National Environmental Policy Act Implementing Procedures for the Bureau of Reclamation, 48674-48680 [2024-12459]
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48674
Federal Register / Vol. 89, No. 111 / Friday, June 7, 2024 / Notices
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Abstract: The OMB regulations at 5
CFR part 1320, which implement the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501 et seq., require that
interested members of the public and
affected agencies have an opportunity to
comment on information collection and
recordkeeping activities (see 5 CFR
1320.8 (d)).
On November 23, 2016, the
Departments of Agriculture, the Interior,
and Commerce published a final rule, at
7 CFR part 1, 43 CFR part 45, and 50
CFR part 221, to implement section 241
of the Energy Policy Act of 2005 (EP
Act), Public Law 109–58, enacted on
August 8, 2005, (81 FR 84389). Section
241 of the EP Act added a new section
33 to the Federal Power Act (FPA), 16
U.S.C. 823d, that allows the license
applicant or any other party to the
license proceeding to propose an
alternative to a condition or prescription
that one or more of the Departments
develop for inclusion in a hydropower
license issued by the Federal Energy
Regulatory Commission (FERC) under
the FPA. The final regulations require
the Department of Agriculture, the
Department of the Interior, and the
Department of Commerce to collect the
information that is covered under this
ICR, 1094–0001.
Under FPA section 33, the Secretary
of the Department involved must accept
the proposed alternative if the Secretary
determines, based on substantial
evidence provided by a party to the
license proceeding or otherwise
available to the Secretary, (a) that the
alternative condition provides for the
adequate protection and utilization of
the reservation, or that the alternative
prescription will be no less protective
than the fishway initially proposed by
the Secretary, and (b) that the
alternative will either cost significantly
less to implement or result in improved
operation of the project works for
electricity production.
In order to make this determination,
the regulations require that all of the
following information be collected: (1) a
description of the alternative, in an
equivalent level of detail to the
Department’s preliminary condition or
prescription; (2) an explanation of how
the alternative: (i) if a condition, will
provide for the adequate protection and
utilization of the reservation; or (ii) if a
prescription, will be no less protective
than the fishway prescribed by the
bureau; (3) an explanation of how the
alternative, as compared to the
preliminary condition or prescription,
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will: (i) cost significantly less to
implement; or (ii) result in improved
operation of the project works for
electricity production; (4) an
explanation of how the alternative or
revised alternative will affect: (i) energy
supply, distribution, cost, and use; (ii)
flood control; (iii) navigation; (iv) water
supply; (v) air quality; and (vi) other
aspects of environmental quality; and
(5) specific citations to any scientific
studies, literature, and other
documented information relied on to
support the proposal.
This notice of proposed renewal of an
existing information collection is being
published by the Department of the
Interior, on behalf of all three
Departments, and the data provided
below covers anticipated responses
(alternative conditions/prescriptions
and associated information) for all three
Departments.
Title of Collection: 7 CFR part 1; 43
CFR part 45; 50 CFR part 221; The
Alternatives Process in Hydropower
Licensing.
OMB Control Number: 1094–0001.
Form Number: None.
Type of Review: Extension of a
currently approved collection.
Respondents/Affected Public:
Business or for-profit entities
Total Estimated Number of Annual
Respondents: 5.
Total Estimated Number of Annual
Responses: 5.
Estimated Completion Time per
Response: 500 hours.
Total Estimated Number of Annual
Burden Hours: 2,500 hours.
Respondent’s Obligation: Voluntary.
Frequency of Collection: Once per
alternative proposed
Total Estimated Annual Nonhour
Burden Cost: None.
An agency may not conduct or
sponsor and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number.
The authority for this action is the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Stephen G. Tryon,
Director, Office of Environmental Policy and
Compliance.
[FR Doc. 2024–12461 Filed 6–6–24; 8:45 am]
BILLING CODE 4334–63–P
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
[RR83530000, 234R5065C6,
RX.59389832.1009676]
National Environmental Policy Act
Implementing Procedures for the
Bureau of Reclamation
Office of the Secretary, Interior.
Notice and request for
comments.
AGENCY:
ACTION:
The Department of the
Interior (Department), Bureau of
Reclamation (Reclamation) proposes to
revise seven categorical exclusions (CE)
under the National Environmental
Policy Act of 1969 (NEPA) in
Reclamation’s NEPA implementing
procedures, Departmental Manual (DM)
at part 516, chapter 14. The proposed
revisions would clarify existing CEs on
certain financial assistance funding,
water-related contracting, and use
authorization actions to allow for more
consistent interpretation and more
efficient review of appropriate actions
based on Reclamation’s experience
implementing these CEs. The
Department, on behalf of Reclamation,
invites public comment on the proposed
revisions.
DATES: Submit written comments on or
before July 8, 2024.
