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

SUPPLEMENTARY INFORMATION:

I. National Environmental Policy Act and Categorical Exclusions

The National Environmental Policy Act (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 at 40 Code of Federal Regulations (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 categorical exclusion (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).

The Forest Service's NEPA procedures are found at 36 CFR 220. These procedures address compliance with NEPA. The Forest Service maintains a list of categorical exclusions available at 36 CFR 220.6. Additional NEPA policy is found in the Forest Service Handbook 1909.15, chapter 10.

This notice documents the Forest Service's adoption of the USGS categorical exclusions 516 Departmental Manual 9.5 B, G, H, I, K, and P.

II. Additional Considerations Related to Forest Service Categorical Exclusions

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 categorical exclusions (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 CEs adopted from USGS and described 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 USGS on Categorical Exclusion Adoption

In June 2024 the Forest Service conducted consultation with the USGS on adoption of their CEs 516 Departmental Manual 9.5 B, G, H, I, K, and P. The USGS and Forest Service consultation included a review of USGS experience developing and applying the CEs, as well as the types of actions for which Forest Service plans to utilize the CEs. The Forest Service actions would be similar to the type of projects for which USGS has applied the CEs and therefore the effects of Forest Service projects will be similar to the effects of USGS projects, which are not significant, absent extraordinary circumstances. Therefore, the Forest Service has determined that its proposed use of USGS CEs as described in this notice is appropriate.

IV. Identification of USGS Categorical Exclusions

B. Collection of data and samples for geologic, palaeontologic, hydrologic, mineralogic, geochemical and surface or subsurface geophysical investigations, and resource evaluation, including contracts therefor.

G. Test or exploration drilling and downhole testing, including contracts therefor.

H. Establishment of survey marks, placement and operation of field instruments, and installation of any research/monitoring devices.

I. Digging and subsequent site restoration of exploratory trenches not to exceed one acre of surface disturbance.

K. Off-road travel to drilling, data collection or observation sites which does not impact ecologically sensitive areas such as wilderness areas, wetlands, or areas of critical habitat for listed endangered or threatened species.

P. Minor activities required to gain or prepare access to sites selected for completion of exploration drilling operations or construction of stations for hydrologic, geologic, or geophysical data collection.

[FR Doc. 2024-22154 Filed 9-26-24; 8:45 am]

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