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pdfRD Instruction 1940-G
Page 1
PART 1940 - GENERAL
Subpart G - Environmental Program
TABLE OF CONTENTS
Sec.
1940.301
1940.302
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
1940.303
1940.304
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
1940.305
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Purpose.
Definitions.
Page
1
3
Emergency circumstance.
Environmental review documents.
Flood or Flooding.
Floodplains.
Indirect impacts.
Mitigation measure.
No action alternative.
Practicable alternative.
Preparer of environmental review documents.
Water resource project.
3
3
4
4
4
5
5
5
6
7
General Policy.
Special Policy.
7
8
Land use.
Endangered species.
Wild and scenic rivers.
Historic and cultural properties.
Coastal barriers.
Water and energy conservation.
Intergovernmental initiative on important
land resources.
Water quality.
8
10
11
11
11
11
Policy Implementation.
12
Environmental impact analysis.
Natural resource management.
Intergovernmental initiatives.
Farmland Protection Policy Act and
Departmental Regulation 9500-3,
Land Use Policy.
Endangered species.
Wild and scenic rivers.
Historic and cultural properties.
Coastal barriers.
Water and energy conservation.
12
12
13
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SPECIAL PN
11
12
13
13
13
13
14
15
RD Instruction 1940-G
Table of Contents
Page 2
Sec.
Page
(j)
(k)
1940.306
1940-307
1940.309
1940.310
15
(a)
(b)
(c)
15
15
17
State Director.
State Environmental Coordinator (SEC).
Program Chiefs.
Environmental responsibilities at the District
and County office levels.
Responsibilities of the prospective applicant.
Categorical exclusions from National Environmental
Policy Act (NEPA) reviews.
(d)
(e)
General guidelines.
Housing assistance.
Community and business programs and nonprofit
national corporations program.
Farm programs.
General exclusions.
17
17
17
19
19
19
21
21
22
23
24
26
Environmental assessments for Class I actions.
27
(a)
(b)
27
(c)
(d)
1940.312
Administrator.
Deputy Administrator Program Operations.
Assistant Administrators for Programs.
Environmental responsibilities within
the State Office.
(a)
(b)
(c)
1940.311
15
15
Environmental responsibilities within the
National Office.
(a)
(b)
1940.308
Noise abatement.
Water quality.
Housing assistance.
Community and business programs and nonprofit
national corporations program.
Farm programs.
General.
28
29
31
Environmental assessments for Class II actions.
31
(a)
(b)
31
(c)
(d)
Housing assistance.
Community and business programs and nonprofit
national corporations program.
Farm programs.
General.
32
32
33
RD Instruction 1940-G
Table of Contents
Page 3
Sec.
1940.313
1940.314
1940.315
1940.316
1940.317
1940.318
1940.319
1940.320
Page
Actions that normally require the preparation
of an Environmental Impact Statement (EIS).
Criteria for determining a significant environmental
impact.
Timing of the environmental review process.
Responsible officials for the environmental
review process.
37
(a)
(b)
(c)
(d)
(e)
37
37
38
38
38
Methods for ensuring proper implementation of
categorical exclusions.
Completing environmental assessments for
Class II actions.
Completing environmental assessments for
Class I actions.
Preparing EIS's.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
1940.321
1940.322
1940.323
1940.324
1940.325
1940.326
1940.327
1940.328
1940.329
1940.330
Approving official.
State Office level.
District or County Office level.
Multilevel review.
Reservation of authority.
Responsibility.
Organizing the EIS process.
Scoping process.
Interdisciplinary approach.
Content and format of EIS.
Circulation of the EIS.
Filing of the EIS.
Public information meetings.
Response to comments.
Timing of review.
Use of completed EIS.
Record of decision.
Preparing supplements to EIS's.
Adoption of EIS or environmental assessment
prepared by the other Federal Agency.
Rural Development as a cooperating Agency.
Rural Development as a lead Agency.
Tiering.
State Environmental Policy Acts.
Commenting on other agencies' EIS's.
Monitoring.
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34
34
36
38
43
48
50
50
51
51
53
53
53
53
54
54
54
54
54
55
56
57
58
58
59
60
60
RD Instruction 1940-G
Table of Contents
Page 4
Sec.
1940.331
1940.332
1940.333
1940.334
Page
Public involvement.
61
(a)
(b)
(c)
(d)
61
61
63
63
Objective.
Public notice requirements.
Public information meetings.
Distribution of environmental documents.
Emergencies.
64
(a)
(b)
64
64
Action requiring EIS.
Action not requiring EIS.
1940.336
1940.337
1940.350
Applicability to planning assistance.
Direct participation of State agencies in the
preparation of Rural Development EIS's.
Environmental review of Rural Development proposals for
legislation.
Contracting for professional services.
- 1940.349 [Reserved]
Office of Management and Budget (OMB) Control number.
Exhibits
-
1940.335
64
65
65
66
66
A
Departmental Regulation 9500-3, Land Use Policy.
B
Development and Implementation of Natural Resource
Management Guide.
C
Implementation Procedures for the Farmland Protection
Policy Act; Executive Order 11988, Floodplain Management;
Executive Order 11990, Protection of Wetlands; and
Departmental Regulation 9500-3, Land Use Policy.
D
Implementation Procedures for the Endangered Species Act.
E
Implementation Procedures for the Wild and Scenic Rivers
Act.
F
Implementation procedures for the Coastal Barrier
Resources Act.
G
[Reserved]
H
Environmental Assessment for Class II Actions.
I
Finding of No Significant Environmental Impact.
RD Instruction 1940-G
Table of Contents
Page 5
J
Locations and Telephone Numbers of Federal Emergency
Management Administration's Regional Offices.
K
Locations and Telephone Numbers of U.S. Fish and Wildlife
Service's Wetland Coordinators.
L
Exceptions to Restrictions of Coastal Barrier Resources
Act.
M
Implementation Procedures for the Conservation of Wetlands
and Highly Erodible Land Affecting Farmer Program Loans
and Loans to Indian Tribes and Tribal Corporations.
Authority:
(10-19-88)
7 U.S.C. 1989; 42 U.S.C. 1480; 7 CFR 2.23; 7 CFR 2.70
SPECIAL PN
RD Instruction 1940-G
Part 1940 - General
Subpart G - Environmental Program
§1940.301
Purpose.
(a) This subpart contains the major environmental policies of Rural
Development. It also provides the procedures and guidelines for
preparing the environmental impact analyses required for a series of
Federal laws, regulations, and Executive orders within one environmental
document. The timing and use of this environmental document within the
Rural Development decision-making process is also outlined.
(b) This subpart is intended to be consistent with the Council on
Environmental Quality's (CEQ) Regulations for Implementing the
Procedural Provisions of the National Environmental Policy Act (NEPA),
40 CFR Parts 1500-1508. CEQ's regulations will not be repeated in this
subpart except when essential for clarification of important procedural
or substantive points. Otherwise, citations to applicable sections of
the regulations will be provided. The CEQ regulations will be available
at all Rural Development offices.
(c) This subpart is designed to integrate the requirements of NEPA with
other planning and environmental review procedures required by law, or
by Agency practice, so that all such procedures run concurrently rather
than consecutively. The environmental document, which results from the
implementation of this Subpart, provides on a project basis a single
reference point for the Agency's compliance and/or implementation of the
following requirements and policies:
(1)
The National Environmental Policy Act, 42 U.S.C. 4321
(2)
Safe Drinking Water Act - Section 1424(e), 42 U.S.C. 300h
(3)
Endangered Species Act, 16 U.S.C. 1531
(4)
Wild and Scenic Rivers Act, 16 U.S.C. 1271
(5) The National Historic Preservation Act, 16 U.S.C. 470 (See
Subpart F of Part 1901 of this chapter for more specific
implementation procedures.)
(6) Archaeological and Historic Preservation Act, 16 U.S.C. 469
(See Subpart F of Part 1901 of this chapter for more specific
implementation procedures.)
__________________________________________________________________________
DISTRIBUTION: W,S,D,C
Loan and Grant Making
General
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SPECIAL PN
RD Instruction 1940-G
§1940.301 (c) (Cont.)
(7) Coastal Zone Management Act - Section 307(c)(l) and (2), 16
U.S.C. 1456
(8)
Farmland Protection Policy Act, Subtitle I, Public Law 97-98
(9)
Coastal Barrier Resources Act, Public Law 97-348
(10) Executive Order 11593, Protection and Enhancement of the
Cultural Environment (See Subpart F of Part 1901 of this chapter for
more specific implementation procedures.)
(11) Executive Order 11514, Protection and Enhancement of
Environmental Quality
(12) Executive Order 11988, Floodplain Management
(13) Executive Order 11990, Protection of Wetlands
(14) Title 7, Part lb and lc, Code of Federal Regulations,
Department of Agriculture's National Environmental Policy Act; Final
Policies and Procedures
(15) Title 7, Part 3100, Code of Federal Regulations, Department of
Agriculture's Enhancement, Protection, and Management of the
Cultural Environment (See Subpart F of Part 1901 of this chapter for
more specific implementation procedures.)
(16) Title 7, Part 658, Code of Federal Regulations, Department of
Agriculture, Soil Conservation Service, Farmland Protection Policy
(17) Title 7, Part 12, Code of Federal Regulations, Highly Erodible
Land and Wetland Conservation.
(18) Departmental Regulation 9500-3, Land Use Policy (See Exhibit A
of this subpart.)
(19) Departmental Regulation 9500-4, Fish and Wildlife Policy
(d) The primary objectives of this subpart are for the Agency to make
better decisions by taking into account potential environmental impacts
of proposed projects and by working with Rural Development applicants,
other Federal agencies, Indian tribes, State and local governments, and
interested citizens and organizations in order to formulate actions that
advance the program goals in a manner that will protect, enhance, and
restore environmental quality. To accomplish these objectives, the
identification of potentially significant impacts on the human
environment is mandated to occur early in the Agency's planning and
decision making processes. Important decision points are identified.
The completion of the environmental review process is coordinated with
2
§1940.301 (d)(Cont.)
RD Instruction 1940-G
these decision points, and this review must be completed prior to the
Agency's first major decision on whether or not to participate in the
proposal. This early availability of the results of the environmental
review process is intended to ensure that Agency decisions are based on
an understanding of their environmental consequence, as well as the
consequences of alternative courses of action.
(e) Reducing delays, duplication of effort, and superfluous analyses
are provided for in this subpart. Rural Development environmental
documents are to be supported by accurate analyses and will concentrate
on the issues that are timely and relevant to the action in question,
rather than amassing needless detail. Such documents and their
preparation and review will be coordinated with other Federal or State
agencies jointly participating in proposed actions or related actions,
in order to avoid duplication of effort, and to achieve a coordinated
and timely response.
(f) Public involvement is desirable, and to facilitate public
involvement, environmental documents will be available to interested
citizens as early in the decision making process as possible and before
decisions are made. Provisions are included for citizens or interested
parties to express their views and any concerns.
(g) The Rural Development officials responsible for the environmental
review process are identified.
(h) The Rural Development actions covered by this
financial assistance to include grants, loans, and
subdivision approvals, (3) the management, leasing
property, and (4) other major federal actions such
legislation and the issuance of regulations.
subpart include (1)
guarantees, (2)
and sale of inventory
as proposals for
§1940.302 Definitions. Following is a list of definitions that apply to the
implementation of this subpart. Please note that §1940.301(b) of this subpart
refers to the Council on Environmental Quality's Regulations for Implementing
the Procedural Provisions of the National Environmental Policy Act, 40 CFR
Parts 1500-1508. Consequently, the definitions contained in Part 1508 of the
Council's regulations apply to this subpart, as well as those listed below.
(a) Emergency circumstance. One involving an immediate or imminent
danger to public health or safety.
(b) Environmental review documents. The documents required by this
subpart for the purpose of documenting Rural Development's compliance
with the environmental laws and regulations applicable to the Rural
Development actions covered in this subpart. These documents include
(1) Form RD 1940-22, "Environmental Checklist for Categorical
Exclusions," (2) Form RD 1940-21, "Environmental Assessment for Class I
Action,"
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RD Instruction 1940-G
§1940.302 (b) (Cont.)
(3) Environmental Assessment for Class II Actions (Exhibit H of this
subpart), and (4) Environmental Impact Statements (EIS).
(c) Flood or flooding. A general and temporary condition of partial or
complete inundation of land areas, from the overflow of inland and/or
tidal waters, and/or the rapid accumulation or runoff of surface waters
from any source. Two important classifications of floods are as
follows.
(1) A one-percent chance flood or base flood - A flood of a
magnitude that occurs once every 100 years on the average. Within
any one-year period there is one chance in 100 of the occurrence of
such a flood. Most importantly, however, the cumulative risk of
flooding increases with time. Statistically, there is about one
chance in five that a flood of this magnitude will occur within a
20-year period, the length of time commonly defined as the useful
life of a facility. Over a 30-year period, the life of a typical
mortgage, the probability of such a flood occurring increases to
greater than one chance in four.
(2) A 0.2-percent chance flood - A flood of a magnitude that occurs
once every 500 years on the average. (Within any one-year period
there is one chance in 500 of the occurrence of such a flood.) As
with the one-percent chance flood, the cumulative risk of this flood
occurring also increases with time.
(d) Floodplains. Lowland and relatively flat areas adjoining inland
and coastal waters, including flood-prone areas of offshore islands. At
a minimum, floodplains consist of those areas subject to a one percent
or greater chance of flooding in any given year. The term floodplain
will be taken to mean the base floodplain, unless the action involves a
critical action, in which case the critical action floodplain is the
minimum floodplain of concern.
(1) Base floodplain (or 100-year floodplain) - The area subject to
inundation from a flood of a magnitude that occurs once every 100
years on the average (the flood having a one-percent chance of being
equaled or exceeded in any given year).
(2) Critical action floodplain (or 500-year floodplain) - The area
subject to inundation from a flood of a magnitude that occurs once
every 500 years on the average (the flood having 0.2-percent chance
of being equaled or exceeded in any given year).
(e) Indirect impacts. Those reasonably foreseeable environmental
impacts that result from the additional public facility, residential,
commercial, or industrial development or growth that a federally
financed project may cause, induce or accommodate. Consequently,
indirect impacts often occur later in time than the construction of the
Federal project and can be removed in distance from the construction
4
§1940.302 (e)(Cont.)
RD Instruction 1940-G
site. For example, a water transmission line may be designed to serve
additional residential development. The environmental impacts of that
residential development represent an indirect impact of the federally
funded water line. Those indirect impacts which deserve the greatest
consideration include changes in the patterns of land use, population
density or growth rate, and the corresponding changes to air and water
quality and other natural systems.
(f) Mitigation measure. A measure(s) included in a project or
application for the purpose of avoiding, minimizing, reducing or
rectifying identified, adverse environmental impacts. Examples of such
measures include:
(1) the deletion, relocation, redesign or other modifications of
the project's elements;
(2) the dedication to open space of environmentally sensitive areas
of the project site, which would otherwise be adversely affected by
the action or its indirect impacts;
(3) soil erosion and sedimentation plans to control runoff during
land-disturbing activities;
(4) the establishment of vegetative buffer zones between project
sites and adjacent land uses;
(5) protective measures recommended by environmental and
conservation agencies having jurisdiction or special expertise
regarding the project's impacts;
(6) storm water management plans to control potential downstream
flooding effects that would result from a project;
(7)
zoning; and
(8)
reuse of existing facilities as opposed to new construction.
(g) No-action alternative. The alternative of not approving an
application for financial assistance, a subdivision feasibility
analysis, or an Agency proposal.
(h) Practicable alternative. An alternative that is capable of
attainment within the confines of relevant constraints. The test of
practicability, therefore, depends upon the particulars of the situation
under consideration and those constraints imposed by environmental,
economic, legal, social and technological parameters. This test,
however, is not limited by the temporary unavailability of sufficient
financial resources to implement an alternative. That is, alternatives
cannot be rejected solely on the basis of moderately increased costs.
The range of alternatives that must be analyzed to
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SPECIAL PN
RD Instruction 1940-G
§1940.302 (h) (Cont.)
determine if a practicable alternative exists includes the following
three categories of alternatives:
(1)
Alternative project sites or designs,
(2) Alternative projects with similar benefits as the proposed
action, and
(3)
The no-action alternative.
(i) Preparer of Environmental Review Documents. The Rural Development
official who is responsible for reviewing the potential environmental
impacts of the proposed action and for completing the appropriate
environmental review document. Under the circumstances indicated, the
following Agency positions and divisions will act as the preparer of the
environmental review documents covered by this subpart.
(1) County Office - When the approval official for the action under
review is located at the County Office level, that official will
prepare, as required, Environmental Checklist for Categorical
Exclusions and Class I and Class II assessments.
(2) District Office - When the approval official for the action
under review is located at the District Office level, that official
will prepare, as required, Environmental Checklist for Categorical
Exclusions and Class I and Class II assessments or may delegate this
responsibility to either
(i) the District Office staff member having primary
responsibility for assembling the associated preapplication,
application or other case materials, analyzing the materials
and developing recommendations for the approval official, or
(ii) a County Office staff member having the same
responsibilities as the District Office member, if the action
is initiated at the County Office level.
(3) State Office Program Chief - For actions approved within the
State Office, the Chief will prepare, as required, Environmental
Checklist for Categorical Exclusions and Class I and II assessments
or may delegate this responsibility to either
(i) the appropriate State Office Loan Specialist, if not the
State Environmental Coordinator (SEC),
(ii) an architect or engineer on the Chief's staff who is not
the SEC, or
6
§1940.302(i)(3)(Cont.)
RD Instruction 1940-G
(iii) a District or County Office staff member located within
the office in which the action is initiated and having the
responsibilities outlined in paragraph (i)(2)(i) of this
section.
(4) State Environmental Coordinator - EIS's for actions within the
approval authority of County Supervisors, District Directors, and
State Office officials.
(5) Assistant Administrators for Programs - Checklists,
assessments, and EIS's for all actions initiated within their
program office.
(6) Program Support Staff - Checklists, assessments, and EIS's that
the Deputy Administrator for Program Operations requests be done.
(j) Water resource project. Includes any type of construction which
would result in either impacts on water quality and the beneficial uses
that water quality criteria are designed to protect or any change in the
free-flowing characteristics of a particular river or stream to include
physical, chemical, and biological characteristics of the waterway.
This definition encompasses construction projects within and along the
banks of rivers or streams, as well as projects involving withdrawals
from, and discharges into such rivers or streams. Projects which
require Corps of Engineers dredge and fill permits are also water
resource projects.
§1940.303
General policy.
(a) Rural Development will consider environmental quality as equal with
economic, social, and other relevant factors in program development and
decision making processes.
(b) In assessing the potential environmental impacts of its actions,
Rural Development will consult early with appropriate Federal, State,
and local agencies and other organizations to provide decision-makers
with both the technical and human aspects of environmental planning.
(c) When adverse environmental impacts are identified, either direct or
indirect, an examination will be made of alternative courses of action,
including their potential environmental impacts. The objective of the
environmental review will be to develop a feasible alternative with the
least adverse environmental impact. The alternative of not proceeding
with the proposal will also be considered particularly with respect to
the need for the proposal.
(d) If no feasible alternative exists, including the no-action
alternative, measures to mitigate the identified adverse environmental
impacts will be included in the proposal.
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SPECIAL PN
RD Instruction 1940-G
§1940.303 (Cont.)
(e) The performance of environmental reviews and the consideration of
alternatives will be initiated as early as possible in the Rural
Development application review process so that the Agency will be in the
most flexible and objective position to deal with these considerations.
§1940.304
(a)
Special policy.
Land use.
(1) Rural Development recognizes that its specific mission of
assisting rural areas, composed of farms and rural towns, goes handin-hand with protecting the environmental resources upon which these
systems are dependent. Basic resources necessary to both farm and
rural settlements include important farmlands and forestlands, prime
rangelands, wetlands, and floodplains. The definitions of these
areas are contained in the Appendix to Departmental Regulation 95003, Land Use Policy, which is included as Exhibit A of this subpart.
For assistance in locating and defining floodplains and wetlands,
the locations and telephone numbers of the Federal Emergency
Management Administration's regional offices have been included as
Exhibit J of this subpart, and similar information for the U.S. Fish
and Wildlife Service's Wetland Coordinators has been included as
Exhibit K of this subpart. Given the importance of these resources,
as emphasized in the Departmental Regulation, Executive Order 11988,
"Floodplain Management," and Executive Order 11990, "Protection of
Wetlands," it is Rural Development's policy not to approve or fund
any proposals that, as a result of their identifiable impacts,
direct or indirect, would lead to or accommodate either the
conversion of these land uses or encroachment upon them. The only
exception to this policy is if the approving official determines
that
(i) there is no practicable alternative to the proposed
action,
(ii) the proposal conforms to the planning criteria identified
in paragraph (a)(2) of this section, and
(iii) the proposal includes all practicable measures for
reducing the adverse impacts and the amount of
conversion/encroachment.
(A) For Farmer Program loans and guarantees, and loans to
Indian Tribes and Tribal Corporations, Exhibit M of this
subpart imposes additional and more restrictive
requirements regarding wetland and highly erodible land
conservation.
8
§1940.304 (a)(1)(iii)(Cont.)
RD Instruction 1940-G
(B) Unless otherwise exempted by the provisions of
Exhibit M, the proceeds of any Farmer Program loan or loan
to an Indian Tribe or Tribal Corporation made or
guaranteed by Rural Development cannot be used
(1) for a purpose that will contribute to excessive
erosion of highly erodible land (as defined in
Exhibit M) or
(2) for a purpose that will contribute to conversion
of wetlands (as defined in Exhibit M) to produce an
agricultural commodity.
(2) It is also recognized that unless carefully reviewed, some
proposals designed to serve the needs of rural communities can
adversely affect the existing economic base and settlement patterns
of the community, as well as create development pressures on land
and environmental resources essential to farm economies. An example
of such a proposal might be the extension of utilities and other
types of infrastructure beyond a community's existing settlement
pattern and into important farmlands for the purpose of commercial
or residential expansion, even though there is available space
within the existing settlement pattern for such expansion. Not only
may the loss of important farmlands unnecessarily result, but the
community may be faced with the economic costs of providing public
services to outlying areas, as well as the deterioration of its
central business or commercial area; the latter may not be able to
compete with the newer, outlying commercial establishments. These
results are undesirable, and to avoid their occurrence, projects
designed to meet rural community needs (i.e., residential,
industrial, commercial, and public facilities) will not be approved
unless the following conditions are met.
(i) The project is planned and sited in a manner consistent
with the policies of this section, the Farmland Protection
Policy Act, and Departmental Regulation 9500-3 (Exhibit A of
this subpart).
(ii) The project is not inconsistent with an existing
comprehensive and enforceable plan that guides growth and
reflects a realistic strategy for protecting natural resources,
and the project is compatible, to the extent practicable, with
State, unit of local government, and private programs and
policies to protect farmland. (If no such plan or policies
exist, there is no Rural Development requirement that they
either be prepared and adopted, as further specified in
paragraph (a)(3) of this section.)
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SPECIAL PN
RD Instruction 1940-G
§1940.304 (a)(2) (Cont.)
(iii) The project will encourage long-term, economically
viable public investment by fostering or promoting development
patterns that ensure compact community development, that is,
development that is limited to serving existing settlement
patterns or is located in existing settlement patterns, e.g.,
the rehabilitation and renovation of existing structures,
systems and neighborhoods; infilling of development; the
provision of a range of moderate-to-high residential densities
appropriate to local and regional needs. When these
development patterns or types are not practicable, the
development must be contiguous with the existing settlement
pattern and provide for a range of moderate-to-high residential
densities appropriate to local and regional needs. It is
recognized that some Rural Development Community Programs
projects are designed to serve rural residents, such as rural
water and waste disposal systems and, therefore, cannot be
limited in service area to those areas contiguous with existing
settlement patterns. These types of projects will be designed
to primarily serve existing structures and rural residents in
noncontiguous areas. Any additional capacity within the system
will be limited to meet reasonable growth needs, and, to the
extent practicable, be designed to meet such needs within
existing settlements and areas contiguous to them.
(3) The conditions specified in paragraph (a)(2) of this section
should not be construed as advocating excessive densities,
congestion, or loss of open space amenities within rural
communities. Desirable living conditions can be obtained under
these objectives, along with economic and social benefits for the
community and the surrounding farm operations. Additionally, these
conditions should not be construed as requiring localities to
develop plans which contain the conditions. In any instance in
which these planning conditions or criteria do not exist within the
project area, project reviews will not be postponed until the
criteria are adopted. Rather, projects will be reviewed and funding
decisions made in light of a project's consistency with the contents
of this subpart (excluding paragraph (a)(2)(ii) of this section,
which would not be applicable).
(b) Endangered species. Rural Development will not authorize, fund, or
carry out any proposal or project that is likely to
(1) jeopardize the continued existence of any plant or wildlife
species listed by the Secretary of Interior or Commerce as
endangered or threatened; or
(2) destroy or adversely modify the habitats of listed species when
such habitats have been determined critical to the species'
10
§1940.304 (b)(2)(Cont.)
RD Instruction 1940-G
existence by the Secretary of Interior or Commerce, unless Rural
Development has been granted an exemption for such proposal by the
Endangered Species Committee pursuant to paragraph (h) of Section 7
of the Endangered Species Act.
(c) Wild and scenic rivers. Rural Development will not provide
financial assistance or plan approval for any water resource project
that would have a direct and adverse effect on the values for which a
river has been either included in the National Wild and Scenic Rivers
System or is designated for potential addition. Additionally, Rural
Development will not approve or assist developments (commercial,
industrial, residential, farming or community facilities) located below
or above a wild, scenic or recreational river area, or on any stream
tributary thereto which will invade the area or unreasonably diminish
the scenic, recreational, and fish and wildlife values present in the
area.
(d) Historic and cultural properties. As part of the environmental
review process, Rural Development will identify any properties that are
listed in, or may be eligible for, listing in the National Register of
Historic Places and are located within the project's area of potential
environmental impacts. Consultations will be undertaken with State
Historic Preservation Officers and the Advisory Council on Historic
Preservation, through the implementation of Subpart F of Part 1901 of
this chapter, in order to determine the most appropriate course of
action for protecting such identified properties or mitigating potential
adverse impacts to them.
(e) Coastal barriers. Under the requirements of the Coastal Barrier
Resources Act, Rural Development will not provide financial assistance
for any activity to be located within the Coastal Barrier Resources
System unless
(1) such activity meets the criteria for an exception, as defined
in Section 6 of the Act, and
(2) consultation regarding the activity has been completed with the
Secretary of the Interior.
(f) Water and energy conservation. Rural Development will encourage
the conservation of water and energy in the development of its programs
and policies and will encourage applicants to incorporate all
economically feasible water and energy-saving features and designs
within their proposals.
(g) Intergovernmental initiatives on important land resources. On a
broader scale, Rural Development will advocate, in cooperation with
other USDA agencies (through the USDA State-level committee system), the
retention of important farmlands and forestlands, prime rangeland,
wetlands and floodplains whenever proposed conversions to other uses
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§1940.304 (g)(Cont.)
(1) are caused or encouraged by actions or programs of a Federal
Agency, or
(2) require licensing or approval by a Federal Agency, unless other
needs clearly override the benefits derived from retention of such
lands.
(h) Water quality. Rural Development will not provide financial
assistance to any activity that would either impair a State water
quality standard, including designated and/or existing beneficial uses
that water quality criteria are designed to protect, or that would not
meet antidegradation requirements.
§1940.305
Policy implementation.
(a) Environmental impact analysis. The implementation of the
environmental impact analysis requirements described in this subpart
serves as the primary mechanism for Rural Development as follows:
(1) incorporating environmental quality considerations into Rural
Development program and decision-making processes,
(2) obtaining the views of the public and government agencies on
potential environmental impacts associated with Rural Development
projects, and
(3) using all practicable means to avoid or to minimize any
possible adverse environmental effects of Rural Development actions.
(b) Natural resource management. The State Director will develop a
natural resource management guide. This guide will serve as an
essential mechanism for implementing §1940.304 of this subpart; and,
therefore, the guide must be consistent with and reflect the objectives
and policies contained in §1940.304 of this subpart. At the same time,
however, it must be tailored to take into account important State,
regional, and local natural resource management objectives. The guide
will be issued as a State Supplement for prior approval. The basic
content, purposes, and uses of the guide are enumerated in Exhibit B of
this subpart and can be summarized as follows:
(1) The guide will serve as a mechanism for assembling an inventory
of the locations within the State of those natural resources, land
uses, and environmental factors that have been specified by Federal,
State and local authorities as deserving some degree of protection
or special consideration;
(2) The guide will summarize the various standards or types of
Federal, State, or local protection that apply to the natural
resources, land uses, and environmental factors listed in the
inventory; and
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§1940.305 (b)(Cont.)
RD Instruction 1940-G
(3) Applications for individual projects must be reviewed for
consistency with the guide.
(c) Intergovernmental initiatives. When commenting on proposed Federal
actions subject to environmental impact statements, Rural Development
commentors will focus on the consistency of these actions with the
appropriate State natural resource management guide. A similar focus or
element will be addressed in Rural Development's review of the
Environmental Protection Agency's 201 Wastewater Management Plans.
(d) Farmland Protection Policy Act and Departmental Regulation 9500-3,
Land Use Policy. The natural resource management guide serves as a tool
for implementing the requirements of the Act and the Departmental
Regulation at the broad level of implementing the Agency's programs at
the State level. These requirements must also be followed in the review
of applications for financial assistance or subdivision approval, as
well as the disposal of real property. Rural Development's
implementation procedures for the project review process are contained
in Exhibit C of this subpart.
(e) Endangered Species. Rural Development will implement the
consultation procedures required under Section 7 of the Endangered
Species Act as specified in 50 CFR 402. It is important to note that
these consultation procedures apply to the disposal of real property and
all Rural Development applications for financial assistance and
subdivision approval, including those applicants which are exempt from
environmental assessments. Rural Development's implementation
procedures are contained in Exhibit D of this subpart.
(f) Wild and scenic rivers. Each application for financial assistance
or subdivision approval and the proposed disposal of real property will
be reviewed to determine if it will affect a river or portion of it,
which is either included in the National Wild and Scenic Rivers System,
designated for potential addition to the system, or identified in the
Nationwide Inventory prepared by the National Park Service (NPS) in the
Department of the Interior (DOI). Rural Development's procedures for
completing this review are contained in Exhibit E of this subpart.
(g)
Historic and cultural properties.
(1) As part of the environmental review process, Rural Development
will identify any properties that are listed in or may be eligible
for listing in the National Register of Historic Places, and located
within the area of potential environmental impact. Identification
will consist of consulting the published lists of the National
Register and formally contacting and seeking the comments of the
appropriate State Historic Preservation Officer (SHPO). Since it is
not always possible from the consultation with the SHPO to determine
whether historic and cultural properties are present within the
project's area of environmental impact, it may be
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§1940.305 (g)(l) (Cont.)
necessary for Rural Development to consult public records and other
individuals and organizations, such as university archaeologists,
local historical societies, etc. These latter discussions should
take place before initiating a detailed site survey since they may
provide reliable information that obviates the need for a survey.