ADDRESSES: Send written comments
electronically to usbr_ce@usbr.gov, or
by mail to Bureau of Reclamation, Attn:
USBR CE, 1849 C Street NW, Suite
7069, Washington, DC 20240.
Supporting documentation used in
preparing the proposed CE revisions is
available for public inspection at
www.usbr.gov/nepa. The public can also
view the CE substantiation report at
www.usbr.gov/nepa. The web address
for Reclamation’s current procedures, at
series 31, part 516, chapter 14, is
https://www.doi.gov/document-library/
departmental-manual/516-dm-14managing-nepa-process-bureaureclamation.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Shane Hunt (he/him) via phone at 916–
202–7158, or via email at usbr_ce@
usbr.gov. Individuals 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-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
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Background
Reclamation was established in 1902.
Its original mission was civil works
construction to develop the water
resources of the arid Western United
States to promote the settlement and
economic development of that region.
Reclamation developed hundreds of
projects to store and deliver water. That
substantial infrastructure development
contributed to making Reclamation the
largest wholesale supplier of water and
the second largest producer of
hydropower in the United States.
Reclamation carries out numerous
activities in support of its modern-day
mission and authorities. NEPA requires
Federal agencies to assess the potential
environmental effects of proposed major
Federal actions. If a major Federal
action would have significant impacts
on the quality of the human
environment, an agency prepares an
environmental impact statement (EIS) to
describe the reasonably foreseeable
effects associated with the proposed
action, as well as a reasonable range of
alternatives (see 42 U.S.C. 4332(2)(C)).
An agency prepares an environmental
assessment (EA) when a proposed
action will not have a reasonably
foreseeable significant effect on the
quality of the human environment, or if
the significance of such effect is
unknown (see 42 U.S.C. 4336(a)(2), 40
CFR 1501.5(a)). A Federal agency also
identifies in its agency NEPA
implementing procedures categories of
actions that normally do not
significantly affect the quality of the
human environment and therefore do
not require the preparation of an EA or
an EIS, subject to the consideration of
extraordinary circumstances (see 42
U.S.C. 4336e(1), 40 CFR 1501.4 and 43
CFR 46.215). When appropriately
established and applied, these CEs
allow agencies to protect the
environment while operating more
efficiently by focusing their resources
on proposals that may have significant
environmental impacts. In the late
1970s and early 1980s, the Department
established Reclamation-specific NEPA
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implementing procedures, including 30
CEs, which are found in chapter 14 of
part 516 of the Departmental Manual
(516 DM 14). The Department and
Reclamation, through this notice,
propose to revise seven of those CEs, as
discussed below.
Since developing Reclamation’s
NEPA implementing procedures, several
government-wide and Departmental
efforts have encouraged agencies and
bureaus to modernize and streamline
environmental reviews and, where
appropriate, establish new CEs or revise
existing ones. The Council on
Environmental Quality (CEQ)
recommends that agencies periodically
review and update, as necessary, their
NEPA implementing procedures,
including their CEs.1
Reclamation has amassed extensive
knowledge and experience analyzing
actions under NEPA. In 2016,
Reclamation comprehensively reviewed
its existing CEs at 516 DM 14, which
were originally established in the early
1980s. Through the review process and
based on more than 40 years of agency
experience implementing these CEs,
Reclamation identified several examples
of actions for which new and revised
CEs would improve NEPA compliance
by enhancing efficiencies and ensuring
clear and consistent interpretation for
NEPA practitioners, project proponents,
and the public. Specifically,
Reclamation’s NEPA practitioners and
program subject matter experts (CE
Working Group) reviewed the original
purpose and history of the applicability
and use for each of Reclamation’s
existing CEs. Reclamation’s CE Working
Group identified issues and challenges
contributing to inconsistent
interpretation of the actions or scope
covered by the CEs, as well as
opportunities to modify or add new
actions to CEs when those modifications
1 See 40 CFR 1507.3 and CEQ’s 2010 guidance on
Establishing, Applying, and Revising Categorical
Exclusions Under the National Environmental
Policy Act, https://ceq.doe.gov/docs/ceqregulations-and-guidance/NEPA_CE_Guidance_
Nov232010.pdf.
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48675
or actions would not result in
significant environmental effects.
The CE Working Group found that
CEs with clearly defined language and
consistent application by NEPA
practitioners did not require changes at
this time. The CE Working Group
identified seven CEs, which are covered
by this notice, for revisions to promote
consistent interpretation and
application by eliminating confusing or
outdated terminology and authorities.
The CE Working Group also identified
12 existing CEs and potentially new
CEs, not addressed in this notice, that
required either substantial changes,
additional language, or a more thorough
review to promote consistent
interpretation and to expand their scope
to include similar actions with similar
ranges of potential impacts. On May 24,
2019, Reclamation established one new
CE for transfers of title. Upon
completion of the title transfer CE,
Reclamation determined its next
priority was to revise the seven existing
CEs that are the subject of this notice.
