Massachusetts Community Development Block Grant Program

Statutory Checklist Guidelines

The following guide is intended to assist Massachusetts CDBG Program grantees in completing the statutory checklist, as required for categorically excluded activities and activities subject to a full environmental assessment. The guidelines give direction and establish some thresholds as well as identify where some review criteria may not be applicable. However, the guidelines are not intended to substitute for necessary investigation or to allow grantees to forego needed legwork to ensure that all projects receive a thorough and effective review as required by law.

Be sure to document sources that lead to conclusions or determinations in the last column of the checklist. The Environmental Review Record (ERR) should contain documentation for each determination made. Even if the determination is “not applicable” there should be some documentation as to how this conclusion was arrived at. 

Remember, CDBG funds are federal funds and federal procedures must be satisfied to successfully complete the environmental review. Completion of state requirements for similar review categories does not necessarily guarantee compliance with federal authorities or regulations.

Checklists must be completed with all determinations made and documented prior to publishing/posting a Notice of Intent to Request Release of Funds or a FONSI.

Historic Properties

If assistance is proposed for property repair, rehabilitation of an existing structure, conversion of use, demolition, new construction, or the acquisition of undeveloped land, the environmental review process requires evidence of consultation with the State Historic Preservation Officer (SHPO). In Massachusetts the SHPO is the Massachusetts Historical Commission (MHC). Historic properties are not limited to buildings.

1. Determine if the project is an undertaking. An undertaking is “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency”. The answer is Yes.

2. Is it the type of activity that has a potential to cause effects on historic properties? The answer is yes if it is a physical activity.

3. Does the community have a current programmatic agreement (PA) with MHC? If yes, follow the procedures outlined in the agreement. You must notify MHC that you will complete the review process by complying with the terms of the PA. If no, continue to #4.

4. Seek input from the public, local officials, Indian tribes and other interested persons or groups as appropriate for the particular project.

5. Provide information to MHC and ask for a determination (see instructions for completing Project Notification Form at the following link MHC: Forms). Allow 30 days for response, plus mailing time. Follow their guidance.

6. If MHC does not respond or makes a determination of no effect, complete the checklist by making a determination and citing the source.

7. If MHC determines that the project may have an adverse effect on a historic property, the response will provide guidance as to the next step(s). The community should contact their CDBG program representative at DHCD.

Floodplain Management

Federal programs are “to avoid direct or indirect support of floodplain development wherever there is a practicable alternative”. HUD’s implementing regulations for Floodplain Management are at 24 CFR Part 55. Assisted property acquisition, repair, rehabilitation, conversion, new construction and project-based leasing located within a floodplain are subject to the 8-step decision making process described at Part 55.20 which involves two separate noticing periods.

1. Determine if the project is in a floodplain using FEMA maps created for the National Flood Insurance Program. They can be found at the following link FEMA Map Service Center and then follow the link on the lower left for flood maps. On the statutory checklist, in the source documentation column, record the flood zone in which the project is located along with the map panel number. If the project is not located in a floodplain stop, the review is complete. If it is in the floodplain continue to #2.

2. Determine if the project is one of the applicable activities listed above or meets one of the exemptions listed at Part 55.12. If the project meets one of the exemptions, then complete the checklist documenting the source. Note: Single-family housing rehabilitation projects are exempt from this requirement as long as the rehabilitation does not involve “substantial improvement” as defined at 24 CFR 55.2(b)(8).

3. If project is located in a floodplain, carry out Part 55.20 decision making process and document on the statutory checklist.

The ERR should contain a floodplain map locating the project in or out of the floodplain as documentation.

Wetlands Protection

Wetlands protection is governed by Executive Order 11990 establishing wetlands protection as a national priority. HUD policy discourages modification or destruction of designated wetlands. HUD financial assistance for projects within a designated wetland must comply with the 8-step decision making process. Wetlands protection is only applicable to new construction.

1. Does the project involve new construction? If yes, continue to #2. If no, complete the wetlands element on the statutory checklist and document the source supporting the conclusion.

2. Is the proposed project located in a designated wetland? Go to http://www.fws.gov/wetlands/ and follow link for wetlands mapper located on the left side of page at the top.

3. If not located in wetland, complete the wetlands element on the statutory checklist and document the source (copy map).

4. If located in a wetland, then complete 8-step decision making process as described at 24 CFR 55.20. Same as for floodplain.

5. Complete wetlands element on checklist and document the source.

Coastal Zone Management

Projects that can affect the coastal zone must be carried out in a manner consistent with the approved Massachusetts Coastal Zone Management Program CZM. The authority applies only to new construction, conversion, major rehabilitation (involving an increase in the footprint of a building), and substantial improvement (as defined at 55.2(b)(8).

