Compliance With NEPA, 6553-6558 [2010-2815]

Agencies

• DEPARTMENT OF AGRICULTURE
• Natural Resources Conservation Service

[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Rules and Regulations]
[Pages 6553-6558]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2815]


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DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 650

RIN 0578-AA55


Compliance With NEPA

AGENCY: Natural Resources Conservation Service, United States 
Department of Agriculture.

ACTION: Final rule.

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SUMMARY: The Natural Resources Conservation Service (NRCS) published an 
interim final rule on July 13, 2009, that identified additional 
categorical exclusions, which are actions that NRCS has determined do 
not individually or cumulatively have a significant effect on the human 
environment and, thus, should not require preparation of an 
environmental assessment (EA) or environmental impact statement (EIS) 
under the National Environmental Policy Act (NEPA). This final rule 
responds to comments received on the interim final rule and makes final 
the provisions set forth in the interim final rule. NRCS' categorical 
exclusions encompass actions that promote restoration and conservation 
activities related to past natural or human induced damage, or 
alteration of floodplains and watershed areas. For projects being 
funded under the American Recovery and Reinvestment Act of 2009 (ARRA), 
this final rule will assist NRCS in meeting mandates set forth in ARRA 
for undertaking actions in the most expeditious manner and in 
compliance with NEPA.

DATES: Effective Date: The rule is effective February 10, 2010.

FOR FURTHER INFORMATION CONTACT: Matt Harrington, National 
Environmental Coordinator, Ecological Sciences Division, Department of 
Agriculture, Natural Resources Conservation Service, 1400 Independence 
Avenue, SW., Room 6158 South Building, Washington, DC 20250; Telephone: 
(202) 720-4925; Fax: (202) 720-2646; or e-mail NEPA2008@wdc.usda.gov, 
and identify in the subject line, ``Information Requested.'' This final 
rule may be accessed via Internet. Users can access the final rule at: 
https://www.nrcs.usda.gov/programs/Env_Assess/. Persons with 
disabilities who require alternative means for communication (Braille, 
large print, audio tape, etc.) should contact the USDA TARGET Center 
at: (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
final rule is a non-significant regulatory action under Executive Order 
12866.

Regulatory Flexibility Act

    Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, NRCS 
has determined that this final rule will not have a significant 
economic impact on a substantial number of small entities as defined by 
that Act. Therefore, a regulatory flexibility analysis is not required 
for this final rule.

Environmental Analysis

    This final rule amends the procedures for implementing NEPA at 7 
CFR part 650 and will not directly impact the environment. An agency's 
NEPA procedures are guidance to assist the agency in its fulfillment of 
responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular action. The Council for Environmental Quality (CEQ) set 
forth the requirements for establishing agency NEPA procedures in its 
regulations at 40 CFR 1505.1 and 1507.3. The CEQ regulations do not 
require agencies to conduct NEPA analyses or prepare NEPA documentation 
when establishing their NEPA procedures. The determination that 
establishing agency NEPA procedures does not require NEPA analysis and 
documentation has been upheld in Heartwood, Inc. v U.S. Forest Service, 
230 F.3d 947, 954-55 (7th Cir. 2000).

Paperwork Reduction Act

    There are no requirements for information collection associated 
with this final rule that would require approval under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Unfunded Mandates Reform Act of 1995

    NRCS assessed the effects of this rulemaking action on State, 
local, or tribal governments and the public. This action does not 
compel the expenditure of $100 million or more in any one year 
(adjusted for inflation) by any State, local, or tribal governments or 
anyone in the private sector; therefore, a statement under section 202 
of the Unfunded Mandates Reform Act of 1995 is not required.

Executive Order 13175

    This final rule has been reviewed in accordance with Executive 
Order 13175, Consultation and Coordination with

[[Page 6554]]

Indian tribal governments. NRCS has assessed the impact of this final 
rule on Indian tribal governments, and has concluded that this rule 
will not have substantial direct effects on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes. As a result, the rule did not 
meet the threshold for requiring consultation as specified by Executive 
Order 13175. NRCS remains committed to seeking advice, guidance, and 
counsel from Indian tribes in regard to natural resource concerns and 
issues.

