Choice-limiting actions before HUD environmental clearance

Choice-limiting actions here are the steps a project assisted by the Department of Housing and Urban Development (HUD) may not take before its environmental review is cleared. The rule is 24 CFR 58.22. It bars committing HUD assistance to an activity or project. It also bars committing other funds to one, or undertaking it, if it "would have an adverse environmental impact or limit the choice of reasonable alternatives" (24 CFR 58.22(a)). The part prints "choice limiting actions" once, with no hyphen (24 CFR 58.71(b)). Both bars last, with exceptions, until HUD or the state approves the request for release of funds and the related certification.

Who the rule binds

Part 58 covers the programs listed at 24 CFR 58.1(b).

The bar on HUD assistance names a recipient, "any participant in the development process, including public or private nonprofit or for-profit entities", and "any of their contractors" (24 CFR 58.22(a)). The bar on other funds and on the work itself names the first two.

The responsible entity (24 CFR 58.2(a)(7)) signs the certification (24 CFR 58.70). HUD approves it with the Request for Release of Funds (RROF); the state does for a unit of local government whose project is funded through the state (24 CFR 58.4(b)(2)).

Part 50, for HUD's own reviews, has a like bar only for grant programs where funding approval has to come before the applicant selects its properties: the application carries an assurance that the applicant shall "Not acquire, rehabilitate, convert, lease, repair or construct property, nor commit or expend HUD or local funds for these program activities" at any eligible property until HUD approves it (24 CFR 50.3(h)(3)).

What it asks

HUD assistance. None of the three parties above may commit HUD assistance under a listed program to an activity or project before HUD or the state approves the recipient's RROF and the responsible entity's related certification (24 CFR 58.22(a)). That sentence carries no test of environmental effect.
Other funds, and the work itself. Until the same approval, a recipient or a participant in the development process may not commit non-HUD funds to such an activity or project, or undertake it, if it would have the effect quoted above (24 CFR 58.22(a)). The section does not list the actions that have it.
Exempt and some excluded activities. For a project or activity exempt under 24 CFR 58.34, or categorically excluded under 24 CFR 58.35(b), extraordinary circumstances excepted, "no RROF is required and the recipient may undertake the activity immediately after the responsible entity has documented its determination" (24 CFR 58.22(b)). The recipient must still comply with the applicable requirements of 24 CFR 58.6.
A subrecipient or beneficiary about to act. A recipient considering an application from one, and aware that it is about to take an action in the recipient's jurisdiction that paragraph (a) prohibits, "will take appropriate action to ensure that the objectives and procedures of NEPA are achieved" (24 CFR 58.22(c)). NEPA is the National Environmental Policy Act.
Options. An option agreement for a proposed site or property may be made before the review is complete if it is "subject to a determination by the recipient on the desirability of the property for the project as a result of the completion of the environmental review" and "the cost of the option is a nominal portion of the purchase price". No figure is given. A third party not selected for HUD funding, with no responsibility for the review and no say in the project's approval, is under no constraint in buying an option (24 CFR 58.22(d)).
The Self-Help Homeownership Opportunity Program (SHOP). An organization, consortium or affiliate receiving its assistance "may advance nongrant funds to acquire land" before the approval, at its own risk (24 CFR 58.22(e)).
Relocation. Funds for relocation assistance may be committed before the approval, "provided that the relocation assistance is required by 24 CFR part 42" (24 CFR 58.22(f)).
A recipient that is not the responsible entity. Where the responsible entity conducts the review on a recipient's behalf, the recipient must "refrain from undertaking any physical activities or choice limiting actions" until its request is approved (24 CFR 58.71(b)).
When the limit ends. With the approval, not with the request. Where no objection is received, HUD or the state "will approve these documents after expiration of the 15-day period prescribed by statute" (24 CFR 58.72(a)), unless it disapproves under paragraph (b) of that section. It will not approve "before 15 calendar days have elapsed" from its receipt of the RROF and certification, or from the time the notice under 24 CFR 58.70 specifies, whichever is later (24 CFR 58.73).
An early action. Where HUD learns after approving that the recipient violated 58.22, it "shall impose appropriate remedies and sanctions" (24 CFR 58.72(c)). Funds committed, costs incurred or activities undertaken before the release without the part's authority are also a ground for objecting to it (24 CFR 58.75(e)).

What it means for the Phase I and the consultant

Facts that decide whether an action is held back include: whether, and when, HUD or the state approved the RROF and certification; whether the responsible entity has documented that an activity is exempt or excluded under 24 CFR 58.35(b); whose money an action commits; and whether the action meets the test in paragraph (a). The responsible entity's written determinations are in the Environmental Review Record it must keep for each project (24 CFR 58.38).

A Phase I Environmental Site Assessment establishes none of these. The Phase I standard, ASTM E1527-21, addresses one body of federal law only, the all appropriate inquiries provisions behind the landowner liability protections (E1527-21, 1.1.4), and lists regulatory compliance among its non-scope considerations (E1527-21, 13.1.5.14).

Assessment work can itself be an activity: any action a recipient or grantee puts forward as part of an assisted project, whether or not HUD assistance pays for it (24 CFR 58.2(a)(1)). The exempt list includes "Environmental and other studies, resource identification and the development of plans and strategies" (24 CFR 58.34(a)(1)). Whether a given study is one is for the responsible entity, which must document its determination in writing (24 CFR 58.34(b)).

What the rule says

In addition, until the RROF and the related certification have been approved, neither a recipient nor any participant in the development process may commit non-HUD funds on or undertake an activity or project under a program listed in § 58.1(b) if the activity or project would have an adverse environmental impact or limit the choice of reasonable alternatives.

24 CFR 58.22(a), edition revised as of April 1, 2025

This page is general reference for environmental professionals. It does not review any project. The regulation is the authority, and the determinations of HUD or of the entity responsible for the review govern.