However, whenever insufficient information exists to document the
presence or absence of potentially eligible National Register
properties and where the potential for previously unidentified
properties is recognized by Rural Development, the SHPO, or other
interested parties, Rural Development will conduct the necessary
investigations to determine if such properties are present within
the area of potential environmental impact. Rural Development will
involve the SHPO in the planning and formulation of any historic,
cultural, architectural or archaeological testing, studies or
surveys conducted to investigate the presence of such properties and
will utilize persons with appropriate knowledge and experience.
(2) If the information obtained, as a result of the consultation
and investigations conducted by Rural Development, indicates the
presence of an historic or cultural property within the area of
potential environmental impact that, in the opinion of the SHPO and
Rural Development, appear to meet the National Register Criteria (36
CFR 60.4), the property will be considered eligible for the National
Register of Historic Places. If the SHPO and Rural Development do
not agree on the property's eligibility for the National Register or
if the Secretary of the Interior or the Advisory Council on Historic
Preservation so requests, Rural Development will request a
determination of eligibility from the Keeper of the National
Register in accordance with 36 CFR 63. Consultations will be
initiated with the SHPO and the Advisory Council on Historic
Preservation in accordance with 36 CFR 800, through the
implementation of Subpart F of Part 1901 of this chapter, to
determine the most appropriate course of action to protect all
National Register and eligible properties within the area of
potential environmental impact.
(3) Further instructions detailing the procedures to be followed in
considering and protecting historic and cultural properties and the
responsible Agency officials are contained in Subpart F of Part 1901
of this Chapter. These procedures will be followed whenever a
proposal, considered by Rural Development, has the potential to
affect National Register or eligible properties.
(h) Coastal barriers. In those States having coastal barriers within
the Coastal Barrier Resources System, each application for financial
assistance or subdivision approval, as well as the proposed disposal of
real property, will be reviewed to determine if it would be located
within the system, and, if so, whether the action must be denied on this
basis or meets the Act's criteria for an exception. To accomplish the
review, all affected State, District and County Offices will maintain a
current set of maps, as issued by DOI, which depict those
14
§1940.305 (h)(Cont.)
RD Instruction 1940-G
coastal barriers within their jurisdiction that have been included in
the system. Rural Development's implementation procedures for
accomplishing this review requirement and for consulting as necessary
with DOI are contained in Exhibit F of this subpart. The exceptions to
the restrictions of the Coastal Barrier Resources Act are contained in
Exhibit L of this subpart.
(i) Water and energy conservation. Water and energy conservation
measures will be considered at both the program and project level in a
manner consistent with program regulations.
(j) Noise abatement. For purposes of assessing noise impacts and for
determining the acceptability of housing sites in terms of their
exposure to noise, Rural Development has adopted and follows the
standards and procedures developed by the U.S. Department of Housing and
Urban Development (HUD) and contained in 24 CFR 51 of Subpart B
entitled, "Noise Abatement and Control."
(k) Water quality. Each application for financial assistance or
subdivision approval and the proposed disposal of real property will be
reviewed to determine if it would impair a State water quality standard
or meet antidegradation requirements. When necessary, the proposed
activity will be modified to protect water quality standards, including
designated and/or existing beneficial uses that water quality criteria
are designed to protect, and meet antidegradation requirements.
§1940.306
Environmental responsibilities within the National Office.
(a) Administrator. The Administrator of Rural Development has the
direct responsibility for Agency compliance with all environmental laws,
Executive orders, and regulations that apply to Rural Development's
program and administrative actions. As such, the Administrator ensures
that this responsibility is adequately delegated to Agency staff and
remains informed on the general status of Agency compliance, as well as
the need for any necessary improvements. The Administrator is also
responsible for ensuring that the Agency's manpower and financial needs
for accomplishing adequate compliance with this subpart are reflected
and documented in budget requests for departmental consideration.
(b)
Deputy Administrator Program Operations.
(1) The Deputy Administrator for Program Operations has the
delegated overall Agency responsibility for developing and
implementing environmental policies and compliance procedures,
monitoring their effectiveness, and advising the Administrator on
the status of compliance, to include recommendations for any
necessary changes in this subpart. The incumbent is also
responsible for developing and documenting, as part of the Agency's
budget formulation process, the manpower and financial needs
necessary to implement this subpart.
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RD Instruction 1940-G
§1940.306 (b) (Cont.)
(2) The specific responsibilities of the Deputy Administrator
Program Operations are as follows:
(i) Provide for the Agency an interdisciplinary approach to
environmental impact analysis and problem resolution, as
required by the CEQ regulations;
(ii) Provide the leadership and technical expertise for the
implementation of the Agency's environmental policies with
special emphasis being placed on those policies relating to
natural resource management, energy conservation, and orderly
community development;
(iii) Coordinate the implementation of this subpart with
affected program offices;
(iv) Provide policy direction and advice on the implementation
of this subpart to Agency staff, particularly to SECs and
technical support personnel within State Offices;
(v) Consult and coordinate, as needed or upon request, with
the Department's interagency committees dealing with
environmental, land use, and historic preservation matters;
(vi) Monitor the Agency's record in complying with this
subpart;
(vii) Provide training programs and materials for the Agency
staff assigned the functions identified in this subpart;
(viii) Review, as necessary, applications for funding
assistance, proposed policies and regulations, and recommend
their approval, disapproval, or modification after analyzing
and considering their anticipated adverse environmental
impacts, their benefits, and their consistency with the
requirements of this subpart;
(ix) Develop and direct Agency procedures for complying with
environmental legislation, Executive orders, and regulations,
including, but not limited to, those listed in §1940.301(c) of
this subpart;
(x) Maintain a position identified as the Senior Environmental
Specialist (hereafter called the Environmental Specialist), who
will serve as the responsible Agency official under the
National Environmental Policy Act and the National Historic
Preservation Act, maintain liaison on environmental matters
with interested public groups and Federal
16
§1940.306 (b)(2)(x)(Cont.)
RD Instruction 1940-G
agencies, and serve as the focal point for developing and
coordinating the Agency's procedures for the requirements
listed in §1940.301(c) of this subpart; and
(xi) Review and evaluate legislative and administrative
proposals in terms of their environmental impact.
(c) Assistant Administrators for Programs.
Administrators for Programs will:
The Assistant
(1) Ensure, as necessary, that environmental assessments and EISs
for proposed program regulations are prepared by their staff;
(2) Ensure that all proposed actions that fall under the
requirements of this subpart, and that are submitted to the National
Office for approval or concurrence, contain adequate analyses and
documentation of their potential environmental impacts (Transfer of
program funds from National Office to State Office control to enable
the State Office to approve an application is not considered to be
National Office approval of or concurrence in an application);
(3) Consider and include, in the development of program
regulations, feasible policies and mechanisms that promote program
goals in a manner that either enhances environmental quality or
reduces unnecessary adverse environmental impacts; and
(4) Designate one or more staff members to serve as a program
environmental coordinator, having generally the same duties and
responsibilities within the program office as the SEC bas within the
State Office (See §1940.307(b) of this subpart).
§1940.307
Environmental responsibilities within the State Office.
(a)
State Director.
The State Director will:
(1) Serve as the responsible Rural Development official at the
State Office level for ensuring compliance with the requirements of
this Subpart; and
(2) Appoint one individual to serve as the SEC. Thereafter, the
SEC will report directly to the State Director on the environmental
matters contained in this Subpart.
(b)
State Environmental Coordinator (SEC).
The SEC will:
(1) Act as advisor to the State Director on environmental matters
and coordinate the requirements of this subpart;
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§1940.307 (b) (Cont.)
(2) Review those Agency actions which are not categorically
excluded from this subpart (see §1940.311 and §1940.312 of this
subpart) and which require the approval and/or clearance of the
State Office and recommend to the approving official either project
approval, disapproval, or modification after analyzing and
considering the
(i)
(ii)
anticipated adverse environmental impacts,
the anticipated benefits, and
(iii) the action's consistency with this subpart's
requirements;
(3) Represent the State Director at conferences and meetings
dealing with environmental matters of a State Office nature;
(4) Maintain liaison on State Office environmental matters with
interested public groups and local, State, and other Federal
agencies;
(5) Serve as the State Director's alternate on State-level USDA
committees dealing with environmental, land use and historic
preservation matters;
(6) Solicit, whenever necessary, the expert advice and assistance
of other professional staff members within the State Office in order
to adequately implement this subpart;
(7) Provide technical assistance as needed on a project-by-project
basis to State, District, and County Office staffs;
(8) Develop controls for avoiding or mitigating adverse
environmental impacts and monitor their implementation;
(9) Provide assistance in resolving post-approval environmental
matters at the State Office level;
(10)
Maintain records for those actions required by this subpart;
(11) Coordinate for the State Director the development of the State
Office natural resource management guide;
(12) Provide direction and training to State, District, and County
Office staffs on the requirements of this subpart; and
(13) Coordinate for the State Director the monitoring of the State
Office's compliance with this subpart and keep the State Director
advised of the results of the monitoring process.
18
§1940.307 (Cont.)
(c)
Program Chiefs.
RD Instruction 1940-G
State Office Program Chiefs will:
(1) Be responsible for the adequacy of the environmental impact
reviews required by this subpart for all program actions to be
approved at the State Office level or concurred in at that level;
(2) Coordinate the above reviews as early as possible with the SEC,
so that the latter can assist in addressing the resolution of any
unresolved or difficult environmental issues in a timely manner; and
(3) Incorporate into projects and actions measures to avoid or
reduce potential adverse environmental impacts identified in
environmental reviews.
§1940.308
levels.
Environmental responsibilities at the District and County Office
(a) The District Director will be responsible for carrying out the
actions required by this subpart to be completed at the District Office
level.
(b) The County Supervisor will be responsible for carrying out the
actions required by this subpart to be completed at the County Office
level.
(c) In discussing Rural Development assistance programs with potential
applicants, District Directors and County Supervisors will inform them
of the Agency's environmental requirements, as well as the environmental
information needs and responsibilities that Rural Development applicants
are expected to address. (See §1940.309 of this subpart.)
§1940.309
Responsibilities of the prospective applicant.
(a) Rural Development expects applicants and transferees (and in the
case of the loan guarantee programs, borrowers and transferees) to
consider the potential environmental impacts of their requests at the
earliest planning stages and to develop proposals that minimize the
potential to adversely impact the environment. Prospective applicants
should contact County Supervisors or District Directors, as appropriate,
to determine Rural Development's environmental requirements as soon as
possible after they decide to pursue Rural Development financial
assistance.
(b) As specified in paragraph (c) of this section, applicants for Rural
Development assistance will be required to provide information necessary
to Rural Development to evaluate their proposal's potential
environmental impacts and alternatives to them. For example, the
applicant will be required to provide a complete description of the
project elements and the proposed
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RD Instruction 1940-G
§1940.309 (b) (Cont.)
site(s) to include location maps, topographic maps, and photographs when
needed. The applicant will also be required to provide data on any
expected gaseous, liquid and solid wastes to be produced, including
hazardous wastes as defined by the Resource Conservation and Recovery
Act or State law, and all permits and/or correspondence issued by the
appropriate local, State, and Federal agencies which regulate treatment
and disposal practices.
(c) Form RD 1940-20, "Request for Environmental Information," will be
used for obtaining environmental information from applicants whose
proposals require an environmental assessment under the requirements of
this subpart. These same applicants must notify the appropriate State
Historic Preservation Officer of the filing of the application and
provide a detailed project description as specified in Item 2 of Form RD
1940-20 and the FMI. If the applicant's proposal meets the definition
of a Class II action as defined in §1940.312 of this subpart, all of
Form RD 1940-20 must be completed. If the applicant's proposal meets
the definition of a Class I action as defined in §1940.311 of this
subpart, the entire form need not be completed, but just the face of the
form and categories (1), (2), (13), (15), (16), and (17) of Item 1b of
the FMI. As an exception to the foregoing statement, an applicant for
an action that is normally categorically excluded but requires a Class I
assessment for any of the reasons stated in §1940.317(e) of this subpart
is not required to complete Form RD 1940-20. Additionally, for Class I
actions within the Farm Programs, a site visit by the Rural Development
official completing the environmental assessment obviates the need for
the applicant to complete any of the form, and the adoption by Rural
Development of a Soil Conservation Service (SCS) environmental
assessment or evaluation for the action obviates the need to complete
the form for either a Class I or Class II action.
(d) Applicants will ensure that all required materials are current,
sufficiently detailed and complete, and are submitted directly to the
Rural Development office processing the application. Incomplete
materials or delayed submittals may seriously jeopardize consideration
or postponement of a proposed action by Rural Development.
(e) During the period of application review and processing, applicants
will not take any actions with respect to their proposed undertakings
which are the subject of the application and which would have an adverse
impact on the environment or limit the range of alternatives. This
requirement does not preclude development by applicants of preliminary
plans or designs or performance of other work necessary to support an
application for Federal, State, or local permits or assistance.
However, the development of detailed plans and specifications is
discouraged when the costs involved inhibit the realistic consideration
of alternative proposals.
20
§1940.309 (Cont.)
RD Instruction 1940-G
(f) Applicants are required to provide public notification and to fully
cooperate in holding public information meetings as described in
§§1940.318(e), 1940.320(c) and (g), and 1940.331(b) and (c) of this
subpart.
(g) Any applicant that is directly and adversely affected by an
administrative decision made by Rural Development under this subpart may
appeal that decision under the provisions of Subpart B of Part 1900 of
this chapter.
§1940.310 Categorical exclusions from National Environmental Policy Act
(NEPA) reviews.
(a) General guidelines. The following actions have been determined not
to have a significant impact on the quality of the human environment,
either individually or cumulatively. They will not be subject to
environmental assessments or impact statements. It must be emphasized
that even though these actions are excluded from further environmental
reviews under NEPA, they are not excluded from either the policy
considerations contained in §§1940.303 through 1940.305 of this subpart
or from compliance with other applicable local, State, or Federal
environmental laws. Also, the actions preceded by an asterisk (*) are
not excluded from further review depending upon whether in some cases
they would be located within, or in other cases, potentially affect
(1)
a floodplain,
(2)
a wetland,
(3)
important farmlands, or prime forestlands or rangelands,
(4)
a listed species or critical habitat for an endangered species,
(5) a property that is listed on or may be eligible for listing on
the National Register of Historic Places,
(6) an area within an approved State coastal zone management
program,
(7) a coastal barrier or a portion of a barrier within the Coastal
Barrier Resources System,
(8) a river or portion of a river included in, or designated for,
potential addition to the Wild and Scenic Rivers System,
(9)
a sole source aquifer recharge area, or
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§1940.310 (a) (Cont.)
(10) a State water quality standard (including designated and/or
existing beneficial uses and antidegradation requirements).
(i) Whether location within one of the preceding resource
areas is sufficient to require a further review or a potential
impact to one of them must also be identified to require a
review is determined by Rural Development's completion of Form
RD 1940-22 in accordance with the FMI and §1940.317 of this
subpart.
(ii) When the categorical exclusion classification is lost, as
specified in §1940.317 of this subpart, the action must be
reviewed under the requirements of paragraph (g) of that
section. This requirement serves to implement Section 1508.4
of the CEQ regulations which requires Federal agencies to
detect extraordinary circumstances in which a normally excluded
action may have a significant environmental effect.
(iii) Further guidance on the use of these exclusions is
contained in §1940.317 of this subpart.
(b)
Housing assistance.
*(1) The provision of financial assistance for the purchase of a
single family dwelling or a multi-family project serving no more
than four families, i.e. units;
*(2) The approval of an individual building lot that is located on
a scattered site and either not part of a subdivision or within a
subdivision not requiring Rural Development's approval;
*(3) Rehabilitation, replacement, or renovation of any existing
housing units, with no expansion in the number of units;
(4)
Self-Help Technical Assistance Grants;
*(5) The approval of a subdivision that consists of four or fewer
lots and is not part of, or associated with, building lots or
subdivisions;
(6)
Technical Supervisory Assistance Loans and Grants;
(7) Weatherization of any existing housing unit(s), unless the
property is listed in the National Register of Historic Places or
may be eligible for listing, or is located either within the Coastal
Barrier Resources System or in a listed or potentially eligible
historic district, in which case the application will require a
Class I assessment as specified in §1940.317(g) of this subpart;
22
§1940.310 (b)(Cont.)
RD Instruction 1940-G
(8) The financing of housing construction or the approval of lots
in a previously approved Rural Development subdivision provided that
(i) the action is consistent with all previously adopted
stipulations for the multi-family housing project or
subdivision, and
(ii) the Rural Development environmental impact review that
was previously completed for the original application is still
current with respect to applicable environmental requirements
and conditions present at the site, and it assessed the lots or
expansion for which approval is being requested;
(9) The purchase of any existing, non-Rural Development owned
housing unit(s), unless the property is listed in the National
Register of Historic Places or may be eligible for listing, or is
located either within a 100-year floodplain, the Coastal Barrier
Resources System, or in a listed or potentially eligible historic
district, in which case the application will require a Class I
assessment as specified in §1940.317(g) of this subpart; and
(10) Appraisals of nonfarm tracts and small farms for rural housing
loans.
(c) Community and business programs and nonprofit national corporations
loan and grant program.
*(1) Financial assistance directed to existing businesses,
facilities, and/or structures that does not involve new construction
or large increases in employment; does not involve a facility that
presently or previously produced or stored hazardous waste or
disposed of hazardous waste on the facility's property; and does not
result in the increased production of gaseous, liquid, or solid
wastes, or a change in the type or content of such wastes as long as
waste production, handling, treatment and disposal practices
presently comply with applicable Federal, State and local
regulations and there is no history of violations. If any of these
waste production, handling, treatment, disposal or compliance
criteria cannot be met, a Class I assessment must be initiated to
include a narrative discussion of the types and quantities of wastes
produced and the adequacy of the treatment, storage, and disposal
practices, if the involved wastes meet the criteria for a Class I
assessment contained in §1940.311(b)(3)(iii) of this subpart. If
not, a Class II assessment must be completed.
*(2) Projects that solely involve the acquisition, construction,
reconstruction, renovation, or installation of facilities,
structures or businesses, for replacement or restoration purposes,
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RD Instruction 1940-G
§1940.310 (c) (*2) (Cont.)
with minimal change in use, size, capacity, purpose or location from
the original facility (e.g., replacement in-kind of utilities such
as water or sewer lines and appurtenances, reconstruction of curbs
and sidewalks, street repaving, and building modifications,
renovations, and improvements);
(3) Project management actions relating to invitation for bids,
contract award, and the actual physical commencement of construction
activities;
(4) Financial assistance for a technical assistance grant under the
nonprofit national corporation loan and grant program;
(5) Projects that solely involve the purchase and installation of
office equipment, public safety equipment, or motor vehicles; and
(6) Amendments to approved projects meeting the criteria of
paragraph (e)(2) of this section.
(d)
Farm programs.
(1) Financial assistance for the purchase of an existing farm, or
an enlargement to one, provided no shifts in land use are proposed
beyond the limits stated in paragraphs (d)(10) and (11) of this
section;
(2) Financial assistance for the purchase of livestock and
essential farm equipment, including crop storing and drying
equipment, provided such equipment is not to be used to accommodate
shifts in land use beyond the limits stated in paragraphs (d)(10)
and (11) of this section;
(3)
Financial assistance for
(i) the payment of annual operating expenses, which does not
cover activities specifically addressed in this section or
§§1940.311 or 1940.312 of this subpart;
(ii)
(iii)
family living expenses, and
refinancing debts;
*(4) Financial assistance for the construction of essential farm
dwellings and service buildings of modest design and cost, as well
as repairs and improvements to them;
(5) Financial assistance for onsite water supply facilities to
serve a farm dwelling, farm buildings, and livestock needs;
24
§1940.310 (d)(Cont.)
RD Instruction 1940-G
(6) Financial assistance for the installation or enlargement of
irrigation facilities, including storage reservoirs, diversion dams,
wells, pumping plants, canals, pipelines, and sprinklers designed to
irrigate less than 80 acres, provided that neither a State water
quality standard, a property listed or potentially eligible for
listing on the National Register of Historic Places, a river or
portion of a river included in, or designated for, potential
addition to the Wild and Scenic Rivers System, nor a wetland is
affected. If a wetland is affected, the application will fall under
Class II as defined in §1940.312 of this subpart. Potential effects
to a water quality standard, an historic property or the Wild and
Scenic Rivers System require that a review be initiated under a
Class I assessment as specified in §1940.317(g) of this subpart.
(7) Financial assistance that solely involves the replacement or
restoration of irrigation facilities, to include those facilities
described in paragraph (d)(6) of this section, with minimal change
in use, size, capacity, or location from the original facility(s)
provided that neither a State water quality standard, a property
listed or potentially eligible for listing on the National Register
of Historic Places, a river or portion of a river included in or
designated for potential addition to the Wild and Scenic Rivers
System, nor a wetland is affected. If a wetland is affected, the
application will fall under Class II as defined in §1940.312 of this
subpart. Potential effects to a water quality standard, an historic
property, or the Wild and Scenic Rivers System require that a Class
I assessment be completed as specified in §1940.317(g) of this
subpart. Also, to qualify for this exclusion, the facilities to be
replaced or restored must have been used for similar irrigation
purposes at least two out of the last three consecutive growing
seasons. Otherwise, the action will be viewed as an installation of
irrigation facilities.
(8) Financial assistance for the development of farm ponds or lakes
of no more than 5 acres in size, provided that, neither a State
water quality standard, a property listed or potentially eligible
for listing on the National Register of Historic Places, a river or
portion of a river included in or designated for potential addition
to the Wild and Scenic Rivers System, nor a wetland is affected. If
a wetland is affected, the application will fall under Class II as
defined in §1940.312 of this subpart. Potential effects to a water
quality standard, an historic property, or the Wild and Scenic
Rivers System require that a review be initiated under a Class I
assessment as specified in §1940.317(g) of this subpart;
25
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RD Instruction 1940-G
§1940.310 (d) (Cont.)
*(9)
Financial assistance for the conversion of
(i)
(ii)
land in agricultural production to pastures or forests, or
pastures to forests;
*(10) Financial assistance for land-clearing operations of no more
than 15 acres, provided no wetlands are affected, and financial
assistance for any amount of land involved in tree harvesting
conducted on a sustained yield basis and according to a Federal,
State or other governmental unit approved forestry management and
marketing plan; and
(11) Financial assistance for the conversion of no more than 160
acres of pasture to agricultural production, provided that in a
conversion to agricultural production no State water quality
standard or wetlands are affected. If a wetland is affected, the
application will fall under Class II as defined in §1940.312 of this
subpart. If a water quality standard would be impaired or
antidegradation requirement not met, a Class I assessment is
required as specified in §1940.317 (g) of this subpart.
(e)
General exclusions.
(1) The award of financial assistance for planning purposes,
management and feasibility studies, or environmental impact
analyses;
(2) For actions other than those covered by Exhibit M of this
subpart, loan-closing and servicing activities, transfers,
assumptions, subordinations, construction management activities and
amendments and revisions to approved projects, including the
provision of additional financial assistance that do not alter the
purpose, operation, location, or design of the project as originally
approved;
(3) The issuance of regulations and instructions, as well as
amendments to them, describing administrative and financial
procedures for processing, approving, and implementing the Agency's
financial assistance programs;
(4) Procurement activities for goods and services, routine facility
operations, personnel actions, and other such management activities
related to the operation of the Agency;
(5) Reduction in force or employee transfers resulting from
workload adjustments, reduced personnel or funding levels, skill
imbalances, or other similar circumstances; and
26
§1940.310 (e) (Cont.)
RD Instruction 1940-G
*(6) The lease or disposal of real property by Rural Development
whenever the transaction is either not controversial for
environmental reasons or will not result in a change in use of the
real property within the reasonably foreseeable future.
§1940.311
Environmental assessments for Class I actions.
The Agency's proposals and projects that are not identified in §1940.310
of this subpart as categorical exclusions require the preparation of an
environmental assessment in order to determine if the proposal will have a
significant impact on the environment. For purposes of implementing NEPA, the
actions listed in this section are presumed to be major Federal actions. If
an action has a potential to create a significant environmental impact, an EIS
must be prepared. (In situations when there is clearly a potential for a
significant impact, the EIS may be initiated directly without the preparation
of an assessment.) It is recognized that many of the applications funded
annually by Rural Development involve small-scale projects having limited
environmental impacts. However, because on occasion they have the potential
to create a significant impact, each must be assessed to determine the degree
of impact. The scope and level of detail of an assessment for a small-scale
action, though, need only be sufficient to determine whether the potential
impacts are substantial and further analysis is necessary. Therefore, for the
purpose of implementing NEPA, Rural Development has classified its smaller
scale approval actions as Class I actions. The format which will be used for
accomplishing the environmental assessment of a Class I action is provided in
Form RD 1940-21. An important aspect of this classification method is that it
allows Rural Development's environmental review staff to concentrate most of
its time and efforts on those actions having the potential for more serious or
complex environmental impacts. Additional guidance on the application of NEPA
to Class I actions is provided in §1940.319 of this subpart.
(a) Housing assistance. If either of the following actions is an
expansion of a previously approved Rural Development housing project,
see §1940.310(b)(8) of this subpart to determine if it meets the
requirements for a categorical exclusion. In the case of an expansion
for which an environmental assessment was not done for the original
Rural Development project, the size of the proposal for assessment
purposes is determined by adding the number of units in the original
project(s) to those presently being requested.
(1) Financial assistance for a multi-family housing project,
including labor housing which comprises at least 5 units, but no
more than 25 units; and
(2) Financial assistance for or the approval of a subdivision, as
well as the expansion of an existing one which involves at least 5
lots but no more than 25 lots; and
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RD Instruction 1940-G
§1940.311 (a) (Cont.)
(3)
Financial assistance for a housing preservation grant.
(b) Community and business programs and nonprofit national corporations
loan and grant program. Class I assessments will be prepared for the
following categories:
(1) Financial assistance for water and waste disposal facilities
and natural gas facilities that meet all of the following criteria:
(i) There will not be a substantial increase in the volume of
discharge or the loading of pollutants from any existing or
expanded sewage treatment facilities, or a substantial increase
in an existing withdrawal from surface or ground waters. A
substantial increase may be evidenced by an increase in
hydraulic capacity or the need to obtain a new or amended
discharge or withdrawal permit.
(ii) There will not be either a new discharge to surface or
ground waters or a new withdrawal from surface or ground waters
such that the design capacity of the discharge or withdrawal
facility exceeds 50,000 gallons per day and provided that the
potential water quality impacts are documented in a manner
required for a Class II assessment and attached as an exhibit
to the Class I assessment.
(iii) From the boundaries listed below, there is no extension,
enlargement or construction of interceptors, collection,
transmission or distribution lines beyond a one-mile limit
estimated from the closest point of the boundary most
applicable to the proposed service area:
(A) The boundary formed by the corporate limits of the
community being served.
(B) If there are developed areas immediately contiguous
to the corporate limits of a community, the boundary
formed by the limits of these developed areas.
(C) If an unincorporated area is to be served, the
boundary formed by the limits of the developed areas.
(iv) The proposal is designed for predominantly residential
use with other new or expanded users being small-scale,
commercial enterprises having limited secondary impacts.
(v) For a proposed expansion of sewage treatment or water
supply facilities, such expansion would serve a population
28
§1940.311 (b)(l)(v)(Cont.)
RD Instruction 1940-G
that is no more than 20 percent greater than the existing
population.
(vi) The proposal is not controversial for environmental
reasons, nor have relevant questions been raised regarding its
environmental impact which cannot be addressed in a Class I
assessment.
(2) Financial assistance for group homes, detention facilities,
nursing homes, or hospitals, providing a net increase in beds of not
more than 25 percent or 25 beds, whichever is greater; and
(3) Financial assistance for the construction or expansion of
facilities, such as fire stations, retail stores, libraries,
outpatient medical facilities, service industries, additions to
manufacturing plants, office buildings, and wholesale industries,
that:
(i)
(ii)
Are confined to single, small sites; and
Are not a source of substantial traffic generation; and
(iii) Do not produce either substantial amounts of liquid or
solid wastes or any of the following type(s) of wastes:
(A) Gaseous, liquid, or solid waste that is hazardous,
toxic, radioactive, or odorous;
(B) Either a liquid waste, whether or not disposed of onsite, that cannot be accepted by a publicly owned
treatment works without first receiving pretreatment, or a
liquid waste discharge that is a Point source subject to a
Federal, or State discharge permit; or
(C) Gaseous waste or air pollutant that will be emitted
either from a new source at a rate greater than one
hundred tons per year or from an expanded source at a rate
greater than twenty-five tons per year.
(4) Financial assistance for a livestock-holding facility or feedlot meeting the criteria of §1940.311(c)(8) of this subpart.
(c) Farm Programs. In completing environmental assessments for the
following Class I actions and the Class II actions listed in
§1940.312(d), special attention will be given to avoiding a duplication
of effort with other Department agencies, particularly SCS. For
applications in which the applicant is receiving assistance from other
agencies, technical assistance from SCS, for example, Rural Development
will request from that agency a copy of any applicable environmental
review
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RD Instruction 1940-G
§1940.311 (c)(Cont.)
conducted by it and will adopt that review if the requirements of
§1940.324 of this subpart are met. Rural Development will work closely
with the other Federal Agencies to supplement previous or ongoing
reviews whenever they cannot be readily adopted.
(1) Financial assistance for the installation or enlargement of
irrigation facilities including storage reservoirs, diversion dams,
wells, pumping plants, canals, pipelines, and sprinklers designed to
irrigate at least 80 acres, but no more than 160 acres and provided
that no wetlands are affected, in which case the application will
fall under Class II as defined in §1940.312 of this subpart;
(2) Financial assistance for the development of farm ponds or lakes
of more than 5 acres in size, but no more than 10 acres, provided
that no wetlands are affected. If wetlands are affected, the
application will fall under Class II as defined in §1940.312 of this
subpart;
(3) Financial
over 15 acres,
are affected.
under Class II
assistance for land-clearing operations encompassing
but no more than 35 acres, provided that no wetlands
If wetlands are affected, the application will fall
as defined in §1940.312 of this subpart;
(4) Financial assistance for the construction of energy producing
facilities designed for on-farm needs such as methane digestors and
fuel alcohol production facilities;
(5) Financial assistance for the conversion of more than 160 acres
of pasture to agricultural production, but no more than 320 acres,
provided that in a conversion to agricultural production no wetlands
are affected, in which case the application will fall under Class II
as defined in §1940.312 of this subpart;
(6)
Financial assistance to grazing associations;
(7) Financial assistance for the use of a farm or portion of a farm
for recreational purposes or nonfarm enterprises utilizing no more
than 10 acres, provided that no wetlands are affected. If wetlands
are affected, the application will fall under Class II as defined in
§1940.312 of this subpart; and
(8) Financial assistance for a livestock-holding facility or
feedlot having a capacity of at least one-half of those listed in
§1940.312(c)(9) of this subpart. (If the facility is located near a
populated area or could potentially violate a State water quality
standard, it will be treated as a Class II action as required by
§1940.312(c)(10) of this subpart.)