1. Is the project located in the coastal zone Massachusetts Office of Coastal Zone Management (click about CZM)? If no, complete Coastal Zone element on statutory checklist documenting source. If yes, continue to #2.

2. Does the project involve one of the activities listed above? If no, complete Coastal Zone element on statutory checklist documenting source. If yes, continue to #3.

3. If the project involves one of the following activities - new construction, conversion, major rehabilitation (involving an increase in the footprint of a building), and substantial improvement (as defined at 55.2(b)(8)) - a consistency review with the CZM plan is required. Ask for consistency review from CZM program CZM Consistency Review. As an example, a Community Center to be constructed in the Coastal Zone is subject to review.

4. If the project does not require consistency review, complete the Coastal Zone element of the statutory checklist documenting determination and source.

Sole Source Aquifers

The Safe Drinking Water Act of 1974 provides for the protection of systems that are the sole or principal drinking water sources for an area. Development that can affect aquifers must be reviewed for impact. The authority only applies to new construction, conversion of land use or the acquisition of undeveloped land.

1. Determine if the proposed project is located on or could have an effect on a sole source aquifer EPA NE: Drinking Water - Sole Source Aquifer Program. If no, complete the Sole Source element on the statutory checklist recording determination and documenting source. If yes, continue to #2.

2. Does the project involve new construction, conversion of land use or the acquisition of undeveloped land? If no, record determination on the statutory checklist and document source. If yes, continue to #3.

3. Determine and explain the potential effect utilizing a qualified data source. Contact EPA Regional Office for comments (click on above link and see “Other Information Sources” at bottom of page).

4. Follow EPA guidance and complete Sole Source element on the statutory checklist documenting determination and source.

Endangered Species

The Endangered Species Act (ESA) of 1973 requires protection of listed or proposed endangered or threatened species or critical habitats. Projects that can affect any of these require consultation with the Fish and Wildlife Service (FWS) of the Department of the Interior. A formal consultation process with the FWS has been established by the ESA. The ESA is applicable only to activities involving new construction, conversion of land use, major rehabilitation or the acquisition of undeveloped land.

1. Does the project involve new construction, conversion of land use, major rehabilitation or the acquisition of undeveloped land? If no, complete the Endangered Species element of the statutory checklist and document source. If yes, continue to #2.

2. Is the project likely to affect any listed or proposed endangered or threatened species or critical habitat? Northeast Region Endangered Species If no, document this finding using a qualified data source and complete the Endangered Species element on the statutory checklist. If yes, continue to #3.

3. If project is likely to affect any listed or proposed endangered or threatened species or critical habitat, contact Fish and Wildlife Service for project review (follow above link). Follow FWS guidance. Complete statutory checklist and document.

Wild and Scenic Rivers

Applies to new construction or the acquisition of undeveloped land for water resource projects proposed in areas within one mile of a listed wild and scenic river and that have the potential for impacting the river. In Massachusetts, 78.1 miles of the Westfield River and portions of the Sudbury, Assabet and Concord Rivers totaling 29 miles have received this designation. Also, 44 miles of the Taunton River have been proposed to Congress for designation.

1. Is the project for new construction or the acquisition of undeveloped land for water resource projects? If no, complete the Wild and Scenic Rivers element of the statutory checklist documenting the source. If yes, continue to #2.

2. Is the project located within in one mile of any of the designated riverways in Massachusetts? Riverways Programs If no, complete the Wild and Scenic Rivers element of the statutory checklist documenting the source. If yes, continue to #3.

3. Determine if the project will have an effect on the river (must use a qualified data source). If no effect, complete the Wild and Scenic Rivers element of the statutory checklist documenting the source. If yes, continue to #4.

4. Consult with the National Park Service Wild and Scenic Rivers on next steps. Complete the Wild and Scenic Rivers element on the statutory checklist and document the source.

Air Quality

The Clean Air Act prohibits federal assistance to projects that are not in conformance with the State Implementation Plan (SIP). States are required to meet certain milestones or standards established by the clean air act for various forms of air pollutants. If an area does not meet the standard it is considered in “non-attainment” and the state must develop and implement strategies to bring the area into “attainment”. Once an area has met the standard, the State must make efforts to maintain compliance. The collection of strategies and plans designed to meet and maintain attainment for the various pollutants comprise the SIP. Projects involving new construction or conversion activities located in “non-attainment” or “maintenance” areas may need to be modified to conform to the SIP.