Civil Rights Impact Analysis

    In accordance with OMB's determination that this final rule is 
deemed non-significant, NRCS was not required to conduct a Civil Rights 
Impact Analysis. However, the NRCS Civil Rights Division reviewed the 
final rule and determined through a Civil Rights assessment that NEPA's 
final rule imposes no disproportionately adverse impacts for women, 
minorities, or persons with disabilities. On July 13, 2009, NRCS 
published an interim final rule that identified additional categorical 
exclusions, which are actions that NRCS has determined do not 
individually or cumulatively have a significant effect on the human 
environment and, thus, they should not require preparation of an EA or 
an EIS under NEPA. NRCS' categorical exclusion actions promote 
restoration and conservation activities related to past natural or 
human induced damage, or alteration of floodplains and watershed areas. 
For projects being funded under the ARRA, this final rule will assist 
NRCS in meeting mandates set forth in ARRA for undertaking actions in 
the most expeditious manner and in compliance with NEPA. The changes 
included in this regulation address the identified 21 new categorical 
exclusions and are applicable to all persons regardless of race, color, 
national origin, gender, sex, or disability status. Therefore, the NEPA 
final rule portends no adverse civil rights implications for women, 
minorities, or persons with disabilities.

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. After adoption of this final rule: (1) All State 
and local laws and regulations that conflict with this rule, or that 
would impede full implementation of this rule, will be preempted, and 
(2) no retroactive effect would be given to this final rule.

Executive Order 13132

    NRCS has considered this final rule in accordance with Executive 
Order 13132, issued August 4, 1999. NRCS has determined that the rule 
conforms to the Federalism principles set out in this Executive Order; 
would not impose any compliance costs on the States; and would not have 
substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. Therefore, 
NRCS concludes that this rule does not have Federalism implications.

Energy Effects

    NRCS has determined that this final rule does not constitute a 
significant energy action as defined in Executive Order 13211.

Background

    On July 13, 2009, NRCS published an interim final rule that amended 
7 CFR 650.6 to identify an additional 21 actions that can, in the 
absence of extraordinary circumstances, be categorically excluded from 
further review in an EA or an EIS. NRCS determined that the new 
categorical exclusions routinely do not individually or cumulatively 
have a significant effect on the human environment. The statement 
supporting the categorical exclusions is available for review at the 
following Web site: https://www.nrcs.usda.gov/programs/Env_Assess/ or upon request from Matt Harrington, National Environmental 
Coordinator, Ecological Sciences Division, Department of Agriculture, 
Natural Resources Conservation Service, 1400 Independence Avenue, SW., 
Room 6158 South Building, Washington, DC 20250.
    NRCS provided a 60-day comment period to solicit responses from the 
public regarding the identification of the 21 new categorical 
exclusions. NRCS received 16 substantive and timely filed letters 
containing approximately 25 comments. Respondents included nine non-
governmental organizations, one Federal government agency, one State 
agency, one local government agency, three individuals, and one tribal 
agency. Comments were received from Georgia, Iowa, Kansas, Kentucky, 
Maryland, Mississippi, New Mexico, Oklahoma, Rhode Island, South 
Dakota, Texas, and Washington, DC. The discussion that follows is a 
summarized version of the comments and the agency's responses.

Discussion of Comments

    The comments received focused on the following issues: (1) Support 
for the expanded list of categorical exclusions; (2) clarification on 
compliance with other environmental laws and permitting requirements 
when invoking a categorical exclusion; (3) assessment of tribal 
implications and consultation; and (4) clarification on certain terms 
and conditions under which a categorical exclusion may be used.
    Eleven of the 16 sets of comments received expressed support for 
the expanded list of categorical exclusions.

