[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Notices]
[Pages 59726-59729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16087]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Adoption of United States Forest Service Categorical Exclusions
Under the National Environmental Policy Act
AGENCY: Office of the General Counsel, Department of Energy.
ACTION: Notice of adoption of categorical exclusions.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE or the Department) has
identified categorical exclusions established by the United States
Forest Service (USFS) that cover categories of actions pertinent to DOE
operations. This notice identifies those USFS categorical exclusions
and announces that DOE has adopted them for the Department's future use
pursuant to section 109 of the National Environmental Policy Act (NEPA)
and the Council on Environmental Quality (CEQ) NEPA regulations.
DATES: This action is effective upon publication.
FOR FURTHER INFORMATION CONTACT: For further information, contact Ms.
Carrie Abravanel, Deputy Director, Office of NEPA Policy and
Compliance, at [email protected] or 202-586-4600.
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
[[Page 59727]]
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,
[[Page 59728]]
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
[[Page 59729]]
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.
Signed in Washington, DC, on July 17, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2024-16087 Filed 7-22-24; 8:45 am]
BILLING CODE 6450-01-P