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NAHMA USDA Update: USDA Issues Environmental Policies and Procedures for Section 538 Guaranteed Rural Rental Housing Program

Please find below an announcement from Rural Development's Office of Multifamily Housing regarding the National Environmental Policy Acts environmental regulations requiring every funding proposal to undergo a review for extraordinary circumstances, including adverse effects on historic properties.

USDA Issues Environmental Policies and Procedures
for Section 538 Guaranteed Rural Rental Housing Program

Please find below an announcement from Rural Development's Office of Multifamily Housing regarding the National Environmental Policy Acts environmental regulations requiring every funding proposal to undergo a review for extraordinary circumstances, including adverse effects on historic properties. Specifically, this announcement states that Section 538 Guaranteed Rural Rental Housing Program applications must meet the requirements of Section 106 of the National Historic Preservation Act by taking into account the effect of its undertaking on historic properties; i.e. buildings, structures, sites, objects and districts which are listed in or eligible for listing in the National Register of Historic Places. For more information, please see the announcement below:
 
 
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Section 538 Guaranteed Rural Rental Housing Program

Rural Development's NEPA environmental regulations require every funding proposal to undergo a review for extraordinary circumstances, including adverse effects on historic properties. Accordingly, Section 538 GRRHP applications must meet the requirements of Section 106 of the National Historic Preservation Act (NHPA). Before obligating funds for an application, Rural Development must comply with requirements of Section 106 of the NHPA and the Advisory Council on Historic Preservation's implementing regulations, “Protection of Historic Properties” (36 CFR Part 800). Under this federal statutory and regulatory requirement, known as “Section 106 review,” Rural Development must take into account the effect of its undertaking on historic properties; i.e. buildings, structures, sites, objects and districts which are listed in or eligible for listing in the National Register of Historic Places (NRHP).
Engaging SHPOs and Tribes During the Environmental Process

In accordance with 36 CFR § 800.2(c)(4), Rural Development has issued a blanket delegation authorizing its applicants or their authorized representatives to initiate early coordination and proceed through the steps of Section 106 to then provide Rural Development with a recommendation for a finding of no historic properties affected or no adverse effect. This blanket delegation authority is documented in 7 CFR § 1970.5(b)(2) of the regulations, “Environmental Policies and Procedures” (7 CFR Part 1970). This regulatory delegation, which extends to all Agency applicants and their authorized representatives, supersedes all previous letter delegations (dated August 14, 2012 and July 16, 2009). In order to satisfy the requirements of delegated authority, an Agency applicant seeks agreement with, as appropriate, Indian tribes, the State Historic Preservation Office (SHPO) and others on the effect of its proposal on historic properties. Section 106 review proceeds under this delegated authority solely on the basis of agreement reached between the Agency applicant, the SHPO, Indian tribes, and other participants on recommended actions. This blanket delegation does not empower Agency applicants or their authorized representatives to make any decisions in Section 106 review, such as a formal finding of effect or determination of eligibility. Rather, Agency applicants are authorized only to make recommendations to Rural Development to support the progress of Section 106 review. Nothing in this delegated authority changes, alters or amends Rural Development's decision-making authority, or the responsibility of Rural Development to conclude Section 106 review. Rural Development's guidance found in RD Instruction 1970-H explains the process that applicants or their authorized representatives must follow when engaging Tribes for the purpose of early coordination.  Section 538 GRRHP applicants shall not engage in consultation with SHPOs and Tribes, as that is a federal responsibility that cannot be delegated.  However, as long as all parties agree that no impact to historic property will occur, the applicant can continue to engage the SHPOs and Tribes. To avoid unauthorized consultation or the perception thereof, applicants must use the template letter provided in RD Instruction 1970, Subpart H, Exhibit H, Attachment 1 when engaging in early coordination with the SHPOs and Tribes. The receipt of this outreach letter by the SHPOs and Tribes begins the 30-day review period. Agencies may infer no comment and move to the next step in the Section 106 review process if no response is received after 30 days.

If a SHPO or Tribes respond with concerns the project may adversely impact a historic property, or traditional cultural property, an archeological survey may be required.  The Agency will evaluate each request to determine if a survey is warranted or if the adverse effect cannot be avoided and must be mitigated.  Applicants should be aware that that all Tribes have the right to request communication directly from the Federal Agency and not applicants. The Tribes do not have to notify the applicant of this request.
 