Compliance With Other Environmental Laws

    Comment: One respondent asked whether other potentially applicable 
environmental laws, such as section 404 of the Clean Water Act, would 
require NRCS to prepare an EA or EIS if the Environmental Protection 
Agency (EPA) or the United States Army Corps of Engineers (USACE) 
determined that there were significant impacts or extraordinary 
circumstances associated with a project.
    Response: NRCS uses its site-specific environmental evaluation (EE) 
process and assessment to make the appropriate determination of whether 
extraordinary circumstances exist which require preparing an EA or EIS. 
However, NRCS will consider any input received from EPA or USACE when 
determining the need for an EA or EIS.
    Comment: The respondent also questioned whether there would be a 
lessening of the environmental studies needed to proceed with the 
implementation of conservation practices and queried whether 
recommended mitigation by outside regulatory agencies, such as EPA or 
USACE, would require more in-depth analysis under NEPA.
    Response. NRCS will still undertake an EE for all projects and 
determine whether there is a need to prepare an EA or EIS. Appropriate 
environmental reviews would be undertaken, and there would be no less 
stringent environmental review performed regardless of any 
recommendation received from regulatory agencies.
    The conservation planning and EE process is designed to minimize 
any adverse impacts to resources. Thus, any mitigation that is proposed 
as an integral part of the project, whether that mitigation is 
recommended by NRCS as part of the planning process or an outside 
regulatory agency, is considered during preparation of the EE which is 
used to determine if there are extraordinary circumstances and the 
appropriate level of environmental review. The proposed action and all 
its integral parts will be reviewed, and if approved, implemented.

[[Page 6555]]

    Comment: Several comments were received requesting clarification on 
how NRCS will determine any extraordinary circumstances and the need 
for an EA or EIS. Also, a comment was raised that extraordinary 
circumstances were being referenced in the interim final rule and 
whether the list of extraordinary circumstances could be provided in 
the final rule.
    Response. As described in the preamble language of the interim 
final rule, NRCS prepares an EE for all assistance actions. Through 
this EE, NRCS assesses the project and any alternatives to the project 
as proposed. Specifically, a determination is made regarding whether 
there are extraordinary circumstances that may be present for a 
proposed action, and if any extraordinary circumstances exist, then a 
determination is made on the need to prepare an EA or EIS.
    NRCS evaluates each action using its list of special environmental 
concerns, along with the significance factors listed by the CEQ at 40 
CFR 1508.27, to determine whether an action has extraordinary 
circumstances. NRCS has included the list of extraordinary 
circumstances in this rule at Sec.  650.6(c)(2).
    Comment: Four respondents commented that the final regulation 
should include language that specifies NRCS will comply with other 
applicable environmental laws and executive orders when categorical 
exclusions under NEPA are applied. The specific comments focused on the 
compliance for the National Historic Preservation Act (NHPA), Native 
American Graves and Repatriation Act, and the Archaeological and 
Historic Preservation Act.
    Response. NRCS has modified the regulatory language to include the 
following statement into the NEPA regulation language of Sec.  
650.6(d): ``The use of the following categorical exclusions for a 
proposed action does not waive NRCS compliance with any applicable 
legal requirement including, but not limited to, the National Historic 
Preservation Act or the Endangered Species Act.''
    Comment: One respondent commented that the EE process and 
documentation was not explained in great detail in the interim final 
rule and requested that clarification be provided.
    Response. The interim final rule indicated and referred the public 
to 7 CFR 650.5 which provides detailed information on the process and 
documentation required for an EE. The reference to 7 CFR 650.5 is 
considered sufficient because it requires the following:
    ``Sec.  650.5 Environmental evaluation in planning.
    (a) General. The EE integrates environmental concerns throughout 
the planning, installation, and operation of NRCS-assisted projects. 