It is not likely that projects funded through the Massachusetts Community 
Development Block Grant Program would meet threshold levels for compliance or conformance to the SIP. Thresholds established by MEPA (Massachusetts Environmental Policy Act) can be a reference to determine if a project might be in non-compliance. If not sure, communities should contact their CDBG program representative.

1. Is the project new construction or conversion that may result in a significant increase in air pollutants? For example, construction of a large number of dwelling units or a large parking structure.

2. If no, record on statutory checklist and document.

3. If yes, determine if the project is in a “non-attainment” or “maintenance” area? Mass DEP: Federal Clean Air Act. Continue to number 4. If no, record on statutory checklist and document source.

4. If yes, contact CDBG program representative and may need to file an ENF with EOEA (Filing with MEPA).

Farmlands Protection

The Farmland Protection Policy Act (FPPA) purpose is to minimize the loss of important farmland to nonagricultural uses due to federal programs. Federal agencies are required to consider alternatives when important farmland could be adversely affected (new construction or acquisition of undeveloped land). The FPPA does not apply to actions that do not result in a change of use that could convert important farmland to a non-agricultural use. Important farmland is defined as land that is both underlain by soil types best suited for agricultural use and available for agricultural use. Therefore consideration would not have to be given for land that was previously zoned for a non-agricultural use.

1. Does the project site contain prime, unique or other important farmland? If no, complete the Farmlands element of the statutory checklist and document the source. If yes, continue to #2.

2. Has the project site been committed to an urban use? If yes, complete the Farmlands element of the statutory checklist and document the source. If no, continue to #3.

3. Does the project include new construction activities or the acquisition of undeveloped land? If yes, an evaluation of the land type must be completed by the National Resources Conservation Service (NRCS) using form AD 1006. Farmland Protection Policy Act | NRCS Contact CDBG Program Representative. If no, complete the Farmlands element of the statutory checklist and document the source.

Thermal Explosives

Project sites located too close to hazardous industrial operations handling fuels or chemicals of an explosive or flammable nature are a concern. HUD has described safety standards for these hazards at 24 CFR Part 51(C). Generally, the standards apply to stationary above ground storage tanks exceeding 100 gallons located within a one-mile radius of the project site for all HUD assisted projects. In the case of rehabilitation or modernization activities, the regulation will apply only if the rehabilitation or modernization activity results in an increase in residential densities, converting the type of use of a building to habitation, or making a vacant building habitable. The grantee must conduct a visual assessment to determine if any hazards are located within the one-mile radius of the project site. If such a hazard exists, the grantee must determine if the hazard is located an “Acceptable Separation Distance” (ASD) from the project site using HUD calculation methods. If it is determined that the project site is not located an ASD from the hazard then the project cannot be approved without appropriate mitigation methods.

1. Is the project for rehabilitation or modernization activities? If no, complete the Thermal Explosive element on the statutory checklist and document the source. If yes, continue to #2.

2. Will the rehabilitation or modernization result in increased residential densities or conversion of the type of use of a building to habitation or make a vacant building habitable? If no, complete the Thermal Explosive element on the statutory checklist and document the source. If yes, continue to #3.

3. As a result of a visual assessment are there any above ground storage tanks with a capacity greater than 100 gallons within a one-mile radius of the project site? If no, complete the Thermal Explosive element on the statutory checklist documenting date and time of visual assessment and who conducted the assessment. If yes, continue to #4.

4. Determine if the hazardous substance is one identified in Appendix I to Subpart C to Part 51. If no, complete the Thermal Explosive element on the statutory checklist and document the source. If yes, continue to #5.

5. If the tank contains a hazardous substance as defined in Appendix I, calculate the Acceptable Separation Distance using method described in Appendix II to Subpart C to Part 51.

6. If the project is located an Acceptable Separation Distance from the storage tank, complete the Thermal Explosive element on the statutory checklist and document the source.

7. If the project is not an Acceptable Separation Distance from the storage tank, the project cannot be approved without mitigation measures as described at 51.205. Contact your CDBG Program Representative.

Noise Abatement and Control

It is HUD’s general policy that noise is environmental pollution and a threat to quality of life. HUD has developed a regulation for noise abatement and control at 24 CFR Part 51 Subpart B. Under this regulation, grantees must “take into consideration the noise criteria and standards in the environmental review process and consider ameliorative actions when noise sensitive land development is proposed in noise exposed areas”. It is HUD’s policy that new construction of noise sensitive uses (residential) be prohibited for projects with unacceptable noise exposures. For modernization and rehabilitation projects, HUD encourages noise attenuation in alterations, to the degree possible, when projects are located in noise exposed areas. Grantees must determine if a project will be exposed to certain noise generators (roadways, railways and airports), assess the level of that exposure and, if applicable, provide attenuation measures to reduce the noise impact.

