Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act, 28797-28800 [2024-08382]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 89, Number 77 (Friday, April 19, 2024)]
[Notices]
[Pages 28797-28800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08382]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

[BLM_HQ-FRN_MO4500178304]


Adoption of Categorical Exclusions Under Section 109 of the 
National Environmental Policy Act

AGENCY: Office of the Secretary, Interior.

ACTION: Notice of adoption of categorical exclusions under section 109 
of the National Environmental Policy Act.

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SUMMARY: The Department of the Interior (Department) is adopting the 
United States Forest Service's (USFS) categorical exclusion for short-
term mineral, energy, or geothermal investigations and the Department 
of the Navy's (DON) categorical exclusion for pre-lease upland 
exploration activities for oil, gas, or geothermal reserves, (e.g., 
geophysical surveys) pursuant to section 109 of the National 
Environmental Policy Act (NEPA) to use for proposed Bureau of Land 
Management (BLM) approval of geothermal exploration operations. This 
notice describes the limited categories of proposed actions for which 
the BLM intends to use the USFS and DON categorical exclusions and 
details the consultation between the respective agencies.

DATES: The adoption takes effect on April 19, 2024.

FOR FURTHER INFORMATION CONTACT: Lorenzo Trimble, Geologist--National

[[Page 28798]]

Geothermal Program Lead, National Renewable Energy Coordination Office 
(330), telephone: 775-224-0267, or email: [email protected].
    Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

I. National Environmental Policy Act and Categorical Exclusions

    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. 
NEPA's aims 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 (CEQ), 
which promulgated NEPA implementing regulations, 40 CFR parts 1500 
through 1508 (CEQ 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 categorical 
exclusion. 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 may 
have significant effects, it will prepare an EIS before issuing any 
decision to authorize the action.
    Under NEPA and CEQ's implementing regulations, a Federal agency can 
establish categorical exclusions--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 categorical exclusion 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 Department's bureaus evaluate 
proposed actions for the presence of extraordinary circumstances in 
accordance with the Department's NEPA implementing regulations at 43 
CFR 46.205 and 46.215. If no extraordinary circumstances are present or 
if further analysis determines that the extraordinary circumstances do 
not involve the potential for significant environmental impacts, the 
agency may rely on the categorical exclusion to approve the proposed 
action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 40 CFR 
1501.4. If any extraordinary circumstances are present, the agency may 
nonetheless categorically exclude the proposed action if it determines 
that there are circumstances that lessen the impacts or other 
conditions 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) ``identif[ies] 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. 42 U.S.C. 4336c. This notice documents the Department's 
adoption of the USFS categorical exclusion for short-term mineral, 
energy, or geothermal investigations and the DON categorical exclusion 
for pre-lease exploration activities for use by the BLM.
    The Department's NEPA procedures are found at 43 CFR part 46. These 
procedures address compliance with NEPA. The Department maintains a 
list of categorical exclusions available to all Department bureaus and 
offices at 43 CFR 46.210. Additional Department-wide NEPA policy is 
found in the Departmental Manual (DM), in chapters 1 through 4 of part 
516, available at https://www.doi.gov/document-library. The NEPA 
procedures for individual bureaus in the Department are published in 
additional chapters of part 516 of the DM. Chapter 11 of the 516 DM 
sets forth the BLM's NEPA procedures, and the BLM categorical 
exclusions are listed in 516 DM 11.9 and 11.10. (See https://www.doi.gov/document-library/departmental-manual/516-dm-11-managing-nepa-process-bureau-land-management.)

II. Identification of the Categorical Exclusions

USFS Categorical Exclusion for Short-Term Mineral, Energy, or 
Geophysical Investigations

    The USFS categorical exclusion for short-term mineral, energy, or 
geophysical investigations is found at 36 CFR 220.6(e)(8), and states 
as follows:

    Short-term (1 year or less) mineral, energy, or geophysical 
investigations and their incidental support activities that may 
require cross-country travel by vehicles and equipment, construction 
of less than 1 mile of low standard road, or use and minor repair of 
existing roads. Examples include but are not limited to:
    (i) Authorizing geophysical investigations which use existing 
roads that may require incidental repair to reach sites for drilling 
core holes, temperature gradient holes, or seismic shot holes;
    (ii) Gathering geophysical data using shot hole, vibroseis, or 
surface charge methods;
    (iii) Trenching to obtain evidence of mineralization;
    (iv) Clearing vegetation for sight paths or from areas used for 
investigation or support facilities;
    (v) Redesigning or rearranging surface facilities within an 
approved site;
    (vi) Approving interim and final site restoration measures; and
    (vii) Approving a plan for exploration which authorizes repair 
of an existing road and the construction of 1/3 mile of temporary 
road; clearing vegetation from an acre of land for trenches, drill 
pads, or support facilities.

    The USFS conducts review of any proposed reliance on its 
categorical exclusion according to its extraordinary circumstances 
review protocol found at 36 CFR 220.6.