The EE applies to all assistance provided by NRCS, but planning 
intensity, public involvement, and documentation of actions vary 
according to the scope of the action. NRCS begins consideration of 
environmental concerns when information gathered during the EE is used:
    (1) To identify environmental concerns that may be affected, gather 
baseline data, and predict effects of alternative courses of actions;
    (2) To provide data to applicants for use in establishing 
objectives commensurate with the scope and complexity of the proposed 
action;
    (3) To assist in the development of alternative courses of action 
(40 CFR part 1502.14). In NRCS-assisted project actions, nonstructural, 
water conservation, and other alternatives that are in keeping with the 
Water Resources Council's Principles and Standards are considered, if 
appropriate;
    (4) To perform other related investigations and analyses, as 
needed, including economic evaluation, engineering investigations, 
etc.; and
    (5) To assist in the development of detailed plans for 
implementation and operation and maintenance.''
    Comment: One respondent stated that several of the categorical 
exclusions may have the potential to affect cultural resources and 
queried whether those actions should be listed as categorical 
exclusions.
    Response. NRCS prepared an extensive supporting document citing 
previous environmental reviews and experience with the actions listed 
as categorical exclusions and believes that the actions are appropriate 
as categorical exclusions. A copy of the supporting document can be 
reviewed on the following Web site: https://www.nrcs.usda.gov/programs/Env_Assess/. NRCS will also prepare a site-specific EE which 
assesses whether the proposed action meets the agency's criteria to be 
categorically excluded, or if an EA or EIS should be prepared. NRCS 
will not consider an action to be categorically excluded if the EE 
reveals that there may be extraordinary circumstances which entails an 
assessment of impacts to resource issues, including cultural resources. 
Furthermore, the regulation at 7 CFR part 650.6(c)(2)(B) stipulates 
that the proposed action cannot significantly affect cultural 
resources.
    Comment: NRCS received a comment disagreeing with the NRCS 
determination that there would not be any compliance costs imposed on 
States. The respondent stated that there could be an increase in the 
workload for State Historic Preservation Office (SHPO) staff related to 
educating NRCS on the differences between NEPA and NHPA because of the 
increase in categorical exclusions.
    Response: The increased number of categorical exclusions will not 
increase the workload on SHPOs since the magnitude of projects would 
not change. All projects will still be evaluated to determine the need 
to comply with NHPA, in addition to NEPA, for documenting the use of 
categorical exclusions. The project action being evaluated determines 
the level of work and consultation under section 106 of NHPA, not the 
level of NEPA documentation. Therefore, we disagree with the comment 
and believe that there would not be any compliance costs incurred by 
States.
    NRCS has extensive on-line and field classes on NHPA and NEPA for 
NRCS staff. In addition, NRCS has an annual training plan to educate 
State and field offices on all environmental laws. NRCS also has held 
five training sessions across the Nation to educate staff on the new 
categorical exclusions and sent out bulletins to field offices. NRCS 
has planned an additional five training sessions for fiscal year 2010 
to further educate field offices on the utilization of these 
categorical exclusions.
    Comment: NRCS received a comment that NRCS did not consult or 
coordinate with tribal governments during the process of developing the 
interim final rule and requested that the regulation be withdrawn.
    Response: NRCS remains committed to seeking advice, guidance, and 
counsel from Indian tribes in regard to natural resource concerns and 
issues. Indian tribes interested in providing input regarding 
conservation program policies may submit their request directly to the 
Chief of NRCS. As part of this rulemaking, NRCS has assessed the impact 
of the interim final rule and this final rule on Indian tribal 
governments, and has concluded that these rulemakings will not have 
substantial direct effects on Indian tribes, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes. The rule affects NRCS' administrative 
procedures for preparing environmental reviews of NRCS actions that 
provide restoration and conservation assistance to