The proposed revisions to the seven
CEs correct and modernize terminology
and authorities, as well as clarify the
scope of activities and constraints.
While the effect of certain proposed CE
revisions would be to broaden CE
application to include additional
actions, as explained more fully below,
the proposed changes are consistent
with the existing CEs’ intent as well as
the underlying activities and impactbased constraints contemplated by the
existing CEs from their inception. The
result of these proposed changes is that
the CEs’ underlying activities and the
constraints used to define them remain
intact. Further, Reclamation’s record of
CE checklists and EAs with findings of
no significant impact (FONSIs) support
these proposed changes for actions that
normally do not have a significant effect
on the human environment. This notice
provides a comparison of the existing
and proposed CE language and the
specific history, basis, and rationale for
each proposed revised CE.
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516 DM 14.5—OPERATION AND MAINTENANCE ACTIVITIES
[Water-related contracts]
Existing CE language
Proposed revised CE language
D4. Approval, execution, and implementation of water service contracts
for minor amounts of long-term water use or temporary or interim
water use where the action does not lead to long-term changes and
where the impacts are expected to be localized.
D4. Approval, execution, administration, and implementation of waterrelated contracts and contract renewals, amendments, supplements,
and assignments, and water transfers, exchanges, and replacements, for which one or more of the following apply: (a) for minor
amounts of long-term water use, where impacts are expected to be
localized; (b) for temporary or interim water use 2 where the action
does not lead to long-term changes and where the impacts are expected to be localized; or (c) where the only result will be to implement an administrative or financial practice or change. A ‘‘water-related’’ contract is any legally binding agreement to which Reclamation becomes a party, pursuant to its authority under Federal law that
(1) makes water available from or to the United States; (2) allows
water to be stored, carried, or delivered in facilities Reclamation
owns, manages, operates, or funds; or (3) establishes operation,
maintenance, and replacement responsibilities for such facilities.
D14. Reserved.
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D14. Approval, renewal, transfer, and execution of an original, amendatory, or supplemental water service or repayment contract where
the only result will be to implement an administrative or financial
practice or change.
Reclamation proposes to revise the
current D4 and D14 CEs for clarity and
to promote consistent interpretation,
focused on impacts-based constraints,
while ensuring that the actions
potentially covered by the proposed D4
CE would not have a significant effect
on the human environment.
Reclamation proposes to combine the
current D4 and D14 CEs into the
proposed D4 CE and reserve D14 for
future use if needed.
The CE Working Group review found
that Reclamation routinely used the
current D4 and D14 CEs and that there
are extensive records of CE checklists
and EAs with FONSIs to document that
the water contract actions described
therein did not result in significant
effects. Reclamation’s review also
identified several challenges arising
from the way CEs D4 and D14 are
defined—in particular, how the waterrelated contract types (water service,
repayment, etc.) and contract actions
(approval, execution, renewal, etc.)
should be read in relation to applicable
impacts-based constraints.
Inconsistencies in the current D4 and
D14 CEs have led to unclear
expectations and varying application by
NEPA practitioners. This lack of clarity
has led to increased costs and resource
expenditures when Reclamation
prepares EAs rather than using the
current D4 or D14 CEs. The current D4
and D14 CEs apply only to certain
contract types and contracting actions.
For instance, the current D4 CE only
lists water service contracts and original
contract execution. The current D14 CE
2 Reclamation
policy PEC P05 defines temporary
and interim as short-term meaning 10 years or less.
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omits contract implementation—
Reclamation’s performance of the
contract once it is executed—and
applies only to water service and
repayment contracts. Further, the
historic record establishing these
current CEs does not describe the
reasons for the omissions and
differences regarding contract types and
contract actions or provide guidance
about how to interpret the differences.
Nor are there now discernable, relevant
reasons for the distinctions. The
relevant distinctions for purposes of the
current CEs are water amount, duration
of the contract, and magnitude of the
impact. The intention of Reclamation’s
proposed revisions to the current D4
and D14 CEs is to resolve these issues
by simplifying contract types to include
all ‘‘water-related’’ contracts and all
contract actions to more clearly define
the applicability of the proposed D4 CE
based on an action’s impacts.
The range of proposed water-related
contract actions covered under the
current D4 and D14 CEs are
substantially the same among
Reclamation’s contract types.
Reclamation enters into a variety of
water-related contract types and carries
out contract actions to amend,
supplement, or renew these contracts
after their original execution. Water
service contracts provide project water
at contractually established water rates
pursuant to section 9(c)(2) or 9(e) of the
Reclamation Project Act of 1939 (1939
Act),3 section 9 of the Water
Conservation and Utilization Act of
3 Public
Law 76–260, 9; 53 Stat. 1187, 1193; 43
U.S.C. 485h.
