The purpose of this guidance is to advise HUD staff and Responsible Entities (REs) on the appropriate use of tiering in environmental reviews. Tiering is a common source of confusion and noncompliance in HUD environmental reviews, as HUD and Responsible Entities’ broad-level tiered reviews are frequently insufficient to comply with the National Environmental Policy Act (NEPA) and HUD’s regulations at 24 CFR Part 50 and 24 CFR Part 58. Further, this confusion hinders the public’s ability to understand and participate in the environmental review process. This document provides guidance on when and how to complete tiered environmental reviews to encourage a more consistent approach and greater compliance with NEPA and HUD’s implementing regulations.
When used appropriately, tiering, as defined in 40 CFR 1508.28, is a means of making the environmental review process more efficient by allowing parties to “eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review” (40 CFR 1502.20). A tiered review consists of two stages: a broad-level review and subsequent site-specific reviews.1 The broad-level review should identify and evaluate the issues that can be fully addressed and resolved, notwithstanding possible limited knowledge of the project. In addition, it must establish the standards, constraints, and processes to be followed in the site-specific reviews. As individual sites are selected for review, the site-specific reviews evaluate the remaining issues based on the policies established in the broad-level review. Together, the broad-level review and all site-specific reviews will collectively comprise a complete environmental review addressing all required elements. Funds cannot be spent or committed on a specific site or activity until both the broad-level review and the site-specific review have been completed for the site.
Tiering is a specialized form of conducting environmental reviews and is not appropriate for all activities, funding sources, or grantees. However, using tiering may increase efficiency when at the planning level HUD or the RE does not yet fully know the specific timing, location, or environmental impacts. For HUD environmental reviews, tiering may be appropriate when HUD or the RE is evaluating a collection of projects that would fund the same or very similar activities repeatedly within a defined local geographic area and timeframe (e.g., rehabilitating many single family homes within a city district or neighborhood over the course of 1 to 5 years) but where the specific sites and activities are not yet known.2
There are many situations in which environmental reviews should not be tiered. Tiering should not be used to review an entire funding source or HUD program unless all tiered activities are sufficiently alike to make a tiered review meaningful and effective. Tiering is also not appropriate for projects where specific locations have been identified, and for which the development of site-specific reviews is feasible.3 Finally, the RE must have the capacity to perform and maintain a complete environmental review record over a prolonged period before attempting to perform a tiered review.
As with every environmental review, a tiered review must open with a complete and clear project description that defines the maximum anticipated scope of the project as specifically as possible. The broad-level review must start with a project description that communicates the scale of the project, including the type of activities, all proposed funding sources, maximum number of units (where applicable), average cost per unit, clearly defined geographic range (e.g. neighborhood or block group), and length of time considered by the review. Without a sufficient project description, environmental conditions and impacts cannot be accurately evaluated.
The purpose of the broad-level review is to address those issues that are ripe for decision and define the procedures to be used at the site-specific level for those that are not. A good broad-level review addresses general concerns and issues and provides the basis for decisions to be made at the site-specific level (e.g., areas where activities can and cannot be conducted and mitigation measures that will be required).
At the broad level, HUD or the RE must consider each of the environmental laws and authorities that require compliance, depending on the level of review. If the full scope of the project including all potential activities can be determined to comply with an environmental law, authority or factor, then that particular compliance topic can be resolved at the broad level. For example, if the entire project area considered by the review is outside of the floodplain and in a county without a coastline, then the broad-level review may find that the project complies with the Coastal Barrier Resources Act, the Coastal Zone Management Act, the Flood Disaster Protection Act, and Executive Order 11988 on Floodplain Management (EO 11988).
Where compliance cannot be determined, the broad-level review must define a protocol for how compliance will be achieved at the site-specific level. This protocol should not merely state that the factor will be addressed in the site-specific review; rather, the broad review must define a strategy including procedures to be followed to determine compliance, mitigate impacts where possible, and dismiss sites that cannot be made compliant. For example, if a broad-level review covers an area that is partially in the Coastal Zone and considers activities that could impact the Coastal Zone, a determination cannot be made at the broad level that the project is in compliance with the Coastal Zone Management Act. In that case, the broad-level review would establish the procedures to be followed to determine whether each specific site is in the Coastal Zone and, if so, how determinations of compliance and any necessary consultation with the State Coastal Management Agency will proceed. Alternatively, it could define a policy that the broad-level review will not apply to projects in the Coastal Zone; in this case, any sites identified in the Coastal Zone would require a separate environmental review.
The requirements depend on the level of review. Tiered reviews that are Categorically Excluded Subject to Section 58.5 (CEST) must include an analysis of all of the related laws and authorities listed in 24 CFR 58.5 and 58.6. Environmental Assessments (EAs) must also consider the full range of factors and analysis that would normally go into an EA.4 It is especially important to have a clearly defined protocol to be followed at the site-specific level when completing EAs, as tiered EAs must contain detail and limitations sufficient to reach a Finding of No Significant Impact (FONSI). A FONSI cannot be made unless there are procedures in place to ensure that no activities covered by the tiered review will have significant impacts.
Clear public notice is crucial for tiered reviews, as the public must understand the nature and scope of anticipated projects in order to understand the potential impacts. Public notification requirements are often left unmet for tiered reviews because public notices are not sufficiently clear about the scope, magnitude or location of the proposal. Therefore, the public notice must provide a plain language project description that communicates the scope of the proposal.
When the site of an individual project is identified, HUD or the RE must complete the site-specific review. A site-specific review must be completed prior to committing HUD funds to the project. This review should not repeat the completed analysis and decisions, but should concentrate on the issues that were not resolved in the broad-level review (see 40 CFR 1508.28). Using the protocols established at the broad level, the site-specific review must determine and document the project’s adherence to all established protocols and remaining requirements as defined in the broad-level review.
In cases where a particular site-specific activity does not conform to the limits established in the broad-level review, the broad-level review cannot be employed for that site. For example, sites that are outside the defined geographic boundaries, do not fit within the defined protocols for a particular law or authority, or involve activities that are not part of the project description for the broad-level review will require a new environmental review, separate from the tiered review.
Maintaining an organized environmental review record is especially important with regard to tiered reviews, as tiered environmental review records are not complete without both the broad-level and site-specific tiered reviews. All site-specific reviews must identify the corresponding broad-level review and should be filed together. Failure to maintain documentation of both a broad-level and a site-specific review for each project is a major cause of HUD non-compliance findings that often results in penalties and sanctions, including the repayment of funds.
Tiered CEST Format (Word Document)
1 Note on terminology: Many localities use different names to refer to tiering. For example, tiered reviews may be referred to as “programmatic reviews,” and broad-level and site-specific reviews referred to as “tier 1” or “area-wide” and “tier 2” reviews, respectively. These terms can be used interchangeably, but this document will use the more descriptive names above for comprehension and consistency.
2 This guidance only addresses one particular type of tiered review (i.e., programs where a particular activity is carried out in various locations), but it is possible to tier in other situations. For example, it is sometimes appropriate to tier the environmental review process for very large projects where some elements of the project’s design have not been determined. In this case, the environmental review may also be divided into tiers or phases, where certain issues will be reviewed when the full project scope is more defined. Consult with your Field Environmental Officer before conducting this type of phased review.
3 However, individual sites that are part of a single project should be subject to a single unified environmental review. See 24 CFR 58.32.
4 Note that HUD has recommended formats for CEST tiered reviews only at this time (available using HEROS, from the local Field Environmental Officer, or at https://www.hudexchange.info/resource/3292/part-58-environmental-review--tiered-cest-format/).