[[Page 6556]]

landowners, applicants, tribal governments, and others. Specifically, 
the rule provides for an expanded list of categorical exclusions which 
should assist the agency in funding and implementing proposed 
conservation actions for landowners, applicants, Indian tribal 
governments, and others. As a result, the rule does not meet the 
threshold for requiring consultation as specified by Executive Order 
13175. NRCS remains committed to seeking advice, guidance, and counsel 
from Indian tribes in regard to natural resource concerns and issues.
    Comment: NRCS received a comment requesting clarification of the 
term adapted species. The respondent noted that adapted species could 
connote the use of invasive and noxious species. The respondent also 
requested that the categorical exclusion in Sec.  650.6(d)(1) 
concerning planting of vegetation be modified to remove the term 
adapted species and replaced with ``native species.''
    Response: NRCS' General Manual Title 190 part 414 subpart D does 
not allow the agency to utilize invasive or noxious species in 
conservation actions. While NRCS promotes the use of native species, it 
is not always feasible or practicable to utilize native species in some 
NRCS activities; therefore, NRCS is not making changes to the rule in 
response to this comment. However, the categorical exclusion in Sec.  
650.6(d)(1) has been modified to state only appropriate herbaceous and 
woody vegetation will be used which does not include invasive or 
noxious weeds.
    Comment: One respondent commented that vegetating disturbed areas 
should not result in conversion of native forest or grassland.
    Response: The areas to which the categorical exclusion will apply 
have already been disturbed or were in prior agricultural use. All 
categorical exclusions are intended to maintain or restore ecological 
functions and do not include conversion of native vegetation. The 
exception might be small areas requiring stabilization, but conversion 
in these cases would not be extensive. The categorical exclusion in 
section 650.6(d)(1) requires that the established vegetative community 
maintain the sites ecological functions and services, which could not 
be accomplished by converting native forests or grasslands.
    Comment: NRCS received a comment recommending that a condition be 
placed on the use of categorical exclusions. Specifically, the 
respondent suggested that categorical exclusions should not result in 
increased threats to populations of at risk-species. Further, the 
respondent recommended including the following in the definition of at-
risk species: species listed as endangered or threatened under the 
Endangered Species Act (ESA); proposed or candidate species for listing 
under the ESA; species likely to become candidates in the near future; 
species listed as endangered or threatened (or similar classification) 
under State law; and State species of conservation concern.
    Response: Significant adverse effects to threatened and endangered 
species as defined by the ESA is one of the extraordinary circumstances 
listed in Sec.  650.6(c). Therefore, the use of a categorical exclusion 
is conditioned on no significant effects to threatened and endangered 
species.
    Although non-ESA-listed species do not constitute extraordinary 
circumstances, NRCS does take into consideration species which have 
been identified as at risk or as ``species of concern'' by tribal, 
State, or other entities in its conservation planning and EE processes. 
Specifically, NRCS works with partners at the State and local levels to 
set priorities for conservation of species and habitats of special 
conservation concern. As part of the conservation planning process, the 
presence of priority ``species of concern'' is evaluated, and any 
potential impacts or risks to such species or their habitats would be 
determined. NRCS General Manual Title 190 part 410 provides guidance on 
consultation and coordination procedures, and defines ``species of 
concern'' as ``any species officially designated by law or 
administrative rule by a State or tribe as endangered, threatened, 
rare, declining, sensitive, or otherwise at risk.''
    Although NRCS is not adding effects on these species of concern as 
a condition to whether an action can be considered eligible for a 
categorical exclusion, NRCS, in accordance with its conservation 
planning process, ensures that implementation of conservation practices 
are protective of these species.
    If a protected species or designated critical habitat were present 
in the proposed action area and would potentially be adversely 
affected, then the appropriate consultation with the Department of 
Interior's Fish and Wildlife Service, the Department of Commerce's 
National Marine Fisheries Service, or State or tribal agency with 
jurisdiction for such species would be initiated to ensure limited 
effects to species and habitats in the area.
    Comment: One respondent noted that the categorical exclusions in 
Sec. Sec.  650.6(d)(8) and 650.6(d)(11) should ensure consistency with 
efforts to restore, maintain, or enhance ecosystem functions and 
values.
    Response: NRCS believes that the identification of these 
categorical exclusions in the interim final rule for lands disturbed by 
human alteration or by natural disasters accomplishes the results 
desired by the respondent. The agency mission and policies encompass 
restoring, maintaining, and enhancing ecosystem functions and values. 
Accordingly, NRCS has not modified the language for these categorical 
exclusions.

Changes to Final Rule Based on Comments

    The interim final rule amended 650.6(b) and added a new section 
650.6(c) that expanded the agency's list of categorical exclusions. 
Based on public comments expressing the need for the agency to add a 
list of conditions under which a proposed action would not be eligible 
for a categorical exclusion, the final rule has amended section 
650.6(c) to add in the list of extraordinary circumstances at 
650.6(c)(2) that outlines the conditions under which a categorical 
exclusion may make a proposed action not eligible for a categorical 
exclusion. The final rule has also added language at 650.6(c)(3) which 
outlines certain additional criteria that a proposed action must 
satisfy to be eligible for a categorical exclusion even when no 
extraordinary circumstances are present.
    In this final rule, the list of 21 categorical exclusions was moved 
from section 650.6(c) in the interim final rule to a new section 
650.6(d). Based on public comments, NRCS added language in 650.6(d) to 
specify that categorical exclusions under NEPA do not waive NRCS 
compliance with any applicable legal requirement including, but not 
limited to, the NHPA or the ESA.

List of Subjects in 7 CFR Part 650

    Environmental impact statements, and Flood plains.

0
For the reasons stated in the preamble, NRCS adopts the interim rule 
published on July 13, 2009 (74 FR 33319) as final and further amends 
Title 7 CFR part 650 as set forth below:
0
1. The authority citation for Title 7 CFR part 650 is amended to read 
as follows:

    Authority:  42 U.S.C. 4321 et seq.; Executive Order 11514 
(Rev.); 7 CFR 2.62, unless otherwise noted.