30
§1940.311 (Cont.)
(d)
RD Instruction 1940-G
General.
(1) Any Federal action which is defined in §1940.310 of this
subpart as a categorical exclusion, but which is controversial for
environmental reasons, or which is the subject of an environmental
complaint raised by a government agency, interested group, or
citizen;
(2) Loan-closing and servicing activities, transfers, assumptions,
subordinations, construction management activities, and amendments
and revisions to all approved actions listed either in this section
or equivalent in size or type to such actions and that alter the
purpose, operation, location or design of the project as originally
approved;
(3) The lease or disposal of real property by Rural Development
which meets either of the following criteria:
(i) The lease or disposal may result in a change in use of the
real property in the reasonably foreseeable future, and such
change is equivalent in magnitude or type to either the Class I
actions defined in this section or the categorical exclusions
defined in §1940.310 of this subpart; or
(ii) The lease or disposal is controversial for environmental
reasons, and the real property is equivalent in size or type to
either the Class I actions defined in this section or the
categorical exclusions defined in §1940.310 of this subpart.
§1940.312
Environmental assessments for Class II actions.
Class II actions are basically those which exceed the thresholds
established for Class I actions and, consequently, have the potential for
resulting in more varied and substantial environmental impacts. A more
detailed environmental assessment is, therefore, required for Class II actions
in order to determine if the action requires an EIS. The format that will be
used for completing this assessment is included as Exhibit H of this subpart.
Further guidance on Class II actions is contained in §1940.318 of this
subpart. Class II actions are presumed to be major Federal actions and are
defined as follows:
(a) Housing assistance. If either of the following actions is an
expansion of a previously approved Rural Development housing project,
see 1940.310(b)(8) of this subpart to determine if it meets the
requirements for a categorical exclusion, otherwise it is a Class II
action.
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RD Instruction 1940-G
§1940.312 (a) (Cont.)
(1) Financial assistance for a multi-family housing project,
including labor housing, which comprises more than 25 units; and
(2) Financial assistance for, or the approval of, a subdivision as
well as the expansion of an existing one, which involves more than
25 lots.
(b) Community and business programs and nonprofit national corporations
loan and grant program.
(1) Class II actions are those which either do not meet the
criteria for a categorical exclusion as stated in §1940.310 of this
subpart, a Class I action as stated in §1940.311 of this subpart, or
involve a livestock-holding facility or feedlot meeting the criteria
for a Class II action as defined in paragraphs (c)(9) and (10) of
this section; and
(2) Non-technical assistance grant or loan guarantee under
nonprofit national corporation loan and grant program.
(c) Farm programs. In completing environmental assessments for the
following actions, Rural Development will first determine if the
applicant has sought technical assistance from the Soil Conservation
Service (SCS). If not, the applicant will be requested to do so.
Subsequently, an approved loan will be structured so as to be consistent
with any conservation plan developed with the applicant by SCS.
However, the Rural Development approving official need not include an
element of the conservation plan within the loan agreement if that
official determines that the element is both nonessential to the
accomplishment of the plan's objectives and so costly as to prevent the
borrower from being able to repay the loan. The SCS environmental
review will be adopted by Rural Development if the requirements of
§1940.324 of this subpart are met.
(1) Financial assistance for the installation or enlargement of
irrigation facilities including storage reservoirs, diversion dams,
wells, pumping plants, canals, pipelines, and sprinklers either
designed to irrigate more than 160 acres or that would serve any
amount of acreage and affects a wetland;
(2) Financial assistance for the development of farm ponds or lakes
either larger than 10 acres in size or for any smaller size that
would affect a wetland;
(3) Financial assistance for land-clearing operations either
encompassing more than 35 acres or affecting a wetland, if less than
35 acres is involved;
(4) Financial assistance for the construction or enlargement of
aquaculture facilities;
32
§1940.312 (c) (Cont.)
RD Instruction 1940-G
(5) Financial assistance for the conversion of more than 320 acres
of pasture to agricultural production or for any smaller conversion
of pasture to agricultural production that affects a wetland;
(6) Financial assistance to an individual farmer or an association
of farmers for water control facilities such as dikes, detention
reservoirs, stream channels, and ditches;
(7) Financial assistance for the use of a farm or portion of a farm
for recreational purposes or nonfarm enterprises either utilizing
more than 10 acres or affecting a wetland, if less than 10 acres is
involved;
(8)
Financial assistance for alteration of a wetland;
(9) Financial assistance for a livestock-holding facility or
feedlot located in a sparsely populated farming area having a
capacity as large or larger than one of the following capacities;
1,000 slaughter steers and heifers; 700 mature dairy cattle (whether
milkers or dry cows); 2,500 swine; 10,000 sheep; 55,000 turkeys;
100,000 laying hens or broilers when facility has unlimited
continuous flow watering systems; 30,000 laying hens or broilers
when facility has liquid manure handling system; 500 horses; and
1,000 animal units from a combination of slaughter steers and
heifers, mature dairy cattle, swine, and sheep; (The term "animal
unit" means a unit of measurement for any animal feeding operation
calculated by adding the following numbers: the number of slaughter
and feeder cattle multiplied by 1.0, plus the number of mature dairy
cattle multiplied by 1.4, plus the number of swine weighing over 25
kilograms (approximately 55 pounds) multiplied by 0.4, plus the
number of sheep multiplied by 0.1, plus the number of horses
multiplied by 2.0) and
(10) Financial assistance for a livestock-holding facility or
feedlot which either could potentially violate a State water quality
standard or is located near a town or collection of rural homes
which could be impacted by the facility, particularly with respect
to noise, odor, visual, or transportation impacts and having a
capacity of at least one-half of those listed in paragraph (9) of
this section.
(d)
General.
(1) Any action which meets the numerical criteria or other
restriction for a Class I action contained in §1940.311 of this
subpart, but is controversial for environmental reasons. If the
action is the subject of isolated environmental complaints or any
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RD Instruction 1940-G
§1940.312 (d)(1) (Cont.)
questions or concerns that focus on a single impact, air quality,
for example, the analysis of such a complaint or questions can be
handled under the assessment format for a Class I action, Form RD
1940-21, as explained in §1940.319 of this subpart. When several
potential impacts are questioned, however, the assessment format
(Exhibit H of this subpart) for a Class II action must be used to
address these questions;
(2) Loan-closing and servicing activities, transfers,
subordinations, construction management activities and
and revisions to all approved actions listed either in
or equivalent in size or type to such actions and that
purpose, operation, location, or design of the project
approved;
assumptions,
amendments
this section
alter the
as originally
(3) The approval of plans and State Investment Strategies for
Energy Impacted Areas, designated under Section 601 Energy Impacted
Area Development Assistance Program, as well as the applications for
financial assistance (excluding the award of planning funds) for
Energy Impact Areas;
(4) Proposals for legislation as defined in CEQ's regulations,
Section 1508.17;
(5) The issuance of regulations and instructions, as well as
amendments to these, that describe either the entities, proposals
and activities eligible for Rural Development financial assistance,
or the manner in which such proposals and activities must be
located, constructed, or implemented; and
(6) The lease or disposal of any real property by Rural Development
which either does not meet the criteria for a categorical exclusion
as stated in §1940.310(e)(6) of this subpart or a Class I action as
stated in §1940.311(d)(3) of this subpart.
§1940.313 Actions that normally require the preparation of an Environmental
Impact Statement (EIS).
The environmental assessment process will be used, as
subpart, to identify on a case-by-case basis those actions
preparation of an EIS is necessary. Given the variability
locations of actions taken by Rural Development, no groups
can be identified which in almost every case would require
an EIS.
§1940.314
defined in this
for which the
of the types and
or set of actions
the preparation of
Criteria for determining a significant environmental impact.
(a) EISs will be done for those Class I and Class II actions that are
determined to have a significant impact on the quality of the human
34
§1940.314 (a) (Cont.)
RD Instruction 1940-G
environment. The criteria for determining significant impacts are
contained in Section 1508.27 of the CEQ regulations.
(b) In utilizing the criteria for a significant impact, the cumulative
impacts of other Rural Development actions planned or recently approved
in the proposal's area of environmental impact, other related or
similarly located Federal actions, and non-federal related actions must
be given consideration. This is particularly relevant for frequently
recurring Rural Development actions that on an individual basis may have
relatively few environmental impacts but create a potential for
significant impacts on a cumulative basis. Housing assistance is one
such example. Consequently, in reviewing proposals for subdivisions and
multi-family housing sites, consideration must be given to the
cumulative impacts of other federally assisted housing in the area,
including Rural Development's. The boundaries of the area to be
considered should be based upon such factors as common utility or public
service districts, common watersheds, and common commuting patterns to
central employment or commercial areas. Additionally, the criteria for
significant impacts utilized by the other involved housing agency(s) (VA
and HUD, for example) must be reviewed when there is a potential for
cumulative impacts. Rural Development will consult with HUD for
determining a significant impact whenever the total of HUD and Rural
Development housing units being planned within a common area of
environmental impact exceeds the HUD thresholds listed in its NEPA
regulations. (See 24 CFR Part 50).
(c) Because the environmental values and functions of floodplains and
wetlands are of critical importance to man, and because these areas are
often extremely sensitive to man-induced disturbances, actions which
affect wetlands and floodplains will be considered to have a significant
environmental impact whenever one or more of the following criteria are
met:
(1) The public health and safety are identifiably affected, that
is, whenever the proposed action may affect any standards
promulgated under the Safe Drinking Water Act (42 U.S.C. 300f et
seq.), the Clean Water Act (33 U.S.C. 1251 et seq.) or similar State
authorities.
(2) The preservation of natural systems is identifiably affected,
that is, whenever the proposed action or related activities may
potentially create or induce changes in the existing habitat that
may affect species diversity and stability (both flora and fauna and
over the short and long term) or affect ecosystem productivity over
the long term.
(3) The proposal, if located or carried out within a floodplain,
poses a greater than normal risk for flood-caused loss of life or
property. Examples of such actions include facilities which
produce, use, or store highly volatile, toxic, or water-reactive
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RD Instruction 1940-G
§1940.314 (c)(3) (Cont.)
materials or facilities which contain occupants who may not be
sufficiently mobile to avoid the loss of life or injury during flood
and storm events, (i.e., hospitals, nursing homes, schools).
§1940.315
Timing of the environmental review process.
(a) The Rural Development office to which a potential applicant would
go to seek program information and request application materials will
notify the applicant of the major environmental requirements applicable
to the type of assistance being sought. Emphasis should be placed on
describing Rural Development's natural resource management policies, the
nature and purpose of the environmental impact assessment process, and
the permissible actions of the applicant during this process.
(b) When a preapplication is either filed by the applicant or required
by Rural Development for a project not categorically excluded, the
prospective applicant will be requested to complete Form RD 1940-20 at
the time of the issuance of Form AD-622, "Notice of Preapplication
Review Action," or other notice inviting an application. Form AD-622
will clearly inform the applicant that during the period of application
review, the applicant is to take no actions or incur any obligations
which would either limit the range of alternatives to be considered or
which would have an adverse effect on the environment, and that
satisfactory completion of the environmental review process must occur
prior to the issuance of the letter of conditions for Community Programs
and prior to loan approval for all other programs where a preapplication
is used. Rural Development must make its environmental reviews
simultaneously with other loan processing actions so that they are an
integral part of the loan process. Whenever the potential for a major
adverse environmental impact is recognized, such as issues pertaining to
floodplains, wetlands, endangered species, or the need for an EIS,
priority consideration will be given to resolving this issue by
appropriate Rural Development staff. Loan processing need not cease
during this resolution period, but loan processing actions will not be
taken that might limit alternatives to be considered or whose outcome
may be affected by the environmental review. The environmental impact
review (whether a categorical exclusion, environmental assessment or
EIS) must be completed prior to the issuance of the letter of conditions
for Community Programs, prior to issuance of a conditional commitment
for the Business and Industry and Farmer Program Guaranteed Loan
Programs, and either prior to loan approval or obligation of funds,
whichever occurs first, for all other programs where a preapplication is
used. As an exception, however, whenever an application must be
submitted to the National Office for concurrence or approval, the
environmental review must be completed prior to and included in the
submission to the National Office. The environmental impact review is
not completed by Rural Development until all applicable public notices
and associated review periods have been completed and Rural Development
has taken any necessary action(s) to
36
§1940.315 (b) (Cont.)
RD Instruction 1940-G
address comments received. The exception to the provisions of this
paragraph is contained in §1940.332 of this subpart.
(c) When a preapplication is not filed, the prospective applicant will
be required to complete Form RD 1940-20 at the earliest possible time
after Rural Development is contacted for assistance but no later than
when the application is filed with the appropriate Rural Development
office. (For the exception to this statement as regards Farm Programs'
Class I actions, see §1940.309(c) of this subpart.) Rural Development
will not consider the application to be complete, until Rural
Development staff have completed the environmental impact review,
whether an assessment or EIS.
(d) For those applications that meet the requirements of a categorical
exclusion, Form RD 1940-22 will be completed by Rural Development as
early as possible after receipt of the application. The application
will not be considered complete until either the checklist is
successfully completed or the need for any further environmental review
is identified and completed.
§1940.316
Responsible officials for the environmental review process.
(a) Approving official. With the exception of paragraph (b)(2) of this
section, the Rural Development official responsible for executing the
environmental impact determination and environmental findings for a
Class I or Class II action will be the official having approval
authority for the action as specified in Subpart A of Part 1901 of this
chapter (available in any Rural Development office).
(b)
State Office level.
(1) When the approval official is at the State Office level, the
responsible Program Chief will have the responsibility for preparing
the appropriate environmental review document. Whenever the Chief
delegates this responsibility in accordance with §1940.302(i) of
this subpart, the Chief is responsible for reviewing the
environmental document to ensure that it is adequate, that any
deficiencies are corrected, and that it is signed by the preparer.
When the document is satisfactory to the Chief, the Chief will sign
it as the concurring official. When no delegation occurs, the Chief
will sign as the preparer. If the environmental review document is
either a Class I or Class II assessment, it must be provided to the
SEC for review prior to being submitted to the approval official for
final determinations. The SEC will review the assessment and
provide recommendations to the approval official.
(2) Whenever the preparer and the SEC do not concur on either the
adequacy of the assessment or the recommendations reached, the State
Director, whether or not the approving official, will make
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SPECIAL PN
RD Instruction 1940-G
§1940.316 (b)(2)(Cont.)
the final decision on the matter or matters in disagreement. The
State Director will also make the final decision whenever a State
Office approving official disagrees with the joint recommendations
of the preparer and the SEC. In either case, should the State
Director desire, the matter will be forwarded to the National Office
for resolution. The Program Support Staff will coordinate its
resolution with the appropriate Assistant Administrator. Failure of
these parties to resolve the matter will require a final decision by
the Administrator. The State Director should also request the
assistance of the National Office on actions that are too difficult
to analyze at the State Office level.
(c) District or County Office level. The approval official for the
action under review will be responsible for preparing the appropriate
environmental review document and completing the environmental findings
and impact determinations for Class I and Class II assessments, except
in the circumstances outlined in paragraph (d) of this section.
Whenever the approval official delegates the preparation of the
environmental review in accordance with §1940.302(i) of this subpart,
the approval official must, after exercising the same responsibilities
assigned to the Program Chief as indicated in paragraph (b)(l) of this
section, sign the environmental review document as the concurring
official. Both District Directors and County Supervisors will contact,
as needed, the SEC for technical assistance in preparing specific
environmental review documents.
(d) Multi-level review. When the approval official is at the County
Office or District Office level but the action must be forwarded to the
State Office for concurrence, the responsible Program Chief will perform
the responsibilities of the concurring official with respect to the
environmental review document and the SEC will review it, if a Class I
or Class II assessment, in a similar manner as indicated in paragraph
(b) of this section. Responsibilities similar to those of the Program
Chief will exist for the District Director when the County Supervisor
forwards an action to the District Office for concurrence.
(e) Reservation of authority. The Administrator reserves the right to
request a State Director to forward to the National Office for review
and approval any action which is highly controversial for environmental
reasons, involves the potential for unique or extremely complex
environmental impacts or is of national, regional, or great local
significance. State Directors have a similar right with respect to
District and County Offices.
§1940.317 Methods for ensuring proper implementation of categorical
exclusions.
(a) The use of categorical exclusions exempts properly defined actions
or proposals from the review requirements of NEPA. It does not exempt
38
§1940.317 (a) (Cont.)
RD Instruction 1940-G
proposals from the requirements of other environmental laws, regulations
or Executive orders. Each proposal must be reviewed to determine the
applicability of other environmental requirements. Extraordinary
circumstances may cause an application to lose its categorical exclusion
and require a Class I environmental assessment, as further specified in
paragraph (e) of this section. Section 1508.4 of CEQ's regulations
state that "any procedures under this section will provide for
extraordinary circumstances in which a normally excluded action may have
a significant environmental effect." For example, an application for
approval of a subdivision of four lots is normally excluded from a NEPA
review (see §1940.310 (b)(5)of this subpart) but is not exempt from the
requirements of Executive Order 11990, "Protection of Wetlands." In the
processing of this application, Rural Development must determine if a
wetland is to be impacted. Assuming that the development of the
proposed subdivision site necessitates the filling of 2 acres of
wetland, such a potential wetland impact, under the requirements of
§1940.310(a) of this subpart, represents an extraordinary circumstance
that causes the application to lose its categorical exclusion. An
environmental assessment for a Class I action must then be initiated.
This assessment serves the purposes of providing for the extraordinary
circumstance by analyzing the degree of potential impact and the need
for further study as well as completing and documenting Rural
Development's compliance with the Executive order. In this particular
example, unless an alternative site could not be readily located and the
approving official wanted to further pursue consideration of the
application, the environmental assessment would determine that there was
a significant impact and an EIS would be required. (See §1940.314 of
this subpart.)
(b) The approving official for an action will be responsible for
ensuring that no action which requires an environmental assessment is
processed as a categorical exclusion. In order to fulfill this
responsibility, Form RD 1940-22 will be completed for those actions that
would normally be categorically excluded and as further defined in
paragraph (c) of this section. When Form RD 1940-22 must be prepared
and the approving official delegates its preparation in accordance with
§1940.302(i) of this subpart, the approving official must sign the form
as the concurring official. If that approving official must, prior to
approval, forward the action to a District or State Office for review, a
second concurrence must be executed by the Program Chief or District
Director, as determined by the level of review being conducted. The
checklist is filed with the application and serves as Rural
Development's documentation of compliance with the environmental laws,
regulations and Executive Orders listed on the checklist. Whenever the
preparer is within the State Office or is in the National Office, the
Rural Development office where the processing of the application was
initiated is responsible for providing sufficient site and project
information in order to complete the checklist.
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RD Instruction 1940-G
§1940.317 (Cont.)
(c) Form RD 1940-22 need not be completed for all categorical
exclusions as defined in §1940.310 of this subpart but only for those
listed below. This list identifies the exclusions by their subject
heading and paragraph number within §1940.310 of this subpart.
Additionally, for the housing assistance exclusion identified in
§1940.310(b)(8), for farm programs exclusions listed in §1940.310(d)(2)
and (3), and for community and business programs exclusions processed
under §1940.310(e)(2) of this subpart, a notation must be made in the
docket materials or running record for the action by the processing
official that the specific criteria of the applicable exclusion have
been met for the action under review.
(1)
Housing assistance - (b)(1),(2),(3),(5),(7), and (9)
(2)
Community and Business Programs - (c)(l) and (2)
(3)
Farm Programs - (d)(l) through (11)
(4) General exclusions - (e)(2), if action covered by Exhibit M of
the subpart, and (6)
(d) In applying the definition of a categorical exclusion to a project
activity, the preparer must consider the following two elements in
addition to the specific project elements for which approval is
requested.
(1) If the application represents one of several phases of a larger
proposal, the application will undergo the environmental review
required for the elements or the size of the total proposal. For
example, if approval of a four-lot subdivision is requested and the
application evidences or the reviewer knows that additional phases
are planned and will culminate in a 16-lot subdivision, the
categorical exclusion does not apply and an environmental assessment
for a Class I action must be initiated and must address the impact
of developing 16 lots. Should the applicant subsequently apply for
approval of any of these additional phases, no further environmental
assessment will be required as long as the original assessment still
accurately reflects the environmental conditions found at the
project site and the surrounding areas.
(2) If the application represents one segment of a larger project
being funded by private parties or other government agencies, the
size and elements of the entire project are used in determining the
proper level of environmental assessment to be conducted by Rural
Development. If an environmental assessment is required, it will
address the environmental impacts of the entire project.
40
§1940.317 (Cont.)
RD Instruction 1940-G
(e) Under any one of the following circumstances, an action that is
normally categorically excluded loses its classification as an exclusion
and must be reviewed in the manner described in paragraph (g) of this
section. The following listing corresponds to the list of land uses and
environmental resources contained in part 2 of Form RD 194022.
(1)
Wetlands - the proposed action
(i) would be located adjacent to a wetland or a wetland is
within the project site and
(ii) the action would affect the values and functions of the
wetland by such means as converting, filling, draining, or
directly discharging into it;
(2)
Floodplains - the proposed action
(i) includes or involves an existing structure(s) located
within a 100-year floodplain (500-year floodplain if critical
action), or
(ii) would be located within a 100-year floodplain (500-year
floodplain if critical action) and would affect the values and
functions of the floodplain by such means as converting,
dredging, or filling or clearing the natural vegetation;
(3)
Wilderness (designated or proposed) - the proposed action
(i)
would be located in a wilderness area or
(ii) would affect a wilderness area such as by being visible
from the wilderness area;
(4) Wild or Scenic River (proposed or designated or identified in
the Department of the Interior's nationwide Inventory) - the
proposed action
(i) would be located within one-quarter mile of the banks of
the river
(ii) involves withdrawing water from the river or discharging
water to the river via a point source, or
(iii)
would be visible from the river;
(5) Historical and Archaeological Sites (listed on the National
Register of Historic Places or which may be eligible for listing) the proposed action
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RD Instruction 1940-G
§1940.317 (e) (Cont.)
(i) contains a historical or archaeological site within the
construction site or
(ii)
would affect a historical or archaeological site;
(6) Critical Habitat or Endangered/Threatened Species (listed or
proposed) - the proposed action
(i)
(ii)
contains a critical habitat within the project site,
is adjacent to a critical habitat, or
(iii) would affect a critical habitat or endangered/threatened
species;
(7) Coastal Barrier Included in Coastal Barrier Resources System the proposed action would be located within the Coastal Barrier
Resources System;
(8) Natural Landmark (listed on National Registry of Natural
Landmarks) - the proposed action either
(i)
(ii)
contains a natural landmark within the project site or
would affect a natural landmark;
(9) Important Farmlands - the proposed action would convert
important farmland to a nonagricultural use(s) except when the
conversion would result from the construction of on-farm structures
necessary for farm operations;
(10) Prime Forest Lands - the proposed action would convert prime
forest land to another use(s), except when the conversion would
result from the construction of on-farm structures necessary for
farm operations;
(11) Prime Rangelands - the proposed action would convert prime
rangeland to another use(s) except when the conversion would result
from the construction of on-farm structures necessary for farm
operations;
(12) Approved Coastal Zone Management Area - the proposed action
would be located within such area and no agreement exists with the
responsible State agency obviating the need for a consistency
determination for the type of action under consideration;
(13) Sole Source Aquifer Recharge Area - the proposed action would
be located within such area and no agreement exists with the
42
§1940.317 (e)(13)(Cont.)
RD Instruction 1940-G
Environmental Protection Agency (EPA) obviating the need for EPA's
review of the type of action under consideration; and
(14) State Water Quality Standard - the proposed action would
impair a water quality standard, including designated and/or
existing beneficial uses, or would not meet applicable
antidegradation requirements for point or nonpoint sources.
(f) From the above paragraph (e), it should be noted that the location
within the project site of any of the land uses and environmental
resources identified in paragraphs (e) (1), (2), (9), (10), (11), (12),
and (13) of this section is not sufficient for an action to lose its
categorical exclusion. Rather, the land use or resource must be
affected in the case of paragraphs (e) (1), (2), (9), (10), and (11) of
this section. For paragraphs (e) (12), (13) and (14) of this section,
further review and consultation can be avoided by written agreement with
the responsible agency detailing the types of actions not requiring
interagency review.
(g) Whenever a categorical exclusion loses its status as an exclusion
for any of the reasons stated in paragraph (e) of this section, the
environmental impacts of the action must be reviewed through the
preparation of a Class I assessment, Form RD 1940-21. Not all of the
procedural requirements for a Class I assessment apply in this limited
case, however. The following exemptions exist:
(1)
No public notice provisions of this subpart apply.
(2)
The applicant does not complete Form RD 1940-20.
(3) The action does not require a Class II assessment should more
than one important land resource be affected.
§1940.318
Completing environmental assessments for Class II actions.
(a) The first step for the preparer (as defined in §§1940.302(i) and
1940.316 of this subpart) is to examine Form RD 1940-20 submitted by the
applicant to determine if it is complete, consistent, fully responsive
to the items, signed, and dated. If not, it will be returned to the
applicant with a request for necessary clarifications or additional
data.
(b) Once adequate data has been obtained, the assessment will be
initiated in the format and manner described in Exhibit H of this
subpart. In completing the assessment, appropriate experts from State
and Federal agencies, universities, local and private groups will be
contacted as necessary for their views. In so doing, the preparer
should communicate with these agencies or parties in the most
appropriate and expeditious manner possible, depending upon the
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RD Instruction 1940-G
§1940.318 (b)(Cont.)
seriousness of the potential impacts and the need for formal
documentation. Appropriate experts must be contacted whenever required
by a specific provision of this subpart or whenever the preparer does
not have sufficient data or expertise available within Rural Development
to adequately assess the degree of a potential impact or the need for
avoidance or mitigation. Comments from an expert must be obtained in
writing whenever required by a specific provision of this subpart or the
potential environmental impact is either controversial, complex, major,
or apparently major. When correspondence is exchanged, it will be
appended to the assessment. Oral discussions should be documented in
the manner indicated in Exhibit H of this subpart. On the other hand,
there is no need for the preparer to seek expert views outside of the
Agency when there is no specific requirement to do so and the preparer
has sufficient expertise available within Rural Development to assess
the degree of the potential impact and the need for avoidance or
mitigation.
(c) At the earliest possible stage in the assessment process, the
preparer will identify the Federal, State, and local parties which are
carrying out related activities, either planned or under way.
Discussions with the applicant and Rural Development staff familiar with
the project area should assist in this identification effort. If there
is a potential for cumulative impacts, the preparer will consult with
the involved agencies to determine the nature, timing and results of
their environmental analysis. These consultations will be documented in
the assessment and considered or adopted when making the environmental
impact determination. (See §1940.324 of this subpart concerning
adoption of assessments.) If it is determined that the cumulative
impacts are significant, the preparer will further contact the involved
Federal agencies and attempt to determine the lead Federal Agency as
discussed in §§1940.320(b) and 1940.326 of this subpart.
(d) Consultations similar to those discussed in paragraph (c) of this
section will also be undertaken with those Federal and State agencies
which are directly involved in the Rural Development action, either
through the provision of financial assistance or the review and approval
of a necessary plan or permit. For example, a construction permit from
the U.S. Army Corps of Engineers may be required for a project. In such
an instance, the environmental assessment cannot be completed until the
preparer has either reviewed the other Agency's completed environmental
analysis or consulted with the other Agency and is reasonably sure of
the scope, content, and expected environmental impact determination of
the forthcoming analysis and has so documented for the Rural Development
assessment this understanding. If the other Agency believes that the
project will have a significant impact, a joint or lead impact statement
will be prepared. If the other Agency does not believe a significant
impact will occur, the preparer will consider this finding and its
supporting analysis in completing the Rural Development environmental
impact determination.
44
§1940.318 (d)(Cont.)
RD Instruction 1940-G
Guidance in adopting an environmental assessment prepared by another
Federal Agency is provided in §1940.324 of this subpart.
(e) For actions having a variety of complex or interrelated impacts
that are difficult for the preparer to assess, consideration should be
given to holding a public meeting in the manner described in
§1940.331(c) of this subpart. Such meetings should not be assumed as
being limited to projects for which EISs are being prepared. Such a
meeting can serve a useful purpose in better defining and identifying
complex impacts, as well as locating expertise with respect to them.
The results of a public meeting and the follow-up from it can also serve
as a valuable tool in reaching an early understanding on the potential
need for an EIS. When identified impacts are difficult to quantify
(such as odor and visual and community impacts) or controversial, a
public information meeting should be held near the project site in order
to reach a better understanding of the magnitude of the impact and the
local area's concern about it. Whenever held, it should be announced
and organized in the manner described in Section 1940.331(c). However,
a transcript of the meeting need not be prepared, but the preparer will
make detailed notes for incorporation in the assessment. (See
§1940.331(c) of this subpart.)
(f) Throughout this assessment process, the preparer will keep in mind
the criteria for determining a significant environmental impact. If at
any time in this process it is determined that a significant impact
would result, the preparer will so notify the approving official. Those
actions specified in §1940.320 of this subpart will then be initiated,
unless the approving official disagrees with the preparer's recommended
determination, in which case further review of the determination may be
required as explained in §1940.316 (b),(d) and (e) of this subpart. As
soon as possible after the need for an EIS is determined, the applicant
will also be advised of this in writing, as well as reinformed of the
limitations on its actions during the period that the EIS is being
completed. (See §1940.309(e) of this subpart.) The applicant's failure
to comply with these limitations will be considered as grounds for
postponement of further consideration of the application until such
problem is alleviated.
(g) Similarly, throughout the assessment process, consideration will be
given to incorporating mechanisms into the proposed action for reducing,
mitigating, or avoiding adverse impacts. Examples of such mechanisms
which are commonly referred to as mitigation measures include the
deletion, relocation, redesign or other modifications of the project
elements; the dedication of environmentally sensitive areas which would
otherwise be adversely affected by the action or its indirect impacts;
soil erosion and sedimentation plans to control runoff during landdisturbing activities; the establishment of vegetative buffer zones
between project sites and adjacent land uses; protective measures
recommended by environmental and conservation
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RD Instruction 1940-G
§1940.318 (g)(Cont.)
agencies, including but not limited to interstate, international,
Federal, State, area-wide, and local agencies having jurisdiction or
special expertise regarding the action's impacts; and zoning.
Mitigation measures must be tailored to fit the specific needs of the
action, and they must also be practical and enforceable. Mitigation
measures which will be taken must be documented in the assessment (Item
XIX of Exhibit H of this subpart), and include an analysis of their
environmental impacts and potential effectiveness and placed in the
offer of financial assistance as special conditions or in the
implementation requirements when the action does not involve financial
assistance. These measures will be consistent with the basic goal of
the proposed action and developed in consultation with the appropriate
program office.
(h) As part of the assessment process, the preparer will initiate the
consultation and compliance requirements for the environmental laws,
regulations, and Executive orders specified in the assessment format.
