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[Federal Register Volume 89, Number 232 (Tuesday, December 3, 2024)]
[Notices]
[Pages 95810-95812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28293]

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-6492-N-01]

Notice of Adoption of U.S. Department of Agriculture Farm Service 
Agency Categorical Exclusions Pursuant to Section 109 of the National 
Environmental Policy Act

AGENCY: Office of the Secretary, HUD.

ACTION: Notice.

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SUMMARY: HUD has identified categorical exclusions (CEs) to the 
National Environmental Policy Act (NEPA) established by the U.S. 
Department of Agriculture--Farm Service Agency (USDA-FSA) that cover 
categories of actions that HUD proposes to adopt. This notice 
identifies the USDA-FSA CEs and HUD's categories of proposed actions 
for which it intends to use USDA-FSA's CEs and describes the 
consultation between the agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: Lauren Hayes Knutson, Environmental 
Planning Division Director, Office of Environment and Energy, U.S. 
Department of Housing and Urban Development, 451 7th Street SW, Room 
7282, Washington, DC 20410-5000; telephone 202-402-4270 (this is not a 
toll-free number); email [email protected]. HUD 
welcomes and is prepared to receive calls from individuals who are deaf 
or hard of hearing, as well as individuals with speech and 
communication disabilities. To learn more about how to make an 
accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.

SUPPLEMENTARY INFORMATION:

I. Background

National Environmental Policy Act and Categorical Exclusions

    Congress enacted the National Environmental Policy Act, 42 U.S.C. 
4321-4347, (NEPA) in order to encourage productive and enjoyable 
harmony between humans and the environment, recognizing the profound 
impact of human activity and the critical importance of restoring and 
maintaining environmental quality to the overall welfare of humankind. 
42 U.S.C. 4321, 4331. NEPA seeks to ensure that agencies consider the 
environmental effects of their proposed major actions in their 
decision-making processes and inform and involve the public in that 
process. NEPA created the

[[Page 95811]]

Council on Environmental Quality (CEQ), which promulgated NEPA 
implementing regulations, 40 CFR parts 1500 through 1508 (CEQ 
regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review for any major Federal action--an environmental impact statement 
(EIS), environmental assessment (EA), or categorical exclusion (CE). 40 
CFR 1501.3. If a proposed action is likely to have significant 
environmental effects, the agency must prepare an EIS and document its 
decision in a record of decision. 40 CFR part 1502, 1505.2. If the 
proposed action is not likely to have significant environmental effects 
or the effects are unknown, the agency may instead prepare an EA, which 
involves a more concise analysis and process than does an EIS. 40 CFR 
1501.5. Following the EA, the agency may conclude that the action will 
have no significant effects and document that conclusion in a finding 
of no significant impact. 40 CFR 1501.6. If the analysis concludes that 
the action is likely to have significant effects, however, then an EIS 
is required.
    Under NEPA and the CEQ regulations, a Federal agency also can 
establish CEs--categories of actions that the agency has determined 
normally do not significantly affect the quality of the human 
environment--in their agency NEPA procedures. 42 U.S.C. 4336e(1); 40 
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a 
CE covers a proposed action, it then evaluates the proposed action for 
extraordinary circumstances in which a normally excluded action may 
have a significant effect. 40 CFR 1501.4(b). If no extraordinary 
circumstances are present, the agency may apply the CE to the proposed 
action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 40 CFR 
1501.4. If extraordinary circumstances are present, the agency 
nevertheless may still categorically exclude the proposed action if it 
determines that there are circumstances that lessen the impacts or 
other conditions sufficient to avoid significant effects.
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to ``adopt'' another Federal 
agency's CEs for proposed actions. 42 U.S.C. 4336c. To use another 
agency's CEs under section 109, the borrowing agency must identify the 
relevant CE listed in another agency's (``establishing agency'') NEPA 
procedures that covers the borrowing agency's category of proposed 
actions or related actions; consult with the establishing agency to 
ensure that the proposed adoption of the CE for a category of actions 
is appropriate; identify to the public the CE that the borrowing agency 
plans to use for its proposed actions; and document adoption of the CE. 
42 U.S.C. 4336c. HUD has prepared this notice to meet these statutory 
requirements.

HUD Programs

    For many HUD programs, HUD is authorized by statute to allow 
Responsible Entities (REs), typically states, units of general local 
government, and tribes, to assume responsibility to conduct NEPA 
reviews under HUD regulations at 24 CFR part 58. For other HUD 
programs, HUD performs the environmental review under 24 CFR part 50. 
HUD intends to apply these categorical exclusions to reviews conducted 
under both parts 50 and 58.
    Both parts 50 and 58, as well as 24 CFR part 51, contain additional 
environmental requirements that certain HUD projects must comply with. 
Proposed actions that are categorically excluded from NEPA but still 
subject to these requirements are known as ``Categorically Excluded 
Subject to'' the requirements listed in 24 CFR 58.5 and 50.4 (CEST), 
and proposed actions that are categorically excluded from NEPA but not 
subject to these requirements are known as ``Categorically Excluded Not 
Subject to'' the requirements listed in Sec. Sec.  58.5 and 50.4 
(CENST). HUD has evaluated the identified USDA-FSA CEs and has 
designated each as CENST or CEST in Section II. USDA-FSA Categorical 
Exclusions.

HUD Regulatory Limitations on Adopting CEs

    HUD's regulations at 24 CFR 58.36 and 50.17 limit HUD's ability to 
utilize adopted categorical exclusions without a waiver. This notice 
will not go into effect until 58.36 and 50.17 are amended or until a 
waiver of these regulations is issued.

