Adoption of Categorical Exclusions under the National Environmental Policy Act

Adoption of United States Forest Service Categorical Exclusions Under the National Environmental Policy Act

Dates

This action is effective upon publication.

Supplementary Information

I. Background

The National Environmental Policy Act, as amended, seeks to ensure that Federal agencies consider the environmental effects of their proposed major actions in their decision-making processes. 42 U.S.C. 4321 et seq. NEPA establishes three types of review for proposed actions-environmental impact statement, environmental assessment, and categorical exclusion-each involving different levels of information and analysis. An environmental impact statement is a detailed analysis of reasonably foreseeable environmental effects prepared for a major Federal action significantly affecting the quality of the human environment. 42 U.S.C. 4332(2)(C) and 40 CFR part 1502 and section 1508.1(l). An environmental assessment is a concise public document prepared by a Federal agency to set forth the basis for its finding of no significant impact or its determination that an environmental impact statement is necessary. 42 U.S.C. 4336(b)(2) and 40 CFR 1501.5, 1501.6, and 1508.1(j). A categorical exclusion is a category of actions that the agency has determined, in its agency NEPA procedures, normally does not have a significant effect on the human environment and therefore does not require preparation of an environmental assessment or environmental impact statement. 40 CFR 1501.4, 1507.3(c)(8), and 1508.1(e). If an agency determines that a categorical exclusion covers a proposed action, it then evaluates the proposed action for extraordinary circumstances in which a normally excluded action may have a significant effect. 40 CFR 1501.4(b). If no extraordinary circumstances are present, the agency may apply the categorical exclusion to the proposed action without preparing an environmental assessment or environmental impact statement. 42 U.S.C. 4336(a)(2), 40 CFR 1501.4. If an extraordinary circumstance exists, the agency nevertheless may apply the categorical exclusion if the agency "conducts an analysis and determines that the proposed action does not in fact have the potential to result in significant effects notwithstanding the extraordinary circumstance, or the agency modifies the action to avoid the potential to result in 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" another Federal agency's categorical exclusions for proposed actions. 42 U.S.C. 4336c. To use another agency's categorical exclusions under section 109, the adopting agency ("borrowing agency") must identify the relevant categorical exclusions listed in another agency's ("establishing agency") NEPA procedures that covers the borrowing agency's category of proposed actions or related actions; consult with the establishing agency to ensure that the proposed adoption of the categorical exclusion for a category of actions is appropriate; identify to the public the categorical exclusions that the borrowing agency plans to use for its proposed actions; and document adoption of the categorical exclusions. Id. This process is incorporated into the CEQ regulations at 40 CFR 1501.4(e).

II. The USFS Categorical Exclusions that DOE Is Adopting

A. Text of the USFS Categorical Exclusions

DOE is adopting seven categorical exclusions established by USFS. These categorical exclusions are listed in the USFS NEPA procedures at 36 CFR 220.6(e). That section of the USFS NEPA procedures includes 25 categorical exclusions numbered (e)(1)-(e)(25). DOE is adopting these seven categorical exclusions: (e)(11), (e)(12), (e)(13), (e)(14), (e)(18), (e)(19), and (e)(20). The text of these categorical exclusions is:

1. (e)(11) Post-fire rehabilitation activities, not to exceed 4,200 acres (such as tree planting, fence replacement, habitat restoration, heritage site restoration, repair of roads and trails, and repair of damage to minor facilities such as campgrounds), to repair or improve lands unlikely to recover to a management approved condition from wildland fire damage, or to repair or replace minor facilities damaged by fire. Such activities:

(i) Shall be conducted consistent with Agency and Departmental procedures and applicable land and resource management plans;

(ii) Shall not include the use of herbicides or pesticides or the construction of new permanent roads or other new permanent infrastructure; and

(iii) Shall be completed within 3 years following a wildland fire.

2. (e)(12) Harvest of live trees not to exceed 70 acres, requiring no more than 2 mile of temporary road construction. Do not use this category for even-aged regeneration harvest or vegetation type conversion. The proposed action may include incidental removal of trees for landings, skid trails, and road clearing. Examples include, but are not limited to:

(i) Removal of individual trees for sawlogs, specialty products, or fuelwood, and

(ii) Commercial thinning of overstocked stands to achieve the desired stocking level to increase health and vigor.

3. (e)(13) Salvage of dead and/or dying trees not to exceed 250 acres, requiring no more than 1/2 mile of temporary road construction. The proposed action may include incidental removal of live or dead trees for landings, skid trails, and road clearing. Examples include, but are not limited to:

(i) Harvest of a portion of a stand damaged by a wind or ice event and construction of a short temporary road to access the damaged trees, and

(ii) Harvest of fire-damaged trees.