The assessment cannot be completed until compliance with these laws and
regulations is appropriately documented. The project's failure to meet
the requirements specified in Item 10b of Form RD 1940-21 for a Class I
action and Item XXIb of Exhibit H of this subpart for a Class II action
will result in postponement of further consideration of the application
until such problem is alleviated.
(i) When the preparer has completed the assessment, the related
materials and correspondence utilized will be attached. The preparer
will then either recommend to the approving official that the action has
the potential for significantly affecting the quality of the human
environment or will recommend that the action does not have this
potential and, therefore, the preparation of an EIS is not necessary.
(Item 10a of Form RD 1940-21 for Class I action and item XXla of Exhibit
H of this subpart for a Class II action.) The recommended environmental
findings will also be completed. (Item 10b of Form RD 1940-21 for a
Class I action and Item XXIb of Exhibit H of this subpart for a Class II
action.) In those instances specified in §1940.316, the assessment will
then be forwarded to the concurring official and, as required, to the
SEC for review. The concurring official will coordinate, as necessary,
with the preparer any questions, concerns or clarifications and complete
and document the review prior to the assessment being submitted to the
approving official or the SEC. The SEC will coordinate with the
concurring official in a similar fashion whenever the latter's review is
required.
(j) The approving official will review the environmental file and
recommendations. The official will then execute the environmental
impact determination and findings. If the conclusions reached are that
there is no significant impact and there is compliance with the listed
requirements, the format contained in Exhibit I of this subpart will be
used. If a significant impact is determined, the steps specified in
46
§1940.318 (j)(Cont.)
RD Instruction 1940-G
§1940.320 of this subpart will be initiated for the preparation of the
EIS. If a determination is made that the proposed action does not
comply with the environmental requirements that are explained in this
subpart and listed in Item 10b of Form RD 1940-21 for a Class I action
or Item XXlb of Exhibit H of this subpart for a Class II action and
there are no feasible alternatives (practicable alternatives when
required by specific provisions of this subpart), modifications, or
mitigation measures which could comply, the action will be denied or
disapproved. If the approving official's determination or findings
differ from the recommendations of the preparer, concurring official or
the SEC, this difference will be addressed in the manner specified in
§1940.316 of this subpart.
(k) When there is no need for further review as discussed in paragraph
(j) of this section and findings of compliance and a determination of no
significant impact are reached, the assessment process is conditionally
concluded. To conclude the assessment, the applicant will then be
requested to provide public notification of these results as indicated
in §1940.331(b)(3) of this subpart. The approving official will not
approve the pending application for at least 15 days from the date the
notification is last published. If comments are received as a result of
the notification, they will be included in the environmental assessment
and considered. Any necessary changes resulting from this consideration
will be made in the assessment, impact determinations, and findings. If
the changes require further implementation steps, such as the
preparation of an EIS, they will be undertaken. If there are no changes
in the findings and determinations, the approving official may continue
to process the application. The environmental documents, i.e., the
assessment, related correspondence, Form RD 1940-20, and the finding of
no significant impact will be included with the approval documents which
are assembled for review and clearance within the approving office.
(l) Whenever changes are made to an action or comments or new or
changed information relating to the action's potential environmental
effects is received after the assessment is completed but prior to the
action's approval, such change, comment, or information will be
evaluated by the approving official to determine the impact on the
completed assessment. Whenever the contents or findings of that
assessment are affected, the assessment process for that action will be
revised and any other related requirement of this subpart met. Changes
to an action in terms of its location(s), design, purpose, or operation
will normally require, at a minimum, modification of the original
assessment to reflect such change(s) and the associated environmental
impacts.
(m) When comments are received after the action has been approved, the
approving official will consider the environmental importance of the
comments and the necessity and ability to amend both the action, with
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RD Instruction 1940-G
§1940.318 (m)(Cont.)
respect to the issue raised and the action's stage of implementation.
The National Office may be consulted to assist in determining whether
there are any remaining environmental requirements which need to be met
under the specific circumstances. A similar procedure will be followed
when new or changed information is received after project approval.
Amendments and revisions to actions will be handled as specified in
§§1940.310 through 1940.313 of this subpart.
§1940.319
Completing environmental assessments for Class I actions.
(a) As stated in this subpart, a main purpose of Form RD 1940-21, is to
provide a mechanism for reviewing actions with normally minimal impacts
and for documenting a finding of no significant impact, as well as
compliance determinations for other applicable environmental laws,
regulations and policies. The second major purpose is to serve as a
screening tool for identifying those Class I actions which have more
than minimal impacts and which, therefore, require a more detailed
environmental review.
(b) The approach to reviewing a Class I action under the assessment
format of Form RD 1940-21 is exactly the same as for a Class II action.
The preparer (as defined in §§1940.302(i) and 1940.316 of this subpart)
must become familiar with the elements of the action, the nature of the
environment to be affected, the relationship to any other Federal
actions or related nonfederal actions, and the applicable environmental
laws and regulations.
(c) The data submission requirements placed on the applicant for a
Class I action are not as extensive as for a Class II action. The
requirements are limited to completing the face of Form RD 1940-20, as
well as categories (1), (2), (13), (15), (16), and (17) of Item 1b of
the FMI, whenever a previously completed environmental analysis covering
these categories is not available. Should it later be determined that
the magnitude of the Class I action's impact warrants a more detailed
assessment, the applicant will be required to submit the remaining items
of the data request. Additionally, the circumstances under which Rural
Development does not require the submission of Form RD 1940-20 by an
applicant whose proposed action requires a Class I assessment are
specified in §1940.317(f) of this subpart.
(d) The preparer must ensure that the data received from the applicant
is complete, consistent, signed and dated before initiating the
assessment. If it is not, the applicant will be required to make the
necessary changes and clarifications. The reviewer must also ensure
that the application properly meets the definition of a Class I action.
Phased or segmented projects, as discussed in §1940.317(d) of this
subpart, will be identified and the elements and the size of the entire
project used to classify the action.
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§1940.319 (Cont.)
RD Instruction 1940-G
(e) An important element of this assessment is to determine if the
action affects an environmental resource which is the subject of a
special Federal consultation or coordination requirement. Such
resources are listed in the assessment format, Form RD 1940-21, and
include wetlands, floodplains, and historic properties, for example. If
one of the listed resources is to be affected, the preparer must
demonstrate the required compliance by accomplishing the review and
coordination requirements for that resource. Documentation of the steps
taken and coordination achieved will be attached. However, if more than
one listed resource is to be affected, this will be viewed as the action
having more than minimal impacts and the environmental assessment format
for a Class II action will be initiated except if the action under
review is an application for a Housing Preservation Grant.
(f) Similarly in completing item 3, General Impacts of Form RD 1940-21,
the assessment format for a Class II action must be initiated if more
than one category of impacts cannot be checked as minimal. If there is
a single category which needs analysis, this can be accomplished by
attaching an appropriate exhibit addressing the questions and issues for
that impact, as specified in the environmental assessment format for a
Class II action. See §1940.311(b)(l) of this subpart for when an
attached discussion of water quality impacts is mandatory.
(g) The comments of State, regional, and local agencies obtained
through applicable permit reviews or the implementation of Executive
Order 12372, Intergovernmental Review of Federal Programs, will be
incorporated into the assessment, if this review applies to the action.
The receipt of negative comments of an environmental nature will warrant
the initiation of a more detailed assessment under the format for a
Class II action (Exhibit H of this subpart). Also, the issue of
controversy must be addressed, and if the action is controversial for
environmental reasons, the environmental assessment format for a Class
II action (Exhibit H of this subpart) will be completed. However, if
the action is the subject of isolated environmental complaints or any
questions or concerns that focus on a single impact, air quality, for
example, the analysis of such complaints or questions can be handled
under the assessment format for a Class I action. This analysis will
then be provided by the approving official to the party or parties which
raised the matter with Rural Development. When several potential
impacts are questioned, however, the more detailed assessment format
will be accomplished to address these questions.
(h) The potential cumulative impacts of this action, particularly as it
relates to other Rural Development actions recently approved in the area
or planned, will be analyzed. If the cumulative impact is not minimal
and, for example, cumulatively exceeds the criteria and thresholds
discussed in paragraphs (e), (f) and (g) of this section, the
environmental assessment format for a Class II action will be
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§1940.319 (h) (Cont.)
completed. The actions of other Federal agencies and related nonfederal
actions must also be assessed on this basis. When there is a Federal
action involved, the environmental review conducted by that Agency will
be requested and, if it sufficiently addresses the cumulative impact,
can be utilized by the preparer as the Rural Development assessment,
assuming the impacts are not significant. (See §1940.324 of this
subpart.) If the other Agency is doing or planning an EIS, the preparer
will inform that Agency of our action and request to be a cooperating
agency.
(i) The preparer will have the responsibility of initiating the
assessment format for a Class II action (Exhibit H of this subpart)
whenever the need is identified. This should be done as early as
possible in the review process. The preparer should not complete the
assessment for a Class I action when it is obvious that the assessment
format for a Class II action will be needed. The preparer will simply
start the more detailed assessment and inform the applicant of the
additional data requirements.
(j) Exhibit I will be completed by the approval official in the same
instances for a Class I assessment as for a Class II assessment.
However, public notification of Rural Development's finding of no
significant environmental impact will not be required for a Class I
assessment. Also, special provisions for completing a Class I
assessment for an action that is normally categorically excluded but
loses its classification as an exclusion are contained in §1940.317(g)
of this subpart. With the exception of the two preceding sentences, all
other procedural requirements of the assessment process, such as the
timing of the assessment and the limitations on the applicant's actions,
apply to a Class I assessment.
§1940.320
Preparing EISs.
(a) Responsibility. Whenever the District Director or County
Supervisor determines there is a need to prepare an EIS, the State
Director will be notified. The EIS will be prepared at the State Office
and the State Director will assume the responsibility for preparing it.
The State will in turn notify the Administrator of these EISs, as well
as those needed EISs identified by a State Office review. EISs will be
prepared according to this section. The State Director will be
responsible for actions initiated within the State. However, in so
doing, the State Director will consult with the National Office to
determine that the document meets the requirements of NEPA. State
Directors will be responsible for issuing such EISs. However, unless
delegated authority by the Administrator, based upon a demonstrated
capability and experience in preparing EISs, the State Director will not
issue the EIS until reviewed and approved by the Administrator.
50
§1940.320 (Cont.)
RD Instruction 1940-G
(b) Organizing the EIS process. Prior to initiating the scoping
process outlined below, the preparer of the EIS will take several
organizational steps to ensure that the EIS is properly coordinated and
completed as efficiently as possible. To accomplish this, the belowlisted parties need to be identified in advance; the list should be
expanded as familiarity with the project increases. Those parties
falling within the first four groups should be formally requested to
serve as cooperating agencies. If any of these agencies appear to be a
more appropriate lead agency than Rural Development (using the criteria
contained in section 1501.5(c) of the CEQ regulations), consultations
should be initiated with that agency to determine the lead agency. If
difficulties arise in completing this determination, the National Office
will be consulted for assistance. All of the parties identified below
will be sent a copy of the notice of intent to prepare the EIS and an
invitation to the scoping meeting, as discussed in paragraph (c) of this
section.
(1) All Federal and State agencies that are being requested to
provide financial assistance for the project or related projects;
(2) All Federal agencies that must provide a permit for the project
should it be approved;
(3) All Federal agencies that have a specific environmental
expertise in major environmental issues identified to date;
(4) The Agency responsible for the implementation of the State's
environmental impact analysis requirement, if one has been enacted
or promulgated by the State;
(5) All Federal, State, and local agencies that will be requested
to comment on the draft EIS;
(6) All individuals and organizations that have expressed an
interest in the project; and
(7) National, regional, or local environmental organizations whose
particular area of interest corresponds to the major impacts
identified to date.
(c) Scoping process. As soon as possible after a decision has been
made to prepare an EIS, the following process will be initiated by the
preparer for identifying the major issues to be addressed in the EIS and
for developing a coordinated government approach to the preparation and
review of the EIS.
(1) The first step in this process will be the publication of a
notice of intent to prepare the EIS. The notice will indicate that
an EIS will be prepared and will briefly describe the
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RD Instruction 1940-G
§1940.320 (c)(l)(Cont.)
proposed action and possible alternatives; state the name, address,
and phone number of the preparer, indicating that this person can
answer questions about the proposed action and the EIS; list any
cooperating agencies, and include the date and time of the scoping
meeting. If the latter information is not known at the time the
notice of intent is prepared, it will be incorporated into a special
notice, when available, and published and distributed in the same
manner as the notice of intent. It will be the responsibility of
the preparer of the EIS to inform the National Office of the need to
publish a notice of intent which will coordinate the publication of
the notice in the Federal Register. For requirements relating to
the timing and publication of the notice of intent within the
project area, as well as the applicant's responsibilities for the
notice, see §1940.331(b) of this subpart.
(2) A scoping meeting will be held. To the extent possible, the
scoping meeting should be integrated with any other early planning
meetings of the Agency or other involved agencies. The scoping
meeting will be chaired by the preparer of the EIS and will be
organized to accomplish the following major purposes (as well as
other purposes listed in Part 1501.7 of the CEQ regulations).
(i) Invite the participation of affected Federal, State, and
local agencies, any affected Indian Tribe, the proponent of the
action, and any interested parties including those who may
disagree with the action for environmental reasons;
(ii) Determine the scope and the significant issues to be
analyzed in depth in the EIS;
(iii) Identify and eliminate, from detailed study, the issues
which are not significant or which have been covered by prior
environmental review, narrowing the discussion of these issues
in the statement to a brief presentation of why they will not
have a significant effect on the human environment or providing
a reference to their coverage elsewhere;
(iv) Allocate assignments for preparation of the EIS among the
lead and cooperating agencies, with the lead Agency retaining
responsibility for the statement;
(v) Indicate any public environmental assessments and other
EISs which are being or will be prepared that are related to,
but are not part of, the scope of the impact statement under
consideration;
(vi) Identify other environmental review and consultation
requirements so the lead and cooperating agencies may prepare
52
§1940.320(c)(2)(vi)(Cont.)
RD Instruction 1940-G
other required analyses and studies concurrently with, and
integrated with, the environmental impact statement; and
(vii) Indicate the relationship between the timing of the
preparation of environmental analyses and the Agency's
tentative planning and decision making schedule;
(3) Minutes of the scoping meeting, including the major points
discussed and decisions made, will be prepared and retained by the
preparer of the EIS as part of the environmental file. The preparer
will offer, during the scoping meeting, to send copies of the
minutes to any interested party upon written request.
(d) Interdisciplinary approach. The EIS will be prepared using an
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences and the environmental design arts. The
disciplines of the preparers will be appropriate to address the
potential environmental impact associated with the project. This can be
accomplished both in the information collection stage and the analysis
stage by communication and coordination with environmental experts at
local, State and Federal agencies (particularly cooperating agencies)
and universities near the project site. When needed information or
expertise is not readily available, these needs should be met through
procurement contracts with qualified consulting firms. Consulting firms
can be utilized to prepare the entire EIS or portions of it as specified
in §1940.336 of this subpart.
(e) Content and format of EIS. The EIS will be prepared in the format
and manner described in Part 1502 of the CEQ regulations. There is a
great deal of specific guidance in that Part which will not be repeated
here.
(f) Circulation of the EIS. Rural Development will circulate for
review and comment the draft and final EIS as broadly as possible.
Therefore, it will be necessary for the preparer to have sufficient
copies printed or reproduced for this purpose. In identifying the
parties to receive a draft EIS, the same process should be utilized as
is employed for inviting participants to the scoping meeting. (See
paragraph (b) of this section.) Special emphasis should be given to
transmitting the draft to those agencies with jurisdiction or expertise
on the proposed action's major impacts, as well as those parties who
have expressed an interest in the action. The final EIS will be
provided to all parties that commented on the draft EIS.
(g) Filing of the EIS. The Deputy Administrator for Program Operations
or any State Director that has been delegated the authority to prepare
an EIS must file the EIS with EPA in accordance with Part 1506.9 of the
CEQ regulations. The official filing date for an EIS is the day that it
is received by EPA's Office of Federal Activities.
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§1940.320 (g)(Cont.)
Filing of the EIS cannot occur until copies of the EIS have been
transmitted to commenting agencies and made available to the public.
Transmittal of the EIS must, therefore, occur either prior to its being
filed with EPA (received by EPA) or no later than close of business of
the same day that it is filed.
(h) Public information meetings. A public information meeting, as
specified in §1940.331(c)(l) of this subpart, will be held near the
project site to discuss and receive comments on the draft EIS.
(i) Response to comments. The preparer of the EIS will respond to
comments on the draft EIS as required by part 1503.4 of the CEQ
regulations. The major and most frequently raised issues during the
public information meeting will also be identified and addressed.
(j) Timing of review. The preparer of the EIS will be responsible for
ensuring that the timing requirements for Rural Development actions and
the review periods for draft and final EISs are fully met (Part 1506.10
of CEQ regulations). Prescribed review periods are calculated from the
date that EPA's Office of Federal activities publishes in the Federal
Register a notice of availability for the EIS. Any request to reduce a
prescribed review period will be made to EPA in accordance with Part
1506.10(d) of the CEQ regulations.
§1940.321
Use of completed EIS.
(a) The final EIS will be a major factor in the Agency's final
decision. Agency staff making recommendations on the action and the
approving official will be familiar with the contents of the EIS and its
conclusions and will consider these in formulating their respective
positions with respect to the action. The final EIS and all comments
received on the draft will accompany the proposal through the Rural
Development final clearance process. The alternatives considered by the
approving official will be those addressed in the final EIS.
(b) As part of this review process, the preparer of the EIS will
complete the recommendations listed in Item XXIb and c of Exhibit H of
this subpart and provide them to the approving official prior to a final
decision.
§1940.322
Record of decision.
Upon completion of the EIS and its review within Rural Development and
before any action is taken on the decision reached on the proposal, the
approving official will prepare, in consultation with the preparer of the EIS,
a concise record of the decision which will be available for public review.
The record will:
(a)
State the decision reached;
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§1940.322 (Cont.)
RD Instruction 1940-G
(b) Certify that the timing requirements for the EIS process have been
fully met;
(c) Identify all alternatives considered in reaching the decision
specifying the alternative or alternatives that were considered to be
environmentally preferable and discuss the relevant factors
(environmental, economic, technical, statutory mission and, if
applicable, national policy) that were considered in the decision;
(d) State whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted, and
if not, why not; and
(e) If any mitigation measures have been adopted, specify the
monitoring and enforcement program that will be utilized.
§1940.323
Preparing supplements to EIS's.
(a) Either the State Office or the National Office, as appropriate,
will prepare supplements to either draft or final EIS's if:
(1) A substantial change or changes occur in the proposed action
and such changes are relevant to the environmental impacts
previously presented; and
(2) Significant new circumstances or information arise which are
relevant to environmental concerns and bear on the proposed action
or its impacts.
(b) If the preparer of the draft or final EIS determines that the
changes or new circumstances referenced in paragraph (a) of this section
do not require the preparation of a supplemental EIS, the preparer will
complete an environmental assessment for a Class II action which will
document the reasons for this determination.
(c) The preparer will be responsible for advising the approving
official of the need for a supplement. The latter will make the
Agency's formal determination in a manner consistent with §1940.316 of
this subpart.
(d) All of the requirements of this subpart that apply to the
completion of an initial EIS apply to the completion of a supplement
with the exception of the scoping process, which is optional.
Additionally, if the approving official believes that there is a need
for expedited or special procedures in the completion of a supplement,
the approval of CEQ must first be obtained by the Administrator for any
alternative procedures. The final supplement will be included in the
project file or docket and used in the Agency's decision making process
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§1940.323 (d) (Cont.)
in the same manner as a final EIS. (See §1940.321 of this subpart and in
particular subparagraphs (f), (g), and (j) of that Section as well as
Part 1502.9(c)(4) of the CEQ regulations for associated circulation,
filing, and timing requirements.)
§1940.324 Adopting of EIS or environmental assessment prepared by other
Federal Agency.
(a) Rural Development may adopt an EIS or portion thereof prepared by
another Federal Agency after completion if:
(1) An independent review of the document is conducted by the
preparer of the Rural Development environmental review and it is
concluded that the document meets the requirements of this subpart;
and
(2) If the actions covered in the EIS are substantially the same as
those proposed by Rural Development and the environmental conditions
in the project area have not substantially changed since its
publication, Rural Development will recalculate the EIS as a "final"
and so notify the public as specified in Section 1940.331(b) of this
subpart. The final EIS will contain an appropriate explanation of
the Rural Development involvement and will be sent to all parties
who would typically receive a draft EIS published by Rural
Development. If there are differences between the actions or the
environmental conditions as discussed in the original EIS, that EIS
will be updated to cover these differences and recalculated as a
draft EIS with the public so notified. From that point, it will be
reviewed and processed in the same manner as any other Rural
Development EIS. For circulation, filing, and timing requirements,
see subparagraphs (f), (g), and (j) of Section 1940.320 of this
subpart as well as Parts 1506.3(c), 1506.9, and 1506.10 of the CEQ
regulations.
(b) If the adopted EIS is not final within the agency that prepared it,
or if the action it assesses is the subject of a referral under Part
1504 of the CEQ regulations, or if the statement's adequacy is the
subject of a judicial action which is not final, Rural Development must
so specify and provide an explanation in the recalculated EIS.
(c) After recalculation (whether as a draft or final), the EIS will be
reviewed and processed in the same manner as any other Rural Development
EIS.
(d) Rural Development may also adopt all or part of environmental
assessments or environmental reviews prepared by other Federal agencies.
In this case, only paragraph (a)(l) of this section applies. If the
requirements of that paragraph can be met except for the fact that the
Federal agency whose assessment is to be adopted has no preliminary
public notice requirements similar to Rural Development's (See
§1940.331(b)(4) of this subpart), the assessment can be adopted without
Rural Development publishing a preliminary public notice. Additionally,
when all of another Federal
56
§1940.324 (d) (Cont.)
RD Instruction 1940-G
agency's assessment is adopted, without supplementation, for a Class II
action and a finding of no significant environmental impact (Exhibit I
of this subpart) is reached by the proper Rural Development official, no
public notification of Rural Development's finding of no significant
environmental impact is required if:
(1) The other Federal agency or its designee published a similar
finding in a newspaper of general circulation in the vicinity of the
proposed action;
(2) The other Federal agency's or its designee's public notice
clearly described the action subject to the Rural Development
environmental review; and
(3) The other Federal agency's or its designee's public notice was
published less than eighteen months from the date Rural Development
adopted the assessment.
§1940.325
Rural Development as a cooperating Agency.
(a) Rural Development will serve as a cooperating Agency when requested
to do so by the lead Agency for an action in which Rural Development is
directly involved or for an action which is directly related to a
proposed Rural Development action. An example of the latter would be a
request from EPA to participate in an EIS covering its sewage treatment
plans for a community, as well as the community's water system plans
pending before Rural Development. A memorandum of understanding or
other written correspondence will be developed with the lead agency in
order to define Rural Development's role as the cooperating agency. The
State Director will coordinate Rural Development's participation as a
cooperating Agency for an action at the State Office level. The
Administrator will have the same responsibility at the National Office
level.
(b) When requested to be a cooperating Agency on a basis other than
that discussed above, the State Director will consider the expertise
which Rural Development could add to the particular EIS process in
question and existing workload commitments. If a decision is made on
either of these two bases not to participate as a cooperating Agency, a
copy of the letter signed by the State Director or Administrator and so
informing the lead Agency will be sent to CEQ.
(c) As a cooperating Agency, Rural Development will participate in the
development and implementation of the scoping process. If requested by
the lead Agency, provide the lead Agency with staff support and
descriptive materials with respect to the analyses of the Rural
Development portion of the action(s) to be covered, review and comment
on all preliminary draft materials prior to their circulation for public
review and comment, and attend and participate in public meetings called
by the lead Agency concerning the EIS.
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§1940.325 (Cont.)
(d) The State Director will request the lead Agency to fully identify
the Agency's involvement in all public documents and notifications.
(e) Rural Development will use the EIS as its own as long as Rural
Development's comments and concerns are adequately addressed by the lead
Agency and the final EIS is considered to meet the requirements of this
subpart. It will be the responsibility of the preparer of the Rural
Development environmental review document to formally advise the
approving official on these two points. The failure of the lead
Agency's EIS to meet either of these stipulations will require Rural
Development to follow the steps outlined in §1940.324 of this subpart
prior to the approving official's decision on the Rural Development
action.
§1940.326
Rural Development as a lead Agency.
(a) When other Federal agencies are involved in a Rural Development
action or related actions that require the preparation of an EIS, the
preparer will consult with these agencies to determine a lead Agency for
preparing the EIS. The criteria for making this determination will be
those contained in Part 1505.5 of the CEQ regulations. If there is a
failure to reach a determination within a reasonably short time after
consultation is initiated, the National Office will be contacted. The
assistance of CEQ will then be requested by the Administrator in order
to conclude the determination of a lead Agency.
(b) When acting as lead Agency, the Rural Development preparer will
request other Federal and State agencies to serve as cooperating
agencies on the basis of the guidance provided in §1940.320(b) of this
subpart. A memorandum of understanding or other written correspondence
should be developed with a cooperating agency in order to define that
agency's role in the preparation of the EIS.
§1940.327
Tiering.
To the extent possible, Rural Development may consider the concept of
tiering in the preparation of environmental assessments and EISs. Tiering
refers to the coverage of general matters in broader environmental impact
statements, such as one done for a national program or regulation, with
subsequent narrower statements or environmental analyses incorporating by
reference the broader matters and concentrating on the issues specific to the
action under consideration. Tiering can be used when the sequence of analysis
is from the program level to site-specific actions taken under that program or
from an initial EIS to a supplement which discusses the issues requiring
supplementation.
58
§1940.328
RD Instruction 1940-G
§1940.328
State Environmental Policy Acts.
(a) Numerous States have enacted environmental policy acts or
regulations similar to NEPA, hereafter referred to as State NEPA's. It
is important that Rural Development staff have an understanding of which
States have such requirements and how they apply to applicant's
proposals. It will be the responsibility of each State Director to
determine the applicable State requirements and to establish a working
relationship with the State personnel responsible for their
implementation.
(b) In processing projects located within States having State NEPA's,
the preparer of the Rural Development assessment will determine as early
as possible in the assessment process whether the project falls under
the requirements of the State NEPA. If it does, one of the following
cases will exist and the appropriate actions specified will be taken.
(1) The applicant has complied with the State's NEPA, and it was
determined under the State's requirements that the proposed project
would not result in sufficient potential impacts to warrant the
preparation of an impact statement or other detailed environmental
report required by the State NEPA. This finding or conclusion by
the State will be considered in the Rural Development's review, and
any supporting information used by the State will be requested.
However, the State's finding can never be the total basis for Rural
Development's environmental impact determination. An independent
and thorough review in accordance with the requirements of this
subpart must be conducted by the preparer.
(2) The applicant has complied with the State NEPA, and it was
determined under its implementing guidelines that a significant
impact will result. This fact will be given great weight in the
Agency's environmental determination. However, the State's
definition of significant environmental impact may encompass a much
lower threshold of impacts compared to Rural Development's. In such
a case, if the preparer does not believe that a significant impact
will result under Agency guidelines for determining significant
impacts, the environmental assessment will be prepared and include a
detailed discussion with supporting information as to why the
environmental reviewer's recommendation differs from that of the
State's. However, the assessment cannot be completed until the
State's impact statement requirements have been fulfilled by the
applicant and the resulting impact statement has been reviewed by
the preparer. An environmental impact determination will then be
executed based upon the assessment and the statement.
(c) It should be emphasized that at no time does the completion of an
impact statement under the requirements of a State NEPA obviate the
requirement for Rural Development to prepare an impact statement.
Consequently, as soon as it is clear to the preparer that the Agency
will have to
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§1940.328 (c) (Cont.)
prepare a statement, every attempt should be made to accomplish the
statement simultaneously with the State's. Coordination with State
personnel is necessary so that data and expertise can be shared. In
this manner, duplication of effort and the review periods for the
separate statements can be minimized. This process clearly requires a
close working relationship with the appropriate State personnel.
§1940.329
Commenting on other Agencies' EIS's.
(a) State Directors are authorized to comment directly on EIS's
prepared by other Federal agencies. In so doing, comments should be as
specific as possible. Any recommendations for the development of
additional information or analyses should indicate why there is a need
for the material.
(b) Comments should concentrate on those matters of primary importance
to Rural Development and on areas of Agency expertise, such as rural
planning and development. Any potential conflicts with Rural
Development programs, plans, or actions should be clearly identified.
Special attention should be given to the relationship of the
alternatives under study to the State Office's natural resource
management guide and the objectives of the Department's land use
regulation (Exhibit A of this subpart). Copies of comments addressing
land use questions will be provided to the appropriate chairman of the
USDA State-level committee dealing with land use matters.
(c) Whenever a State Director has serious concerns over the
acceptability of the anticipated environmental impacts, the State
Director will notify the Administrator.
§1940.330
Monitoring.
(a) Rural Development staff who normally have responsibility for the
post approval inspection and monitoring of approved projects will ensure
that those measures which were identified in the preapproval stage and
required to be undertaken in order to reduce adverse environmental
impacts are effectively implemented.
(b) This staff, as identified in paragraph (a) of this section, will
review the action's approval documents and consult with the preparer of
the action's environmental review document prior to making site visits
or requesting project status reports in order to determine if there are
environmental requirements to be monitored.
(c) The preparer will directly monitor actions containing difficult or
complex environmental special conditions.
(d) Before certifying that conditions contained within offers of
financial assistance have been fully met, the responsible
60
§1940.330 (d) (Cont.)
RD Instruction 1940-G
monitoring staff will obtain the position of the preparer for those
conditions developed as a result of the environmental review.
(e) Whenever noncompliance with an environmental special condition is
detected by Rural Development staff, the preparer and the SEC will be
immediately informed. The approving official will then take appropriate
steps, in consultation with the responsible program office, the SEC and
preparer, to bring the action into compliance.
§1940.331
Public involvement.
(a) Objective. The basic objective of Rural Development's public
involvement process is threefold. It is to ensure that interested
citizens can readily obtain knowledge of the environmental review status
of Rural Development's funding applications, have the opportunity to
input into this review process before decisions are made, and have
access to the environmental documents supporting Rural Development
decisions.
(b)
Public notice requirements.
(1) For projects that undergo the preparation of an environmental
impact statement, the first element of formal public participation
in the EIS process involves the publication of the notice of intent
to prepare an EIS. The content of the notice of intent and its
publication by Rural Development in the Federal Register are
explained in §1940.320 of this subpart. With respect to
notification within the project area, the applicant will be
requested to publish a copy of the notice of intent and the date of
the scoping meeting in the newspaper of general circulation in the
vicinity of the proposed action and in any local or communityoriented newspapers within the proposed action's area of
environmental impact. The notice will be published in easily
readable type in the nonlegal section of the newspaper(s). It will
also be bilingual if the affected area is largely non-English
speaking or bilingual. Individual copies of the notice will be sent
by the applicant to the appropriate regional EPA office, any State
and regional review agencies established under Executive Order
12372; the State Historic Preservation Officer; local radio stations
and other news media; any State or Federal agencies planning to
provide financial assistance to this or related actions or required
to review permit applications for this action, any potentially
affected Indian Tribe; any individuals, groups, local, State, and
Federal agencies known to be interested in the project; affected
property owners; and to any other parties that Rural Development has
identified to be so notified. It will also be posted at a readable
location on the project site. The applicant will provide Rural
Development with a copy of the notice as it appeared in the
newspaper(s), the date(s) published, and a list of all parties
receiving an individual notice.