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1939,4 the Sale of Water for
Miscellaneous Purposes Act of 1920,5 or
other authorities. Repayment contracts,
pursuant to 9(d) of the 1939 Act,
provide project water in exchange for
contractors’ agreement to repay a set
amount of the government’s project
costs in a given time.
While water service and repayment
contracts are core types of contracts that
Reclamation holds, Reclamation also
enters into a variety of other waterrelated contracts. These include excess
capacity contracts, which allow others
to store and move non-project water in
Federal works; contracts to transfer
Federal operation and maintenance
responsibilities to water user
organizations; and water exchange or
replacement contracts. The current D4
and D14 do not expressly include the
range of Reclamation water-related
contract types. The proposed revisions
to the D4 CE expand the potential
application of the proposed CE to
encompass the variety of water-related
contracts entered into by Reclamation.
Including them enhances Reclamation’s
ability to comply with NEPA efficiently
and effectively, consistent with 40 CFR
1501.4 where they meet the impactbased constraints, rather than based on
distinctions that relate instead to the
legal and financial aspects of contract
actions.
The potential application of the
proposed D4 CE is inclusive of more
types of water-related contracts as
discussed above; however, the proposed
D4 CE establishes meaningful limits to
4 Public Law 76–398, 9; 53 Stat 1418; 1124; 16
U.S.C. 590z–7.
5 Public Law 66–147, 41 Stat. 451; 43 U.S.C. 521.
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its application. All water-related
contracts affect the delivery and use of
water or the operation of related
facilities and involve relatively large or
small water amounts. Any water-related
contract may be subject to actions that
only result in implementation of an
administrative or financial practice or
change. Accordingly, rather than
limiting CE application based on the
legal or financial characteristics of
contracts and contract actions, the
proposed D4 CE contains impact-based
constraints on its application.
To date, Reclamation has prepared
numerous EAs and FONSIs for waterrelated contract requests, which
www.usbr.gov/nepa provides. In this
notice’s supporting documentation,
Reclamation includes the review of 25
water-related contract EAs and FONSIs
completed between 2011 and 2022.
These EAs and FONSIs demonstrate
that, absent extraordinary
circumstances, the types of waterrelated contracts that the proposed D4
CE would cover, result in no significant
effects.
To inform its proposed updates to the
current D4 and D14 CEs, Reclamation
also analyzed the impact-based
constraints in these existing CEs. The
constraint limiting the scope and effects
for the existing D14 CE, ‘‘where the only
result will be to implement an
administrative or financial practice or
change,’’ is clear, easily understood, and
consistently applied by NEPA
practitioners. In contrast, the impactbased constraints in the current D4 CE
create confusion regarding its
application. Due to its grammatical
construction, most notably the lack of
punctuation, the current D4 CE does not
clearly present the relationship between
the impact-based constraints and D4
CE’s application. To resolve the
confusion created by the current D4 CE
and provide clarity and consistency,
Reclamation proposes to revise the D4
CE to distinctly list each impact-based
constraint.
Reclamation determined that the
application of the proposed D4 CE
should continue to be determined by
changes in water quantity relative to the
affected project or water system.
Reclamation also considered whether
the absolute water-related contract
water amounts, for instance, limiting
application by acre-feet of water, should
constrain the application of the
proposed D4 CE. Ultimately,
Reclamation rejected specifying water
amounts because the effects to a water
system resulting from a water-related
contract’s specified changes in water
quantity are relative; effects depend on
the size and unique characteristics of
the water system. For example, an
amount of contract water that would be
minor to the Columbia River might be
significant to the Middle Rio Grande
River. Therefore, Reclamation proposes
the continued use of ‘‘minor’’ as an
appropriate constraint for water
quantity under the proposed D4 CE. The
current D4 CE successfully applies the
constraint and based on a review of past
CE use, EAs, and FONSIs, the use of the
term ‘‘minor’’ when coupled with the
other impact-based constraints included
in the proposed CE, and absent any
extraordinary circumstances, will
normally not significantly affect the
quality of the human environment.
Likewise, system-specific
characteristics, such as hydrological
interconnections and local
environmental sensitivities, will affect
Reclamation’s assessment of whether a
water-related contract action’s impacts
would be considered minor, lead to
long-term changes, or be localized.
Reclamation has not quantified these
impact-based constraints in the past,
and for the reasons noted above, finds
that these constraints do not require
quantification in the proposed D4 CE.
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Finally, as described above, the type
of water-related contract or contract
action is not an effective measure of
environmental effects or means of
defining a CE’s application. The impactbased constraints limiting use of the CEs
based on elements of water delivery
(amount, duration, and area impacted)
are more meaningful to determine the
relationship of an action to the potential
for significant impacts to the
environment. Emphasis on using
impact-based constraints to define those
water-related contracts eligible for use
of the proposed D4 CE would
standardize its application across waterrelated contract actions as well as
ensure the covered actions would not
result in significant effects.