Section 106 and COVID-19

Section 106 of the NHPA and the 36 CFR 800 implementing regulation requires Federal agency officials to make a “reasonable and good faith effort” to identify historic properties. However, due to the COVID-19 pandemic, many State, Tribal and Native Hawaiian historic preservation offices have either closed or are unable to carry out their Section 106 duties. Due to the hardships that tribes, in particular, are experiencing, the ACHP informed the Federal Preservation Officers in March 2020 that the 30-day regulatory review period was paused. The ACHP plans to resume the 30-day regulatory review period once COVID-19 conditions are no longer in effect. The ACHP notification was stated as follows:

“The deadlines in the Section 106 process as set forth in 36 C.F.R. Part 800 will remain the same, with one exception in certain extraordinary circumstances. The Section 106 deadlines for a State or Tribal Historic Preservation Officer (SHPO/THPOs) response will be considered tolled while, due to the coronavirus outbreak, an office is closed or work conditions are such that the SHPOs/THPOs are unable to carry out their Section 106 duties (e.g., staff unavailability due to health reasons or restricted access to records or communication capability)…The tolling will be lifted once the conditions are no longer in effect. We strongly encourage federal agencies to be flexible with Section 106 deadlines when they have reason to believe the relevant consulting parties may be facing challenges in meeting such deadlines due to the outbreak. Particular attention should be given to those parties such as Indian tribes and THPOs that may have limited capacity to participate even under normal conditions.”

The ACHP's guidance regarding tolling can be found here: https://www.achp.gov/digital-library-section-106-landing/section-106-and-coronavirus-impacts   

The ACHP's guidance regarding tolling AND how it applies to non-responsive tribes can be found here: https://www.achp.gov/node/11164

COVID-19 and the associated delays related to processing Section 106 reviews for Rural Development projects have posed significant challenges. Rural Development agencies cannot conclude Section 106 until it has made a good faith effort to consult with interested or consulting parties as appropriate in accordance with 36 CFR § 800.4(b)(1). In cases where the 30-day response period referenced above has lapsed, RD staff and our applicants have often been unsuccessful in making contact with some tribes to determine whether responses have not been provided due to lack of interest in a project or due to office closures as a result of COVID-19.

Plan to Address COVID-19 Delays

Pursuant to the Agency's extraordinary efforts to address COVID-19 tolling delays with the ACHP while continuing to contact tribes in good faith, and pursuant to 36 CFR 800.4(d)(1)(iv)(B), RHS implemented the following process for concluding Section 106 during the period that the 30-day regulatory review is paused due to the COVID-19 crisis. This process, which must be completed by RHS staff and State Environmental Coordinators (SECs),will allow for maximum flexibility for tribal consultation when the Agency has reason to believe the relevant consulting parties may be facing challenges in meeting the regulatory deadline due to COVID-19, while still considering the critical nature of RHS projects and the need for RHS to fulfill its mission. RHS will give attention to those parties, such as Tribes, that may have limited capacity to participate in the Section 106 process, even under normal conditions.

The process described below is only for projects where RHS has received a No Adverse Effect or No Historic Properties Affected response from the SHPO and requested comment from the tribe(s) and are beyond the 30-day regulatory response period and a response has not been received. The process below will be performed by the Agency's staff and State Environmental Coordinators. This portion of the Section 106 process related to COVID-19 delays shall not be performed by the applicant or their authorized representatives.

1) Provide tribes with an additional 15 business days to respond beyond the 30-day regulatory response period, as applicable.
  • For new projects that are entered onto the Section 106 and COVID-19 trackers by the SECs, RHS program staff will issue a second letter requesting comment within 15 business days.
2) Make a minimum of two additional attempts to contact tribes after the 30-day regulatory response period has lapsed.
  • After issuance of the first request for comment, RHS staff will follow up with the tribe via email or phone at least twice to make contact and to ascertain whether the tribal office remains closed. This includes the issuance of the letter to provide an additional 15 days to respond.
3) If unable to reach unresponsive tribes after the additional 15-business day comment period and subsequent follow-up efforts to contact the tribes, GRRH Program Staff at RHS Headquarters will make a determination on whether the Agency has made a good faith effort to consult with interested tribes, in accordance with Agency guidance, and will proceed to conclude Section 106.
  • Upon completion of the additional 15-business day response period and the additional follow-up response period, the 538 GRRH Program staff, with support from applicants and their contractors, will provide the State Environmental Coordinator with the entire administrative record necessary to support conclusion of Section 106 and a draft Section 106 conclusion memorandum for approval based on the enclosed conclusion memorandum template.
  • The SEC will provide the entire administrative record and the Section 106 Conclusion Memo to the 538 GRRHP Preservation and Production Director for approval. The Section 106 conclusion memo will be approved by the Preservation and Production Director. Once the approval is issued, the SEC will upload the administrative record and signed Section 106 Conclusion Memo into the Section 106 and COVID tracker and the Program staff will upload the administrative record and signed Section 106 Conclusion Memo into the program/project file. This will conclude the Section 106 process for the specific project.

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