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§1940.331 (b)(1)(Cont.)
Publication and individual transmittal of the notice for the scoping
meeting will be accomplished at least 14 days prior to the date of
the meeting.
(2) Coincident with the distribution of either a draft or final
EIS, a notice of the statement's availability will be published
within the project area in the same manner as a notice of intent to
prepare an EIS. Rural Development will request EPA to publish in
the Federal Register a notice of the statement's availability in
accordance with EPA's requirements and pursuant to Part 1506.10 of
the CEQ regulations.
(3) For Class II actions that are determined not to have a
significant environmental impact, the Agency will require the
applicant to publish a notification of this determination. This
notice will be published in the same manner as a notice of intent to
prepare an EIS but will appear for at least 3 consecutive days if
published in a daily newspaper or otherwise in two consecutive
publications. Individual copies will be sent to the same parties
that are required to be sent a notice of intent, as specified in
paragraph (b)(1) of this section, with the exception of local radio
stations and other news media. Also, there is no requirement to
post this notice on the project site. The applicant will provide
Rural Development with a copy of this notice, the dates the notice
was published, and a list of all parties receiving an individual
notice. This notification procedure does not apply to actions
reviewed solely on the basis of a Class I assessment.
(4) The public notice procedures for actions that will affect
floodplains, wetlands, important farmlands, prime rangelands or
prime forest lands are contained in Exhibit C of this subpart.
These procedures apply to actions that require either an EIS, Class
II assessment or Class I assessment. However, whenever an action
normally classified as a categorical exclusion requires a Class I
assessment because of a potential impact to one of these important
land resources, no public notice procedures apply in the course of
completing the Class I assessment. When applicable to an action, as
specified in Exhibit C of this subpart, these public notice
procedures can apply at two distinct stages. The first stage, a
preliminary notice, applies to any of the five important land
resources. The second stage, a final notice, is followed by a
fifteen-day public review period and applies only to actions that
will impact floodplains or wetlands. For Class II actions, this
final notice procedure must be combined with any applicable finding
of no significant environmental impact, which is described in
paragraph (b)(3) of this section. Individual copies of the
preliminary and final notices will be sent to the same parties that
are required to be sent a notice of a finding of no significant
impact, as specified in paragraph (b)(3) of this
62
§1940.331 (b)(4)(Cont.)
RD Instruction 1940-G
section, with the following exception. Whenever property owners
affected by proposed mitigation measures, such as proposed hook-up
restrictions on portions of water or sewer lines that will traverse
floodplains, are advised of these proposed measures in a preliminary
notice, these property owners need not be sent copies of the final
notice as long as the mitigation measures in the final notice are
unchanged from the preliminary notice and no property owners raised
objections or concerns over the mitigation measures.
(5) The public notice requirements associated with holding a public
information meeting are specified in paragraph (c) of this section.
(c)
Public information meetings.
(1) Public information meetings will be held for an action
undergoing an EIS as specified in §1940.320 of this subpart. As
part of the EIS process, a public information meeting will be held
near the project site to discuss and receive comments on the draft
EIS. It will be scheduled no sooner than 15 days after the release
of the draft EIS. It will be announced in the same manner as the
scoping meeting, and the list of parties receiving an individual
notification will also be developed in the same manner. The meeting
will be chaired by the State Director or a designee and will be
fully recorded so that a transcript can be produced. The applicant
will be requested to assist in obtaining a facility for holding the
meeting. To the extent possible, this meeting will be combined with
public meetings required by other involved agencies.
(2) Whenever a public information meeting is held as part of the
completion of an environmental assessment, it will be scheduled,
announced, and held in generally the same manner as a public
information meeting for an EIS. However, a minimum of 7 days
advance notice of the meeting is sufficient, and a transcript of the
meeting will not be required. Rather a summary of the meeting to
include the major issues raised will be prepared by the Rural
Development official who chaired the meeting.
(d) Distribution of environmental documents. Rural Development
officials will promptly provide to interested parties, upon request,
copies of environmental documents, including environmental assessments,
draft and final environmental impact statements, and records of
decision. Interested parties can request these materials from the
appropriate State Director or approval official for project activities
and from the Administrator on other activities subject to environmental
review.
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§1940.332
§1940.332
Emergencies.
(a) Action Requiring EIS. When an emergency circumstance makes it
necessary to take an action with significant environmental impact
without observing the provisions of this subpart or the CEQ regulations,
the Administrator will consult with CEQ about alternative arrangements
before the proposed action is taken. It must be recognized that CEQ's
regulations limit such arrangements to actions necessary to control the
immediate impacts of the emergency. Other actions remain subject to
NEPA review. For purposes of this subpart, an emergency circumstance is
defined as one involving an immediate or imminent danger to public
health or safety.
(b) Action Not Requiring EIS. When an emergency circumstance makes it
necessary to take an action with apparent non-significant environmental
impact without observing the provisions of this subpart or the CEQ
regulations, the Administrator will be so notified. The Administrator
reserves the authority to waive or amend all procedural aspects of this
subpart relating to the preparation of environmental assessments
including but not limited to the applicant's submission of Form RD 194020, public notice requirements and/or their associated comment periods,
the timing of the assessment process, and the content of environmental
review documents. Alternative arrangements will be established on a
case by case basis taking into account the nature of the emergency and
the time reasonably available to respond to it. These alternative
arrangements will, to the extent possible, attempt to achieve the
substantive requirements of this subpart such as avoiding impacts to
important land resources, when practicable, and minimizing potential
adverse environmental impacts. In all cases, the environmental findings
and determinations required for Class I and Class II assessments must be
executed by the appropriate Rural Development officials prior to
approval of the action and be based upon the best information available
under the circumstances and the prescribed alternative arrangements.
(Refer to paragraph (a) of this section should the approval official for
the action determine that an EIS is necessary.) Additionally, all
applicable consultation and coordination procedures required by law or
regulation will be initiated with the appropriate Federal or State
agency(s). Such procedures will be accomplished in the most expeditious
manner possible and modified to the extent necessary and mutually
agreeable between Rural Development and the affected agency(s). The
provisions of this paragraph are limited to the same emergency
circumstances and scope of action as specified in paragraph (a) of this
section.
§1940.333
Applicability to planning assistance.
The award of Rural Development funds for the purpose of providing
technical assistance or planning assistance will not be subject to any
environmental
64
§1940.333 (Cont.)
RD Instruction 1940-G
review. However, applicants will be expected to consider in the development
of their plans and to generally document within their plans:
(a) The existing environmental quality and the important environmental
factors within the planning area, and
(b) The potential environmental impacts on the planning area of the
plan as well as the alternative planning strategies that were reviewed.
§1940.334 Direct participation of State Agencies in the preparation of Rural
Development EISs.
Rural Development may be assisted by a State Agency in the preparation
of an EIS subject to the conditions indicated below. At no time, however, is
Rural Development relieved of its responsibilities for the scope, objectivity,
and content of the entire statement or any other responsibility under NEPA.
(a) The Rural Development applicant for financial assistance is a State
Agency having statewide jurisdiction and responsibility for the proposed
action;
(b) Rural Development furnishes guidance to the State Agency as to the
scope and content of the impact statement and participates in the
preparation;
(c) Rural Development independently evaluates the statement and
rectifies any major deficiencies prior to its circulation by the Agency
as an EIS;
(d) Rural Development provides, early in the planning stages of the
project, notification to and solicits the views of any land management
entity (State or Federal Agency responsible for the management or
control of public lands) concerning any portion of the project and its
alternatives which may have significant impacts upon such land
management entities; and
(e) If there is any disagreement on the impacts addressed by the review
process outlined in paragraph (d) of this section, Rural Development
prepares a written assessment of these impacts and the views of the land
management entities for incorporation into the draft impact statement.
§1940.335 Environmental review of Rural Development proposals for
legislation.
(a) As stated in §1940.312(d)(4) of this subpart, all Rural Development
proposals for legislation will receive an environmental assessment. The
definition of such a proposal is contained in Section 1508.17 of the CEQ
regulations.
(b) The environmental assessment and, when necessary, the EIS will be
prepared by the responsible Agency staff that is developing the
legislation.
65
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SPECIAL PN
RD Instruction 1940-G
§1940.335 (Cont.)
(c) If an EIS is required, it will be prepared according to the
requirements of Section 1506.8 of the CEQ Regulations.
§1940.336
Contracting for professional services.
(a) Assistance from outside experts and professionals can be secured
for the purpose of completing EISs, assessments, or portions of them.
Such assistance will be secured according to the Federal and Agriculture
Procurement Regulations contained in Chapters 1 and 4 of Title 48 of the
Code of Federal Regulations.
(b) The contractor will be selected by Rural Development in
consultation with any cooperating agencies. In order to avoid any
conflict of interest, contractors competing for the work will be
required to execute a disclosure statement specifying that they have no
financial or other interest in the outcome of the project.
(c) The Administrator will provide the State Director with a proposed
scope of work for use in securing such professional services.
(d) Applicants will not be required to pay the costs of these
professional services.
§1940.337 - §1940.349
§1940.350
[Reserved]
Office of Management and Budget (OMB) control number.
The collection of information requirements in this regulation has been
approved by the Office of Management and Budget and has been assigned OMB
control number 0575-0094.
Attachments:
Exhibits A, B, C, D, E, F, G (Reserved), H, I, J, K, L,
and M
oOo
66
Exhibit A not automated see manual.
RD Instruction 1940-G
Exhibit B
Development and Implementation of
Natural Resource Management Guide
1. The State Director shall complete the natural resource management guide
within 12 months from the effective date of this Subpart and issue the guide
as a State supplement after prior approval by the Administrator. A summary of
the basic content, purposes, and uses of the guide is contained in §1940.305
of this Subpart. The guide shall be prepared in draft form and be provided
for review and comment to USDA agencies, appropriate Federal and State
agencies, State and regional review agencies assigned the consultation
requirements of Executive Order 12372, as well as interested localities,
groups, and citizens. Also at least one public information meeting shall be
held on the draft which shall be followed by a 30-day period for the
submission of public comments. Public notification of this meeting shall be
made in the same manner as the notification process for a scoping meeting.
(See §1940.320(c) of this Subpart). Additionally, the public shall be
informed that copies of the draft guide will be made available from the State
Office upon request. After completion of this public review, the draft will
be revised as necessary in light of the comments received and provided as a
final draft State Supplement to the Administrator for review and approval.
Any concerns and comments of the Administrator will be addressed by the State
Director and the guide completed. Upon the Administrator's approval and the
fulfillment of the requirements of paragraph 4. of this Exhibit, the natural
resource management guide shall then become part of any program investment
strategies developed by the State Director for the purpose of addressing the
rural needs of the state. Although a 12-month period has been established for
the completion of a natural resource management guide, this deadline is not to
be construed as curtailing or postponing the implementation of existing
environmental laws, regulations, Executive orders or the Departmental
Regulation 9500-3, Land Use Policy, with respect to individual project
reviews, nor giving anyone any rights or claims with respect to the completion
or content of the guide.
2. The natural resource management guide needs to be developed in full
recognition of its role as an internal Agency planning tool and with
sensitivity to the Agency's mission.
3. After the Administrator approves the natural resource management guide, it
will become effective 4 months from that date. This interim period shall be
used to inform local, State, and Federal agencies, localities, organizations,
and interested citizens of the content of the guide. In
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SPECIAL PN
RD Instruction 1940-G
Exhibit B
Page 2
3 (Con.)
this manner, those parties intending to seek Rural Development assistance or
to coordinate Rural Development assistance programs with their own programs
will be able to gain for their planning needs an understanding of our guide.
4. Completed natural resource management guides shall be reviewed every 2
years and updated by the State Director to reflect newly identified
geographical areas of concern or policy revisions at the national, State,
regional or local level. They will also be revised, as necessary, through
appropriate guidance from the Administrator. Revisions shall be transmitted
to the Administrator for postapproval and shall be considered approved if
either no comments are raised by the administrator within 30 days of receipt
of the State Director's transmittal letter or the Administrator specifically
approves them before the 30 days expire. Public review of a revision will not
be required. However, if in the opinion of the State Director the proposed
revision will substantially change the previously adopted natural resource
management guide, a public review shall be conducted of the revision in the
same manner as that described in paragraph 1 of this Exhibit for the
development of the original guide. Such review shall occur prior to the
transmittal of the revision to the Administrator. If the State Director
believes that at the expiration of any 2-year review period there is need to
update the guide, a statement to this effect shall be filed with the
Administrator.
5. The foundation for the natural resource management guide is the
identification of the types of land uses or environmental factors deserving
attention and their geographical location within the State. An inventory or
listing shall be developed, therefore, of the important land uses within the
State. This inventory will be accomplished by assembling existing data and
information compiled by those Federal, State, and local agencies that have
jurisdiction or expertise regarding the land uses or environmental factors.
At a minimum, the inventory shall consist of available documents, listings,
maps, or graphic materials describing the location of the following:
a. National Register of Historic Places to include monthly supplements
as designated by the Department of the Interior (DOI), and the State
Historic Preservation Plans. This list is issued as a State Supplement
to Subpart F or Part 1901 of this Chapter.
b. Rivers designated as part of the Wild and Scenic Rivers System and
rivers under study for inclusion in the system, as published by DOI;
c.
Important farmlands;
RD Instruction 1940-G
Exhibit B
Page 3
d.
Prime rangelands;
e.
Prime forestlands;
f.
Wetland inventory;
g. Floodplain inventory as issued by the Federal Emergency Management
Administration;
h. Endangered Species and Critical Habitats as listed or proposed for
listing by the Department of Commerce (DOC) and DOI;
i. Sole source aquifer recharge areas as designated by the
Environmental Protection Agency (EPA);
j.
Air Quality Control Regions as designated by EPA;
k.
National Registry of Natural Landmarks at published by DOI;
l.
Coastal Barrier Resources System;
m. State inventories or planning documents identifying important land
uses, particularly those not covered by the above items, such as
wildlife refuges, important habitats, and areas of high water quality,
or scenic or recreational value;
n. Agricultural districts or other similar zoning classifications for
agricultural land protection; and
o.
Coastal Zone Management Areas.
6. The Administrator shall be responsible for assisting State Directors in
obtaining listings and inventories of resources protected by Federal statutes
and regulations. The State Director has the responsibility for assembling
documents on important environmental resources or areas identified in State
and substate laws, regulations, plans, and policies.
7. Development of the inventory by the State Director will require
consultation and assistance from a variety of agencies and experts. This
consultation should begin with Department agencies and be accomplished through
appropriate, State-level USDA committees. The objective should be to
determine the land classification data that has been compiled and that which
is in the process of being compiled either by USDA agencies or their
counterparts
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SPECIAL PN
RD Instruction 1940-G
Exhibit B
Page 4
7 (Cont.)
at the state level. The Memorandum of Understanding executed in May 1979
between the Soil Conservation Service (SCS) and Rural Development should be
utilized as the basis for seeking SCS's assistance in this data collection
effort. (See RD Instruction 2000-D, Exhibit A, which is available in any
Rural Development Office.) Direct contacts should then be made with State
agencies, in particular with the appropriate office of State planning, to
determine the availability of State inventories and State land use policies
and priorities. Similar discussions should be held with substate regional
planning agencies and clearinghouses with assistance being provided in this
effort by District Directors. County Supervisors shall contact local
officials and shall be responsible for being familiar with and for assembling
similar inventories, land use policies, or protective requirements developed
by the local government agencies within the supervisor's territorial
jurisdiction.
8. Another important element of the natural resource management guide shall
be the examination of any major environmental impacts on the State or a
substate area resulting from the cumulative effects of Rural Developmentassisted projects over the last several years. In this examination,
particular emphasis should be given to the cumulative impacts of water
resource projects such as irrigation systems. This should be done in
consultation with experts within the appropriate State agencies and the U.S.
Geological Survey. The housing programs should also be given a particular
emphasis with respect to their cumulative impacts. More detailed guidance on
the accomplishment of this cumulative impact section of the natural resource
management guide, as well as the overall content of the guide, shall be
provided by the Administrator. In preparing the State's natural resource
management guide and in assembling inventories of critical resources, Agency
staff should not lose sight of the basic purposes of this effort. The
development of lengthy and complex guides and the amassing of huge inventories
is not our goal. In the end, the material must be useable and serve as a tool
for better decision making. The basic purposes of this guide and inventory,
then, are to provide a basis for developing comprehensive, statewide, rural
development investment strategies that (i) do not conflict with Federal,
State, and local mandates to preserve and protect important land and
environmental resources, (ii) that do not create short- or long-term
development pressures which would lead to the unnecessary conversion of these
resources, and (iii) which effectively support and enhance Federal, State, and
local plans to preserve these resources.
oOo
RD Instruction 1940-G
Exhibit C
Implementation Procedures for the Farmland
Protection Policy Act; Executive Order 11988,
Floodplain Management; Executive Order 11990, Protection
of Wetlands; and Departmental Regulation 9500-3,
Land Use Policy
1. Background. The Subtitle I of the Agriculture and Food Act of 1981,
Public Law 97-98, created the Farmland Protection Policy Act. The Act
requires the consideration of alternatives when an applicant's proposal would
result in the conversion of important farmland to nonagricultural uses. The
Act also requires that Federal programs, to the extent practicable, be
compatible with State, local government, and private programs and policies to
protect farmland. The Soil Conservation Service (SCS), as required by the
Act, has promulgated implementation procedures for the Act at 7 CFR Part 658
which are hereafter referred to as the SCS rule. This rule applies to all
federal agencies. The Departmental Regulation 9500-3, Land Use Policy (the
Departmental Regulation), also requires the consideration of alternatives but
is much broader than the Act in that it addresses the conversion of land
resources other than farmland. The Departmental Regulation is included as
Exhibit A to this subpart and affects only USDA agencies. For additional
requirements that apply to some Farmer Program loans and guarantees and loans
to an Indian Tribe or Tribal Corporation and that cover the conservation of
wetlands and highly erodible land, see Exhibit M of this subpart.
2. Implementation. Each proposed lease or disposal of real property by Rural
Development and application for financial assistance or subdivision approval
will be reviewed to determine if it would result in the conversion of a land
resource addressed in the Act, Executive Orders, or Departmental Regulation
and as further specified below. Those actions that are determined to result
in the lease, disposal or financing of an existing farm, residential,
commercial or industrial property with no reasonably foreseeable change in
land use and those actions that solely involve the renovation of existing
structures or facilities would require no further review.* Since these actions
have no potential to convert land uses, this finding would simply be made by
the preparer in completing the environmental assessment for the action. Also,
actions that convert important farmland through the construction of on-farm
structures necessary for farm operations are exempt from the farmland
protection provisions of this Exhibit. For other actions, the following
implementation steps must be taken:
*See special procedures in item 3 of this Exhibit if the existing structure or
real property is located in a floodplain or wetland.
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit C
Page 2
2 (Cont.)
a. Determine whether important land resources are involved. The Act
comes into play whenever there is a potential to affect important
farmland. The Departmental Regulation covers important farmland as well
as the following land resources: prime forest land, prime rangeland,
wetlands and floodplains. Hereafter, these land resources are referred
to collectively as important land resources. Definitions for these land
resources are contained in the Appendix to the Departmental Regulation.
The SCS rule also defines important farmland for purposes of the Act.
Since the SCS's definition of prime farmland differs from the
Departmental Regulation's definition, both definitions must be used and
if either or both apply, the provisions of this Exhibit must be
implemented. It is important to note the definition of important
farmland in both the SCS rule and the Departmental Regulation because it
includes not only prime and unique farmland but additional farmland that
has been designated by a unit of State or local government to be of
statewide or local importance and such designation has been concurred in
by the Secretary acting through SCS. In completing the environmental
assessment or Form RD 1940-22, "Environmental Checklist For Categorical
Exclusions," the preparer must determine if the project is either
located in or will affect one or more of the land resources covered by
the SCS rule or the Departmental Regulation. Methods for determining
the location of important land resources on a project-by-project basis
are discussed immediately below. As reflected several times in this
discussion, SCS personnel can be of great assistance in making
agricultural land and natural resource evaluation, particularly when
there is no readily available documentation of important land resources
within the project's area of environmental impact. It should be
remembered that Rural Development and SCS have executed a Memorandum of
Understanding in order to facilitate site review assistance. (See RD
Instruction 2000-D, Exhibit A, available in any Rural Development
office.)
(1) Important Farmland, Prime Forest Land, Prime Rangeland - The
preparer of the environmental review document will review available
SCS important farmland maps to determine if the general area within
which the project is located contains important farmland. Because
of the large scale of the important farmland maps, the maps should
be used for general review purposes only and not to determine if
sites of 40 acres or less contain important farmland. If the
general area contains important farmland
RD Instruction 1940-G
Exhibit C
Page 3
2a (1) (Cont.)
or if no important farmland map exists for the project area, the
preparer of the environmental review will request SCS's opinion on
the presence of important farmland by completing Form AD-1006,
"Farmland Conversion Impact Rating," according to its instructions,
and transmitting it to the SCS local field office having
jurisdiction over the project area. This request will also indicate
that SCS's opinion is needed regarding the application to the
project site of both definitions of prime farmland, the one
contained within its rule and the one contained within the
Departmental Regulation. SCS's opinion is controlling with respect
to the former definition and advisory with respect to the latter.
No request need be sent to SCS for an action meeting one of the
exemptions contained in item number 2 of this exhibit.
(2) Floodplain - Review the most current Flood Insurance Rate Map
or Flood Insurance Study issued for the project area by the Federal
Emergency Management Administration (FEMA). Information on the most
current map available or how to obtain a map free of charge is
available by calling FEMA's toll free number 800-6386620. When more
specific information is needed on the location of a floodplain, for
example, the project site may be near the boundary of a floodplain;
or for assistance in analyzing floodplain impacts, it is often
helpful to contact FEMA's regional office staff. Exhibit J of this
subpart contains a listing of these regional offices and the
appropriate telephone numbers.
If a FEMA floodplain map has not been prepared for a project area,
detailed assistance is normally available from the following
agencies: The U.S. Fish and Wildlife Service (FWS), SCS, Corps of
Engineers, U.S. Geological Survey (USGS), or appropriate regional or
State agencies established for flood prevention purposes.
(3) Wetlands - FWS is presently preparing wetland maps for the
nation. Each FWS regional office has a staff member called a
Wetland Coordinator. These individuals can provide updated
information concerning the status of wetland mapping by FWS and
information on State and local wetland surveys. Exhibit K of this
subpart contains a listing of Wetland Coordinators arranged by FWS
regional office and geographical area of jurisdiction. If the
proposed project area has not been inventoried, information can be
obtained by using topographic and soils maps or aerial
(10-19-88)
SPECIAL PN
Instruction 1940-G
Exhibit C
Page 4
2 a (3) (Cont.)
photographs. State-specific lists of wetland soils and wetland
vegetation are also available from the FWS Regional Wetland
coordinators. A site visit can disclose evidence of vegetation
typically associated with wetland areas. Also, the assistance of
FWS field staff in reviewing the site can often be the most
effective means. Because of the unique wetland definition used in
Exhibit M of this subpart, SCS wetland determinations are required
for implementing the wetland conservation requirements of that
Exhibit.
b.
Findings
(1) Scope - Although information on the location and the
classification of important land resources should be gathered from
appropriate expert sources, as well as their views on possible ways
to avoid or reduce the adverse effects of a proposed conversion, it
must be remembered that it is Rural Development's responsibility to
weigh and judge the feasibility of alternatives and to determine
whether any proposed land use change is in accordance with the
implementation requirements of the Act and the Departmental
Regulation. Consequently, after reviewing as necessary, the project
site, applicable land classification data, or the results of
consultations with appropriate expert agencies, the Rural
Development preparer must determine, as the second implementation
step, whether the applicant's proposal:
(a) Is compatible with State, unit or local government, and
private programs and policies to protect farmland; and
(b)
Either will have no effect on important land resources; or
(c) If there will be a direct or indirect conversion of such a
resource, (i) whether practicable alternatives exist to avoid
the conversion; and
(d) If there are no alternatives, whether there are
practicable measures to reduce the amount of the conversion.
RD Instruction 1940-G
Exhibit C
Page 5
2 b (Cont.)
(2) Determination of No Effect - If the preparer determines that
there is no potential for conversion and that the proposal is
compatible, this determination must be so documented in the
environmental assessment for a Class II action or the appropriate
compliance blocks checked in the Class I assessment or Checklist for
Categorical Exclusions based on whichever document is applicable to
the action being reviewed.
(3) Determination of Effect or Incompatibility - Whenever the
preparer determines that an applicant's proposal may result in the
direct or indirect conversion of an important land resource or may
be incompatible with State, unit of local government, or private
programs and policies to protect farmland, the following further
steps must be taken.
(a) Search for Practicable Alternatives* - In consultation
with the applicant and the interested public, the preparer will
carefully analyze the availability of practicable alternatives
that avoid the conversion or incompatibility. Possible
alternatives include:
(i)
The selection of an alternative site;
(ii) The selection of an alternative means to meet the
applicant's objectives; or
(iii) The denial of the application, i.e., the
no-action alternative.
When the resource that may be converted is important farmland,
the preparer will follow the Land Evaluation and Site
Assessment (LESA) point system contained within the SCS rule in
order to evaluate the feasibility of alternatives. When the
proposed site receives a total score of less than 160 points,
no additional sites need to be evaluated.
*When the action involves the disposal of real property determined not
suitable for disposition to persons eligible for Rural Development's
financial assistance programs, the consideration of alternatives is
limited to those that would result in the best price.
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit C
Page 6
2 b (3) (a)
Rather than use the SCS LESA point system, the State Director
has the authority to use State or local LESA systems that have
been approved by the governing body of such jurisdiction and
the SCS state conservationist. After this authority is
exercised, it must be used for all applicable Rural Development
actions within the jurisdiction of that approved LESA system.
(b) Inform the Public - The Departmental Regulation requires
us in Section 6, Responsibilities, to notify the affected
landholders at the earliest time practicable of the proposed
action and to provide them an opportunity to review the
elements of the action and to comment on the action's
feasibility and alternatives to it. This notification
requirement only applies to Class I and Class II actions and
not to categorical exclusions that lose their status as an
exclusion for any of the reasons stated in §1940.317(e) of this
subpart. The notification will be published and documented in
the manner specified in §1940.331 of this subpart and will
contain the following information:
(i) A brief description of the application or proposal
and its location;
(ii) The type(s) and amount of important land resources
to be affected;
(iii) A statement that the application or proposal is
available for review at an Rural Development field office
(specify the one having jurisdiction over the project
area); and
(iv) A statement that any person interested in commenting
on the application or proposal's feasibility and
alternatives to it may do so by providing such comments to
Rural Development within 30 days following the date of
publication. (Specify the Rural Development office
processing the application or proposal for receipt of
comments.)
RD Instruction 1940-G
Exhibit C
Page 7
2 b (3) (b) (Cont.)
Further consideration of the application or proposal must
be delayed until expiration of the public comment period.
Consequently, publication of the notice as early as
possible in the review process is both in the public's and
the applicant's interest. Any comments received must be
considered and addressed in the subsequent Agency analysis
of alternatives and mitigation measures. It should be
understood that scheduling a public information meeting is
not required but may be helpful based on the number of
comments received and types of issues raised.
(c)
Determine Whether Practicable Alternative Exists
(i) Alternative exists - If the preparer concludes that a
practicable alternative exists, the preparer will complete
step 2 b (3) (e) (ii) of this exhibit and transmit the
assessment for the approving official's review in the
manner specified in §1940.316 of this subpart. If the
findings of this review are similar to the preparer's
recommendation, Rural Development will inform the
applicant of such findings and processing of the
application will be discontinued. Should the applicant
still desire to pursue the proposal, the applicant is
certainly free to do so but not with the further
assistance of Rural Development. Should the applicant be
interested in amending the application to reflect the
results of the alternative analysis, the preparer will
work closely with the applicant to this end. Upon receipt
of the amended application, the preparer must reinstitute
this implementation process at that point which avoids the
duplication of analysis and data collection undertaken in
the original review process.
If the results of the approving official(s) review differs
from the preparer's recommendations, the former will
ensure that the findings are appropriately documented in
step 2 b (3) (e) (ii) of this exhibit and any remaining
consideration given to mitigation measures, step 2 b (3)
(d) of this exhibit.
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit C
Page 8
2 b (3) (c) (Cont.)
(ii) No Practicable Alternative Exists - On the other
hand, if the preparer concludes that there is no
practicable alternative to the conversion, the preparer
must then continue with step 2 b (3) (d) of this exhibit,
immediately below.
(d) Search for Mitigation Measures - Once the preparer
determines that there is no practicable alternative to avoiding
the conversion or incompatibility, including the no-action
alternative, all practicable measures for reducing the direct
and indirect amount of the conversion must be included in the
application. Some examples of mitigation measures would
include reducing the size of the project which thereby reduces
the amount of the important land resource to be converted.
This is a particularly effective mitigation measure when the
resource is present in a small area, as is often the case with
wetlands or floodplains. A corresponding method of mitigation
would be to maintain the project size or number of units but
decrease the amount of land affected by increasing the density
of use. Finally, mitigation can go as far as the selection of
an alternative site. For example, in a housing market area
composed almost entirely of important farmland, any new
proposed subdivision site would result in conversion. However,
a proposed site within or contiguous to an existing community
has much less conversion potential, especially indirect
potential, than a site a mile or two from the community. The
LESA system can also be used to identify mitigation measures
when the conversion of important farmland cannot be avoided.
(e) Document Findings - Upon completion of the above steps, a
written summary of the steps taken and the reasons for the
recommendations reached shall be included in the environmental
assessment along with either one of the following
recommendations as applicable. The following example assumes
that important farmland is the affected resource and that the
inappropriate phrase within the brackets would be deleted.
RD Instruction 1940-G
Exhibit C
Page 9
2 (b) (3) (e) (Cont.)
(i) The application would result in the direct or
indirect conversion of important farmland and (is/is not)
compatible with State, unit of local government, or
private programs and policies to protect farmland. It is
recommended that Rural Development determine, based upon
the attached analysis, that there is no practicable
alternative to this and that the application contains all
practicable measures for reducing the amount of conversion
(or limiting the extent of any identified
incompatibility.)
(ii) The application would result in direct or indirect
conversion of important farmland and (is/is not)
incompatible with State, unit of local government, or
private programs and policies to protect farmland. It is
recommended that Rural Development determine, based upon
the attached analysis, that there is a practicable
alternative to this action, and that processing of this
application be discontinued.
(f) Implement findings - The completed environmental
assessment and the Agency's determination of compliance with
the Act, the Departmental Regulation and Executive orders will
be processed and made according to §1940.316 of this subpart.