II. USDA-FSA Categorical Exclusions

    HUD has identified the following CEs listed in USDA-FSA regulation, 
7 CFR part 799 Subpart D--Categorical Exclusions, for adoption. Under 
each CE, HUD has described categories of proposed actions for which 
HUD, under part 50, or an RE, under part 58, may use the CE and if the 
activity will be evaluated as CENST or CEST. The list of categories 
comprises the proposed actions for which HUD contemplates using the CEs 
at this time, primarily in support of agricultural activities funded 
with HUD's Community Development Block Grant--Disaster Recovery (CDBG-
DR) program. However, HUD may expand the use of the CEs identified 
below to other substantially similar agricultural activities, where 
appropriate.
    1. 7 CFR 799.31(b)(2)(i): Existing fence repair.
    HUD Level of Review: CENST.
    Potential application to HUD activities:
     Repair, improvement, or minor modification of existing 
fences.
    2. 7 CFR 799.31(b)(2)(ii): Improvement or repair of farm-related 
structures under 50 years of age.
    HUD Level of Review: CENST.
    Potential application to HUD activities:
     Repair, improvements, or minor modifications of farm-
related structures under 50 years of age.
    3. 7 CFR 799.32(d)(2)(i): Minor construction, such as a small 
addition.
    HUD Level of Review: CENST.
    Potential application to HUD activities:
     Minor construction, such as a small addition, without 
ground disturbance, of agricultural related structures.
    4. 7 CFR 799.32(d)(2)(iv): Grading, leveling, shaping, and filling.
    HUD Level of Review: CENST.
    Potential application to HUD activities:
     Grading, leveling, shaping, and filling occurring 
specifically in areas with previous ground disturbance, soils that are 
not likely to possess intact and distinct soil horizons and have the 
reduced likelihood of possessing historic properties with their 
original depositional contexts in the area and to the depth to be 
excavated, also referred to as the plow zone.
    5. 7 CFR 799.32(d)(2)(xiii): Trough or tank installation.
    HUD Level of Review: CENST.
    Potential application to HUD activities:
     Agricultural water trough or tank installation without 
ground disturbance.
    6. 7 CFR 799.32(d)(3)(i): Fence installation and replacement.
    HUD Level of Review: CENST.
    Potential application to HUD activities:
     Fence installation and replacement that support 
agricultural needs, without ground disturbance.
    7. 7 CFR 799.32(e)(2)(iii): Construction of a new farm storage 
facility.
    HUD Level of Review: CEST.
    Potential application to HUD activities:
     Construction of a new farm storage facility with ground 
disturbance.
    8. 7 CFR 799.32(e)(2)(xi): Grading, leveling, shaping, and filling 
in areas or to depths not previously disturbed.

[[Page 95812]]

    HUD Level of Review: CEST.
    Potential application to HUD activities:
     Grading, leveling, shaping, and filling in areas or to 
depths not previously disturbed for agricultural efforts.
    9. 7 CFR 799.32(e)(2)(xiv): Land smoothing.
    HUD Level of Review: CEST.
    Potential application to HUD activities:
     Land smoothing for agricultural needs.
    10. 7 CFR 799.32(e)(2)(xxxvii): Watering tank or trough 
installation, if in areas not previously disturbed.
    HUD Level of Review: CEST.
    Potential application to HUD activities:
     Agricultural watering tank or trough installation that 
includes new ground disturbance.
    11. 7 CFR 799.32(e)(2)(xxxviii): Wells.
    HUD Level of Review: CEST.
    Potential application to HUD activities:
     Well installation and repairs for agricultural needs, with 
ground disturbance.

III. Consideration of Extraordinary Circumstances

    When applying the adopted CEs, HUD or the RE will evaluate the 
proposed action to ensure evaluation of integral elements listed above. 
In addition, in considering extraordinary circumstances, HUD will 
consider whether the proposed action has the potential to result in 
significant effects as described in USDA-FSA's extraordinary 
circumstances listed at 7 CFR 799.33. USDA-FSA defines extraordinary 
circumstances in which a normally categorically excluded action may 
have a significant environmental effect, including, but not limited to, 
scientific controversy about the environmental effects of the proposal; 
uncertain effects or effects involving unique or unknown risks; a 
proposed action connected to other actions with potential impacts; a 
proposed action that is related to other proposed actions with 
cumulative impacts; proposed actions that do not comply with 40 CFR 
1506.1 Limitations on actions during the NEPA process; and/or contains 
violations of any existing Federal, State, or local government law, 
policy, or requirements.

IV. Consultation With USDA-FSA and Determination of Appropriateness

    HUD and USDA-FSA began consultation in December 2023 to identify 
USA-FSA CEs that could apply to HUD proposed agricultural actions. This 
consultation included a review of USDA-FSA's experience developing and 
applying the CEs and the types of actions for which HUD plans to 
utilize the CEs. Based on this consultation and review, HUD has 
determined that the types of agricultural projects it intends to 
undertake are substantially similar to such projects for which USDA-FSA 
has applied the CE. Accordingly, the impacts of HUD projects will be 
substantially similar to the impacts of USDA-FSA projects, which are 
not significant, absent the existence of extraordinary circumstances. 
Therefore, HUD has determined that its proposed use of the 
agricultural-related CEs, as described within this notice, would be 
appropriate.

V. Conclusion

    This notice documents adoption of the USDA-FSA CEs listed above in 
accordance with 42 U.S.C. 4336c(4), and they will be available for use 
by HUD and REs effective either upon amendment of 24 CFR 58.36 and 
50.17 or upon issuance of a waiver of these regulations.

Marion McFadden,
Principal Deputy Assistant Secretary for Community Planning and 
Development, Office of Community Planning and Development.
[FR Doc. 2024-28293 Filed 12-2-24; 8:45 am]
BILLING CODE 4210-67-P
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