Adoption of Categorical Exclusions under the National Environmental Policy Act

Notice of Adoption of Department of Energy Categorical Exclusions Under the National Environmental Policy Act

Dates

This action is effective upon publication.

Supplementary Information

I. Background

RD's mission is to increase economic opportunity and improve the quality of life for all rural Americans. This mission is met by providing loans, grants, loan guarantees, and technical assistance through a multitude of programs aimed at creating and improving infrastructure, businesses, and housing throughout rural America. RD is divided into three agencies, the Rural Utilities Service, Rural Business-Cooperative Service and Rural Housing Service, each with unique programs that play an important role in helping RD reach its goals.

RD's programs must comply with NEPA, 42 U.S.C. 4321 et seq., which requires Federal agencies to consider the environmental effects of their proposed actions in their decision-making processes and inform and engage the public in those processes. Congress enacted NEPA to establish a national policy for the environment, provide for the establishment of the Council on Environmental Quality (CEQ), and for other purposes as detailed on NEPA.gov ( https://ceq.doe.gov/ ). CEQ issued regulations implementing NEPA, 40 CFR parts 1500 through 1508 (CEQ regulations).

To comply with NEPA, agencies determine the appropriate level of review of any major Federal action-an environmental impact statement (EIS), environmental assessment (EA), or CE. It is the agency's responsibility, in accordance with NEPA and the CEQ regulations, to prepare documentation that supports their level of review.

Section 109 of NEPA, enacted as part of the Fiscal Responsibility Act of 2023, allows a Federal agency to adopt and use another agency's CEs for a category of proposed agency actions (42 U.S.C. 4336c). To use another agency's CEs under section 109, the adopting agency must identify the relevant CEs listed in another agency's ("establishing agency") NEPA procedures that cover the adopting agency's category of proposed actions or related actions; consult with the establishing agency to ensure that the proposed adoption of the CE to a category of actions is appropriate; identify to the public the CE that the adopting agency plans to use for its proposed actions; and document adoption of the CE. 40 CFR 1501.4(e)(2024). This notice documents RD's adoption of three DOE CEs under section 109 of NEPA for future use in RD programs and funding opportunities.

II. Identification of the Categorical Exclusions and Additional Conditions for Application

RD provides loans, grants and technical assistance to build critical infrastructure like electric, broadband, water systems, and hospitals. The programs expand access to electric, telecommunications, and transportation infrastructure, and support business growth, healthcare, education, housing, and other community essentials.

RD has identified the following CEs for adoption, which are listed in DOE's NEPA procedures as CEs B5.4, B5.5, and B5.23 of 10 CFR part 1021, subpart D, appendix B. These CEs were established April 24, 1992 (57 FR 15144), and October 13, 2011 (76 FR 63787). The DOE text of each CE has been included in quotations following each identified CE. RD intends to apply these CEs to projects undertaken directly by RD, requiring an approval by RD, or financed in whole or in part through Federal funds made available by RD programs.

RD will review each action to ensure the following: (1) Compliance with the DOE's NEPA procedures at 10 CFR 1021 subpart D, appendix B which require an evaluation of "integral elements"; (2) Compliance with RD's NEPA procedures at 7 CFR 1970.52 which address extraordinary circumstances; and (3) Confirmation the action has not been segmented as required by DOE's NEPA procedures at 10 CFR 1021.410(b)(3). The evaluation of integral elements and segmentation is further described in this section. The evaluation of extraordinary circumstances is further described in Section III.

B5.4 Repair or replacement of pipelines. "Repair, replacement, upgrading, rebuilding, or minor relocation of pipelines within existing rights-of-way, provided that the actions are in accordance with applicable requirements (such as Army Corps of Engineers permits under section 404 of the Clean Water Act). Pipelines may convey materials including, but not limited to, air, brine, carbon dioxide, geothermal system fluids, hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam, and water."

RD intends to apply this CE in a manner consistent with DOE's application-to the same types of actions (being located in existing rights of way, in accordance with applicable requirements, and conveying the same types of materials identified by the DOE CE such as natural gas). An example of a project type where this CE could be applied by RD includes, but is not limited to, the repair or replacement of a gas transmission pipeline in an existing utility or transportation right-of-way that provides natural gas to an existing power plant operated by a utility cooperative.

RD's existing CE pertaining to gas lines (and water and wastewater), 7 CFR 1970.54(b)(2), applies to "Improvement and expansion of existing water, wastewater, and gas utility systems: (i) Within one mile of currently served areas irrespective of the percent of increase in new capacity, or (ii) increasing capacity not more than 30 percent of the existing user population." RD's CE applies only to projects occurring within one mile of currently served areas or to projects that increase capacity by no more than 30 percent of the existing user population. DOE's CE would provide flexibility to RD's program in that it does not limit the proximity of the pipelines to the area serviced and does not have a limit on increased capacity, but instead limits the covered projects through the requirements to remain within existing rights-of-way and to comply with applicable requirements (such as Army Corps of Engineers permits under section 404 of the Clean Water Act). Additionally, RD's CE is limited to water, wastewater, and gas utility systems, while DOE's CE applies more broadly to pipelines of different kinds.