To clarify the application of CEs
pertaining to water-related contract
actions and to focus on impact-based
constraints, Reclamation proposes to
consolidate the current D4 and D14 CEs
into one CE, the proposed D4 CE.
Reclamation then proposes to revise the
current D4 CE to replace ‘‘water service
contract’’ with the more inclusive
‘‘water-related contract,’’ which is
defined in the proposed D4 CE and the
Reclamation Manual Policy, WaterRelated Contracts and Charges—General
Principles and Requirements (PEC P05),
4.R. The proposed text of D4 CE then
uses a list format for each of the impactbased constraints limiting the
application of the proposed D4 CE to
increase clarity. This includes
‘‘temporary or interim water use’’ which
PEC P05, 4.P defines as short-term
meaning 10 years or less. Based on the
consideration of the contract types,
within the context of the impact-based
constraints and absent any
extraordinary circumstances,
Reclamation determines that the
additional contract types would not
have a significant impact on the quality
of the human environment.
516 DM 14.5—OPERATION AND MAINTENANCE ACTIVITIES
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[Use authorizations]
Existing CE language
Proposed revised CE language
D8. Renewal of existing grazing, recreation management, or cabin site
leases which do not increase the level of use or continue unsatisfactory environmental conditions.
D8. Issuance or renewal of use authorizations (as defined in 43 CFR
429.2, including crossing agreements which provide rights-of-way)
that provide right-of-use of Reclamation land, facilities, or
waterbodies where one or more of the following apply: (a) work is
minor and impacts are expected to be localized; (b) the action does
not lead to a major public or private action; (c) the only result of the
authorization will be to implement an administrative or financial practice or change; or (d) the level of use or impacts to resources is not
increased.
D10. Reserved.
D10. Issuance of permits, licenses, easements, and crossing agreements which provide right-of-way over Bureau lands where the action
does not allow for or lead to a major public or private action.
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Federal Register / Vol. 89, No. 111 / Friday, June 7, 2024 / Notices
Reclamation’s CE Working Group
review found that the existing D8 and
D10 CEs, as well as other Reclamation
CEs for substantially similar use
authorization actions, such as D9 that
covers the ‘‘issuance of permits for
removal of gravel or sand by an
established process from existing
quarries,’’ are routinely applied to use
authorization activities. The extensive
collection of CE checklists for the
existing D8 and D10 CEs and other use
authorization CEs demonstrate that
these activities do not have significant
effects absent extraordinary
circumstances. The list of use
authorization types in the current D10
CE is consistent with the use
authorizations included in 43 CFR 429.2
(i.e., easements, leases, licenses,
permits, and consent documents).
Reclamation also found confusion
regarding the existing D8 and D10 CEs’
applicability to use authorization
renewals, issuances, and reissuances
related to underlying use authorization
activities. For example, the current D10
CE does not explicitly include renewal
of use authorizations. As a result of this
omission, NEPA practitioners interpret
the current D10 CE differently with
some employing the current D10 CE to
reissue expiring use authorizations and
others determining that the current D10
CE is not applicable in the same
circumstances.
Reclamation proposes to revise the
current D8 and D10 CEs to more clearly
describe when a use authorization CE
applies. First, Reclamation proposes to
combine the existing D8 and D10 CEs
into one CE, the proposed D8 CE, and
reserve D10 for future use if needed.
Next, Reclamation proposes to include
in the proposed D8 CE the term ‘‘use
authorization.’’ Similar to the scope of
the current D10 CE, the proposed D8 CE
covers the Reclamation use
authorization activities by incorporating
language from and a reference to 43 CFR
429.2, including crossing agreements
which provide rights-of-way for
consistency in interpretation. Finally,
the proposed D8 CE specifies the terms
and conditions for which Reclamation
will issue a use authorization for its
land, facilities, or waterbodies.
Much like the rationale supporting
the use of impact-based constraints for
water-related contracts and contracting
actions in the proposed D4 CE, for the
proposed D8 CE, the use authorization
type does not as effectively identify
environmental effects or define the
proposed CE’s application as the
underlying use authorization actions
and impact-based constraints.
Therefore, Reclamation is proposing to
revise the D8 CE to clarify the actions
that fall under ‘‘use authorizations’’ and
list the impact-based constraints on the
application of the proposed D8 CE. In
the aggregate, the forgoing revisions in
the proposed D8 CE will standardize its
application and will not expand the
scope of actions covered under the
current D8 and D10 CEs.
