Title 42, The Public Health and WelfareRelease 119-110
§12838 Environmental Review
Title 42 › CHAPTER 130 — NATIONAL AFFORDABLE HOUSING › SUBCHAPTER II — INVESTMENT IN AFFORDABLE HOUSING › Part F — General Provisions › § 12838
Summary
Lets states, local governments, or territories take over the federal environmental review, decision, and action duties for projects paid under this program if they agree to follow rules and accept the same responsibilities the federal government would have. A jurisdiction must ask for that authority and send a certification at least 15 days before approval and before any funds are committed. The Secretary must make rules after consulting the Council on Environmental Quality. The rules must include watching how reviews are done, may provide training, and must let the Secretary suspend or end a jurisdiction’s authority. The certification must be on a form the Secretary accepts, signed by the chief executive or a qualified official, say the jurisdiction has done its duties, and say the official agrees to take on the federal official’s role and to accept federal court oversight. A State can do the Secretary’s approval steps for its local governments. Four kinds of activities are automatically exempt from federal environmental review: new infill housing, buying property for affordable housing, certain rehab projects under section 12742(a)(1), and new construction of 15 units or less. The Secretary must avoid duplicate reviews when possible if a project’s scope, size, and location stay basically the same, must coordinate with other federal agencies, and may accept prior similar reviews done by designated or equivalent entities.
Full Legal Text
Title 42, §12838
The Public Health and Welfare, Source: USLM XML via OLRC
(a)In general
In order to assure that the policies of the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.] and other provisions of law which further the purposes of such Act (as specified in regulations issued by the Secretary) are most effectively implemented in connection with the expenditure of funds under this subchapter, and to assure to the public undiminished protection of the environment, the Secretary, in lieu of the environmental protection procedures otherwise applicable, may under regulations provide for the release of funds for particular projects to jurisdictions or insular areas under this subchapter who assume all of the responsibilities for environmental review, decisionmaking, and action pursuant to such Act, and such other provisions of law as the regulations of the Secretary specify, that would apply to the Secretary were he to undertake such projects as Federal projects. The Secretary shall issue regulations to carry out this section only after consultation with the Council on Environmental Quality. The regulations shall provide—
(1)for the monitoring of the environmental reviews performed under this section;
(2)in the discretion of the Secretary, to facilitate training for the performance of such reviews; and
(3)for the suspension or termination of the assumption under this section.
The Secretary’s duty under the preceding sentence shall not be construed to limit or reduce any responsibility assumed by a State or unit of general local government with respect to any particular release of funds.
(b)Procedure
The Secretary shall approve the release of funds subject to the procedures authorized by this section only if, at least 15 days prior to such approval and prior to any commitment of funds to such projects the jurisdiction or insular area has submitted to the Secretary a request for such release accompanied by a certification which meets the requirements of subsection (c). The Secretary’s approval of any such certification shall be deemed to satisfy his responsibilities under the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.] and such other provisions of law as the regulations of the Secretary specify insofar as those responsibilities relate to the releases of funds for projects to be carried out pursuant thereto which are covered by such certification.
(c)Certification
A certification under the procedures authorized by this section shall—
(1)be in a form acceptable to the Secretary,
(2)be executed by the chief executive officer or other officer of the recipient of assistance under this subchapter qualified under regulations of the Secretary,
(3)specify that the recipient of assistance under this subchapter has fully carried out its responsibilities as described under subsection (a), and
(4)specify that the certifying officer (A) consents to assume the status of a responsible Federal official under the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.] and each provision of law specified in regulations issued by the Secretary insofar as the provisions of such Act or other such provision of law apply pursuant to subsection (a), and (B) is authorized and consents on behalf of the jurisdiction or insular area and himself to accept the jurisdiction of the Federal courts for the purpose of enforcement of his responsibilities as such an official.
(d)Assistance to units of general local government from a State
In the case of assistance to units of general local government from a State, the State shall perform those actions of the Secretary described in subsection (b) and the performance of such actions shall be deemed to satisfy the Secretary’s responsibilities referred to in the second sentence of such subsection.
(e)Categorical exemptions
The following categories of activities carried out under this subchapter shall be statutorily exempt from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and shall not require further review under such Act:
(1)New construction infill housing projects.
(2)Acquisition of real property for affordable housing purposes.
(3)Rehabilitation projects carried out pursuant to section 12742(a)(1) of this title.
