Additional Waiver Granted to and Alternative Requirement for the Town of Union, New York's CDBG Disaster Recovery Grant, 60708-60711 [2012-24426]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 77, Number 193 (Thursday, October 4, 2012)]
[Notices]
[Pages 60708-60711]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24426]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5663-N-01]


Additional Waiver Granted to and Alternative Requirement for the 
Town of Union, New York's CDBG Disaster Recovery Grant

AGENCY: Office of the Assistant Secretary for Community Planning and 
Development, HUD.

ACTION: Notice of additional waiver and alternative requirement.

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SUMMARY: This notice describes additional waivers and alternative 
requirements applicable to the Community Development Block Grant (CDBG) 
disaster recovery grant provided to the town of Union, New York, for 
the purpose of assisting in the recovery related to the consequences of 
the town's 2011 disasters. HUD previously published in the Federal 
Register allocation and application notices applicable to this grant on 
April 16, 2012 (77 FR 22583).

DATES: Effective Date: October 9, 2012

[[Page 60709]]


FOR FURTHER INFORMATION CONTACT: Scott Davis, Director, Disaster 
Recovery and Special Issues Division, Office of Block Grant Assistance, 
Department of Housing and Urban Development, 451 7th Street SW., Room 
7286, Washington, DC 20410, telephone number 202-708-3587. Persons with 
hearing or speech impairments may access this number via TTY by calling 
the Federal Relay Service at 800-877-8339. Facsimile inquiries may be 
sent to Mr. Davis at 202-401-2044. (Except for the ``800'' number, 
these telephone numbers are not toll-free.)

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Applicable Rule, Statute, Waiver and Alternative Requirement
III. Duration of Funding
IV. Catalog of Federal Domestic Assistance
V. Finding of No Significant Impact

I. Background

    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 et seq.) in 2011. 
The law provides that grants shall be awarded directly to a state or 
unit of general local government at the discretion of the Secretary. 
Based on the damage estimates, the town of Union, New York, received 
$10,137,818 in CDBG disaster recovery assistance. HUD previously 
published the majority of requirements and waivers applicable to the 
town in the Federal Register on April 16, 2012 (77 FR 22583).
    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.

II. Applicable Rule, Statute, Waiver, and Alternative Requirement

    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 Federal Register. The following waiver and alternative requirement 
provides additional flexibility in program design and allows the 
grantee to adequately meet statutory requirements unique to this 
appropriation. As a result, the waiver and alternative requirement 
apply only to the CDBG disaster recovery funds appropriated in the 
Appropriations Act, and not to funds provided under the annual 
Entitlement CDBG program, or those provided under any other component 
of the CDBG program.
    Except as described in this notice and the April 16, 2012, Federal 
Register notice, statutory and regulatory provisions governing the 
Entitlement CDBG program shall continue to apply to the town's 
allocation under this notice. Applicable statutory provisions can be 
found at 42 U.S.C. 5301 et seq. Applicable entitlement regulations can 
be found at 24 CFR part 570.
    1. Low-to-moderate income area benefit national objective waiver 
and alternative requirement. Section 105(c)(2) and 24 CFR 
570.208(a)(1)(i), applicable to CDBG disaster recovery awards, sets out 
the requirements for the low- and moderate-income area benefit national 
objective. Specifically, activities designed to meet this national 
objective must serve an area in which at least 51 percent of the 
residents are considered to be of low- and moderate-income. Union, NY, 
has requested a waiver allowing activities to meet this national 
objective if at least 38 percent of the residents in each of the 
service areas can be classified as low- and moderate-income. The town 
identified 38% as this is the lowest percentage of low- and moderate-
income persons in the services areas of the proposed infrastructure and 
facilities projects.
    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:
    a. Westover YMCA ($202,756 budgeted). This multipurpose facility is 
located in the Westover Business District and was flooded due to river 
waters than overtopped the existing levee. The low- and moderate-income 
residential percentage for the area served by the improvement is less 
than 51 (approximately 38 percent low- and moderate-income). Westover 
itself was one of the most heavily damaged areas (over 14 percent of 
parcels experienced substantial damage).
    b. Johnson City Water Treatment Plant ($716,000 budgeted). The 
water plant storage facility was damaged by the flood and a new 
building will be constructed. This plant services the

[[Page 60710]]

entire village of Johnson City as well as two subdivisions. While 
Johnson City's low- and moderate-income population is 50.5 percent, the 
subdivisions served in addition to Johnson City have lower percentages 
of low- and moderate-income residents, reducing the low- and moderate-
income percentage for the service area for this activity to 46.5 
percent.
    c. Village of Endicott Water Plant ($150,000 budgeted) and Western 
Heights Blvd. Water Tank Access ($6,000 budgeted). The project will 
provide additional power and repairs to the water plant and the plant's 
access road. Approximately 53 percent of the village's population is 
low- and moderate-income. However, there are additional areas served by 
the plant and when the population of those areas is included in the 
service area, the percent of residents that are low- and moderate-
income is reduced to 38.9 percent.
    d. Westover Levee Repair/Enhancement ($774,622 budgeted). The levee 
surrounding the Westover neighborhood was overtopped, sustaining and 
causing significant damage to the levee and surrounding neighborhoods. 
The low- and moderate-income residential percentage for the area served 
by the improvement is less than 51 (approximately 38 percent low- and 
moderate-income). Westover was one of the most heavily damaged areas 
from the storm and has a business district that is home to one of the 
town's largest employers.
    e. North Jackson Avenue Sewer ($20,000 budgeted). The sewer back 
flowed and damaged homes in the neighborhood. The low- and moderate-
income residential percentage for the area served by the improvement is 
less than 51 (approximately 38 percent low- and moderate-income).
    f. Johnson City-Endicott Water Booster Station Repairs ($31,000 
budgeted). The low- and moderate-income residential percentage for the 
area served by the improvement is less than 51 (approximately 38 
percent low- and moderate-income). The booster station was completely 
under water during the storm. The town plans on using CDBG disaster 
recovery funds for improvements so that water can be provided to the 
village of Endicott.
    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:
    a. Acquisition for Open Space ($2,100,378 budgeted).
    b. Acquisition for Redevelopment ($950,992 budgeted).
    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

[[Page 60711]]

imposes the following alternative requirements:
    a. Only the activities identified as the Westover YMCA, Johnson 
City Water Treatment Plant, Village of Endicott Water Plant, Western 
Heights Blvd. Water Tank Access, Westover Levee Repair/Enhancement, 
North Jackson Avenue Sewer, and the Johnson City-Endicott Water Booster 
Station Repairs, totaling $2,305,891, as detailed in the town of 
Union's Action Plan submitted to HUD on July 23, 2012, may utilize this 
waiver; and
    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.

III. Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers for the disaster 
recovery grants under this Notice are as follows: 14.218; 14.228.

IV. Finding of No Significant Impact

    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 by calling 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.

    Dated: September 26, 2012.
Mark Johnston,
Acting Assistant Secretary for Community, Planning and Development.
[FR Doc. 2012-24426 Filed 10-3-12; 8:45 am]
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