Reclamation has prepared numerous
CE checklists and EAs analyzing use
authorization proposals covering actions
within the scope of the proposed D8 CE
that resulted in FONSIs. Reclamation’s
CE substantiation report summarizes 13
use authorization EAs with FONSIs
completed between 2006 and 2022.
These EAs and FONSIs demonstrate that
the issuance and renewal of use
authorization included in the proposed
D8 CE typically result in no significant
impacts. The proposed D8 CE is
consistent with 43 CFR part 429 and
contemporary Reclamation Manual
policies and directives and standards
and will lead to improved, more
efficient analysis of these actions.
516 DM 14.5—FINANCIAL ASSISTANCE, LOANS, AND FUNDING ACTIVITIES
Existing CE language
Proposed revised CE language
E1. Rehabilitation and Betterment Act loans and contracts which involve repair, replacement, or modification of equipment in existing
structures or minor repairs to existing dams, canals, laterals, drains,
pipelines, and similar facilities.
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E2. Small Reclamation Projects Act grants and loans where the work
to be done is confined to areas already impacted by farming or development activities, work is considered minor, and where the impacts are expected to be localized.
E3. Distribution System Loans Act loans where the work to be done is
confined to areas already impacted by farming or developing activities, work is considered minor, and where the impacts are expected
to be localized.
Reclamation’s CE Working Group
review found that the existing E1, E2,
and E3 CEs, which are the current CEs
pertaining to financial assistance
actions, are too narrowly defined by
specific, outdated program authorities
that Reclamation policy now disfavors.
Reclamation has gained several
authorities for financial assistance
through the SECURE Water Act,
Infrastructure Investment and Jobs Act,
Inflation Reduction Act, and others to
provide critical funding for water and
energy infrastructure, restoration,
drought, and conservation projects that
VerDate Sep<11>2014
17:23 Jun 06, 2024
Jkt 262001
E1. Financial assistance, cooperative agreements, grants, loans, contracts, or other funding, where the underlying actions being funded
(a) would be covered by another Reclamation CE if Reclamation
were implementing the action itself, or (b) where the work to be done
is confined to areas already impacted by farming or development activities, work is considered minor, and where the impacts are expected to be localized.
E2. Reserved.
E3. Reserved.
are integral to Reclamation and
Department missions.
Rather than tying the CE to particular
authorities, Reclamation proposes that
the revisions describe the underlying
activity with impact-based constraints,
allowing Reclamation to use the CE
across current and future programs. The
existing E1, E2, and E3 CEs too narrowly
define the listed program authorities for
Reclamation’s contemporary program
portfolio. Further, many of the actions
funded by Reclamation’s current
financial assistance programs would
qualify for these and other existing CEs
because the underlying activities are
PO 00000
Frm 00129
Fmt 4703
Sfmt 4703
either already covered by another
Reclamation CE if Reclamation were
implementing the action itself, or the
activities (e.g., ‘‘work [. . .] confined to
areas already impacted by farming or
developing activities, work is
considered minor, and where the
impacts are expected to be localized.’’)
are consistent with the existing E1, E2,
and E3 CEs.
Given Reclamation’s inability to
access existing E1, E2, and E3 CEs
because of their narrow definitions of
authority, Reclamation’s current
practice is to prepare EAs and FONSIs
for many financial assistance actions. To
E:\FR\FM\07JNN1.SGM
07JNN1
ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 89, No. 111 / Friday, June 7, 2024 / Notices
address the current E1, E2, and E3 CEs’
obsolescence and avoid similar issues in
the future, Reclamation proposes to
remove all reference to specific program
authorities in the proposed E1 CE. The
proposed revised CE, in turn, is
substantiated based on the EAs and
FONSIs that Reclamation has prepared
in the absence of such an existing CE,
as outlined in the accompanying CE
substantiation report.
Reclamation also has determined that
the underlying financial assistance
activities in the existing E1, E2, and E3
CEs remain relevant, and has updated
the impact-based constraints in these
CEs based on the analysis of these
recent EAs and FONSIs. Accordingly,
Reclamation proposes to include
impact-based constraints from the
existing E1, E2, and E3 CEs in the
proposed E1 CE. The underlying
financial assistance actions retained in
the proposed E1 CE include funded
actions that another Reclamation CE, if
Reclamation were implementing the
action itself, would cover. The impactbased constraints from the E2 and E3
CEs also are in the proposed E1 CE,
limiting the application of the proposed
E1 CE to financial actions for ‘‘work
[. . .] confined to areas already
impacted by farming or developing
activities, work is considered minor,
and where the impacts are expected to
be localized.’’
These impact-based constraints limit
the application of the proposed E1 CE
to financial assistance activities that
normally will not have significant
environmental impacts.