    DON Categorical Exclusion for Pre-Lease Upland Exploration 
Activities for Oil, Gas or Geothermal Reserves

    The DON categorical exclusion for pre-lease exploration activities 
is found at 32 CFR 775.6(f)(39), and states as follows:

[[Page 28799]]

    ``Pre-lease upland exploration activities for oil, gas or 
geothermal reserves (e.g., geophysical surveys).''
    The DON conducts review of any proposed reliance on its categorical 
exclusion according to its extraordinary circumstances review protocol 
found at 32 CFR 775.6(e).

Proposed Department Category of Actions

    Both the USFS and the DON categorical exclusions allow for pre-
leasing exploration activities, geophysical surveys, or geophysical 
investigations. Those activities are included in the BLM's definition 
of geothermal ``exploration operations.'' See 43 CFR 3200.1. The DON 
categorical exclusion broadly allows activities meeting the BLM's 
definition of geothermal ``exploration operations,'' but specifies that 
these be conducted at the pre-leasing stage. Both the USFS and DON 
categorical exclusions could be applied to the BLM's approval of 
geothermal exploration operations as provided for under the regulations 
implementing the Geothermal Steam Act of 1970 as amended, 30 U.S.C. 
1001 et seq., Public Law 91-581, 84 Stat. 1566, and the Department 
intends for the BLM to use these adopted categorical exclusions 
exclusively to facilitate approval of such geothermal exploration 
operations, and not to use them for oil and gas or other mineral 
activities. Geothermal exploration operations do not contact or 
directly test a geothermal resource. The BLM Geothermal Resource 
Leasing regulations are found at 43 CFR part 3200 and include 
provisions defining the scope of geothermal exploration operations as 
follows:

. . . any activity relating to the search for evidence of geothermal 
resources, where you are physically present on the land and your 
activities may cause damage to those lands. Exploration operations 
include, but are not limited to, geophysical operations, drilling 
temperature gradient wells, drilling holes used for explosive 
charges for seismic exploration, core drilling or any other drilling 
method, provided the well is not used for geothermal resource 
production. It also includes related construction of [routes] and 
trails, and cross-country transit by vehicles over public land. 
Exploration operations do not include the direct testing of 
geothermal resources or the production or utilization of geothermal 
resources.

43 CFR 3200.1. (The substitution of the term ``routes'' reflects 
current BLM terminology indicating the limited use and temporary nature 
of resource access routes.)
    The BLM intends to rely on these adopted categorical exclusions as 
appropriate to support approval of Notices of Intent to Conduct 
Geothermal Exploration Operations (Form 3200-9) (NOIs). Requirements 
for reclamation are provided on Form 3200-9 and in the applicable 
regulations (See 43 CFR 3251.11(g)). Applications for NOI permits may 
be submitted for conforming activities on any federal lands or 
interests in lands open to geothermal development (43 CFR 3250.11) and 
do not require a lease. The NOI permit application and the associated 
regulations governing geothermal exploration operations permitting do 
not expressly limit the timeframe for activities. However, if the BLM 
were to rely on the adopted USFS categorical exclusion to approve such 
a permit, those exploration activities would have to be concluded 
within a 1-year timeframe. Implementation of reclamation plans can take 
longer, however, and may require extended monitoring to evaluate the 
success of the reclamation.
    Responsible Officials in the Department will be able to rely on 
either the USFS or the DON categorical exclusions, as appropriate, to 
process NOIs for qualifying geothermal exploration operations. 
Responsible Officials in the Department will document such reliance, 
including describing how the proposed action conforms to the terms of 
whichever (the USFS or DON) categorical exclusion is relied upon, in 
accordance with any applicable Departmental NEPA or BLM NEPA or 
geothermal program guidance.

III. Consideration of Extraordinary Circumstances

    When applying these categorical exclusions, Responsible Officials 
in the Department will evaluate the proposed actions to ensure 
evaluation of whether there are any extraordinary circumstances. The 
Department's extraordinary circumstances are listed at 43 CFR 46.215 
and include, in part, consideration of impacts on public health and 
safety; natural resources and unique geographic characteristics as 
historic or cultural resources; park, recreation, or refuge lands; 
wilderness areas; wild or scenic rivers; national natural landmarks; 
sole or principal drinking water aquifers; prime farmlands; wetlands; 
floodplains; national monuments; migratory birds; and other 
ecologically significant or critical areas; unresolved conflicts 
concerning alternative uses of available resources; unique or unknown 
environmental risks; precedent for future decision-making; historic 
properties; listed species or critical habitat; low income or minority 
populations; access by Indian religious practitioners to, and for 
ceremonial use of, Indian sacred sites and the physical integrity of 
those sites; and contribution to the introduction, continued existence, 
or spread of invasive weeds or non-native invasive species. Responsible 
Officials in the Department are required to review any proposed action 
for which they intend to rely on a categorical exclusion, as provided 
at 43 CFR 46.205, by comparing it with the list at 43 CFR 46.215 and 
documenting that review in accordance with any applicable Departmental 
or bureau NEPA or program guidance.
    The Department's list of extraordinary circumstances is comparable 
to those of the USFS, found at 36 CFR 220.6(b) and of the DON, found at 
32 CFR 775.6(e); therefore, Responsible Officials in the Department 
intending to rely on either the USFS or the DON categorical exclusion 
will need to review the proposed action only in accordance with the 
Department's NEPA regulations at 43 CFR 46.205 and 46.215. The 
Responsible Official will assess whether an extraordinary circumstance 
is present, and if so, whether there are circumstances that lessen the 
impacts or other conditions sufficient to avoid significant effects, 
consistent with 40 CFR 1501.4(b). If the Responsible Official cannot 
rely on a categorical exclusion to support a decision on a particular 
proposed action due to extraordinary circumstances, the Responsible 
Official will prepare an EA or EIS, consistent with 40 CFR 1501.4(b)(2) 
and 43 CFR 46.205(c).