B5.5 Short pipeline segments. "Construction and subsequent operation of short (generally less than 20 miles in length) pipeline segments conveying materials (such as air, brine, carbon dioxide, geothermal system fluids, hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam, and water) between existing source facilities and existing receiving facilities (such as facilities for use, reuse, transportation, storage, and refining), provided that the pipeline segments are within previously disturbed or developed rights-of-way."

RD intends to apply this CE in a manner consistent with DOE's application-to the same types of actions (which have included pipeline segments which are constructed and operated within previously disturbed or developed rights-of-way and conveying the same types of materials identified by the DOE CE such as natural gas). An example of a project type where this CE could be applied by RD includes, but is not limited to, the construction of a short pipeline segment alone in an existing utility or transportation right-of-way to provide natural gas to an existing power plant operated by a rural utility cooperative.

RD does not have an existing CE that addresses new construction of pipeline segments other than for water and wastewater. DOE's CE does not limit the type of gases and liquids a pipeline can convey. RD is seeing an increase in applicants retrofitting existing generation plants with lower carbon emitting resources, such as natural gas. Modifications underway include the conversion from coal to co-firing natural gas plants. The DOE CE would address the action of constructing new natural gas pipeline segments for such plant modifications.

B5.23 Electric vehicle charging stations. "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." The CE will be applied in a manner consistent with DOE's application-to the same types of actions (which have included a wide variety of locations on and off Federal property, differences in local conditions, various numbers of EV charging stations per action, and different types of equipment and technologies including Level 1, Level 2, and DC Fast Charging stations).

RD intends to apply this CE towards the construction of electric vehicle charging stations proposed by applicants in previously disturbed or developed areas including, but not limited to, existing facilities such as headquarters, warehouses, and other support buildings used by electric utility cooperatives and other applicant types. As applicants increasingly focus on green energy and long-term sustainability goals, RD anticipates those efforts will also include the replacement of applicants' fleets from gas powered to electric vehicles. RD will review the action for integral elements, extraordinary circumstances and segmentation to ensure that the CE is still applicable. Reducing the Department's reliance on fossil fuels and reducing emissions will improve sustainability in accordance with Executive Order 14008, Tackling the Climate Crisis at Home and Abroad. RD does not currently have a CE for this application.

Additional conditions applicable to DOE's CEs: When analyzing "Previously disturbed or developed area," RD will use DOE's definition of "land that has been changed such that its functioning ecological processes have been and remain altered by human activity." DOE further clarifies that "[t]he 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)). DOE's definition of "Previously disturbed or developed area" is substantially the same as the definition RD uses. RD defines "[p]reviously disturbed or developed area" as "[l]and that has been changed such that its functioning ecological processes have been and remain altered by human activity," which "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" (7 CFR 1970.6(a)).

The DOE CEs include additional conditions referred to as integral elements (10 CFR part 1021 Subpart D, Appendix B). In order to apply the CEs, RD will ensure the action 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 USDA 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;

(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.

The CEs being adopted apply to classes of action that RD has determined would not individually or cumulatively have a significant effect on the human environment. RD will ensure in its review of each action that it has not been segmented as required by DOE's NEPA procedures at 10 CFR 1021.410(b)(3) and the appropriate level of environmental review is being applied to the action as required by the CEQ regulations at 40 CFR 1501.3(b).

III. Consideration of Extraordinary Circumstances

DOE's implementing procedures for extraordinary circumstances at 10 CFR 1021.410(b)(2) will be used when evaluating projects where the adopted CEs will be applied. RD's definition of extraordinary circumstances includes DOE's definition in its entirety, but also includes additional details that address considerations relevant to RD's programs; therefore, RD will also rely on the language found in RD's implementing procedures when evaluating the applicability of an adopted CE to a proposal.

IV. Consultation With DOE and Determination of Appropriateness

RD and the DOE Office of NEPA Policy and Compliance consulted on the appropriateness of RD's adoption of the CEs in February and April of 2024. RD and DOE's consultation included a review of DOE's experience developing and applying the CEs, the types of actions for which RD plans to utilize the CEs, and consideration of extraordinary circumstances. These RD actions are similar to the type of projects that DOE undertakes or funds and therefore the effects of RD projects will be similar to the effects of DOE projects, which are not significant, absent the existence of extraordinary circumstances that could involve potentially significant effects. Therefore, RD has determined that its proposed use of the CEs as described in this notice would be appropriate.

V. Notice to the Public and Documentation of Adoption

This notice serves to identify to the public and document RD's adoption of DOE's CEs for the repair or replacement of pipelines, short pipeline segments, and electric vehicle charging stations. The notice identifies the types of actions to which RD will apply the CE, as well as the considerations that RD will use in determining whether an action is within the scope of the CE.

Issued under authority delegated in 7 CFR 2.17.