Reclamation also proposes to expand
the types of financial assistance actions
covered under the proposed E1 CE to
include financial assistance, cooperative
agreements, grants, loans, contracts, and
a catch-all ‘‘other funding.’’ This
revision allows the proposed E1 CE to
be potentially applicable to all financial
assistance types, including grants, loans,
and funding for applicant, sponsor or
partner actions as long as the financial
assistance action is consistent with the
underlying financial assistance actions
and impacts-based constraints defined
in the proposed E1 CE. Because the
financial assistance authorities assigned
to Reclamation by law are subject to
change, and Reclamation would like to
avoid obsolescence, the proposed E1 CE
draft focuses on the underlying financial
assistance activity funded rather than
the funding program authority, allowing
for application consistent with current
and future authorities.
Similar to the rationale for waterrelated contracts and contracting actions
in the proposed D4 CE and use
authorization actions in the proposed
VerDate Sep<11>2014
17:23 Jun 06, 2024
Jkt 262001
D8 CE, for the proposed E1 CE, the
authority type does not as effectively
identify environmental effects or define
the proposed CE’s application as the
underlying financial assistance actions
and impact-base constraints. Therefore,
Reclamation is proposing to revise the
current E1, E2, and E3 CEs to remove
the specificity of funding program
authorities, clarify the underlying
financial assistance actions and impact
constraints on their application, and
combine into one proposed E1 CE, with
E2 and E3 reserved for future use if
needed. While Reclamation expects
these proposed revisions to increase the
types of financial assistance actions that
qualify for the proposed E1 CE, the
scope of these actions is consistent with
existing definitions of underlying
financial assistance activities and
impact-based constraints.
Reclamation has prepared numerous
CE checklists and EAs analyzing
financial assistance proposals covering
actions with the scope of the proposed
E1 CE that resulted in FONSIs.
Reclamation has summarized 33 EAs
with FONSIs completed between 2016
and 2022 in its CE substantiation report
included in this notice’s supporting
documentation, which support a
determination that the proposed CE
revisions would not result in significant
impacts for financial assistance actions.
Additional Financial Assistance EAs
with FONSIs can be accessed at
www.usbr.gov/nepa that also
demonstrate that types of proposals
included in the proposed E1 CE
typically result in no significant effects.
The proposed E1 CE is consistent with
contemporary Reclamation authorities
and will lead to improved, more
efficient analysis of these actions.
Categorical Exclusion Determination
The Department and Reclamation find
that the categories of actions described
in the proposed CEs normally do not
have a significant effect on the human
environment absent extraordinary
circumstances. This finding is based on
Reclamation’s comprehensive review of
CEs, EAs, and FONSIs; its history and
over 40 years of experience analyzing
actions under NEPA and using these
CEs; the rationale for the proposed
revisions described above; and
consistent determinations made under
CE checklists and EAs with FONSIs that
these actions normally do not have a
significant effect on the human
environment. Since establishing the
existing contracting and use
authorization CEs in the late 1970s and
early 1980s, Reclamation estimates it
has prepared thousands of CE checklists
documenting that these actions did not
PO 00000
Frm 00130
Fmt 4703
Sfmt 4703
48679
result in significant effects. In addition,
since the early 1980s, Reclamation
estimates it has prepared hundreds of
EAs and FONSIs for financial assistance
actions similar to those actions that
would be covered under the proposed
E1 CE that were not included in the
narrow definition of the specific
authorities in the E1, E2, and E3 CEs.
Further, Reclamation estimates that it
has prepared hundreds of additional
EAs and FONSIs for contracting and use
authorization actions closely related to
the D4, D8, D10, and D14 CEs that either
did not meet strict interpretation of
those CE definitions, or where a waterrelated contract or use authorization CE
was not applied because of uncertainty
surrounding the description of the
proposal type, proposal activities, or
impact-based constraints. The frequent
use of these existing CEs, experience
preparing EAs and FONSIs for actions
covered by the proposed CEs, and
Reclamation’s comprehensive review of
how its existing CEs are applied in
practice serve to validate Reclamation’s
preparation of these proposed CEs. To
further demonstrate the finding that
actions under the proposed CEs would
not normally result in significant effects
to the human environment, Reclamation
reviewed 71 EAs with FONSIs and
summarized them in the CE
substantiation report included in this
notice’s supporting documentation.
These 71 EAs with FONSIs analyze
actions that the proposed CE revisions
are designed to cover in the future.
Additional EAs with FONSIs are also
available at www.usbr.gov/nepa.
