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, 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.

The Forest Service's NEPA procedures are found at 36 CFR part 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 at FSH 1909.15, chapter 10.

This notice documents the Forest Service's adoption of the BLMs CEs listed at 516 Departmental Manual (DM) 11.9E(12), (13), (17) and 11.9F (10) and DOEs CEs listed at appendix B of 10 CFR part 1021, subpart D, B4. (6), (11), (12), (13), and (16).

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 CEs adopted from BLM 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). For the CEs adopted from DOE the Forest Service will also apply DOEs extraordinary circumstances set forth in 10 CFR 1021.410(b)(2).

III. Consultation With BLM and DOE on CE Adoption

In July and August of 2024, the BLM and Forest Service had several meetings to discuss the adoption of aforementioned categorical exclusions. The Forest Service' intended uses of E12, E13, E17 and F10 are consistent with the way the BLM has been relying on these CEs. The Forest Service explained that the agency intends to rely on the CEs in the following manner: examples of how E12 would be used include, but are not limited to, supporting the installation of broadband, roads, pipelines, powerlines, irrigation water transportation, and approving Special Use Permits (SUP) for areas within existing SUP locations. Examples of how Forest Service intends to use E13 include, but are not limited to, road expansions and upgrades, powerline upgrades and additions, and broadband upgrades. CE E17 would be used to support installation of short SUPs like broadband, power lines, telephone lines, and roads related to utilities, and terminal access roads to residences, water wells, and outbuildings. CE F10 would be used consistent with the scope of the CE to support removal of mineral materials within the existing limits described in the CE text. Therefore, the Forest Service has determined that its proposed use of BLMs CEs as described in this notice is appropriate.

In July and August of 2024, the Forest Service and DOE consulted on the uses for CEs at appendix B of 10 CFR part 1021, subpart D, B4. (6), (11), (12), (13), and (16) and concluded that Forest Service intended uses are consistent with the intended uses of these categories.

IV. Identification of BLM and DOE CEs

BLM

516 DM 11.9E(12)

Grants of right-of-way wholly within the boundaries of other compatibly developed rights-of-way.

516 DM 11.9E(13)

Amendments to existing rights-of-way, such as the upgrading of existing facilities, which entail no additional disturbances outside the right-of-way boundary.

516 DM 11.9E(17)

Grant of a short rights-of-way for utility service or terminal access roads to an individual residence, outbuilding, or water well.

516 DM 11.9F(10)

Disposal of mineral materials, such as sand, stone, gravel, pumice, pumicite, cinders, and clay, in amounts not exceeding 50,000 cubic yards or disturbing more than 5 acres, except in riparian areas.

DOE

B4.6

Additions and Modifications to Transmission Facilities—Additions or modifications to electric power transmission facilities within a previously disturbed or developed facility area. Covered activities include, but are not limited to, switchyard rock grounding upgrades, secondary containment projects, paving projects, seismic upgrading, tower modifications, load shaping projects (such as reducing energy use during periods of peak demand), changing insulators, and replacement of poles, circuit breakers, conductors, transformers, and crossarms.

B4.11

Electric power substations and interconnection facilities—Construction or modification of electric power substations or interconnection facilities (including, but not limited to, switching stations and support facilities).

B4.12

Construction of powerlines—Construction of electric powerlines approximately 10 miles in length or less, or approximately 20 miles in length or less within previously disturbed or developed powerline or pipeline rights-of-way.

B4.13

Upgrading and Rebuilding Existing Powerlines—Upgrading or rebuilding existing electric powerlines, which may involve relocations of small segments of the powerlines within an existing powerline right-of-way or within otherwise previously disturbed or developed lands (as discussed at 10 CFR 1021.410(g)(1)). Upgrading or rebuilding existing electric powerlines also may involve widening an existing powerline right-of-way to meet current electrical standards if the widening remains within previously disturbed or developed lands and only extends into a small area beyond such lands as needed to comply with applicable electrical standards. Covered actions would be in accordance with applicable requirements, including the integral elements listed at the start of appendix B of this part; and would incorporate appropriate design and construction standards, control technologies, and best management practices. This categorical exclusion does not apply to underwater powerlines. As used in this categorical exclusion, “small” has the meaning discussed at 10 CFR 1021.410(g)(2).

B5.16

Solar Photovoltaic Systems—(a) The installation, modification, operation, or decommissioning of commercially available solar photovoltaic systems: (1) Located on a building or other structure (such as rooftop, parking lot or facility, or mounted to signage, lighting, gates, or fences); or (2) Located within a previously disturbed or developed area. (b) Covered actions would be in accordance with applicable requirements (such as land use and zoning requirements) in the proposed project area and the integral elements listed at the start of appendix B of this part and would be consistent with applicable plans for the management of wildlife and habitat, including plans to maintain habitat connectivity, and incorporate appropriate control technologies and best management practices.

[FR Doc. 2024-26036 Filed 11-7-24; 8:45 am]

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