(4)New construction projects of 15 units or less.
(f)Removing duplicative reviews
(1)In general
To the extent practicable and permitted by law, the Secretary shall ensure that a project that has undergone an environmental review under this section shall not be subject to a duplicative environmental review solely due to the addition, substitution, or reallocation of other sources of Federal assistance, if the scope, scale, and location of the project remain substantially unchanged.
(2)Coordination of environmental review responsibilities
The Secretary shall, by regulation, provide for coordination of environmental review responsibilities with other Federal agencies to streamline interagency compliance and avoid unnecessary duplication of effort under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and other applicable laws.
(3)Recognition of prior reviews by responsible entities
A project may not be subject to an environmental review under this section if a substantially similar review has already been completed by an entity designated under section 5304(g)(1) of this title or by another entity the Secretary determines to have equivalent authority, if the scope, scale, and location of the project remain substantially unchanged.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsecs. (a), (b), (c)(4), (e), and (f)(2), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of this title. For complete classification of this Act to the Code, see
Short Title
note set out under section 4321 of this title and Tables.
Amendments
2026—Subsecs. (e), (f). Pub. L. 119–101, § 501(l)(1), added subsecs. (e) and (f). 1996—Subsec. (a). Pub. L. 104–330, § 505(a)(2)(A), struck out “, Indian tribes,” after “projects to jurisdictions” in introductory provisions. Subsecs. (b), (c)(4). Pub. L. 104–330, § 505(a)(2)(B), (C), struck out “, Indian tribe,” after “the jurisdiction”. 1994—Subsec. (a). Pub. L. 103–233, § 206(1), substituted “jurisdictions, Indian tribes, or insular areas” for “participating jurisdictions” and inserted before period at end “The
Regulations
shall provide— “(1) for the monitoring of the environmental reviews performed under this section; “(2) in the discretion of the Secretary, to facilitate training for the performance of such reviews; and “(3) for the suspension or termination of the assumption under this section. The Secretary’s duty under the preceding sentence shall not be construed to limit or reduce any responsibility assumed by a State or unit of general local government with respect to any particular release of funds.” Subsec. (b). Pub. L. 103–233, § 206(2), substituted “jurisdiction, Indian tribe, or insular area” for “participating jurisdiction”. Subsec. (c)(4)(B). Pub. L. 103–233, § 206(3), substituted “jurisdiction, Indian tribe, or insular area” for “participating jurisdiction”. Subsec. (d). Pub. L. 103–233, § 206(4), substituted “Assistance to units of general local government from a State” for “Assistance to a State” in heading and “In the case of assistance to units of general local government from a State” for “In the case of assistance to States” in text.
Statutory Notes and Related Subsidiaries
Effective Date
of 1996 AmendmentAmendment by Pub. L. 104–330 effective Oct. 1, 1997, except as otherwise expressly provided, see section 107 of Pub. L. 104–330, set out as an
Effective Date
note under section 4101 of Title 25, Indians. Amendment by Pub. L. 104–330 applicable with respect to amounts made available for assistance under this subchapter for fiscal year 1998 and fiscal years thereafter, see section 505(b) of Pub. L. 104–330, set out as a note under section 12747 of this title.
Effective Date
of 1994 AmendmentAmendment by Pub. L. 103–233 applicable with respect to any amounts made available to carry out this subchapter after Apr. 11, 1994, and any amounts made available to carry out this subchapter before that date that remain uncommitted on that date, with Secretary to issue any
Regulations
necessary to carry out such amendment not later than end of 45-day period beginning on that date, see section 209 of Pub. L. 103–233, set out as a note under section 5301 of this title.
Regulations
Pub. L. 119–101, title V, § 501(l)(2),
July 11, 2026, 140 Stat. 912, provided that: “Not later than 1 year after the date of the enactment of this Act [
July 11, 2026], the Secretary shall issue such rules as the Secretary determines necessary to carry out the amendment made by this subsection [amending this section].” Applicability Pub. L. 119–101, title V, § 501(l)(3),
July 11, 2026, 140 Stat. 912, provided that: “Any activity generated under this subsection [amending this section and enacting provisions set out as a note above] would be subject to an authorization of appropriations.”
Reference
Citations & Metadata
Citation
42 U.S.C. § 12838
Title 42, The Public Health and Welfare
Last Updated
Sep 23, 2026
Release point: 119-110