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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.
 

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