mortgage insurance that are

initiated by third parties, HUD’s or the

responsible entity’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
30052 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules

associated with the occupancy or

modification of the 100-year floodplain

(or the 500-year floodplain for a Critical

Action) or the wetland.

(e) Step 5. Where practicable, design

or modify the proposed action to

minimize the potential adverse impacts

within the 100-year floodplain (or the

500-year floodplain for a Critical

Action) or the wetland and to restore

and preserve its natural and beneficial

values. 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:

* * * * *

(f) * * *

(1) Whether it is still practicable in

light of its exposure to flood hazards in

the floodplain or its possible adverse

impact on the floodplain or wetland, the

extent to which it will aggravate the

current hazards to other floodplains or

wetlands, and its potential to disrupt

floodplain or wetland values; and

* * * * *

(g) Step 7. 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:

(1) The reasons why the proposal

must be located in the floodplain or

wetland;

(2) A list of the alternatives

considered;

(3) All mitigation measures to be

taken to minimize adverse impacts and

to restore and preserve natural and

beneficial values; and

(4) For residential new construction

in a 100-year floodplain, a statement

that a final Letter of Map Amendment

(LOMA) or final Letter of Map Revision

(LOMR) will be secured by the applicant

as a condition of HUD’s or the

responsible entity’s approval of

floodplain development.

(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 and the recipient

to ensure that the mitigating measures

identified in Step 7 are implemented

and, where applicable, that the LOMA

or LOMR is secured.

14. In § 55.22, the introductory text to

paragraph (a) and paragraph (a)(1) are

revised to read as follows:

§ 55.22 Conveyance restrictions for the

disposition of multifamily real property.

(a) In the disposition (including

leasing) of multifamily properties

acquired by HUD that are located in a

100-year floodplain (or a 500-year

floodplain for a Critical Action) or a

wetland, the documents used for the

conveyance must:

(1) Refer to those uses that are

restricted under identified federal, state,

or local floodplain or wetland

regulations; and

* * * * *

15. Section 55.24 is revised to read as

follows:

§ 55.24 Aggregation.

Where two or more actions have been

proposed, require compliance with this

subpart, affect the same floodplain or

wetland, and are currently under review

by the Department (or by a responsible

entity subject to 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.

16. Section 55.25 is amended by

removing the period at the end of

paragraph (d)(3)(iii) and adding a

semicolon in its place; by removing the

period at the end of paragraph (d)(6) and

adding ‘‘; and’’ in its place; and by

revising paragraphs (a), (b), (d)(4) and

(d)(5), to read as follows:

§ 55.25 Areawide compliance.

(a) A HUD-approved areawide

compliance process may be substituted

for individual compliance or aggregated

compliance under § 55.24 where a series

of individual actions is proposed or

contemplated in a pertinent area for

HUD’s examination of floodplain

hazards or the protection of wetlands. In

areawide compliances, the area for

examination may include a sector of, or

the entire, floodplain or wetland—as

relevant to the proposed or anticipated

actions. The areawide compliance

process shall be in accord with the

decision making process under § 55.20.

(b) The areawide compliance process

shall address the relevant executive

orders and shall consider local land use

planning and development controls

(e.g., those enforced by the community

for purposes of floodplain management

under the National Flood Insurance

Program (NFIP)) and applicable state

programs for floodplain management

and wetland protection. The process

shall include the development and

publication of a strategy that identifies

the range of development and mitigation

measures under which the proposed

HUD assistance may be approved and

that indicates the types of actions that

will not be approved in the floodplain

or wetland.

* * * * *

(d) * * *

(4) An open scoping process (in

accordance with 40 CFR 1501.7) shall be

used for determining the scope of issues

to be addressed and for identifying

significant issues related to housing and

community development for the

floodplain or wetland;

(5) Federal, state and local agencies

with expertise in floodplain

management, wetland protection, flood

evacuation preparedness, land use

planning and building regulation, or soil

and natural resource conservation shall

be invited to participate in the scoping

process and to provide advice and

comments;

* * * * *

17. Section 55.26 is amended by

revising the introductory text 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 the executive

orders by another agency, 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 and wetland

protection;

* * * * *

18. Section 55.27 is amended by

revising the introductory text to

paragraph (a) and paragraph (a)(1) to

read as follows:

§ 55.27 Documentation.

(a) For purposes of compliance with

§ 50.20, the responsible HUD official

who would approve the proposed action

(or Certifying Officer for a responsible

entity subject to 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 more appropriate to the proposed

HUD action. Actual sites under review

must be identified and the reasons for

the non-selection of those sites as

practicable alternatives must be

described; and

* * * * *
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Proposed Rules 30053

§§ 55.21, 55.25, and 55.27 [Amended]

19. In addition to the amendments set

forth above, in 24 CFR part 55:

a. Remove the words ‘‘grant recipient’’

and add, in their place, the words

‘‘responsible entity’’ in the following

places:

i. Section 55.21;

ii. Section 55.25(c); and

iii. Section 55.27(b); and

b. Remove the words ‘‘grant

recipients’’ and add, in their place, the

words ‘‘responsible entities’’ in the

following places:

i. Section 55.25(d)(2); and

ii. Section 55.27(c).

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. In § 58.5, paragraph (b)(2) is

revised to read as follows:

§ 58.5 Related Federal laws and

authorities.

* * * * *

(b) * * *

(2) Executive Order 11990, Protection

of Wetlands, May 24, 1977 (42 FR

26961), 3 CFR, 1977 Comp., p. 121, as

interpreted in HUD regulations at 24

CFR part 55, particularly sections 2 and

5 of the order.

* * * * *

Dated: April 27, 1998.

Andrew Cuomo,

Secretary.

[FR Doc. 98–14245 Filed 6–1–98; 8:45 am]

BILLING CODE 4210–32–P