Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act

AGENCY:

Forest Service, Agriculture (USDA).

ACTION:

Notice of adoption of multiple Categorical Exclusions from the Department of Commerce, the Department of Energy, the Bureau of Land Management, the National Telecommunications and Information Administration, and the Bureau of Indian Affairs.

SUMMARY:

The U.S. Department of Agriculture, Forest Service, is adopting multiple categorical exclusions (CEs) from several agencies as listed: Department of Commerce CEs A4 and A6; Department of Energy CE B5.23; Bureau of Land Management CE D2; National Telecommunications and Information Administration CEs C-4 through C-8; and Bureau of Indian Affairs CE L.1 pursuant to section 109 of the National Environmental Policy Act for future application to Forest Service decisions concerning land management activities that are similar in nature.. This notice describes the categories and details the consultation between the respective agencies.

DATES:

The CE adoptions take effect on July 1, 2024.

FOR FURTHER INFORMATION CONTACT:

Andrea Pahlevanpour, Assistant Director, Forest Service, Ecosystem Management Coordination, by phone at 771-216-0229 or via email to andrea.pahlevanpour@usda.gov.

Individuals who use telecommunications devices for the hearing impaired may call 711 to reach the Telecommunications Relay Service, 24 hours a day, every day of the year, including holidays.

SUPPLEMENTARY INFORMATION:

I. National Environmental Policy Act and Categorical Exclusions

The National Environmental Policy (NEPA) (42 U.S.C. 4321-4347), as amended, requires all Federal agencies to consider the environmental impact of their proposed actions before deciding whether and how to proceed (42 U.S.C. 4321, 4332). The aims of NEPA are to ensure that agencies consider the potential environmental effects of their proposed actions in their decision-making processes and inform and involve the public in that process (42 U.S.C. 4332). NEPA created the Council on Environmental Quality, which promulgated NEPA implementing regulations, 40 CFR parts 1500 through 1508 (Council on Environmental Quality regulations).

To comply with NEPA, agencies determine the appropriate level of review for a proposed action. Where required, these levels of review may be documented in an environmental impact statement (EIS), an environmental assessment (EA), or by reliance on a CE (40 CFR 1501.3). If a proposed action is likely to have significant environmental effects, the agency will prepare an EIS and document its decision in a record of decision. 40 CFR 1502, 1505.2. If the proposed action is not likely to have significant environmental effects or where the level of significance is unknown, the agency will prepare an EA, which involves a more concise analysis and process than an EIS (40 CFR 1501.5). Following preparation of an EA, the agency may reach a finding of no significant impact if the analysis shows that the action will have no significant effects (40 CFR 1501.6). If, following preparation of an EA, the agency finds that the proposed action will have significant effects, it will prepare an EIS before issuing any decision to authorize the action (40 CFR 1501.6(a)(3)).

Under NEPA and the Council on Environmental Quality's implementing regulations, a Federal agency can establish CEs—categories of actions that the agency has determined normally do not significantly affect the quality of the human environment—in its agency NEPA procedures 42 U.S.C. 4336(e)(1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a CE covers a proposed action, the agency then evaluates the proposed action for any extraordinary circumstances in which a normally excluded action may have a significant effect (40 CFR 1501.4(b)). Responsible Officials in the Forest Service evaluate proposed actions for extraordinary circumstances in accordance with the Forest Service's NEPA implementing regulations at 36 CFR 220.6. If no extraordinary circumstances are found or if further analysis determines that the extraordinary circumstances do not involve the potential for significant environmental impacts, the agency may rely on the CE to approve the proposed action without preparing an EA or an EIS, 42 U.S.C. 4336(a)(2), 40 CFR 1501.4. If extraordinary circumstances exist, the agency may nonetheless categorically exclude the proposed action if it determines that there are means to avoid the impacts or otherwise modify the action sufficient to avoid significant effects, 40 CFR 1501.4(b)(1).

Section 109 of NEPA, enacted as part of the Fiscal Responsibility Act of 2023, allows a Federal agency to “adopt a categorical exclusion listed in another agency's NEPA procedures for a category of proposed agency actions for which the categorical exclusion was established.” 42 U.S.C. 4336c. To adopt another agency's categorical exclusion under section 109, the adopting agency: (1) identifies the relevant categorical exclusion listed in another agency's (“establishing agency”) NEPA procedures “that covers a category of proposed actions or related actions”; (2) consults with the establishing agency “to ensure that the proposed adoption of the categorical exclusion for a category of actions is appropriate”; (3) “identifies to the public the categorical exclusion that the [adopting] agency plans to use for its proposed actions”; and (4) documents adoption of the categorical exclusion. See 42 U.S.C. 4336c.

