[Federal Register Volume 89, Number 126 (Monday, July 1, 2024)]
[Notices]
[Pages 54411-54413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14449]
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DEPARTMENT OF AGRICULTURE
Forest Service
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.
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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 [email protected].
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
[[Page 54412]]
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
[[Page 54413]]
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.
Dated: June 26, 2024.
Jacqueline Emanuel,
Associate Deputy Chief, National Forest System.
[FR Doc. 2024-14449 Filed 6-28-24; 8:45 am]
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