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###### Department of Housing and Urban Development

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

# AGENCY:

Office of the Secretary, HUD.

# ACTION:

Notice.

# 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                         *EnvironmentalPlanningDivision@hud.gov.*                         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                           ( print 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 §§ 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.                          ( print 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]

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