Whenever this determination is as stated in step 2 b (3) (e)
(i) above, the action will be so structured as to ensure that
any recommended mitigation measures are accomplished. See
§1940.318(g) of this subpart. Whenever the determination is as
stated in step 2 b (3) (e) (ii) above, the applicant shall be
so informed and processing of the application discontinued.
Any further Rural Development involvement will be as specified
in Item 2 b (3) (c) (i) of this exhibit.
3. Special Procedures and Considerations When a Floodplain or Wetland Is The
Affected Resource Under Executive Order 11988 and 11990.
a.
Scope.
(1) Geographical Area - The geographical area that must be considered
when a floodplain is affected varies with
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit C Page 10
3 a (1) (Cont.)
the type of action under consideration. Normally the implementation
procedures beginning in Item 2a of this Exhibit are required when the
action will impact, directly or indirectly, the 100-year floodplain.
However, when the action is determined by the preparer to be a critical
action, the minimum floodplain of concern is the 500-year floodplain. A
critical action is an action which, if located or carried out within a
floodplain, poses a greater than normal risk for flood-caused loss of
life or property. Critical actions include but are not limited to
actions which create or extend the useful life of the following
facilities:
(a) Those facilities which produce, use, or store highly volatile,
flammable, explosive, toxic or water-reactive materials;
(b) Schools, hospitals, and nursing homes which are likely to
contain occupants who may not be sufficiently mobile to avoid the
loss of life or injury during flood and storm events;
(c) Emergency operation centers or data storage centers which
contain records or services that may become lost or inoperative
during flood and storm events; and
(d) Multi-family housing facilities designed primarily (over 50
percent) for handicapped individuals.
(2) Threshold of Impact - The Executive orders differ from the Act and
the Departmental Regulation in that the Executive orders' requirements
apply not only to the conversion of floodplains or wetlands but to any
impacts upon them. Impacts are defined as changes in the natural values
and functions of a wetland or floodplain. Therefore, there would be an
impact to a floodplain whenever either (a) the action or its related
activities would be located within a floodplain, or (b) the action
through its indirect impacts has the potential to result in development
within a floodplain. The only exception to this statement is when the
preparer determines that the locational impact is minor to the extent
that the floodplain's or wetland's natural values and functions are not
affected.
RD Instruction 1940-G
Exhibit C
Page 11
3 (Cont.)
b.
Treatment of Existing Structures.
(1) Non-Rural Development-Owned Properties - The Executive orders
can apply to actions that are already located in floodplains or
wetlands; that is, where the conversion has already occurred. The
implementation procedures beginning in item 2a of this exhibit must
be accomplished for any action located in a floodplain or wetland
and involving either (a) the purchase of an existing structure or
facility or (b) the rehabilitation, renovation, or adaptive reuse of
an existing structure or facility when the work to be done amounts
to a substantial improvement. A substantial improvement means any
repair, reconstruction, or improvement of a structure the cost of
which equals or exceeds 50 percent of the market value of the
structure either (a) before the improvement or repair is started, or
(b) if the structure has been damaged, and is being restored, before
the damage occurred. The term does not include (a) any project for
improvement of a structure to comply with existing State or local
health sanitary or safety code specifications which are solely
necessary to assure safe living conditions or (b) any alteration of
a structure listed on the National Register of Historic Places or a
State Inventory of Historic Places.
(2) Rural Development-Owned Real Property - The requirement in
paragraph 3 b (1) immediately above also applies to any substantial
improvements made to Rural Development-owned real property with the
exception of the public notice requirements of this exhibit.
Irrespective of any improvements, whenever Rural Development real
property located in a floodplain or wetland is proposed for lease or
sale, the official responsible for the conveyance must determine if
the property can be safely used. If not, the property should not be
sold or leased. Otherwise, the conveyance must specify those uses
that are restricted under identified Federal, State, and local
floodplains or wetlands regulations as well as other appropriate
restrictions, as determined by the Rural Development official
responsible for the conveyance, to the uses of the property by the
leasee or purchaser and any successors, except where prohibited by
law. Appropriate restrictions will be developed in consultation
with the U.S. Fish and Wildlife Service (FWS) as specified in the
Memorandum of Understanding with FWS contained in Subpart LL of Part
2000 of this chapter. Applicable restrictions will be incorporated
into quitclaim deeds with the consent and approval of the Regional
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SPECIAL PN
RD Instruction 1940-G
Exhibit C
Page 12
3 b (2) (Cont.)
Attorney, Office of the General Counsel. Upon application by the
owner of any property so affected and upon determination by the
appropriate Rural Development official that the condition for which
a deed restriction was imposed no longer exists, the restriction
clause may be released. A listing of any restrictions shall be
included in any notices announcing the proposed sale or lease of the
property. At the time of first inquiry, prospective purchasers must
be informed of the property's location in a floodplain or wetland
and the use restrictions that will apply. A written notification to
this effect must be provided to the prospective purchaser who must
acknowledge the receipt of the notice. See Item 3 d of this exhibit
and Subpart C of Part 1955 of this Chapter for guidance on the
proper formats to be used with respect to notices and deed
restrictions. The steps and analysis conducted to comply with the
requirements of this paragraph must be documented in the
environmental review document for the proposed lease or sale.
c.
Mitigation measures.
(1) Alternative Sites - As with the Act and the Departmental
Regulation, the main focus of the review process must be to locate
an alternative that avoids the impact to a floodplain or wetland.
When this is not practicable, mitigation measures must be developed
to reduce the impact which in the case of a floodplain or wetland
can include finding another site, i.e., a safer site. The latter
would be a site at a higher elevation within the floodplain and/or
exposed to lower velocity floodflows.
(2) Nonstructural Mitigation Measures - Mitigation measures under
the Executive orders are intended to serve the following three
purposes: reduce the risks to human safety, reduce the possible
damage to structures, and reduce the disruption to the natural
values and functions of floodplains and wetlands. More traditional
structural measures, such as filling in the floodplain, cannot
accomplish these three purposes and, in fact, conflict with the
third purpose. Nonstructural flood protection methods,
consequently, must be given priority consideration. These methods
are intended to preserve, restore, or imitate
RD Instruction 1940-G
Exhibit C
Page 13
3 c (2) (Cont.)
natural hydrologic conditions and, thereby, eliminate or reduce the
need for structural alteration of water bodies or their associated
floodplains and wetlands. Such methods may be either physical or
managerial in character. Nonstructural flood protection methods are
measures which:
(a) Control the uses and occupancy of floodplains and
wetlands, e.g., floodplain zoning and subdivision regulation;
(b) Preserve floodplain and wetland values and functions
through public ownership, e.g., fee title, easements and
development rights;
(c) Delay or reduce the amount of runoff from paved surfaces
and roofed structures discharged into a floodway, e.g.,
construction of detention basins and use of flow restricting
barriers on roofs;
(d) Maintain natural rates of infiltration in developed or
developing areas, e.g., construction of seepage or recharge
basins and minimization of paved areas;
(e) Protect streambanks and shorelines with vegetative and
other natural cover, e.g., use of aquatic and water-loving
woody plants;
(f) Restore and preserve floodplain and wetland values and
functions and protect life and property through regulation,
e.g., flood-proofing building codes which require all
structures and installations to be elevated on stilts above the
level of the base flood; and
(g) Control soil erosion and sedimentation, e.g., construction
of sediment basins, stabilization of exposed soils with sod and
minimization of exposed soil.
(3) Avoid Filling in Floodplains - As indicated above, the
Executive orders place a major emphasis on not filling in
floodplains in order to protect their natural values and functions.
Executive Order 11988 states "agencies
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit C
Page 14
3 c (3) (Cont.)
shall, wherever practicable, elevate structures above the base flood
level rather than filling in land."
d.
Additional Notification Requirement.
(1) Final Notice - Where it is not possible to avoid an impact to a
floodplain or wetland and after all practicable mitigation measures
have been identified and agreed to by the prospective applicant, a
final notice of the proposed action must be published. This notice
will either be part of the notice required for the completion of a
Class II assessment or a separate notice if a Class I assessment or
an EIS has been completed for the action. The notice will be
published and distributed in the manner specified in §1940.331 of
this subpart and contain the following information.
(a) A description of the proposed action, its location, and
the surrounding area;
(b) A description of the floodplain or wetland impacts and the
mechanisms to be used to mitigate them;
(c) A statement of why the proposed action must be located in
a floodplain or a wetland;
(d) A description of all significant facts considered in
making this determination;
(e) A statement indicating whether the actions conform to
applicable State or local floodplain protection standards; and
(f) A statement listing other involved agencies and
individuals.
(2) Private Party Notification - For all actions to be located in
floodplains or wetlands in which a private party is participating as
an applicant, purchaser, or financier, it shall be the
responsibility of the approving official to inform in writing all
such parties of the hazards associated with such locations.
RD Instruction 1940-G
Exhibit C
Page 15
4. The Relationship of the Executive Orders to the National Flood
Insurance Program.
The National Flood Insurance Program establishes the floodplain
management criteria for participating communities as well as the
performance standards for building in floodplains so that the
structure is protected against flood risks. As such, flood
insurance should be viewed only as a financial mitigation measure
that must be utilized only after Rural Development determines that
there is no practicable alternative for avoiding construction in the
floodplain and that all practicable mitigation measures have been
included in the proposal. That is, for a proposal to be located in
the floodplain, it is not sufficient simply to require insurance.
The Agency's flood insurance requirements are explained in Subpart B
of Part 1806 of this chapter (RD Instruction 426.2). It should be
understood that an applicant proposing to build in the floodplain is
not even eligible for Rural Development financial assistance unless
the project area is participating in the National Flood Insurance
Program.
oOo
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit D
Implementation Procedures For the
Endangered Species Act
1. Rural Development shall implement the consultation procedures required
under Section 7 of the Endangered Species Act as specified in 50 CFR 402. It
is important to note that these consultation procedures apply to the disposal
of real property by Rural Development and to all Rural Development
applications for financial assistance and subdivision approval, including
those applications which are exempt from environmental assessments. (See
Section 1940.310.) Unless repeated in this paragraph, the definitions for the
terms utilized are found in 50 CFR 402.02.
2. State Directors shall ensure that State, District, and County Offices
maintain current publications of listed and proposed species as well as
critical habitats found in their respective jurisdictions.
3. When an application to Rural Development involves financial assistance or
permit approval from another Federal agency(s), the Rural Development reviewer
shall work with the other Agency to determine a lead Agency for the
consultation process. When Rural Development is not the lead Agency, the
reviewer shall ensure that the lead Agency informs the appropriate Area
Manager, U.S. Fish and Wildlife Service (FWS), or Regional Director, National
Marine Fisheries Service (NMFS), of Rural Development's involvement.
4. Each disposal action, application for financial assistance or subdivision
approval shall be reviewed by the Rural Development official responsible for
completing environmental assessments in order to determine if the proposal
either may affect a listed species or critical habitat or is likely to
jeopardize the continued existence of a proposed species or result in the
destruction or adverse modification of a proposed critical habitat.
a. For applications subject to environmental assessments, this review
shall be accomplished as part of the assessment.
b. For those applications that are excluded from an environmental
assessment, this review shall be documented as part of Form RD 1940-22,
"Environmental Checklist For Categorical Exclusions," and shall be
accomplished as early as possible after receipt of the application and
prior to approval of the application.
c. For applications subject to an environmental impact statement, Rural
Development shall request from the Area Manager, FWS, and the Regional
Director, NMFS, a list of the proposed and listed species that may be in
the area of the proposal. Within 30 days, the FWS and NMFS will respond
to Rural Development with this list. Rural Development shall then
conduct, as part of the process of preparing the draft environmental
impact statement, a biological assessment of these species to determine
which species are in the area of the proposal and how they may be
affected. This biological assessment should be completed within 180
days or a time mutually agreed upon between Rural Development and FWS or
NMFS. Upon completion of the biological assessment, if Rural
Development determines either that
(1-30-84)
SPECIAL PN
RD Instruction 1940-G
Exhibit D
Page 2
4 c (Cont.)
the proposal may affect a listed species or critical habitat or is
likely to jeopardize the continued existence of proposed species or
result in the destruction or adverse modification of proposed critical
habitat, the formal consultation procedures shall be initiated as
specified in paragraph 7b below. To the extent practical, these
procedures shall be concluded and their results reflected in the draft
EIS. For all draft EISs in which Rural Development determines there
will be no affect upon a listed or proposed species or critical habitat
and FWS or NMFS indicated the presence of such species upon the initial
inquiry, a copy of the draft shall be provided to that agency for review
and comment.
5. As indicated in paragraph 4 above, the focus of this review process is to
determine if the proposal will affect a listed species or critical habitat or
is likely to jeopardize the continued existence of a proposed species or
result in the destruction or adverse modification of a proposed critical
habitat. Because this impact terminology is specific to the Act, it is
important to understand its meaning.
a. To jeopardize the continued existence of a species means to engage
in a project which reasonably would be expected to reduce the
reproduction, numbers, or distribution of a listed species to such an
extent as to appreciably reduce the likelihood of the survival and
recovery of that species in the wild. The level of reduction necessary
to constitute jeopardy would be expected to vary among listed species.
b. The destruction or adverse modification of a critical habitat means
a direct or indirect alteration of critical habitat which appreciably
diminishes the value of that habitat for survival and recovery of a
listed species. Such alterations include but are not limited to those
diminishing the following requirements for:
(i) Space for individual and population growth and for normal
behavior;
(ii) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(iii)
(iv)
Cover or shelter;
Sites for breeding, reproduction, or rearing of offspring; and
(v) Habitats that are protected from disturbances or are
representative of the geographical distribution of listed species.
RD Instruction 1940-G
Exhibit D
Page 3
6.
It is also important to note that the consultation procedures differ when
the subject of the consultation is a listed species or critical habitat as
opposed to a proposed species or critical habitat. The latter are defined as
those that the Secretary of Interior or Commerce are considering for listing
and have so proposed through notification in the Federal Register. When
listed species or critical habitats are involved, Rural Development shall
initiate formal consultation procedures whenever it determines that a proposed
project may affect them, either beneficially or adversely. For proposed
species or critical habitats, Rural Development shall first determine if the
proposed project is likely to jeopardize the continued existence of proposed
species or result in the destruction or adverse modification of proposed
critical habitat. Whenever this determination is made, Rural Development
shall confer with the appropriate agency identified in paragraph 7 of this
Exhibit and, in so doing, shall focus on (i) determining the status of the
listing process, and (ii) attempting to cooperatively develop alternatives or
measures for inclusion in the project that avoid or mitigate the identified
adverse impacts. The results of this process shall be documented in the
environmental review being done for the proposed project and, if this review
is an environmental assessment, shall be an important factor in determining
the need for an environmental impact statement. No action shall be taken by
the approving official on the application until the requirement to confer on
proposed species or critical habitat has been completed. Paragraphs 7 through
9 of this Exhibit outline the formal consultation procedure for listed species
or critical habitats.
7. In initiating the review process for a project, the list of species and
critical habitats, including proposed, shall be examined to determine the
potential for impacts. Projects planned within established communities are
less likely to affect listed or proposed species or their critical habitat.
Projects to be located in remote areas, heavily forested areas and/or
previously undisturbed areas are more likely to affect these species. For
projects located in such areas, the reviewer shall, at a minimum, discuss the
project's potential impact on listed or proposed species with officials of the
appropriate State wildlife protection agency or the Area Manager, FWS, or the
Regional Director, NMFS, as appropriate. The latter organization generally
has responsibility for marine species. The specific list of species under
NMFS's jurisdiction can be found at 50 CFR 222.23(a) and 227.4. Such
discussions shall be considered as informal consultations and are not a
substitute for the required consultation process outlined below.
a. Whenever the reviewer, after reviewing the list and contacting
appropriate experts, formally determines that the proposal will have no
affect on a listed or proposed species or its critical habitat, these
review procedures are completed, unless new information comes to light
as discussed in paragraph 9 of this Exhibit, or consultation is
requested by the appropriate Area Manager, FWS, or Regional Director,
NMFS.
(1-30-84)
SPECIAL PN
RD Instruction 1940-G
Exhibit D
Page 4
b. If the reviewer determines there may be an effect on a listed
species or a critical habitat or is unable to make a clear
determination, the reviewer shall so inform the SEC (assuming the
reviewer is not the SEC). The latter shall either (i) convey a written
request for consultation, along with available information to the
appropriate Area Manager, FWS or Regional Director, NMFS, for the
Federal region where the proposal will be carried out, or (ii) request
Program Support Staff (PSS) to perform such consultation. Rural
Development shall initiate this formal consultation process and not the
applicant. See paragraph 4.c. of this Exhibit for initiating
consultation where an environmental impact statement is being done for
the application. Until the consultation process is completed, as
outlined in 50 CFR 402.04, Rural Development shall not approve the
application. Should the need for consultation be identified after
application approval, Rural Development shall refrain from making any
irreversible or irretrievable commitment of resources which would
foreclose the consideration of modifications or alternatives to the
identified activity or program.
8. Several possible responses may result from initiation of the formal
consultation process with each requiring further specific actions.
a. Whenever the Area Manager, FWS, or Regional Director, NMFS, informs
Rural Development that insufficient information exists to conclude the
consultation process, the SEC with assistance as feasible from the FWS
or NMFS and State sources of expertise shall then obtain additional
information and conduct, as needed, biological surveys or studies to
determine how the proposal may affect listed species or their critical
habitat. The cost and performance of such studies shall be handled in
the same manner as in the preparation of an Environmental Impact
Statement. (See §1940.336 of this Subpart.)
b. Whenever the Area Manager, FWS, or Regional Director, NMFS, responds
that the proposal will either promote the conservation of a listed
species or is not likely to jeopardize the continued existence of a
listed or proposed species or result in the destruction or adverse
modification of its critical habitat, the Rural Development reviewer
shall formally make a similar determination, attaching the response as
documentation. This concludes the formal consultation process unless
new information comes to light as discussed in paragraph 9 of this
Exhibit.
c. Whenever the results of the consultation process include
recommendations by the Area Manager, FWS, or Regional Director, NMFS,
for modifications to the project which would enhance the conservation
and protection of a listed species or its critical habitat, the State
Director shall review these recommendations and require that they be
incorporated into the project as either design
RD Instruction 1940-G
Exhibit D
Page 5 (Revision 1)
8 c (Cont.)
changes or special conditions to the offer of assistance. If the State
Director does not believe the recommendations can be so adopted, the
Administrator shall be requested to review the recommendations and to
assist in the further resolution of the matter.
d. Whenever the appropriate Area Manager, FWS, or Regional Director,
NMFS, determines that the proposal is likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of its critical habitat, the Rural Development applicant
shall be so informed and the project denied on this basis. However, if
the State Director believes that funding or approval of the application
is (i) of national, regional, or great local significance, and (ii) that
there are no reasonable and prudent alternatives to avoiding the listed
species impact, the State Director can request the Administrator,
through PSS, to review the proposal and the results of the consultation
process. Based upon this review, the Administrator shall either inform
the State Director that a request for an exemption from Section 7 of the
Endangered Species Act is not warranted and the application shall be
denied or, if the Administrator believes it is warranted, shall request
an exemption from the Endangered Species Committee established by
Section 7(e) of the Act. No action shall be taken by the State Director
on the application until the Administrator informs the State Director of
the results of the exemption request.
9. Once completed, the consultation process shall be reinitiated by Rural
Development or upon request of the appropriate Area Manager, FWS, or Regional
Director, NMFS, if:
a. New information or modification of the proposal reveals impacts that
may affect listed or proposed species or their habitats; or
b.
A new species is listed that may be affected by the proposal.
10. In completing the above compliance procedures, particularly when
consulting with the referenced agencies, formally or informally, the preparer
of the environmental review document will request information on whether any
Category I or Category II species may be present within the project area.
These are candidate species; they are presently under consideration for
listing under Section 4 of the Endangered Species Act. Category I species are
those for which FWS currently has substantial data on hand to support the
biological appropriateness of proposing to list the species as endangered or
threatened. Currently data are being gathered concerning essential habitat
needs and, for some species, data concerning the precise boundaries of
critical habitat designations. Development and publication of proposed rules
on such species is anticipated. Category II comprises species for which
information now in the possession of the FWS indicates that proposing to list
the species as endangered or threatened is possibly appropriate but for which
conclusive data on biological vulnerability and threat(s) are not currently
available to presently
(1-30-84) SPECIAL PN
RD Instruction 1940-G
Exhibit D
Page 6 (Added to 10-19-88, Special PN)
10 (Cont.)
support proposed rules. Whenever a Category I or II species may be affected,
the preparer of the environmental review document will determine if the
proposed project is likely to jeopardize the continued existence of the
species. Whenever this determination is made, the same compliance procedures
specified in paragraph 6 of this exhibit for a proposed species will be
followed. The purpose of the requirements of this paragraph is to comply with
the National Environmental Policy Act as well as Departmental Regulation 95004, Fish and Wildlife Policy, which specifies that USDA agencies will avoid
actions which may cause a species to become threatened or endangered. (Added
10-19-88, Special PN)
oOo
RD Instruction 1940-G
Exhibit E
Implementation Procedures For The
Wild and Scenic Rivers Act
1. Each application for financial assistance or subdivision approval as well
as the proposed disposal of real property by Rural Development shall be
reviewed to determine if it will affect a river or portion of it which is
either included in the National Wild and Scenic Rivers System, designated for
potential addition to the system, or identified in the Nationwide Inventory
prepared by the National Park Service (NPS) in the Department of the Interior.
The Nationwide Inventory identifies those river segments that, after
preliminary review, appear to qualify for inclusion in the system. (For
purposes of this Subpart, river segments in the Nationwide Inventory shall be
treated the same as segments within the system with the exception of paragraph
8.) For applications subject to environmental assessments, the review shall be
accomplished as part of the assessment. For applications that are excluded
from an environmental assessment, this review shall be documented as part of
Form RD 1940-22, "Environmental Checklist For Categorical Exclusions," within
the reviewing office and shall be accomplished as early as possible after
receipt of the application and prior to approval of the application. The
Rural Development official responsible for completing the environmental
assessment shall accomplish this review. (See §1940.316 of this Subpart.)
2. In order to effectively implement this review, State Directors shall
ensure that State, District and County Offices maintain current listings of
rivers within their respective States that are included in or designated for
potential addition to the system as well as those identified in the Nationwide
Inventory prepared by NPS.
3. For applications for water resources projects, as defined in §1940.302(i)
of this Subpart, the purpose of this review shall be to determine whether the
proposal would have a direct and adverse effect on the values which served as
the basis for the river's inclusion in the system or designation for potential
addition. For other applications, the purpose of the review shall be to
determine if the proposal would invade the river area or unreasonably diminish
the scenic, recreational, and fish and wildlife values present in the area.
To make these determinations, the reviewer shall consult with the appropriate
regional office of NPS if the proposal (i) would be located within one-quarter
mile of the banks of the river, (ii) involves withdrawing water from the river
or discharging water to the river via a point source, or (iii) would be
visible from the river. The appropriate regional office of the Forest Service
(FS) shall be contacted under similar circumstances when the effected river is
on FS lands. Consultation shall be initiated by a written request for
comments on the potential impacts accompanied by a description of the project
and its location. The reviewer shall consult in other instances when the
likelihood of an impact on a river in the system is identified as part of the
environmental review. When the reviewer determines there is no potential
impact on such a river, the documentation of this determination
(1-30-84)
SPECIAL PN
RD Instruction 1940-G
Exhibit E
Page 2
3 (Cont.)
concludes the review process, unless reinitiation is required under paragraph
10 of this Exhibit. In all other cases, the review is completed as specified
below in paragraphs 4 through 9 of this Exhibit.
4. If the review is at the County or District Office level, the reviewer can
request the State Director (see §1940.307 of this subpart) to perform the
above consultation. The State Director can in turn make a similar request of
the National Office. If not requested to perform the consultation for
applications approvable at the County and District Office levels, the SEC
shall be informed whenever NPS or FS advises that there is a potential for an
adverse impact on a river within the system or that protective measures need
to be included or designed into the proposal. In all cases, consultation
shall be initiated by Rural Development and not the applicant. Until
consultation is complete, Rural Development shall not approve the application.
Should the need for consultation be identified after application approval,
Rural Development shall, if still within its power at the time of
identification, refrain from making any irreversible or irretrievable
commitments of resources which would foreclose the consideration of
modifications or alternatives to the project.
5. If NPS or FS advises there is no potential for an adverse effect as
described in paragraph 3 of this Exhibit, this review process is concluded,
unless the need to reinitiate arises. (See paragraph 10 of this Exhibit.)
6. Whenever the results of the consultation process include recommendations
by NPS or FS to modify the proposal in order to avoid an adverse effect, as
described in paragraph 3 above, the State Director shall review these
recommendations and require that they be incorporated into the project as
either design changes or special conditions to the offer of assistance. If
the State Director does not believe that the Regional Director's
recommendations can be so adopted, the Administrator shall be requested to
review the recommendations and to assist in the further resolution of the
matter.
7. If NPS or FS advises that the proposal will have an unavoidable adverse
effect, as described in paragraph 3 of this Exhibit, on a river segment which
is either included in the National Wild and Scenic Rivers System or designated
for potential addition to the system, the Rural Development applicant will be
informed by the reviewing office and the application denied on this basis.
However, if the State Director disagrees with this determination, the State
Director can request the Administrator to review the proposal and attempt to
further resolve the matter. The specific reasons for disagreement along with
supporting documentation must be included in such a request. Based upon a
review of this request, the Administrator shall either inform the State
Director that no further consultation is
RD Instruction 1940-G
Exhibit E
Page 3
7 (Con.)
warranted and the application shall be denied or shall request the
headquarters staff of NPS or FS to further review the matter. No action shall
be taken by the State Director on the application until the Administrator
informs the State Director of the results of this further review and
consultation.
8. If NPS or FS advises that the proposal will have an adverse effect, as
described in paragraph 3 of this Exhibit, on a river segment identified in the
Nationwide Inventory, the reviewer shall further consult with NPS or FS in
order to formulate adequate measures or modifications to avoid or mitigate the
potential adverse effect. The purposes of such measures or modification is to
ensure that the proposal does not effectively foreclose the designation of a
wild, scenic, or recreational river segment. Once concurrence is reached and
documented with NPS or FS regarding modifications, the State Director shall
require that they be incorporated into the proposal as either design changes
or special conditions to the offer of assistance. If the State Director is
not able to reach an agreement with NPS or FS on appropriate modifications,
the Administrator shall be requested to assist in the further resolution of
the matter.
9. If an application involves financial assistance or persist approval from
another Federal Agency, the Rural Development reviewer shall work with the
other agency(s) to determine a lead Agency for the consultation process. When
Rural Development is not the lead Agency, the reviewer shall ensure that the
lead Agency informs NPS or FS of Rural Development's involvement.
10. Once completed, the consultation process shall be reinitiated by Rural
Development if new information or modification of the proposal reveals impacts
to a river within the System or Nationwide Inventory.
oOo
(1-30-84)
SPECIAL PN
RD Instruction 1940-G
Exhibit F
Implementation Procedures for the Coastal Barrier Resources Act
1. The Act applies to barrier islands that Congress has designated for
inclusion in the Coastal Barrier Resources System. Since coastal barriers are
only found in East and Gulf Coast States, no other State Offices fall under
the requirements of the Act and, therefore, need be concerned with these
implementation procedures.
2. On coastal barriers that are included in the system, the Act prohibits any
new expenditures or new financial assistance by the Federal Government. There
are some limited exceptions that are contained in Section 6 of the Act and
listed in Exhibit L of this Subpart. Consequently, all of the following
actions must be reviewed by the environmental reviewer to determine if they
would be located within the System: any application for financial assistance,
any proposed direct expenditure of Rural Development funds for construction or
maintenance purposes, any request for subdivision approval, and any proposed
disposal of real property that includes any form of financial assistance or
subsidy to the purchaser. The boundaries of the system can be determined by
reviewing a series of maps passed with the legislation and distributed by the
Department of the Interior. Each State Director is responsible for ensuring
that those field offices having components of the system within their
jurisdictions are aware of the system's boundaries therein.
3. Exhibit L lists the six categories of exceptions, that is, those actions
that may be taken within the system. No exception may be implemented,
however, without first consulting with the Secretary of the Interior. It
should also be noted that the sixth category is more limited than the first
five. Besides meeting the consultation requirement for this sixth category,
the sponsoring Agency must also determine whether the proposed exception is
consistent with the purposes of the Act.
4. For those actions that are reviewed and determined not to be within the
System, the environmental reviewer must document this result by checking the
appropriate compliance blocks on either Form RD 1940-22, "Environmental
Checklist for Categorical Exclusions," or Form RD 1940-21, "Environmental
Assessment for Class I actions," or by so stating this result in the
environmental assessment for Class II Actions (Exhibit H), depending upon
whichever format is applicable to the action under, review.
5. For those actions that would be located within the system, one of the
following two steps must be taken:
(1-30-84)
SPECIAL PN
RD Instruction 1940-G
Exhibit F
Page 2
a. If the environmental reviewer concludes that the action does not
meet the criteria for an exception, as listed in Exhibit L, the reviewer
shall so inform the approving official and a final determination made in
the manner indicated in §1940.316 of this Subpart. If this
determination is consistent with the environmental reviewer's
conclusion, the action must be denied by the approving official and the
affected applicant or party informed of the reason for denial. If it is
determined that the action may qualify for an exception, the steps
identified in Item b immediately below must be implemented prior to a
decision on this question.
b. If the environmental reviewer concludes that the proposed action may
meet the exception criteria, the approving official must be so informed.
Whenever the approving official agrees or makes a similar determination
as a result of the review conducted in Item (a) immediately above,
consultation shall be initiated with the Secretary of the Interior by
either the State Director or the Administrator for a National Office
activity. Rural Development shall request the Secretary's views as to
whether the exception criteria are met and shall provide the Secretary
with the following information:
(1)
A detailed description of the action and its location;
(2) A description of the affected environment within the System and
the impacts of the proposed action;
(3) The applicable exception criteria and Rural Development's
reasons for believing they apply to this action; and
(4) If a Section 6(a)(6) exception is claimed, Rural Development's
reasons for believing the action to be consistent with the purposes
of the Act.
Should the Secretary concur in the exception criteria being met, that
portion of the environmental assessment relating to compliance with the
Act shall be completed and the corresponding documentation attached.
Should the Secretary not concur, a final decision on the approval or
denial of the action must be made by the Administrator.
oOo
RD Instruction 1940-G
Exhibit H
Environmental Assessment for Class II Actions
In completing this assessment, it is important to understand the comprehensive
nature of the impacts which must be analyzed. Consideration must be given to
all potential impacts associated with the construction of the project, its
operation and maintenance, the operation of all identified primary
beneficiaries, and the attainment of the project's major objectives, whether
they be an increased housing stock, community improvement, economic
development, or greater agricultural productivity. This last category, the
attainment of the project's major objectives, often induces or supports
changes in population densities, land uses, community services, transportation
systems and resource consumption. The scope of the assessment is broadened
even further when there are related activities involved. The impacts of these
activities must also be assessed.