1. Does the project involve a noise sensitive use (residential)? If no, complete the Noise element on the statutory checklist and document the source. If yes, continue to #2.

2. Is the project located (as the crow flies) within 1,000 feet of a major roadway or highway or 3, 000 feet of a railway or 5 miles of a civilian airport? If no, complete the Noise element on the statutory checklist and document the source. If yes, continue to #3.

3. If the project is for modernization or rehabilitation continue to number 4. If the project is for new construction continue to number 5.

4. Consider noise attenuation measures in project design and specifications. For example STC ratings of windows and doorways or use of mechanical air systems so that windows do not have to be opened. Complete the Noise element on the statutory checklist and document the source.

5. If the project is for new construction, a noise assessment per HUD guidelines must be completed to determine noise exposure level. At this point contact CDBG program representative for further guidance.

Airport Clear Zones

HUD’s policy, described at 24 CFR Part 51 Subpart D, prohibits assistance for construction or major rehabilitation of any real property located in a clear zone for a project to be frequently used or occupied by people. For projects not frequently used or occupied by people assistance may be approved upon written assurances from the airport operator that there are no plans to purchase the land. Assistance may be provided for purchase or lease of existing property provided that the prospective buyer is given advance written notice as to the potential hazard and provides written acknowledgement of this notice. This policy applies to runway clear zones for civil airports as well as clear zones and accident potential zones for military airports. Rehabilitation is considered major when the estimated cost or work is greater than 75% of the cost of the property after rehabilitation.

The following civil airports in Massachusetts are subject to review under this regulation Hanscom Field; Logan Airport; Barnstable Municipal; Martha’s Vineyard; Nantucket Memorial; New Bedford Municipal; Provincetown Municipal and Worcester Regional.

1. Is the property within 2,500 feet of the end of a civil runway or 8,000 feet of the end of a military runway? If no, complete the Clear Zone element on the statutory checklist and document the source. If yes, continue to #2.

2. Get a written determination from the airport operator as to whether the property is in a runway clear zone or accident potential zone. If not, complete statutory checklist and document. If yes, continue.

3. If project is for new construction or major rehabilitation, assistance cannot be provided.

4. If project involves other activity, contact CDBG Program Representative for further guidance.

Toxic Sites

It is HUD policy that “all property proposed for use in HUD programs be free of hazardous materials, contamination, toxic chemicals and gasses, and radioactive substances, where a hazard could affect the health and safety of occupants or conflict with the intended utilization of the property. Grantees should investigate through visual assessment or other necessary means if the project is located within proximity (3,000 feet) of dumps, landfills, industrial sites or other locations that contain hazardous waste. Additionally, properties should be investigated for the presence of underground storage tanks that are for other than residential fuels. For multi-family properties and nonresidential uses review must consider historical uses of the property and other evidence of contamination on or near the site.

1. Is the property listed in an EPA Superfund list or CERCLA list or equivalent State list? Yes___	No___

2. Is the property located within 3,000 feet of a toxic or solid waste landfill site? Yes___	No___

3. Does the property have an underground storage tank that is not for residential fuel? Yes___ No___

4. Is the property known or suspected to be contaminated by toxic chemicals or radioactive materials? Yes___	No___

If the answer to all of the above questions is no, further review is not required. Complete the Toxics element on the statutory checklist and document the source.

If the answer to any of the above questions is yes, then a Phase I environmental site assessment must be completed. Follow the recommendations of the Phase I and complete the statutory checklist.

Environmental Justice

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations requires federal agencies to consider how federally-assisted projects may have disproportionately high and adverse human health or environmental effects on minority and low-income populations. Environmental Justice has been defined by the EPA as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The Executive Order applies when grantees consider the acquisition of housing, the acquisition of land for development, and new construction in low-income or minority neighborhoods. If the project is likely to raise environmental justice issues, the grantee must consider mitigation or avoidance of adverse impacts to the extent possible.

1. Does the project involve the acquisition of housing, the acquisition of land for development, or new construction? If no, complete statutory checklist and document determination. If yes, continue.

2. Is the project located in a low-income or minority neighborhood? If no, complete statutory checklist and document source. If yes, continue.

3. Is the project likely to raise environmental justice issues? If no, completed statutory checklist and document source. If yes, continue.

4. Consider possible mitigations or alternatives. Complete statutory checklist and document.