This notice documents the Forest Service's adoption of Department of Commerce CEs: A-4 (Siting, construction, operation of microwave or radio communication towers less than 200 feet in height without guy wires on previously disturbed ground) and A-6 (Fiber optic cable to transmission structures or burying fiber optic cable in existing transmission line rights-of-way); Bureau of Land Management's CE D. Rangeland Management. (2) (Placement and use of temporary (not to exceed one month) portable corrals and water troughs, providing no new road construction is needed); Bureau of Indian Affairs CE L Roads and Transportation (1) (Approval of utility installations along or across a transportation facility located in whole within the limits of the roadway right-of-way); National Telecommunications and Information Administration's CEs C-4 through C-8 (concerning new telecommunication and broadband installation); and Department of Energy CE B5.23 (Electronic vehicle charging stations).

II. Additional Considerations Related to the Forest Service CEs

1. Decision Memo

The Forest Service requires at 36 CFR 220.6(e) that, “A supporting record is required and the decision to proceed must be documented in a decision memo for the categories of action in paragraphs (e)(1) through (25) of this section.” For all the CEs adopted in this notice, the Forest Service will require a decision memo even if the originating agency's NEPA Procedures do not require it.

2. Extraordinary Circumstances

Forest Service NEPA regulations state that a CE may only be applied “if there are no extraordinary circumstances related to the proposed action” and if the proposed action is within a CE listed within a category as specified in regulations. 36 CFR 220.6(a). Forest Service NEPA regulations list seven resource conditions that “should be considered in determining whether extraordinary circumstances related to a proposed action warrant further analysis and documentation in an EA or an EIS”, 36 CFR 220.6(b).

For the Department of the Interior CEs adopted from the Bureau of Land Management and the Bureau of Indian Affairs in this notice, the Forest Service will also apply the Department of the Interior's extraordinary circumstances criteria set forth in 43 CFR 46.215(a) through (l), which are slightly different from the Forest Service's resource conditions that should be considered in evaluating extraordinary circumstances.

III. Consultation With Departments and Agencies on CE Adoption

1. Department of Commerce Consultation

In April 2024, the Forest Service conducted consultation with the Department of Commerce on adoption of several CE categories. Through those consultation and coordination efforts, the Department and agency mutually agreed that the Forest Service's adoption of CE A-4 (communication towers) and CE A-6 (fiber optic cable) is appropriate. This notice documents the Forest Service's adoption of Department of Commerce CEs for such actions.

2. Department of Energy Consultation

In 2023, the Department of Energy conducted consultation with the Forest Service for adoption of a CE covering electric vehicle charging stations (B5.23). Through those consultation and coordination efforts, the Department and agency mutually agreed that the Forest Service's adoption of CE B5.23 (vehicle charging stations) is appropriate.

3. Bureau of Land Management Consultation

In June of 2024, the Forest Service completed consultation with the Bureau of Land Management regarding adoption of CE D. Rangeland Management. (2): “Placement and use of temporary (not to exceed one month) portable corrals and water troughs, providing no new road construction is needed.” After several meetings, the agencies mutually agreed that the Forest Service's adoption of this CE is appropriate.

4. National Telecommunications and Information Administration Consultation

In May 2024, the Forest Service consulted with the National Telecommunications and Information Administration regarding adoption of CE's C-4 through C-8 concerning new telecommunication and broadband installation CEs. The agencies mutually agreed that Forest Service adoption of the CEs is appropriate.

5. Bureau of Indian Affairs Consultation

In May 2024, the Forest Service consulted with the Bureau of Indian Affairs to adopt CE L Roads and Transportation. (1)) covering approval of utility installations along or across a transportation facility located in whole within the limits of the roadway right-of-way). Through those consultation and coordination efforts, the agencies mutually agreed that the Forest Service's adoption of CE L. Roads and Transportation. (1) is appropriate.

IV. Identification of CEs

1. Department of Commerce CEs

A-4: Siting, construction, operation of microwave or radio communication towers less than 200 feet in height without guy wires on previously disturbed ground.

A-6: Adding fiber optic cable to transmission structures or burying fiber optic cable in existing transmission line rights-of-way.

2. Department of Energy CE

B5.23: The installation, modification, operation, and removal of electric vehicle charging stations, using commercially available technology, within a previously disturbed or developed area. Covered actions are limited to areas where access and parking are in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.

“Previously disturbed or developed” refers to land that has been changed such that “its functioning ecological processes have been and remain altered by human activity. The phrase encompasses areas that have been transformed from natural cover to non-native species or a managed state, including, but not limited to, utility and electric power transmission corridors and rights-of-way, and other areas where active utilities and currently used roads are readily available.” 10 CFR 1021.410(g)(1).