The preparer will consult as indicated in §1940.318(b) of this Subpart with
appropriate experts from Federal, State, and local agencies, universities, and
other organizations or groups whose views could be helpful in the assessment
of potential impacts. In so doing, each discussion which is utilized in
reaching a conclusion with respect to the degree of an impact will be
summarized in the assessment as accurately as possible and include the name,
title, phone number, and organization of the individual contacted, plus the
date of contact. Related correspondence should be attached to the assessment.
The Rural Development environmental assessment shall be prepared in the
following format. It shall address the listed items and questions and contain
as attachments the indicated descriptive materials, as well as the
environmental information submitted by the applicant, Form RD 1940- 20,
"Request for Environmental Information."
The assessment has been designed to cover the wide variety of projects and
environments with which the Agency deals. Consequently, not every issue or
potential impact raised in the assessment may be relevant to each project.
The purpose of the format is to give the preparer an understanding of a
standard range of impacts, environmental factors, and issues which may be
encountered. In preparing an assessment, each topic heading identified by a
Roman numeral and each environmental factor listed under topic heading IV,
such as air quality, for example, must be addressed.
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit H
Page 2
The amount of analysis and material that must be provided will depend upon the
type and size of the project, the environment in which it is located, and the
range and complexity of the potential impacts. The amount of analysis and
detail provided, therefore, must be commensurate with the magnitude of the
expected impact. The analysis of each environmental factor (i.e., water
quality) must be taken to the point that a conclusion can be reached and
supported concerning the degree of the expected impact with respect to that
factor.
For example, a small community center may not require detailed information on
air emissions or solid waste management, but an industrial facility would.
Similarly, an irrigation project for a farming operation would concentrate on
such factors as water quality and fish and wildlife, rather than land use
changes. The extension of a water or sewer system or the approval of a
subdivision, on the other hand, would have to give close attention to all
factors, with potential land use changes being a particularly important one.
I.
Project Description and Need
Identify the name, project number, location, and specific elements of the
project along with their sizes, and, when applicable, their design capacities.
Indicate the purpose of the project, Rural Development's position regarding
the need for it, and the extent or area of land to be considered as the
project site.
II.
Primary Beneficiaries and Related Activities
Identify any existing businesses or major developments that will benefit from
the project and those which will expand or locate in the area because of the
project. Specify by name, product, service, and operations involved.
Identify any related activities which are defined as interdependent parts of a
Rural Development action. Such undertakings are considered interdependent
parts whenever they either make possible or support the Rural Development
action or are themselves induced or supported by the Rural Development action
or another related activity. These activities may have been completed in the
very recent past and are now operational, or they may reasonably be expected
to be accomplished in the near future. Related activities may or may not be
federally permitted or assisted. When they are, identify the involved Federal
Agency(s).
RD Instruction 1940-G
Exhibit H
Page 3
II. (Cont.)
In completing the remainder of the assessment, it must be remembered that the
impacts to be addressed are those which stem from the project, the primary
beneficiaries, and the related activities.
III.
Description of Project Area
Describe the project site and its present use. Describe the surrounding land
uses; indicate the directions and distances involved. The extent of the
surrounding land to be considered depends on the extent of the impacts of the
project, its related activities, and the primary beneficiaries. Unique or
sensitive areas must be pointed out. These include residential, schools,
hospitals, recreational, historical sites, beaches, lakes, rivers, parks,
floodplains, wetlands, dunes, estuaries, barrier islands, natural landmarks,
unstable soils, steep slopes, aquifer recharge areas, important farmlands and
forestlands, prime rangelands, endangered species habitats, or other delicate
or rare ecosystems.
Attach adequate location maps of the project area, as well as (1) a U.S.
Geological Survey "15 minute" ("7 1/2 minute," if available,) topographic map
which clearly delineates the area and the location of the project elements,
(2) the Department of Housing and Urban Development's floodplain map(s) for
the project area, (3) site photos, (4) if completed, a standard soil survey
for the project, and (5) if available, an aerial photograph of the site. When
necessary for descriptive purposes or environmental analysis, include land use
maps or other graphic information. All graphic materials shall be of high
quality resolution.
IV.
Environmental Impact
1. Air Quality - Discuss, in terms of the amounts and types of emissions to
be produced, all aspects of the project including beneficiaries' operations
and known indirect effects (such as increased motor vehicle traffic) which
will affect air quality. Indicate the existing air quality in the area.
Indicate if topographical or meteorological conditions hinder or affect the
dispersal of air emissions. Evaluate the impact on air quality given the
types and amounts of projected emissions, the existing air quality, and
topographical and meteorological conditions. Discuss the project's
consistency with the State's air quality implementation plan for the area, the
classification of the air quality control region within which the project is
located, and the status of compliance with air quality standards within that
region. Cite any contacts with appropriate experts and agencies which must
issue necessary permits.
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit H
Page 4
IV 1. (Cont.)
Indicate whether silvicultural, agricultural or other operations will employ
open burning. If so, discuss whether local or State requirements exist for
permitting such burning and generally discuss their content. If no permit
requirements exist, discuss the type and quantity of burning to be undertaken
and the methods to reduce smoke and to mitigate its adverse impacts.
2. Water Quality - Discuss, in terms of amounts and types of effluents, all
aspects of the project including primary beneficiaries' operations and known
indirect effects which will affect water quality. Indicate the existing water
quality of surface and/or underground water to be affected. Evaluate the
impacts of the project on this existing water quality. Indicate if an aquifer
recharge area is to be adversely affected. If the project lies within or will
affect a sole source aquifer recharge area as designated by EPA, contact the
appropriate EPA regional office to determine if its review is necessary. If
it is, attach the results of its review.
Indicate the source and available supply of raw water and the extent to which
the additional demand will affect the raw water supply. Describe the
wastewater treatment system(s) to be used and indicate their capacity and
their adequacy in terms of the degree of treatment provided. Discuss the
characteristics and uses of the receiving waters for any sources of discharge.
If the treatment system(s) are or will be inadequate or overloaded, describe
the steps being taken for necessary improvements and their completion dates.
Compare such dates to the completion date of the Rural Development project.
Analyze the impacts on the receiving water during any estimated period of
inadequate treatment.
Discuss the project's consistency with the water quality planning for the
area, such as EPA's Section 208 areawide waste treatment management plan.
Discuss the project's consistency with applicable State water quality
standards to include a discussion of whether or not the project would either
impair any such standard or fail to meet antidegradation requirements for
point or nonpoint sources. Describe how surface runoff is to be handled and
the effect of erosion on streams.
Evaluate the extent to which the project may create shortages for or otherwise
adversely affect the withdrawal capabilities of other present users of the raw
water supply, particularly in terms of possible human health, safety, or
welfare problems.
RD Instruction 1940-G
Exhibit H
Page 5
IV 2. (Cont.)
For projects utilizing a groundwater supply, evaluate the potential for the
project to exceed the safe pumping rate for the aquifer to the extent that it
would (1) adversely affect the pumping capability of present users, (2)
increase the likelihood of brackish or saltwater intrusion, thereby decreasing
water quality, or (3) substantially increase surface subsidence risks. For
projects utilizing a surface water supply, evaluate the potential for the
project to (1) reduce flows below the minimum required for the protection of
fish and wildlife or (2) reduce water quality standards below those
established for the stream classification at the point of withdrawal or the
adjacent downstream section.
Cite contacts with appropriate experts and agencies that must issue necessary
permits.
3. Solid Waste Management - Indicate all aspects of the project including
primary beneficiaries' operations, and known indirect effects which will
necessitate the disposal of solid wastes. Indicate the kinds and expected
quantities of solid wastes involved and the disposal techniques to be used.
Evaluate the adequacy of these techniques especially in relationship to air
and water quality. Indicate if recycling or resource recovery programs are or
will be used. Cite any contacts with appropriate experts and agencies that
must issue necessary permits.
4. Land Use - Given the description of land uses as previously indicated,
evaluate (a) the effect of changing the land use of the project site and (b)
how this change in land use will affect the surrounding land uses and those
within the project's area of environmental impact. Particularly address the
potential impacts to those unique or sensitive areas discussed under Section
III, Description of Project Area, which are not covered by the specific
analyses required in Sections V-XI. Describe the existing land use plan and
zoning restrictions for the project area. Evaluate the consistency of the
project and its impacts with these plans. For all actions subject to the
requirements of Exhibit M of this subpart indicate (a) whether or not highly
erodible land, wetland or converted wetland is present, (b) if any
exemption(s) applies to the requirements of Exhibit M, (c) the status of the
applicant's eligibility for an Rural Development loan under Exhibit M and (d)
any steps the applicant must take prior to loan approval to retain or regain
its eligibility. Attach a completed copy of Form SCS-CPA-26, "Highly
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit H
Page 6
IV. 4 (Cont.)
Erodible Land and Wetland Conservation Determination," for the action.
5. Transportation - Describe available facilities such as highways and rail.
Discuss whether the project will result in an increase in motor vehicle
traffic and the existing road's ability to safely accommodate this increase.
Indicate if additional traffic control devices are to be installed. Describe
new traffic patterns which will arise because of the project. Discuss how
these new traffic patterns will affect the land uses described above,
especially residential, hospitals, schools, and recreational. Describe the
consistency of the project's transportation impacts with the transportation
plans for the area and any air quality control plans. Cite any contact with
appropriate experts.
6. Natural Environment - Indicate all aspects of the project including
construction, beneficiaries' operations, and known indirect effects which will
affect the natural environment including wildlife, their habitats, and unique
natural features. Cite contacts with appropriate experts. If an area listed
on the National Registry of Natural Landmarks may be affected, consult with
the Department of Interior and document these consultations and any agreements
reached regarding avoidance or mitigation of potential adverse impacts.
7. Human Population - Indicate the number of people to be relocated and
arrangements being made for this relocation. Discuss how impacts resulting
from the project such as changes in land use, transportation changes, air
emissions, noise, odor, etc. will affect nearby residents and users of the
project area and surrounding areas. Discuss whether the proposal will
accommodate any population increases and, if so, describe the potential
impacts of these increases on the area's public and community services such as
schools, health care, social services, and fire protection. Cite contacts
with appropriate experts.
8. Construction - Indicate the potential effects of construction of the
project on air quality, water quality, noise levels, solid waste disposal,
soil erosion and siltation. Describe the measures that will be employed to
limit adverse effects. Give particular consideration to erosion, stream
siltation, and clearing operations.
9. Energy Impacts - Indicate the project's and its primary beneficiaries'
effects on the area's existing energy supplies. This discussion should
address not only the direct energy utilization, but any major indirect
RD Instruction 1940-G
Exhibit H
Page 7
IV 9. (Cont.)
utilization resulting from the siting of the project. Describe the
availability of these supplies to the project site. Discuss whether the
project will utilize a large share of the remaining capacity of an energy
supply or will create a shortage of such supply. Discuss any steps to be
taken to conserve energy.
10. Discuss any of the following areas which may be relevant: noise,
vibrations, safety, seismic conditions, fire-prone locations, radiation, and
aesthetic considerations. Cite any discussion with appropriate experts.
V.
Coastal Zone Management Act *
Indicate if the project is within or will impact a coastal area defined as
such by the State's approved Coastal Zone Management Program. If so, consult
with the State agency responsible for the Program to determine the project's
consistency with it. The results of this coordination shall be included in
the assessment and considered in completing the environmental impact
determination and environmental findings (Item XXI below).
* Complete only if coastal or Great Lakes State.
VI.
Compliance with Advisory Council on Historic Preservation's Regulations
In this Section, the preparer shall detail the steps taken to comply with the
above regulations as specified in Subpart F of Part 1901 of this Chapter.
First, indicate that the National Register of Historic Places, including its
monthly supplements, has been reviewed and whether there are any listed
properties located within the area to be affected by the project. Second,
indicate the steps taken such as historical/archaeological surveys to
determine if there are any properties eligible for listing located within the
affected area. Summarize the results of the consultation with the State
Historic Preservation Officer (SHPO) and attach appropriate documentation of
the SHPO's views. Discuss the views of any other experts contacted. Based
upon the above review process and the views of the SHPO, state whether or not
an eligible or listed property will be affected.
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit H
Page 8
VI. (Cont.)
If there will be an effect, discuss all of the steps and protective measures
taken to complete the Advisory Council's regulations. Describe the affected
property and the nature of the effect. Attach to the assessment the results
of the coordination process with the Advisory Council on Historic
Preservation.
VII.
Compliance with the Wild and Scenic Rivers Act
Indicate whether the project will affect a river or portion of it which is
either included in the National Wild and Scenic Rivers System or designated
for potential addition to the system. This analysis shall be conducted
through discussions with the appropriate regional office of the National Park
Service or the Forest Service when its lands are involved, as well as the
appropriate State agencies having implementation authorities. See Exhibit E
for specific implementation instructions for this Act. A summary of
discussions held or any required formal coordination shall be included in the
assessment and considered in completing the environmental impact determination
and environmental findings (Item XXI below).
VIII.
Compliance with the Endangered Species Act
Indicate whether the project will either (1) affect a listed endangered or
threatened species or critical habitat or (2) adversely affect a proposed
critical habitat for an endangered or threatened species or jeopardize the
continued existence of a proposed endangered or threatened species. This
analysis will be conducted in consultation with the Fish and Wildlife Service
and the National Marine Fisheries Service, when appropriate. Any formal or
informal consultations conducted with these agencies as well as any State
wildlife protection agency will also address impacts to Category I and
Category II species. See Exhibit D of this subpart for specific
implementation instructions.
The results of any required coordination shall be included in the assessment
along with any completed biological opinion and mitigation measures to be
required for the project. These factors shall be considered in completing the
environmental impact determination.
IX. Compliance with Farmland Protection Policy Act, SCS's Implementation
Rule, and Departmental Regulation 9500-3, Land Use Policy.
RD Instruction 1940-G
Exhibit H
Page 9
IX. (Cont.)
Indicate whether the project will either directly or indirectly convert an
important land resource(s) identified in the Act or Departmental Regulation,
other than floodplains or wetlands which should be addressed below in Item X
of this exhibit. If a conversion may result, determine if there is a
practicable alternative to avoiding it. If there is no such alternative,
determine whether all practicable mitigation measures are included in the
project. Document as an attachment these determinations and the steps taken
to inform the public, locate alternatives, and mitigate potential adverse
impacts. See Exhibit C of this subpart for specific implementation guidance.
X. Compliance with Executive Order 11988, Floodplain Management, and
Executive Order 11990, Protection of Wetlands
Indicate whether the project is either located within a 100-year floodplain
(500-year floodplain for a critical action) or a wetland or will impact a
floodplain or wetland. If so, determine if there is a practicable alternative
project or location. If there is no such alternative, determine whether all
practicable mitigation measures are included in the project and document as an
attachment these determinations and the steps taken to inform the public,
locate alternatives, and mitigate potential adverse impacts. See the U.S.
Water Resource Council's Floodplain Management Guidelines for more specific
guidance as well as Exhibit C of this Subpart.
XI.
Compliance with Coastal Barrier Resources Act
Indicate whether the project is located within the Coastal Barrier Resources
System. If so, indicate whether or not the project meets an exception
criteria under the Act and the results of any consultation with the Secretary
of the Interior regarding its qualification as an exception. See Exhibit F of
this Subpart for specific implementation instructions as well as Exhibit G for
a listing of the exception criteria. (Those States not having any components
of the system within their jurisdiction need not reference this item in their
assessments.)
XII.
State Environmental Policy Act
Indicate if the proposed project is subject to a State environmental policy
act or similar regulation. Summarize the results of compliance with these
requirements and attach available documentation. (See §1940.328 of this
Subpart for further guidance.)
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit H
Page 10
XIII.
Consultation Requirements of Executive Order 12372,
Intergovernmental Review of Federal Programs
Attach the comments of State, regional, or local agencies (if this review
process is required for the project) and respond to all comments that deal
with the subject matters discussed in this assessment format or are otherwise
of an environmental nature.
XIV.
Environmental Analysis of Participating Federal Agency
Indicate if another Federal Agency is participating in the project either
through the provision of additional funds, a companion project, or a permit
review authority. Summarize the results of the involved Agency's
environmental impact analysis and attach available documentation. (See
§1940.318(d) of this Subpart for further guidance.)
XV.
Reaction to Project
Discuss any negative comments or public views raised about the project and the
consideration given to these comments. Indicate whether a public hearing or
public information meeting has been held either by the applicant or Rural
Development to include a summary of the results and any objections raised.
Indicate any other examples of the community's awareness of the project, such
as newspaper articles or Public notifications.
XVI.
Cumulative Impacts
Summarize the cumulative impacts of this project and the related activities.
Give particular attention to land use changes and air and water quality
impacts. Summarize the results of the environmental impact analysis done for
any of these related activities and/or your discussion with the sponsoring
agencies. Attach available documentation of the analysis.
XVII.
Adverse Impact
Summarize the potential adverse impacts of the proposal as pointed out in the
above analysis.
XVIII.
Alternatives
Discuss the feasibility of alternatives to the project and their environmental
impacts. These alternatives should include (a) Rural Development
RD Instruction 1940-G
Exhibit H
Page 11
XVIII. (Cont.)
alternative locations, (b) alternative designs, (c) alternative projects
having similar benefits, and (d) no project. If alternatives have been fully
discussed above in any of Items VI through X, simply reference that
discussion.
XIX.
Mitigation Measures
Describe any measures which will be taken or required by Rural Development to
avoid or mitigate the identified adverse impacts. Analyze the environmental
impacts and potential effectiveness of the mitigation measures. Such measures
shall be included as special requirements or provisions to the offer of
financial assistance or other appropriate approval document if the action does
not involve financial assistance.
XX.
Consistency with Rural Development Environmental Policies
Discuss the project's consistencies and inconsistencies with the Agency's
environmental policies and the State Office's Natural Resource Management
Guide. See §1940.304 and §1940.305 for a discussion of these policies and
Exhibit B for a discussion of the guide.
XXI.
Environmental Determinations
The following recommendations shall be completed:
a. Based on an examination and review of the foregoing information
and such supplemental information attached hereto, I recommend that
the approving official determine that this project will have ( ) a
significant effect on the quality of the human environment and an
Environmental Impact Statement must be prepared. Will not have ( )
a significant effect on the quality of the human environment.
b. I recommend that the approving official make the following
compliance determinations for the below-listed environmental
requirements.
Not In
In Compliance
In
Compliance
____________
__________
Clean Air Act
____________
__________
Federal Water Pollution Control Act
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit H
Page 12
XXI. (Cont.)
____________
___________
Safe Drinking Water Act - Section 1424(e)
____________
___________
Endangered Species Act
____________
___________
Coastal Barrier Resources Act
____________
___________
Coastal Zone Management Act Section 307(c)(l) and (2)
____________
___________
Wild and Scenic Rivers Act
____________
___________
National Historic Preservation Act
____________
___________
Archaeological and Historic Preservation Act
____________
___________
Subtitle B, Highly Erodible Land
Conservation, and Subtitle C, Wetland
Conservation, of the Food Security Act
____________
___________
Executive Order 11988, Floodplain
Management
____________
___________
Executive Order 11990, Protection of
Wetlands
____________
___________
Farmland Protection Policy Act
____________
___________
Departmental Regulation 9500-3, Land Use
Policy
____________
___________
State Office Natural Resource Management
Guide
c. I have reviewed and considered the types and degrees of adverse
environmental impacts identified by this assessment. I have also
analyzed the proposal for its consistency with Rural Development
environmental policies, particularly those related to important
farmland protection, and have considered the potential benefits of
the proposal. Based upon a consideration and balancing of these
factors, I recommend from an environmental standpoint
RD Instruction 1940-G
Exhibit H
Page 13
XXI c. (Cont.)
that the project
___________
be approved
___________
not be approved because of the attached reasons.
________________________________
Signature of Preparer*
________________________
Date
Title_______________________
* See §1940.302 of this Subpart for listing of officials responsible for
preparing assessment.
__________________________________
Signature of Concurring Official
(When required by §1940.316 of
this Subpart)
______________________
Date
Title_______________________
State Environmental Coordinator's Review
(When required by §1940.316 of this Subpart)
I have reviewed this environmental assessment and supporting
documentation. Following are my positions regarding its adequacy and the
recommendations reached by the preparer. For any matter in which I do not
concur, my reasons are attached as Exhibit_______.
Do Not Concur
Concur
____________
___________
Adequate Assessment
____________
___________
Environmental Impact Determination
____________
___________
Compliance Determinations
____________
___________
Project Recommendation
______________________________________________
Signature of State Environmental Coordinator
oOo
(10-19-88)
SPECIAL PN
___________________
Date
RD Instruction 1940-G
Exhibit I
SUBJECT:
TO:
Finding of No Significant Environmental Impact and
Necessary Environmental Findings for (insert name,
location, and any identification number of project)
Project File
The attached environmental assessment for the subject proposal has been
prepared and reviewed by the appropriate Rural Development official(s).
After reviewing the assessment and the supporting materials attached to
it, I find that the subject proposal will not significantly affect the
quality of the human environment. Therefore, the preparation of an
environmental impact statement is not necessary.
I also find that the assessment properly documents the proposal's status
of compliance with the environmental laws and requirements listed
therein.
Insert signature and
title of approving official
as specified in
§1940.316 of this Subpart.
_________________
Date
oOo
(10-19-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit J
Locations and Telephone Numbers of Federal Emergency Management
Administration's Regional Offices
Federal Region
Location
FTS Number*
Commercial Number
Boston, MA
223-4741
(617) 223-4741
New York, NY
264-8980
(212) 264-8980
Philadelphia, PA
597-9416
(215) 597-9416
IV
Atlanta, GA
257-2400
(404) 881-2400
V
Chicago, IL
353-1500
(312) 353-1500
VI
Dallas, TX
749-9201
(817) 387-5811
Kansas City, MO
758-5912
(816) 374-5912
Denver, CO
234-2553
(303) 234-2553
San Francisco, CA
556-8794
(415) 556-8794
Seattle, WA
396-0284
(206) 481-8800
I
II
III
VII
VIII
IX
X
*This is the main number for the regional office. For floodplain
information, ask for the Natural and Technological Hazards Division.
oOo
(1-30-84)
SPECIAL PN
RD Instruction 1940-G
Exhibit K
Locations and Telephone Numbers of U.S. Fish and
Wildlife Service's Wetland Coordinators
The U.S. Fish and Wildlife Service (FWS) is presently preparing the National
Wetlands Inventory. Each regional office of the FWS has named a staff member
as a Wetland Coordinator. These individuals can provide updated information
concerning existing State and local wetland surveys and Federal inventories.
Listed below are the FWS regional offices and their areas of responsibility.
Region I
Portland, OR
Areas Covered:
FTS 429-6154
Commercial (503) 231-6154
California
Hawaii
Idaho
Nevada
Oregon
Washington
U.S. Pacific Trust, Territories and Possessions
Region II
Albuquerque, NM
Areas Covered:
FTS 474-3152
Commercial (505) 766-2914
Arizona
Oklahoma
New Mexico
Texas
Region III
Twin Cities, MN
Areas Covered:
(1-30-84)
FTS 725-3593
Commercial (612) 725-3593
Illinois
Indiana
Michigan
SPECIAL PN
Minnesota
Ohio
Wisconsin
RD Instruction 1940-G
Exhibit K
Page 2
Region IV
Atlanta, GA
Areas Covered:
FTS 242-6343
Commercial (404) 221-6343
Alabama
Arkansas
Florida
Georgia
Kentucky
Louisiana
Mississippi
North Carolina
Panama Canal Zone
Puerto Rico
South Carolina
Tennessee
Virgin Islands
Region V
Newton Corner, MA
FTS 829-9379
Commercial (617) 965-5100
Ext. 379
Areas Covered:
New Jersey
New York
Pennsylvania
Rhode Island
Vermont
Virginia
West Virginia
Connecticut
Delaware
District of Columbia
Maine
Maryland
Massachusetts
New Hampshire
Region VI
Denver, CO
Areas Covered:
FTS 234-5586
Commercial (303) 234-5586
Colorado
Iowa
Kansas
Missouri
Montana
Nebraska
North Dakota
South Dakota
Utah
Wyoming
Alaska Area Office
Anchorage, AK
Commercial (907) 263-3403
National Office
St. Petersburg, FL
FTS 826-3624
Commercial (813) 893-3624
oOo
RD Instruction 1940-G
Exhibit L
Exceptions to Restrictions of Coastal Barrier Resources Act
Section 6 Exceptions*
(a) Notwithstanding Section 5, the appropriate Federal officer, after
consultation with the Secretary, may make Federal expenditures or financial
assistance available within the Coastal Barrier Resources System for(1) Any use or facility necessary for the exploration, extraction, or
transportation of energy resources which can be carried out only on, in,
or adjacent to coastal water areas because the use or facility requires
access to the coastal water body;
(2) The maintenance of existing channel improvements and related
structures, such as jetties, and including the disposal of dredge
materials related to such improvements;
(3) The maintenance, replacement, reconstruction, or repair, but not
the expansion, of publicly owned or publicly operated roads, structures,
or facilities that are essential links in a larger network or system;
(4)
Military activities essential to national security;
(5) The construction, operation, maintenance, and rehabilitation of
Coast Guard facilities and access thereto; and
(6) Any of the following actions or projects, but only if the making
available of expenditures or assistance therefore is consistent with the
purposes of this Act:
(A) Projects for the study, management, protection and enhancement
of fish and wildlife resources and habitats, including, but not
limited to, acquisition of fish and wildlife habitats and related
lands, stabilization projects for fish and wildlife habitats, and
recreational projects.
(B) The establishment, operation, and maintenance of air and water
navigation aids and devices, and for access thereto.
(C) Projects under the Land and Water Conservation Fund Act of 1965
(16 U.S.C. 4601-4 through 11) and the Coastal Zone Management Act of
1972 (16 U.S.C. 1452 et seq.).
(D) Scientific research, including but not limited to aeronautical,
atmospheric, space, geologic, marine, fish and wildlife and other
research, development and applications.
*Quoted from Section 6 of the Act, P.L. 97-348.
(1-30-84)
SPECIAL PN
RD Instruction 1940-G
Exhibit L
Page 2
(E) Assistance for emergency actions essential to the saving of
lives and the protection of property and the public health and
safety, if such actions are performed pursuant to Sections 305 and
306 of the Disaster Relief Act of 1974 (42 U.S.C. 5145 and 5146) and
Section 1362 of the National Flood Insurance Act of 1968 (42 U.S.C.
4103) and are limited to actions that are necessary to alleviate the
emergency.
(F) The maintenance, replacement, reconstruction, or repair, but
not the expansion, of publicly owned or publicly operated roads,
structures, or facilities.
(G) Nonstructural projects for shoreline stabilization that are
designed to mimic, enhance, or restore natural stabilization
systems.
(b) For purposes of Subsection (a)(2), a channel improvement or a related
structure shall be treated as an existing improvement or an existing related
structure only if all, or a portion, of the moneys for such improvement or
structure was appropriated before the date of the enactment of this Act.
oOo
RD Instruction 1940-G
Exhibit M
Page 1
Implementation Procedures for the Conservation of Wetlands
and Highly Erodible Land Affecting Farmer Program Loans and
Loans to Indian Tribes and Tribal Corporations
1. Background. This exhibit implements the requirements of Subtitle B,
Highly Erodible Land Conservation, and Subtitle C, Wetland Conservation, of
Title XII of the Food Security Act of 1985, Public Law 99-198. The purposes
of these Subtitles are to: reduce soil loss due to wind and water erosion;
protect the Nation's long term capability to produce food and fiber; reduce
sedimentation; improve water quality; assist in preserving the Nation's
wetlands; create better habitat for fish and wildlife through improved food
and cover; and curb production of surplus commodities by removing certain
incentives for persons to produce agricultural commodities on highly erodible
land or converted wetland.
2. Applicability. The provisions of this exhibit apply to insured and
guaranteed Farmer Program loans and loans to Indian Tribes and Tribal
Corporations, subordinations, transfers and assumptions of such loans and
leases and credit sales of inventory property. For the purpose of this
exhibit, "Farmer Program loans" means Farm Operating Loans, Farm Ownership
Loans, Emergency Loans, and Soil and Water Loans. As used in this exhibit,
the word loan is meant to include guarantee as well. Applicant means an
applicant for either an insured or guaranteed loan and borrower means a
recipient of either an insured or guaranteed loan.
3. Rural Development prohibited activities. Unless otherwise exempted by the
provisions of this exhibit, the proceeds of any Farmer Program loan or loan to
an Indian Tribe or Tribal Corporation made or guaranteed by Rural Development
will not be used either (a) for a purpose that will contribute to excessive
erosion of highly erodible land, or (b) for a purpose that will contribute to
conversion of wetlands to produce an agricultural commodity. (See §12.2(a)(l)
of Subpart A of Part 12 of Subtitle A of Title 7, which is Attachment 1 of
this exhibit and is available in any Rural Development office, for the
definition of an agricultural commodity.) Consequently, any applicant
proposing to use loan proceeds for an activity contributing to either such
purpose, will not be eligible for the requested loan. Any borrower that uses
loan proceeds in a manner that contributes to either such purpose will be in
default on the loan.
a.
U.S. Department of Agriculture (USDA) definitions.
In implementing this exhibit, Rural Development will use the USDA's
definitions of the terms found at §12.2 of Subpart A of Part 12 of
Subtitle A of Title 7 (Attachment 1 of this exhibit which is
available in any Rural Development office).
(3-4-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 2
b.
Highly erodible land conservation.
Rural Development will conclude that excessive erosion of highly
erodible land results or would result whenever (1) a field on which
highly erodible land is predominant, as determined by the Soil
Conservation Service (SCS), is or would be used to produce an
agricultural commodity without conformance to a conservation system
approved either by SCS or the appropriate conservation district, as
evidenced by a statement from SCS, and (2) such field is not exempt
from the provisions of this exhibit.
c.
Wetland conservation.
Rural Development will conclude that a conversion of wetlands to
produce an agricultural commodity has occurred or will occur
whenever, as determined by SCS, (1) a wetland has or will be
drained, dredged, filled, leveled, or otherwise manipulated
(including any activity that results in impairing or reducing the
flow, circulation, or reach of water) that makes possible the
production of an agricultural commodity without further application
of the manipulations described herein if (a) such production would
not have been possible but for such action and (b) before such
action such land was wetland and was neither highly erodible land
nor highly erodible cropland; and (2) neither the affected wetland
nor the activity affecting the wetland is exempt from the provisions
of this exhibit.
d.
Use of loan proceeds.
