Daily Rules, Proposed Rules, and Notices of the Federal Government
Section 239 of the Department of Housing and Urban Development Appropriations Act, 2012 (Pub. L. 112-55, approved November 18, 2011) (hereinafter, “the Appropriations Act”) makes available up to $400 million, to remain available until expended, in CDBG funds for necessary expenses related to disaster relief, long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed areas resulting from a major disaster declared pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1974 (42 U.S.C. 5121
The Appropriations Act authorizes the Secretary to waive, or specify alternative requirements for any provision of any statute or regulation that the Secretary administers in connection with the obligation by the Secretary, or use by the recipient, of these funds and guarantees, except for requirements related to fair housing, nondiscrimination, labor standards, and the environment (including requirements concerning lead-based paint), upon: (1) A request by the grantee explaining why such a waiver is required to facilitate the use of such funds or guarantees, and (2) a finding by the Secretary that such a waiver would not be inconsistent with the overall purpose of the title I of the Housing and Community Development Act of 1974 (HCD Act). Regulatory waiver authority is also provided by 24 CFR 5.110, 91.600, and 570.5.
The Secretary finds that the waiver and alternative requirement, as described in this notice, is necessary to facilitate the use of the town's CDBG disaster recovery funds for the statutory purposes, and is not inconsistent with the overall purpose of the HCD Act or the Cranston-Gonzalez National Affordable Housing Act, as amended. Under the requirements of the Appropriations Act and the Department of Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3545) (the HUD Reform Act), regulatory waivers must be justified and published in the
Except as described in this notice and the April 16, 2012,
Union, NY expressed its intent to facilitate a full and complete recovery, but recognizes that the CDBG disaster recovery funds will not meet all needs. In its waiver request, the town indicated that damage estimates for town facilities and infrastructure alone were between $3 and $4 million dollars. Based on these needs, the town determined that its primary focus is to repair and improve vital infrastructure that serves and protects more than 50,000 residents of the town. This assessment utilized Census data, damage estimates, insurance claims, Federal Emergency Management Agency (FEMA) application data, and Small Business Administration (SBA) loan data. Given the limited CDBG disaster recovery funds available, the town prioritized infrastructure repairs because these improvements will benefit significantly more residents both immediately and in the face of future flood events.
In making this determination, Union, NY identified and budgeted for repairs and improvements to critical infrastructure facilities that will directly benefit and assist recovery in the low- and moderate-income areas that were affected by the disaster, even though when considered together with other populations within the service areas of these facilities, the town recognizes that overall populations served by repairs are not predominantly low- and moderate-income.
After meeting citizen participation requirements, the town finalized a budget that includes over $2.3 million for selected infrastructure and neighborhood facilities. The town provided the following information to demonstrate that the selected infrastructure and neighborhood facilities will benefit low- and moderate-income populations in the disaster-affected area:
Union, NY also carefully considered other unmet needs within the community and how it might meet the remaining recovery needs of low- and moderate-income populations. A local survey of post-flood needs indicated that many of surveyed households are expected to relocate or participate in the FEMA-assisted buyout. In addition, the town consulted Broome County Department of Social Services, which affirms that the affected households generally received FEMA assistance or found other means to support their housing needs. The Broome County Community Organizations Active In Disaster (COAD) and volunteers interviewed a small sample of households in the town and found that the majority of households surveyed had housing needs that were not urgent. Based on this information, the town developed and budgeted for the housing and acquisition programs described below to ensure CDBG disaster recovery funds meet other unmet needs of residents, particularly low- and moderate-income residents. In addition, the town acknowledges that the planning studies it proposes will identify future activities and likely result in several amendments to the town's initial Action Plan based on new information regarding unmet needs:
2. The town has allocated more than $3.9 million to the following activities where they anticipate that the majority of beneficiaries will have low- and moderate-incomes:
a. Owner-Occupied Rehabilitation ($601,378 budgeted).
b. Multifamily Rehabilitation ($100,000 budgeted).
c. Homeownership Incentives ($200,000 budgeted).