IV. Consultation With USFS and DON and Determination of Appropriateness

    In January and February of 2024, the Department consulted with the 
USFS and the DON about the appropriateness of the Department's adoption 
of their respective categorical exclusions. Those consultations each 
included a review of the USFS's and the DON's experience in 
establishing and applying the categorical exclusions, as well as the 
types of actions for which the BLM plans to use the categorical 
exclusions. Based on those consultations and reviews, the Department 
has determined that the types of activities the BLM proposes to 
authorize as geothermal exploration operations are substantially 
similar to the geothermal resource-related activities for which the 
USFS and the DON have applied their respective categorical exclusions. 
Accordingly, the impacts of the BLM-authorized geothermal exploration 
operations, including the types of pre-lease exploration activities 
described in the DON categorical exclusion and the examples of 
activities described in the

[[Page 28800]]

USFS categorical exclusion, would be substantially similar to the 
impacts of these USFS and the DON actions, which are not significant, 
absent extraordinary circumstances. Therefore, the Department has 
determined that its proposed use of the USFS and the DON categorical 
exclusions to support BLM permitting decisions for qualifying 
geothermal exploration operations, as described in this notice, is 
appropriate. BLM will not rely on either the USFS or the DON 
categorical exclusions to support approval of other mineral or non-
geothermal energy activities. Extending the BLM's use of the USFS and 
the DON categorical exclusions to other mineral or non-geothermal 
energy activities would require the agency to complete a separate 
process to adopt those categorical exclusions for that purpose in 
accordance with the requirements of Section 109 of NEPA.

V. Notice to the Public and Documentation of Adoption

    This notice serves to identify to the public and document the 
Department's adoption of the USFS categorical exclusion for short-term 
mineral, energy, or geophysical investigations and the DON categorical 
exclusion for pre-lease upland exploration activities for oil, gas, or 
geothermal reserves and identifies the types of actions to which 
Responsible Officials in the Department will apply the categorical 
exclusions, including only approval of permitting for geothermal 
exploration operations, and the considerations Responsible Officials in 
the Department will use in determining whether an action is within the 
scope of the categorical exclusions. Upon issuance of this notice, the 
adopted USFS and DON categorical exclusions will be available to the 
Department for the BLM to rely upon to authorize geothermal exploration 
operations and will be accessible in 516 DM 11, found at https://www.blm.gov/programs/planning-and-nepa/what-informs-our-plans/nepa and 
at https://www.doi.gov/oepc/nepa/categorical-exclusions.

VI. Proposed Text for the Departmental Manual

    The Department will add the following text to chapter 11 of part 
516 of the Departmental Manual:
11.11 Categorical Exclusions Adopted Through NEPA Section 109
    Responsible Officials will document reliance on the categorical 
exclusions listed below, including describing how the proposed action 
conforms to the terms of the categorical exclusion relied upon and 
application of extraordinary circumstances review consistent with 43 
CFR 46.215.

A. Geothermal Exploration Operations

    The Department has adopted the following categorical exclusions for 
the limited purpose of approving Notices of Intent to Conduct 
Geothermal Exploration Operations (Form 3200-9).
    (1) U.S. Forest Service, 36 CFR 220.6(e)(8):
    Short-term (1 year or less) mineral, energy, or geophysical 
investigations and their incidental support activities that may require 
cross-country travel by vehicles and equipment, construction of less 
than 1 mile of temporary road, or use and minor repair of existing 
roads. Examples include, but are not limited to:
    (i) Authorizing geophysical investigations which use existing roads 
that may require incidental repair to reach sites for drilling core 
holes, temperature gradient holes, or seismic shot holes;
    (ii) Gathering geophysical data using shot hole, vibroseis, or 
surface charge methods;
    (iii) Trenching to obtain evidence of mineralization;
    (iv) Clearing vegetation for sight paths or from areas used for 
investigation or support facilities;
    (v) Redesigning or rearranging surface facilities within an 
approved site;
    (vi) Approving interim and final site restoration measures; and
    (vii) Approving a plan for exploration which authorizes repair of 
an existing road and the construction of \1/3\ mile of temporary road; 
clearing vegetation from an acre of land for trenches, drill pads, or 
support facilities.
    and
    (2) Department of the Navy, 32 CFR 775.6(f)(39):
    Pre-lease upland exploration activities for oil, gas, or geothermal 
reserves, (e.g., geophysical surveys).

(Authority: 42 U.S.C. 4336c)

Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2024-08382 Filed 4-18-24; 8:45 am]
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