To use loan proceeds for a purpose that contributes to either the
excessive erosion of highly erodible land or the conversion of
wetlands to produce an agricultural commodity means that loan
proceeds will or have been used in a way that contributes to either
excessive erosion of highly erodible land or the conversion of
wetlands to produce an agricultural commodity by paying the costs of
any of the following:
(1)
The purchase of the affected land;
(2)
Necessary planning, feasibility, or design studies;
(3)
Obtaining any necessary permits;
RD Instruction 1940-G
Exhibit M
Page 3
(4) The purchase, contract, lease or renting of any equipment or
materials necessary to carry out the land modification or conversion
to include all associated operational costs such as fuel and
equipment maintenance costs;
(5)
Any labor costs;
(6) The planting, cultivating, harvesting, or marketing of any
agricultural commodity produced on nonexempt highly erodible land to
include any associated operational or material costs such as fuel,
seed, fertilizer, and pesticide costs;
(7) Within the crop year in which the wetland conversion was
completed plus the next ten crop years thereafter, the planting,
cultivating, harvesting, or marketing of any agricultural commodity
produced on the affected land to include any associated operational
or materials costs such as fuel, seed, fertilizer and pesticide
costs; or
(8) For the same time period as in subparagraph 3 d (7)
above, any costs associated with using for on-farm purposes an
agricultural commodity grown on the affected land.
(9) Additionally, if loan proceeds will be or have been
substituted to pay other costs at anytime during the life of the
loan so that non-loan funds can be used to pay any of the above
costs, it is deemed that loan proceeds will be or have been used for
a purpose that contributes to the prohibited activities described in
this paragraph.
4. Prohibited activities under other USDA financial assistance programs.
Unless otherwise exempted, a person becomes ineligible for a variety of USDA
financial assistance programs if that person produces in any crop year an
agricultural commodity on either a field on which highly erodible land is
predominant or a converted wetland. This ineligibility extends to any
commodity produced during the crop year that the prohibited action occurs.
The programs for which the person would be ineligible include price support
payments, farm storage facility loans, disaster payments, crop insurance,
payments made for the storage of an agricultural commodity, and payments
received under a Conservation Reserve Program Contract. Farmer Program
applicants and borrowers and applicants for, and borrowers of, loans to Indian
Tribes and Tribal Corporations, therefore, can be affected not only by the
Rural Development prohibited activities but also by the broad USDA sweep of
the Subtitle B and C restrictions. Should such an applicant rely or plan
(3-4-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 4
4 (Cont.)
to rely on any of these other USDA financial assistance programs as a source
of funds to repay its Rural Development loan(s) and then fail to meet the
other program(s)' eligibility criteria related to wetland or highly erodible
land conservation, repayment ability to Rural Development or the lender of an
Rural Development guaranteed loan may be jeopardized. Consequently, those
applicants who are applying for a loan and those borrowers who receive a loan
after the effective date of Subtitles B and C, as designated in Part 12 of
Subtitle A of Title 7, and who include in their projected sources of
repayment, potential funds from any USDA program subject to some form of
Subtitle B or C restrictions will have to demonstrate as part of their
applications, and for borrowers, as part of their farm plan of operation,
their ability to meet the other program(s)' eligibility criteria. Failure to
meet the criteria will require the applicant or borrower either to document an
alternative, equivalent source of revenues or, if possible, agree to undertake
any steps necessary to gain eligibility for the other program(s). See
paragraph 6 of this exhibit for a discussion of such steps.
5.
Applicant's responsibilities.
a. Required information. Every applicant for a Farmer Program loan or
a loan to an Indian Tribe or Tribal Corporation will be required to
provide the following information and, as applicable, certification as
part of the application for financial assistance. An application will
not be considered to be complete until this information and
certification are provided to Rural Development. Once an applicant has
provided Rural Development with information from SCS on the presence of
any highly erodible land, wetland, or converted wetland this information
need not be provided again for a subsequent loan unless there is either
a change in the property upon which Rural Development loan proceeds will
be applied or a change in the previous information, such as a change in
the status of an exemption. There is a continuing responsibility on
Rural Development borrowers using other USDA financial assistance
programs for repayment purposes to provide the County Supervisor with an
executed copy of any similar certification required by the other USDA
agency at the time of each required certification.
(1) A statement from the SCS indicating whether or not the
applicant's farm property or properties contain either highly
erodible land, wetland, or converted wetland and, if so, whether or
not the applicant qualifies for a particular exemption to the
provisions of this exhibit and as further detailed in paragraph 11
below. The property or properties will be listed and described in
accordance with the
RD Instruction 1940-G
Exhibit M
Page 5
5 a (1) (Cont.)
Agriculture Stabilization and Conservation Service's (ASCS) farm
records system. SCS's execution of Form SCS-CPA-26, "Highly
Erodible Land and Wetland Conservation Determination," is necessary
to meet this information requirement.
(2) If either highly erodible land, wetland, or converted wetland
is present, the applicant's properly executed original or carbon
copy of Form AD-1026, "Highly Erodible Land and Wetland Conservation
Certification."
b.
Required actions.
If at any time during the application review process any of the
information or basis for an applicant's certification changes, the
applicant (or the lender in the case of a guaranteed loan) must
immediately notify Rural Development. If an applicant intends to
produce an agricultural commodity on a nonexempt field on which
highly erodible land is predominant, the applicant must develop a
conservation system approved by SCS or the appropriate conservation
district, demonstrate that it is or will be in compliance with the
system at the time the field is to be used, and provide SCS's
concurrence with this position.
6. Rural Development's application review. The Rural Development County
Supervisor will review the information provided by the applicant from SCS
regarding the presence of any highly erodible land, wetland, or converted
wetland and any possible exemptions and take the actions warranted by the
presence of one or more of the circumstances described below. In carrying out
these actions, Rural Development will consider the technical decisions
rendered by the SCS and the ASCS, as assigned to these agencies by Subparts A,
B, and C of Part 12 of Subtitle A of Title 7 and further explained in this
exhibit, to be final and controlling in the remaining Rural Development
decision making process for this exhibit. It must also be understood that the
definition of a wetland used by SCS in implementing this exhibit applies only
to this exhibit and not to other wetland protection provisions of Subpart G of
Part 1940.
a.
No highly erodible land, wetland, or converted wetland present.
The requested loan can be approved under the provisions of this
exhibit and, except for documenting this result in accordance with
paragraph 8 of this exhibit, no further action is required.
(3-4-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 6
b.
Converted wetland present.
The County Supervisor will consult with the applicant (and lender,
in the case of a guaranteed loan) and the appropriate local office
of the ASCS in order to determine if the converted wetland qualifies
for the exemption specified in subparagraph c (1) of paragraph 11 of
this exhibit. If so, no further action is necessary with respect to
the converted wetland except for documenting the result. If the
converted wetland does not qualify for an exemption, the County
Supervisor will complete one or both of the following steps as the
identified circumstances dictate.
(1) Step one. Review both the date that the wetland was converted
and the proposed use of loan proceeds in order to determine if loan
proceeds will be used for a prohibited activity as defined in
subparagraph d of paragraph 3 of this exhibit. If not, the County
Supervisor will so document this as specified in paragraph 8 of this
exhibit; complete step two immediately below; and, if an insured
loan will be approved, notify the applicant in writing, coincident
with the transmittal of Form RD 1940-1, "Request For Obligation of
Funds" and by using Form Letter 1940-G-1, "Notification of The
Requirements of Exhibit M of RD Instruction 1940-G," that the loan
approval instruments will contain compliance requirements affecting
the applicant's converted wetland. If loan proceeds will be used
for a prohibited activity, the applicant (and lender, in the case of
a guaranteed loan) will be advised of the applicant's ineligibility
for the Rural Development loan being requested. The applicant (and
lender, in the case of a guaranteed loan) will be advised of any
modifications to the application that could cure the ineligibility.
Not growing an agricultural commodity on the converted wetland would
cure the ineligibility, but the substitution of non-Rural
Development funds to grow an agricultural commodity on the converted
wetland would not.
(2) Step two. The County Supervisor will review the applicant's
sources of loan repayment to determine if they include funds from a
USDA financial assistance program(s) subject to wetland conservation
restrictions. If so, the County Supervisor will implement the
actions in subparagraph e of this paragraph.
c.
Highly erodible land or wetland present.
The County Supervisor will discuss with the applicant (and lender,
in the case of a guaranteed loan) and review the intended uses of
RD Instruction 1940-G
Exhibit M
Page 7
6 c (Cont.)
the Rural Development loan proceeds as evidenced in any relevant
application materials.
(1) Proceeds to be used for prohibited activity. If proceeds would
be used for a prohibited activity, the applicant (and lender, in the
case of a guaranteed loan) will be advised of its ineligibility for
the Rural Development loan. The applicant (and lender, in the case
of a guaranteed loan) will be informed of any modifications to its
application that could cure the ineligibility, including financially
feasible eligible loan purposes that could be helpful in
implementing a conservation plan or installing a conservation
system, should either be an appropriate cure. Substitution of nonRural Development monies to accomplish the prohibited activity would
not cure the ineligibility, but actual elimination of the activity
from the applicant's farm plan of operation would.
(2) Proceeds not to be used for a prohibited activity. If loan
proceeds are not planned to be used for a prohibited activity, the
County Supervisor will perform the following tasks:
(a) Document the above determination in the applicant's file
as specified in paragraph 8 of this exhibit.
(b) If an insured loan will be approved and the requirements
of subparagraph c (2)(c) of this paragraph do not apply, notify
the applicant in writing, coincident with the transmittal of
Form RD 1940-1, "Request For Obligation of Funds," and by using
Form Letter 1940-G-1, "Notification of The Requirements of
Exhibit M of RD Instruction 1940-G," that the loan approval
instruments will contain compliance requirements affecting the
applicant's highly erodible land and/or wetland.
(c) Review the term of the proposed loan and take the
following actions, as applicable.
(i) Loan term exceeds January 1, 1990, but not January 1,
1995. If the term of the proposed loan expires within
this period and the applicant intends to produce an
agricultural commodity on highly erodible land that is
exempt from the restrictions of this exhibit until either
1990 or two years after the SCS has completed a soil
survey for the
(3-4-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 8
6 c (2) (c) (i) (Cont.)
borrower's land, whichever is later, the County Supervisor
will determine if it is financially feasible for the
applicant, prior to loss of the exemption, to actively
apply a conservation plan approved by SCS or the
appropriate conservation district. See §12.23 of Subpart
A of Part 12 of Subtitle A of Title 7, which is Attachment
1 of this exhibit and is available in any Rural
Development office, for a definition of actively applying
a conservation plan. Prior to loan approval, the
applicant, the lender, (if a guaranteed loan is involved),
Rural Development and SCS will resolve any doubts as to
what extent production would be able to continue under
application of a conservation plan and as to the financial
implications on loan repayment ability from both the
potential costs of actively applying the conservation plan
and the potential loss of revenues from any reduced
acreage production base. The loan approval official will
determine the financial implications of actively applying
a conservation plan to the applicant's highly erodible
land by developing a projected farm plan of operation or
other farm financial projections that reflect adequate
repayment on the full scheduled installments for all debt
obligations at the time the conservation plan is being
actively applied. If in making this determination, loan
repayment ability cannot be demonstrated, Rural
Development will deny the loan application. If loan
repayment ability can be demonstrated and an insured loan
will be approved, the applicant will be advised in
writing, coincident with the transmittal of Form RD 19401, "Request For Obligation of Funds," and using Form
Letter 1940-G-1, "Notification of The Requirements of
Exhibit M of RD Instruction 1940-G," that the loan
approval instruments will contain compliance requirements
affecting the applicant's highly erodible land. The
applicant will also be advised that a statement from the
SCS issued prior to either January 1, 1990, or two years
after the SCS has completed a soil survey of the
applicant's land (whichever is later) and stating that the
applicant is actively applying an approved conservation
plan will be considered adequate demonstration of
compliance on the highly erodible land affected by the
1990 deadline.
RD Instruction 1940-G
Exhibit M
Page 9
(ii) Loan term exceeds January 1, 1995. If the term of
the proposed loan would exceed this date and the borrower
intends to produce an agricultural commodity on highly
erodible land that is exempt from the restrictions of this
exhibit up until that date (see subparagraph b (4) of
paragraph 11 of this exhibit) the County Supervisor will
determine if it is financially feasible for the applicant,
after January 1, 1995, to produce an agricultural
commodity on the highly erodible land in compliance with a
conservation system approved by SCS or the appropriate
conservation district. Prior to loan approval, the
applicant, the lender (if a guaranteed loan is involved),
Rural Development and SCS will resolve any doubts as to
what extent production would be able to continue under a
conservation system and as to the financial implications
on loan repayment ability from both the potential costs of
the conservation system and the potential loss of revenues
from any reduced acreage production base. The loan
approval official will determine the financial
implications of compliance with a conservation system
using the financial projection method(s) indicated in
subparagraph c (2)(c)(i) of this paragraph. If loan
repayment ability cannot be demonstrated, the application
will be denied. If loan repayment ability can be
demonstrated and an insured loan will be approved, the
applicant will be advised in writing, coincident with the
transmittal of Form 1940-1, "Request For Obligation of
Funds," and using Form Letter 1940-G-1, "Notification of
The Requirements of Exhibit M of RD Instruction 1940-G,"
that the loan approval instruments will contain compliance
requirements affecting the applicant's highly erodible
land. The applicant will also be advised that a statement
from SCS issued prior to January 1, 1995, and stating that
the applicant is in compliance with an approved
conservation system will be considered adequate
demonstration of compliance.
(d) Implement the actions in subparagraph e of this paragraph
if the applicant plans to repay a portion of the loan with
funds from a USDA financial assistance
(3-4-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 10
6 c (2) (d) (Cont.)
program subject to wetland or highly erodible land conservation
restrictions.
d.
Highly erodible land present that was or is planted in alfalfa.
If the applicant plans to cultivate highly erodible land for the
purpose of producing an agricultural commodity and that highly
erodible land during each of the 1981 to 1985 crop years was planted
in alfalfa in a crop rotation determined by SCS to be adequate for
the protection of highly erodible land, the applicant is exempt
until June 1, 1988, from the requirement to fully implement an
approved conservation system on the highly erodible land. The
County Supervisor, following procedures similar to those indicated
in subparagraph c (2)(c)(i) of this paragraph, will determine if it
is financially feasible for the applicant to apply a conservation
system to the highly erodible land prior to the loss of the
exemption on June 1, 1988. If loan repayment ability cannot be
demonstrated, the application will be denied. If loan repayment
ability can be demonstrated and an insured loan will be approved,
the applicant will be advised in writing that the loan approval
instruments will contain compliance requirements affecting the
applicant's highly erodible land. The applicant will also be
advised that a statement from SCS issued prior to June 1, 1988 and
stating that the applicant is in compliance with an approved
conservation system will be considered adequate demonstration of
compliance with this requirement.
e.
Highly erodible land, wetland, or converted wetland present and
applicant intends to use other USDA financial assistance
programs(s), including crop insurance, to repay Rural Development
loan.
The County Supervisor will consult with the applicant (and lender,
in the case of a guaranteed loan) and the other USDA agency(s) to
determine if the applicant is eligible for the latter's financial
assistance. If not eligible, the applicant will have to demonstrate
that an alternative source(s) of repayment will be available in
order for further processing of the application to proceed.
7.
Required provisions in loan approval documents.
a.
Insured loan
(1) Promissory Notes. For all loans to which this exhibit applies,
all promissory notes must contain the provision indicated
RD Instruction 1940-G
Exhibit M
Page 11
7 a (1) (Cont.)
below: (Form RD 1940-17, "Promissory Note," has been revised so that
the language will no longer be inserted as an addendum, but the
following provision must be inserted as an addendum to Form RD 44022, "Promissory Note (Association or Organization)," if the loan is
being made to an Indian Tribe or a Tribal Corporation.)
"Addendum for Highly Erodible Land and Wetland Conservation"
Addendum to promissory note dated ___________ in the amount of
$ _______ at an annual interest rate of _____ percent. This
agreement supplements and attaches to the above note.
Borrower recognizes that the loan described in this note will
be in default should any loan proceeds be used for a purpose
that will contribute to excessive erosion of highly erodible
land or to the conversion of wetlands to produce an
agricultural commodity, as further explained in 7 CFR Part
1940, Subpart G, Exhibit M. If (1) the term of the loan
exceeds January 1, 1990, but not January 1, 1995, and (2)
Borrower intends to produce an agricultural commodity on highly
erodible land that is exempt from the restrictions of Exhibit M
until either January 1, 1990 or two years after the U.S. Soil
Conservation Service (SCS) has completed a soil survey for the
Borrower's land, whichever is later, the Borrower further
agrees that, prior to the loss of the exemption from the highly
erodible land conservation restrictions found in 7 CFR Part 12,
Borrower must demonstrate that Borrower is actively applying on
that land which has been determined to be highly erodible a
conservation plan approved by the SCS or the appropriate
conservation district in accordance with SCS's requirements.
Furthermore, if the term of the loan exceeds January 1, 1995,
Borrower further agrees that Borrower must demonstrate prior to
January 1, 1995, that any production after that date of an
agricultural commodity on highly erodible land will be done in
compliance with a conservation system approved by SCS or the
appropriate conservation district in accordance with SCS's
requirements.
_____________________
(Name of Borrower)
_________________________________
(Signature of Executive Official)
_______________________________
(Signature of Attesting Official)
(2)
Mortgages, deeds of trust and security agreements.
State Directors will consult with the Office of General Counsel
and ensure that for all loans to which this exhibit
(3-4-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 12
7 a (2) (Cont.)
applies a covenant is included in all mortgages, deeds of trust, and
security agreements which reads as indicated below. Form RD 440-15,
"Security Agreement (Insured Loans to Individuals)," and Form RD
440-4, "Security Agreement (Chattels and Crops)," have been revised
accordingly. Equivalent forms required in State supplements must be
similarly revised.
[For mortgages or deeds of trust:]
"Borrower further agrees that the loan(s) secured by this
instrument will be in default should any loan proceeds be used
for a purpose that will contribute to excessive erosion of
highly erodible land or to the conversion of wetlands to
produce an agricultural commodity, as further explained in 7
CFR Part 1940, Subpart G, Exhibit M."
[For security agreements:]
"Default shall also exist if any loan proceeds are used for a
purpose that will contribute to excessive erosion of highly
erodible land or to the conversion of wetlands to produce an
agricultural commodity, as further explained in 7 CFR Part
1940, Subpart G, Exhibit M."
b.
Guaranteed loans.
(1) Form RD 449-14, "Conditional Commitment for Guarantee," and
Form RD 1980-15, "Conditional Commitment for Contract of Guarantee
(Line of Credit)." These forms must contain a condition that
includes the following provisions:
(a) Informs the lender that Rural Development's commitment is
conditioned upon loan proceeds not being used for a purpose
that will contribute to excessive erosion of highly erodible
land or to the conversion of wetlands to produce an
agricultural commodity, as explained in this exhibit;
(b) Informs the lender of the lender's monitoring
responsibilities under paragraph 10 of this exhibit; and;
(c) Requires the lender, for all borrowers having highly
erodible land, wetland, or converted on their farm properties,
to include provisions in its loan
RD Instruction 1940-G
Exhibit M
Page 13
7 b (1) (c) (Cont.)
instruments similar to those contained in subparagraphs a (1)
and (2) of this paragraph.
(2) Lender's loan and security instruments. These instruments must
be modified as specified in subparagraph b (l)(c) of this paragraph.
8. Required Rural Development documentation. The actions taken and
determinations made by Rural Development to comply with the provisions of this
exhibit will be documented as part of the environmental review of the
application. All actions subject to this exhibit will undergo at a minimum
the completion of Form RD 1940-22, "Environmental Checklist for Categorical
Exclusions." On the reverse of this form, the preparer will document as
applicable (a) whether or not highly erodible land, wetland, or converted
wetland is present, (b) if any exemption(s) applies, (c) the status of the
applicant's eligibility for an Rural Development loan under this exhibit, and
(d) any steps the applicant must take prior to loan approval to retain or
regain its eligibility. If the application under review meets the definition
of a Class I action as defined in §1940.311 of this subpart, the above
documentation will be included as an exhibit to Form RD 1940-21,
"Environmental Assessment for Class I Action." If the application meets the
definition of a Class II action as defined in §1940.312 of this subpart, the
required documentation will be included within the Class II assessment under
the discussion of land use impacts. See paragraph IV. 4. of Exhibit H of this
subpart. Once an applicant's farm property has undergone an environmental
review covering the provisions of this exhibit, the County Supervisor
reviewing a subsequent loan request need not require the applicant to obtain
further site information from SCS as long as there is no change in the farm
property to be affected or any applicable exemptions.
9. Borrowers' responsibilities. In addition to complying with any loan
requirements resulting from Rural Development's implementation of this
exhibit, a borrower must within ten days of receipt inform, in writing, the
lender of a guaranteed loan and the County Supervisor for an insured loan of
any ineligibility determinations received from other USDA agencies for
violations of wetland or highly erodible land conservation restrictions. A
borrower also has the responsibility to consult with the lender or County
Supervisor, as applicable, if at any time the borrower is uncertain as to the
borrower's duties and responsibilities under the loan provisions.
10. Rural Development and lender monitoring. As an element of insured loan
servicing, to include development of a farm plan of operation for an upcoming
crop year, scheduled farm visits, or other contacts with
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SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 14
10 (Cont.)
borrowers, Rural Development staff will review and analyze the borrower's
compliance with the provisions of this exhibit and any related loan
requirements. If at anytime Rural Development becomes aware of the borrower's
violation of these provisions or related loan requirements, the borrower will
be informed that the affected loan(s) is in default. In addition to directly
monitoring borrowers, the County Supervisor will receive and review the
monitoring results of other USDA agencies having restrictions on wetland and
highly erodible land conservation. Whenever these results indicate that a
borrower may have violated the loan conditions, the County Supervisor will
further analyze the matter and respond, as indicated in this paragraph, should
a violation be determined. Lenders of Rural Development guaranteed loans must
also monitor compliance as part of their servicing responsibilities.
11. Exemptions and determining their applicability. Following is a list of
exemptions from the provisions of this exhibit as well as a description of how
Rural Development will apply the exemptions to a proposed loan or activity
under a loan. This list is intended to provide guidance on implementing the
exemptions contained in Subparts A, B, and C of Part 12 of Subtitle A of Title
7 (Attachment 1 of this exhibit which is available in any Rural Development
office) and does not modify or limit any of those exemptions.
a.
Exemption from wetland and highly erodible land conservation.
Any loan which was closed prior to December 23, 1985, or any loan
for which either Form RD 1940-1, "Request for Obligation of Funds,"
Form RD 449-14, "Conditional Commitment for Guarantee," or Form RD
1980-15, "Conditional Commitment for Contract of Guarantee (Line of
Credit)," was executed prior to December 23, 1985, is exempt from
the provisions of this exhibit.
b. Exemptions from highly erodible land conservation. The following
exemptions exist from the restrictions on highly erodible land
conservation. Whenever the County Supervisor is required to consult
with another USDA agency in applying these exemptions, the County
Supervisor's review of a properly completed Form SCS-CPA-26 will be
considered adequate consultation if the needed information is presented
on the form and no questions are raised by the Rural Development review.
(1) Any land upon which an agricultural commodity was planted
before December 23, 1985, is exempt for that particular planting.
The County Supervisor will consult with the appropriate local ASCS
office in applying this exemption and
RD Instruction 1940-G
Exhibit M
Page 15
11 b (1) (Cont.)
the ASCS determination is controlling for purposes of this exhibit.
(2) Any land planted with an agricultural commodity during a crop
year beginning before December 23, 1985, is exempt for that
particular planting. Rural Development will consult with the ASCS
State Executive Director and the latter's position will be
controlling in determining the date that the crop year began.
(3) Any land that during any one of the crop years of 1981 through
1985 was either (a) cultivated to produce an agricultural commodity,
or (b) set aside, diverted or otherwise not cropped under a program
administered by USDA to reduce production of an agricultural
commodity, is exempt until the later of January 1, 1990, or the date
that is two years after the date that the SCS has completed a soil
survey of the land. To apply this exemption, the County Supervisor
will consult with ASCS to determine from the latter's records
whether or not the land was cultivated or set aside during the
required period. The ASCS determination will be controlling.
However, the date of completion for any SCS soil survey will be
determined by SCS and used by the County Supervisor.
(4) Beginning on January 1, 1990, or two years after SCS has
completed a soil survey for the land, whichever is later, and
extending to January 1, 1995, any land that qualified for the
exemption in subparagraph b (3) of this paragraph is further exempt
if a person is actively applying to it a conservation plan that is
based on the local SCS technical guide and properly approved by the
appropriate SCS conservation district or the SCS. To apply this
exemption as well as the exemptions specified in subparagraphs b
(5), (6), (7), and (8) of this paragraph, the County Supervisor will
consult with the appropriate local SCS office and the SCS position
will be controlling.
(5) Highly erodible land within a conservation district and under a
conservation system that has been approved by a conservation
district after the district has determined that the conservation
system is in conformity with technical standards set forth in the
SCS technical guide for such district is exempt.
(6) Highly erodible land not within a conservation district but
under a conservation system determined by SCS to be adequate
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SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 16
11 b (6) (Cont.)
for the production of a specific agricultural commodity or
commodities on any highly erodible land is exempt for the production
of that commodity or commodities.
(7) Highly erodible land that is planted in reliance on a SCS
determination that such land was not highly erodible is exempt. The
exemption is lost, however, for any agricultural commodity planted
after SCS determines that such land is highly erodible land.
(8) Highly erodible land planted or to be planted in an
agricultural commodity that was planted in alfalfa during each of
the 1981 to 1985 crop years in a crop rotation determined by SCS to
be adequate for the protection of highly erodible land is exempt
until June 1, 1988, from the requirement that the highly erodible
land be planted in compliance with an approved conservation system.
c.
Exemptions from wetland conservation. The following exemptions
exist from the restrictions on wetland conservation. Whenever the
County Supervisor is required to consult with another USDA agency in
applying these exemptions, the County Supervisor's review of a
properly completed Form SCS-CPA-26 will be considered adequate
consultation if the needed information is presented on the form and
no questions are raised by the Rural Development review.
(1) A converted wetland is exempt if the conversion of such wetland
was completed or commenced before December 23, 1985. The County
Supervisor will consult with ASCS whose determination as to when
conversion of a wetland commenced will be final for Rural
Development purposes. Additionally, the County Supervisor will
request evidence of ASCS's consultation with the U.S. Fish and
Wildlife Service on each commenced determination reached for an
Rural Development applicant or borrower. SCS will determine if a
wetland is a converted wetland using the criteria contained in
§12.32 of Subpart C of Part 12 of Subtitle A of Title 7 (Attachment
1 of this exhibit which is available in any Rural Development
office). Under these criteria, however, a converted wetland
determined to be exempt may not always remain exempt. The criteria
include the provision that if crop production is abandoned on a
converted wetland and the land again meets the wetland criteria,
that land has reverted to a wetland and is no longer exempt. For
purposes of Rural Development inventory farm properties, crop
production will be considered to have been abandoned on a converted
wetland either at the
RD Instruction 1940-G
Exhibit M
Page 17
11 c (1) (Cont.)
earlier of the time the former owner so abandoned crop production or
at the time Rural Development caused crop production to be abandoned
after the property came into Rural Development's inventory. While
in its inventory Rural Development will not lease the converted
wetland for the purpose of producing an agricultural commodity.
Whether or not the wetland criteria are met on the abandoned land
will be determined by SCS immediately before Rural Development's
lease or sale of the property.
(2) The following are not considered to be a wetland under the
provisions of this exhibit: (a) an artificial lake, pond, or
wetland created by excavating or diking non-wetland to collect and
retain water for purposes such as water for livestock, fish
production, irrigation (including subsurface irrigation), a settling
basin, cooling, rice production, or flood control; (b) a wet area
created by a water delivery system, irrigation, irrigation system,
or application of water for irrigation and (c) lands in Alaska
identified by SCS as having a predominance of permafrost soils. The
County Supervisor will consult with SCS regarding the application of
this exemption as well as the remaining exemptions in this paragraph
and the SCS position will be controlling.
(3) A wetland is exempt if the production of an agricultural
commodity is possible (a) as a result of a natural condition, such
as drought, and (b) without action by the producer that destroys a
natural wetland characteristic. This exemption is lost whenever
condition (a) or (b) no longer exists.
(4) Production of an agricultural commodity on a converted wetland
is exempt if SCS determines that the effect of such action,
individually and in connection with all other similar actions
authorized in the area by USDA agencies, on the hydrological and
biological aspect of wetland is minimal.
12. Appeals. Any applicant or borrower that is directly and adversely
affected by an administrative decision made by Rural Development under this
exhibit may appeal that decision under the provisions of Subpart B of Part
1900 of this chapter (see especially §1900.55).
13.
Working with other USDA agencies.
a. Coordination. Rural Development State Directors will consult with
SCS State Conservationists and ASCS State Executive Directors to assess
and coordinate loan processing workloads in order to minimize delays in
responding to Rural Development requests for site information or for the
application of the exemptions contained in paragraph 11 of this exhibit.
State Directors will ensure that
(3-4-88)
SPECIAL PN
RD Instruction 1940-G
Exhibit M
Page 18
13 a (Cont.)
Rural Development field staff understand and can use the ASCS farm
records system and will request ASCS training as needed. Also,
management systems for sharing the information discussed in subparagraph
b of this paragraph will be established.
b. Information exchange. Rural Development State Directors will
develop with ASCS State Executive Directors a system for Rural
Development to routinely receive notification whenever a violation has
occurred under ASCS's wetland and highly erodible land conservation
restrictions. Rural Development State Directors will in turn provide to
any interested USDA agency the following information.
(1) Upon request, copies of site information or exemption decisions
made by SCS for Rural Development application reviews;
(2) Upon request, copies of exemption decisions made by Rural
Development; and
(3) Notice of any violations of the provisions of this exhibit
identified by Rural Development as a result of the monitoring
activities identified in paragraph 10 of this exhibit.
14. Relationship of the requirements of this exhibit to the wetland
protection requirements of Exhibit C of this subpart. The provisions of this
exhibit determine (a) whether or not an applicant for a Farmer Program insured
or guaranteed loan or a loan to an Indian Tribe or Tribal Corporation is
eligible to be considered for such a loan, and (b) whether or not a recipient
of such a loan is properly using the loan proceeds with respect to the
requirements of this exhibit. On the other hand, the requirements in Exhibit
C of this subpart regarding wetland protection cover all Rural Development
loan and grant programs and address not questions of eligibility but the
potential environmental impacts of a proposed action on a wetland and
alternatives to the action. Consequently, those applications covered by this
exhibit and which may be approved under this exhibit must also meet the
requirements of Exhibit C of this subpart. For example, an application
covered by this exhibit (M) that proposed to convert a wetland into a tree
farm would be exempt from this exhibit (M) because trees are not an
agricultural commodity, i.e., there is no conversion in order to produce an
agricultural commodity. However, before Rural Development could make the
loan, the requirements of Exhibit C of this subpart would have to be met to
include an Rural Development finding that no practicable alternative exists to
the conversion of the wetland. In summary, any proposed wetland conversion
that is not prohibited by this exhibit (M) must next meet the requirements of
Exhibit C of this subpart before Rural Development approval of the requested
financial assistance could be provided.
Exhibit M, Attachment 1 not automated see manual
| File Type | application/pdf |
| File Title | Microsoft Word - 1940G.DOC |
| Author | JJacobs |
| File Modified | 2010-09-13 |
| File Created | 2002-12-23 |