The Department of Energy CE also includes additional conditions referred to as integral elements. (10 CFR part 1021 subpt. D, app. B) In order to apply this CE, the proposal must be one that would not

(1) Threaten a violation of applicable statutory, regulatory, or permit requirements for environment, safety, and health, or similar requirements of the Department of Energy or Executive Orders;

(2) Require siting and construction or major expansion of waste storage, disposal, recovery, or treatment facilities (including incinerators), but the proposal may include categorically excluded waste storage, disposal, recovery, or treatment actions or facilities;

(3) Disturb hazardous substances, pollutants, contaminants, or Comprehensive Environmental Response, Compensation and Liability Act-excluded petroleum and natural gas products that preexist in the environment such that there would be uncontrolled or unpermitted releases;

(4) Have the potential to cause significant impacts on environmentally sensitive resources. An environmentally sensitive resource is typically a resource that has been identified as needing protection through Executive Order, statute, or regulation by Federal, State, or local government, or a Federally recognized Indian Tribe. An action may be categorically excluded if, although sensitive resources are present, the action would not have the potential to cause significant impacts on those resources (such as construction of a building with its foundation well above a sole-source aquifer or upland surface soil removal on a site that has wetlands).Environmentally sensitive resources include, but are not limited to:

(i) Property (such as sites, buildings, structures, and objects) of historic, archeological, or architectural significance designated by a Federal, State, or local government, federally recognized Indian Tribe, or Native Hawaiian organization; or property determined to be eligible for listing on the National Register of Historic Places;

(ii) Federally listed threatened or endangered species or their habitat (including critical habitat) or federally proposed or candidate species or their habitat (Endangered Species Act); state-listed or state-proposed endangered or threatened species or their habitat; Federally protected marine mammals and Essential Fish Habitat (Marine Mammal Protection Act; Magnuson-Stevens Fishery Conservation and Management Act); and otherwise Federally protected species (such as the Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act);

(iii) Floodplains and wetlands (as defined in 10 CFR 1022.4, “Compliance with Floodplain and Wetland Environmental Review Requirements: Definitions,” or its successor);

(iv) Areas having a special designation such as Federally and State-designated wilderness areas, national parks, national monuments, national natural landmarks, wild and scenic rivers, State and Federal wildlife refuges, scenic areas (such as National Scenic and Historic Trails or National Scenic Areas), and marine sanctuaries;

(v) Prime or unique farmland, or other farmland of statewide or local importance, as defined at 7 CFR 658.2(a), “Farmland Protection Policy Act: Definitions,” or its successor;

(vi) Special sources of water (such as sole-source aquifers, wellhead protection areas, and other water sources that are vital in a region); and

(vii) Tundra, coral reefs, or rain forests; or

(5) Involve genetically engineered organisms, synthetic biology, governmentally designated noxious weeds, or invasive species, unless the proposed activity would be contained or confined in a manner designed and operated to prevent unauthorized release into the environment and conducted in accordance with applicable requirements, such as those of the Department of Agriculture, the Environmental Protection Agency, and the National Institutes of Health.

3. Bureau of Land Management CE

D. Rangeland Management (2): Placement and use of temporary (not to exceed one month) portable corrals and water troughs, providing no new road construction is needed.

4. National Telecommunications and Information Administration CEs

C-4: New construction or improvement of land, operations, or support facilities, switching stations, maintenance facilities, and other non-tower structures supporting wired or wireless communications systems in a developed area and/or on previously disturbed ground with no more than 1 acre (0.4 hectare) of ground disturbance where the proposed facility use is generally compatible with the surrounding land use and applicable zoning standards and will not require additional support infrastructure.

C-5: Installing, operating, maintaining, retrofitting, upgrading, repairing, removing, and/or replacement of existing microwave or radio communication towers, instruments, structures, or buildings that do not require ground disturbance outside of the original footprint, including installing or collocating equipment such as antennas, microwave dishes, or power units. For communications towers at or below 199 feet, renovations and equipment additions must not cause the total height of the tower to exceed 199 feet. Existing structures must not be eligible for listing in the National Register of Historic Places.

C-6: New construction or improvement of temporary buildings or experimental equipment ( e.g.,, trailers, prefabricated buildings, and test slabs) on previously disturbed ground, with no more than 1 acre (0.4 hectare) of ground disturbance, where the proposed facility use is generally compatible with the surrounding land use and applicable zoning standards and will not require additional support infrastructure.

C-7: New construction of self-supporting (for example, monopole or lattice) wireless communication towers at or below 199 feet with no guy wires that require less than 1 acre (0.4 hectare) of ground disturbance and where another Federal agency would not require an EA or EIS for its acquisition, installation, operations, or maintenance.

C-8: Acquisition, installation, reconstruction, repair by replacement, and operation of aerial or buried utility (for example, water, sewer, electrical), communication (for example, fiber optic cable, data processing cable and similar electronic equipment), and security systems that use existing rights-of-way, easements, grants of license, distribution systems, facilities, or similar arrangements.

5. Bureau of Indian Affairs CE

L. Roads and Transportation (1): Approval of utility installations along or across a transportation facility located in whole within the limits of the roadway right-of-way.