0
2. Section 650.6 is amended by revising paragraph (c) and adding a new 
paragraph (d) to read as follows:

[[Page 6557]]

Sec.  650.6  Categorical exclusions.

* * * * *
    (c)(1) The NRCS restoration and conservation actions and activities 
identified in paragraph (d) of this section are eligible for 
categorical exclusion and require the RFO to document a determination 
that a categorical exclusion applies. Agency personnel will use the EE 
review process detailed in Sec.  650.5 to evaluate proposed activities 
for extraordinary circumstances and document the determination that the 
categorical exclusion applies. The extraordinary circumstances address 
the significance criteria provided in 40 CFR 1508.27.
    (2) The extraordinary circumstances identified in paragraph (c)(1) 
of this section include:
    (i) The proposed action cannot cause significant effects on public 
health or safety.
    (ii) The proposed action cannot significantly affect unique 
characteristics of the geographic area such as proximity to historic 
properties or cultural resources, park lands, prime farmlands, 
floodplains, wetlands, wild and scenic rivers, or ecologically critical 
areas.
    (iii) The effects of the proposed action on the quality of the 
human environment cannot be highly controversial.
    (iv) The proposed action cannot have highly uncertain effects, 
including potential unique or unknown risks on the human environment.
    (v) The proposed action cannot include activities or conservation 
practices that establish a potential precedent for future actions with 
significant impacts.
    (vi) The proposed action is known to have or reasonably cannot be 
expected to have potentially significant environment impacts to the 
quality of the human environment either individually or cumulatively 
over time.
    (vii) The proposed action cannot cause or promote the introduction 
of invasive species or have a significant adverse effect on any of the 
following special environmental concerns not previously identified in 
paragraph (c)(2)(B) of this section, such as: endangered and threatened 
species, environmental justice communities as defined in Executive 
Order 12898, wetlands, other waters of the United States, wild and 
scenic rivers, air quality, migratory birds, and bald and golden 
eagles.
    (viii) The proposed action will not violate Federal or other 
applicable law and requirements for the protection of the environment.
    (3) In the absence of any extraordinary circumstances as determined 
through NRCS' EE review process, the activities will be able to proceed 
without preparation of an EA or EIS. Where extraordinary circumstances 
are determined to exist, the categorical exclusion will not apply, and 
the appropriate documentation for compliance with NEPA will be 
prepared. Prior to determining that a proposed action is categorically 
excluded under paragraph (d) of this section, the proposed action must:
    (i) Be designed to mitigate soil erosion, sedimentation, and 
downstream flooding;
    (ii) Require disturbed areas to be vegetated with adapted species 
that are neither invasive nor noxious;
    (iii) Be based on current Federal principals of natural stream 
dynamics and processes, such as those presented in the Federal 
Interagency Stream Corridor Restoration Working Group document, 
``Stream Corridor Restoration, Principles, Processes, and Practices;''
    (iv) Incorporate the applicable NRCS conservation practice 
standards as found in the Field Office Technical Guide;
    (v) Not require substantial dredging, excavation, or placement of 
fill; and
    (vi) Not involve a significant risk of exposure to toxic or 
hazardous substances.
    (d) The use of the following categorical exclusions for a proposed 
action does not waive NRCS compliance with any applicable legal 
requirement including, but not limited to, the National Historical 
Preservation Act or the Endangered Species Act. The following 
categorical exclusions are available for application to proposed 
actions provided the conditions described in paragraph (c) of this 
section are met:
    (1) Planting appropriate herbaceous and woody vegetation, which 
does not include noxious weeds or invasive plants, on disturbed sites 
to restore and maintain the sites ecological functions and services;
    (2) Removing dikes and associated appurtenances (such as culverts, 
pipes, valves, gates, and fencing) to allow waters to access 
floodplains to the extent that existed prior to the installation of 
such dikes and associated appurtenances;
    (3) Plugging and filling excavated drainage ditches to allow 
hydrologic conditions to return to pre-drainage conditions to the 
extent practicable;
    (4) Replacing and repairing existing culverts, grade stabilization, 
and water control structures and other small structures that were 
damaged by natural disasters where there is no new depth required and 
only minimal dredging, excavation, or placement of fill is required;
    (5) Restoring the natural topographic features of agricultural 
fields that were altered by farming and ranching activities for the 
purpose of restoring ecological processes;
    (6) Removing or relocating residential, commercial, and other 
public and private buildings and associated structures constructed in 
the 100-year floodplain or within the breach inundation area of an 
existing dam or other flood control structure in order to restore 
natural hydrologic conditions of inundation or saturation, vegetation, 
or reduce hazards posed to public safety;
    (7) Removing storm debris and sediment following a natural disaster 
where there is a continuing and eminent threat to public health or 
safety, property, and natural and cultural resources and removal is 
necessary to restore lands to pre-disaster conditions to the extent 
practicable. Excavation will not exceed the pre-disaster condition;
    (8) Stabilizing stream banks and associated structures to reduce 
erosion through bioengineering techniques following a natural disaster 
to restore pre-disaster conditions to the extent practicable, e.g., 
utilization of living and nonliving plant materials in combination with 
natural and synthetic support materials, such as rocks, rip-rap, 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);
    (9) Repairing or maintenance of existing small structures or 
improvements (including structures and improvements utilized to restore 
disturbed or altered wetland, riparian, in stream, or native habitat 
conditions). Examples of such activities include the repair or 
stabilization of existing stream crossings for livestock or human 
passage, levees, culverts, berms, dikes, and associated appurtenances;
    (10) Constructing small structures or improvements for the 
restoration of wetland, riparian, in stream, or native habitats. 
Examples of activities include installation of fences and construction 
of small berms, dikes, and associated water control structures;
    (11) Restoring an ecosystem, fish and wildlife habitat, biotic 
community, or population of living resources to a determinable pre-
impact condition;