2. The town has identified other activities that may also benefit low- and moderate-income households:
HUD acknowledges that the town also included its Small Business Program Structural/Capital Repairs and Non-Residential Floodproofing in this waiver request. The town indicated both activities occur town-wide. In the activity worksheets that supplement the action plan, the town states that these activities address the priority of enhancing job creation or retention for low- and moderate-income persons; however it has classified these activities as intending to meet the urgent need national objective. After considering the materials submitted in support of the town's waiver request, HUD has determined the requested waiver will not extend to these activities. The town identified these activities as part of their priority for low- and moderate-income job creation and retention, the service areas for these activities have not been identified, and the town has indicated that it plans to continue its analysis of unmet needs for its low- and moderate-income populations.
HUD has reviewed the information submitted by the town in its Action Plan and other supporting documentation in conjunction with the Department's review of this waiver request. In its funding allocation methodology, HUD estimated the severe unmet needs of the most impacted counties in each state using the best available data at the time. In its application, the town provided updated estimates of severe damage to storm water facilities, sanitary sewer plans, and water treatment plants and explained its rationale for prioritizing repair to these facilities. The town indicated that since the storm damaged critical utility service facilities, it prioritized infrastructure repairs to significantly benefit residents both immediately and in the face of future flood events. Also, the town's surveys of homeowners and businesses indicate that the need for repair of infrastructure is greatest. The town's submissions provide a sound basis for why a waiver is necessary to facilitate the use of CDBG disaster recovery funds.
The town's submissions also support a finding that a waiver of section 105(c)(2) in conjunction with alternative requirements is not inconsistent with title I of the HCD Act. The town will be able to address its most critical unmet needs, while also ensuring it is able to dedicate at least 50 percent of its entire CDBG-DR award to activities that benefit low- and moderate-income persons. Maps of affected areas and other information provided by the town demonstrate the unique circumstances faced within areas affected by Hurricane Irene. The maps show flood inundation to be greatest in areas that do not include a majority of the homes occupied by low- and moderate-income residents. The town's priority is to repair damaged infrastructure and neighborhood facilities. Although the service areas of those facilities are often considerably larger than the town's predominantly low- and moderate-income areas, investment in these activities will also benefit disaster-affected low- and moderate-income populations that are within the service area of these facilities. And finally, although the town concluded based on its initial surveys that its greatest need is repair of infrastructure, the town has budgeted CDBG disaster recovery funds for additional studies of unmet needs and plans to amend its Action Plan as needed based on new information acquired in the studies.
HUD concludes that good cause exists to support the town's request for a waiver of section 105(c)(2) of the HCD Act and 24 CFR 570.208(a)(1)(i) and
a. Only the activities identified as the
b. If the above referenced public improvements and public facilities activities are classified as meeting the low- and moderate-income area benefit national objective, each must serve an area in which at least 38 percent of the residents are considered low- and moderate-income; and must otherwise meet all other applicable requirements, including those for eligibility and national objective; and
c. The town must continue to identify the specific resources for low- and moderate-income households in each amendment to its Action Plan. If additional unmet disaster recovery needs are subsequently identified among households with low- and moderate-incomes, the town must make reasonable efforts to ensure those needs are addressed.
The activities identified above that may utilize the waiver are only proposed projects at this stage and the town must complete the environmental review process described in 24 CFR part 58 for each proposed project. If the town determines that the environmental review is satisfactory, the town must request and receive a release of funds from HUD before it can commit funds or take any choice limiting action with respect to the projects. Approval of this waiver does not constitute approval of the proposed projects.
As a reminder, CDBG-DR funds used for all infrastructure projects must not duplicate any benefit or other source of funding, such as that provided through FEMA's Public Assistance (PA) program. All work funded with CDBG-DR funds on the above listed projects must be determined as ineligible under the FEMA PA program.
The Catalog of Federal Domestic Assistance numbers for the disaster recovery grants under this Notice are as follows: 14.218; 14.228.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection between 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, an advance appointment to review the docket file must be scheduled bycalling the Regulations Division at 202-708-3055 (this is not a toll-free number). Hearing or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.