4. (e)(14) Commercial and non-commercial sanitation harvest of trees to control insects or disease not to exceed 250 acres, requiring no more than 2 mile of temporary road construction, including removal of infested/infected trees and adjacent live uninfested/uninfected trees as determined necessary to control the spread of insects or disease. The proposed action may include incidental removal of live or dead trees for landings, skid trails, and road clearing. Examples include, but are not limited to:

(i) Felling and harvest of trees infested with southern pine beetles and immediately adjacent uninfested trees to control expanding spot infestations, and

(ii) Removal and/or destruction of infested trees affected by a new exotic insect or disease, such as emerald ash borer, Asian long horned beetle, and sudden oak death pathogen.

5. (e)(18) Restoring wetlands, streams, riparian areas or other water bodies by removing, replacing, or modifying water control structures such as, but not limited to, dams, levees, dikes, ditches, culverts, pipes, drainage tiles, valves, gates, and fencing, to allow waters to flow into natural channels and floodplains and restore natural flow regimes to the extent practicable where valid existing rights or special use authorizations are not unilaterally altered or canceled. Examples include but are not limited to:

(i) Repairing an existing water control structure that is no longer functioning properly with minimal dredging, excavation, or placement of fill, and does not involve releasing hazardous substances;

(ii) Installing a newly-designed structure that replaces an existing culvert to improve aquatic organism passage and prevent resource and property damage where the road or trail maintenance level does not change;

(iii) Removing a culvert and installing a bridge to improve aquatic and/or terrestrial organism passage or prevent resource or property damage where the road or trail maintenance level does not change; and

(iv) Removing a small earthen and rock fill dam with a low hazard potential classification that is no longer needed.

6. (e)(19) Removing and/or relocating debris and sediment following disturbance events (such as floods, hurricanes, tornados, mechanical/engineering failures, etc.) to restore uplands, wetlands, or riparian systems to pre-disturbance conditions, to the extent practicable, such that site conditions will not impede or negatively alter natural processes. Examples include but are not limited to:

(i) Removing an unstable debris jam on a river following a flood event and relocating it back in the floodplain and stream channel to restore water flow and local bank stability;

(ii) Clean-up and removal of infrastructure flood debris, such as, benches, tables, outhouses, concrete, culverts, and asphalt following a hurricane from a stream reach and adjacent wetland area; and

(iii) Stabilizing stream banks and associated stabilization structures to reduce erosion through bioengineering techniques following a flood event, including the use of living and nonliving plant materials in combination with natural and synthetic support materials, such as rocks, riprap, geo-textiles, for slope stabilization, erosion reduction, and vegetative establishment and establishment of appropriate plant communities (bank shaping and planting, brush mattresses, log, root wad, and boulder stabilization methods).

7. (e)(20) Activities that restore, rehabilitate, or stabilize lands occupied by roads and trails, including unauthorized roads and trails and National Forest System roads and National Forest System trails, to a more natural condition that may include removing, replacing, or modifying drainage structures and ditches, reestablishing vegetation, reshaping natural contours and slopes, reestablishing drainage-ways, or other activities that would restore site productivity and reduce environmental impacts. Examples include but are not limited to:

(i) Decommissioning a road to a more natural state by restoring natural contours and removing construction fills, loosening compacted soils, revegetating the roadbed and removing ditches and culverts to reestablish natural drainage patterns;

(ii) Restoring a trail to a natural state by reestablishing natural drainage patterns, stabilizing slopes, reestablishing vegetation, and installing water bars; and

(iii) Installing boulders, logs, and berms on a road segment to promote naturally regenerated grass, shrub, and tree growth.

B. Additional Considerations Related to the USFS Categorical Exclusions

1. Decision Memo

USFS regulations state, "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. As a minimum, the project or case file should include any records prepared, such as: The names of interested and affected people, groups, and agencies contacted; the determination that no extraordinary circumstances exist; a copy of the decision memo; and a list of the people notified of the decision. . . ." 36 CFR 220.6(e).

2. Extraordinary Circumstances

USFS NEPA procedures state that a categorical exclusion may only be applied "if there are no extraordinary circumstances related to the proposed action" and if the proposed action is within a categorical exclusion listed within U.S. Department of Agriculture or USFS procedures. 36 CFR 220.6(a). The USFS NEPA procedures 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 environmental assessment or an environmental impact statement:

(i) Federally listed threatened or endangered species or designated critical habitat, species proposed for Federal listing or proposed critical habitat, or Forest Service sensitive species;

(ii) Flood plains, wetlands, or municipal watersheds;

(iii) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas;

(iv) Inventoried roadless area or potential wilderness area;

(v) Research natural areas;

(vi) American Indians and Alaska Native religious or cultural sites; and

(vii) Archaeological sites, or historic properties or areas.