[[Page 6558]]

    (12) Repairing or maintenance of existing constructed fish 
passageways, such as fish ladders or spawning areas impacted by natural 
disasters or human alteration;
    (13) Repairing, maintaining, or installing fish screens to existing 
structures;
    (14) Repairing or maintaining principal spillways and appurtenances 
associated with existing serviceable dams, originally constructed to 
NRCS standards, in order to meet current safety standards. Work will be 
confined to the existing footprint of the dam, and no major change in 
reservoir or downstream operations will result;
    (15) Repairing or improving (deepening/widening/armoring) existing 
auxiliary/emergency spillways associated with dams, originally 
constructed to NRCS standards, in order to meet current safety 
standards. Work will be confined to the dam or abutment areas, and no 
major change in reservoir or downstream operation will result;
    (16) Repairing embankment slope failures on structures, originally 
built to NRCS standards, where the work is confined to the embankment 
or abutment areas;
    (17) Increasing the freeboard (which is the height from the 
auxiliary (emergency) spillway crest to the top of embankment) of an 
existing dam or dike, originally built to NRCS standards, by raising 
the top elevation in order to meet current safety and performance 
standards. The purpose of the safety standard and associated work is to 
ensure that during extreme rainfall events, flows are confined to the 
auxiliary/emergency spillway so that the existing structure is not 
overtopped which may result in a catastrophic failure. Elevating the 
top of the dam will not result in an increase to lake or stream levels. 
Work will be confined to the existing dam and abutment areas, and no 
major change in reservoir operations will result. Examples of work may 
include the addition of fill material such as earth or gravel or 
placement of parapet walls;
    (18) Modifying existing residential, commercial, and other public 
and private buildings to prevent flood damages, such as elevating 
structures or sealing basements to comply with current State safety 
standards and Federal performance standards;
    (19) Undertaking minor agricultural practices to maintain and 
restore ecological conditions in floodplains after a natural disaster 
or on lands impacted by human alteration. Examples of these practices 
include: mowing, haying, grazing, fencing, off-stream watering 
facilities, and invasive species control which are undertaken when fish 
and wildlife are not breeding, nesting, rearing young, or during other 
sensitive timeframes;
    (20) Implementing soil control measures on existing agricultural 
lands, such as grade stabilization structures (pipe drops), sediment 
basins, terraces, grassed waterways, filter strips, riparian forest 
buffer, and critical area planting; and
    (21) Implementing water conservation activities on existing 
agricultural lands, such as minor irrigation land leveling, irrigation 
water conveyance (pipelines), irrigation water control structures, and 
various management practices.

    Signed this 4th day of February, 2010, in Washington, DC.
Dave White,
Chief, Natural Resources Conservation Service.
[FR Doc. 2010-2815 Filed 2-9-10; 8:45 am]
BILLING CODE 3410-16-P