The USFS NEPA procedures also state that, "The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion (CE). It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions, and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determines whether extraordinary circumstances exist." 36 CFR 220.6(b).

III. DOE's Use of the Adopted USFS Categorical Exclusions

A. Types of DOE Actions

DOE expects to use these USFS categorical exclusions for proposed actions that would enhance the safety and reliability of transmission operations, including within the systems operated and maintained by DOE's Power Marketing Administrations. For example, consistent with USFS categorical exclusion (e)(13), trees may be cut, skidded, and decked to remove post-wildfire damaged or dead trees to maintain transmission line reliability. Also, trees cut over the course of routine transmission line vegetation management activities may be decked and removed to reduce fuel loading consistent with USFS categorical exclusions (e)(12) or (e)(14). Other potential use of USFS categorical exclusion (e)(18) and (e)(20) include infrastructure repairs at wash and stream crossings, as well as rehabilitation of unauthorized roads within a right-of-way in order to protect biological and cultural resources. DOE also expects to use these USFS categorical exclusions for proposed actions at other DOE sites, some of which include large areas of forested and otherwise mostly undeveloped land. DOE's use of these USFS categorical exclusions would not be limited to these examples and could be used in other circumstances for which their use is appropriate.

B. Additional Considerations in DOE's Use of the Adopted Categorical Exclusions

As described in section II.B.1 of this notice, USFS requires documentation of the decision to apply any of the categorical exclusions previously listed. DOE requires documentation and posting online categorical exclusion determinations that rely on any categorical exclusion listed in appendix B to DOE's NEPA procedures (10 CFR 1021.410(e)). DOE will extend these current practices of documentation and posting online to categorical exclusion determinations made using the adopted USFS categorical exclusions. In addition, USFS requires that the "project or case file should include any records prepared, such as: The names of interested and affected people, groups, and agencies contacted; the determination that no extraordinary circumstances exist; a copy of the decision memo; and a list of the people notified of the decision." 36 CFR 220.6(e). Maintaining these records aligns with DOE practice, and DOE would maintain similar records associated with its use of the adopted USFS categorical exclusions.

As described in section II.B.2 of this notice, USFS lists resource conditions to evaluate for extraordinary circumstances. In deciding whether to use the adopted USFS categorical exclusions, DOE will evaluate whether there are extraordinary circumstances associated with the proposed action. In doing so, DOE will refer to the resource conditions identified by USFS. These resource conditions parallel the list of integral elements at the start of appendix B to DOE's NEPA procedures. 10 CFR part 1021, subpart D. DOE also will refer to the definition of extraordinary circumstances in its own NEPA procedures. 10 CFR 1021.410(b)(2).

In addition, when determining whether to use any of the adopted USFS categorical exclusions, DOE will apply the other conditions in its NEPA procedures related to the use of categorical exclusions. These conditions are listed in 10 CFR 1021.410.

IV. Consultation With USFS and Determination of Appropriateness

DOE worked with USFS to identify USFS categorical exclusions that could apply to DOE proposed actions and consulted with USFS at various times from September 2023 through June 2024. During that consultation, the agencies discussed DOE's proposed use of these USFS categorical exclusions, USFS past practice when relying on the categorical exclusions, the agencies' practices concerning analysis of extraordinary circumstances, and USFS documentation requirements when applying these categorical exclusions.

At the conclusion of that process, DOE determined that its proposed use of the categorical exclusions as described in this notice would be appropriate because the categories of actions for which DOE plans to use the categorical exclusions are covered by the USFS categorical exclusions. DOE also determined, consistent with a recommendation from USFS, that it would not use categorical exclusion (e)(11) for hazard tree mitigation or abatement.

V. Conclusion

This notice documents adoption by DOE of the USFS categorical exclusions listed above in accordance with 42 U.S.C. 4336c(4) and the CEQ regulations at 40 CFR 1501.4(e), and they are available for use by DOE, effective immediately. DOE will maintain a copy of this notice of adoption and a written record of DOE's use of the categorical exclusions listed in this notice on DOE's NEPA website at www.energy.gov/nepa.

Signing Authority

This document of the Department of Energy was signed on July 17, 2024, by Samuel T. Walsh, General Counsel, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

[FR Doc. 2024-16087 Filed 7-22-24; 8:45 am]

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