Reclamation recognizes that certain
proposed actions, when reviewed on a
case-by-case basis, may trigger one or
more extraordinary circumstances, and
for those proposed actions where a
normally excluded action may have a
significant effect, Reclamation will
prepare an EA or EIS (see 43 CFR
46.215). In such cases, the proposed
actions could have significant
environmental effects and require
additional NEPA analysis (see 40 CFR
1501.4(b)). Thus, prior to applying any
CE, Reclamation will review the
proposed action to ensure it is covered
by the CE and evaluate the proposed
action for any extraordinary
circumstances. Reclamation requires
that any action for which a Reclamation
CE is used must be documented with a
CE checklist to demonstrate (a) the
applicability of the CE, and (b)
verification that no extraordinary
circumstances are present such that a
normally excluded action may have a
significant effect. In such cases,
Reclamation will conduct additional
E:\FR\FM\07JNN1.SGM
07JNN1
48680
Federal Register / Vol. 89, No. 111 / Friday, June 7, 2024 / Notices
NEPA analysis and prepare an EA or
EIS, as appropriate.
The Department, on behalf of
Reclamation, invites comments on these
proposed CE revisions and will consider
all comments received by the comment
deadline. Comments should be as
specific as possible and provide detail
to explain the importance of the issues
raised in the comment to Reclamation’s
proposed rulemaking.
Public Disclosure Statement
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment including your
personal identifying information may be
made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Amended Text for the Departmental
Manual
The proposed text would modify 516
DM as set forth below:
Part 516: National Environmental Policy
Act of 1969
Chapter 14: Managing the NEPA
Process—Bureau of Reclamation
*
*
*
*
*
14.5
*
Categorical Exclusions
*
*
*
*
D. Operation and Maintenance
Activities
ddrumheller on DSK120RN23PROD with NOTICES1
*
*
*
*
*
(4) Approval, execution,
administration, and implementation of
water-related contracts and contract
renewals, amendments, supplements,
and assignments, and water transfers,
exchanges, and replacements, for which
one or more of the following apply: (a)
for minor amounts of long-term water
use, where impacts are expected to be
localized; (b) for temporary or interim
water use where the action does not
lead to long-term changes and where the
impacts are expected to be localized; or
(c) where the only result will be to
implement an administrative or
financial practice or change. A ‘‘waterrelated contract’’ is any legally binding
agreement to which Reclamation
becomes a party, pursuant to its
authority under Federal law that (1)
makes water available from or to the
United States; (2) allows water to be
stored, carried, or delivered in facilities
Reclamation owns, manages, operates,
or funds; or (3) establishes operation,
VerDate Sep<11>2014
17:23 Jun 06, 2024
Jkt 262001
maintenance, and replacement
responsibilities for such facilities.
*
*
*
*
*
(8) Issuance or renewal of use
authorizations (as defined in 43 CFR
429.2, including crossing agreements
which provide rights-of-way) that
provide right-of-use of Reclamation
land, facilities, or waterbodies where
one or more of the following apply: (a)
work is minor and impacts are expected
to be localized; (b) the action does not
lead to a major public or private action;
(c) the only result of the authorization
will be to implement an administrative
or financial practice or change; or (d)
the level of use or impacts to resources
is not increased.
*
*
*
*
*
(10) Reserved.
*
*
*
*
*
(14) Reserved.
*
*
*
*
*
E. Financial Assistance, Loans, and
Funding
(1) Financial assistance, cooperative
agreements, grants, loans, contracts, or
other funding, where the underlying
actions being funded (a) would be
covered by another Reclamation CE if
Reclamation were implementing the
action itself; or (b) where the work to be
done is confined to areas already
impacted by farming or development
activities, work is considered minor,
and where the impacts are expected to
be localized.
(2) Reserved.
(3) Reserved.
Stephen G. Tryon,
Director, Office of Environmental Policy and
Compliance.
[FR Doc. 2024–12459 Filed 6–6–24; 8:45 am]
BILLING CODE 4332–90–P
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[BLM_AK_FRN_MO4500180098]
Filing of Plats of Survey: Alaska
Bureau of Land Management,
Interior.
ACTION: Notice of official filing.
AGENCY:
The plats of survey of lands
described in this notice are scheduled to
be officially filed in the Bureau of Land
Management (BLM), Alaska State Office,
Anchorage, Alaska. The surveys, which
were executed at the request of the
BLM, are necessary for the management
of these lands.
DATES: The BLM must receive protests
by July 8, 2024.
SUMMARY:
PO 00000
Frm 00131
Fmt 4703
Sfmt 4703
You may buy a copy of the
plats from the BLM Alaska Public
Information Center, 222 W 7th Avenue,
Mailstop 13, Anchorage, AK 99513.
Please use this address when filing
written protests. You may also view the
plats at the BLM Alaska Public
Information Center, Fitzgerald Federal
Building, 222 W 7th Avenue,
Anchorage, Alaska, at no cost.
FOR FURTHER INFORMATION CONTACT:
Thomas B. O’Toole, Chief, Branch of
Cadastral Survey, Alaska State Office,
Bureau of Land Management, 222 W 7th
Avenue, Anchorage, AK 99513; 907–
271–4231; totoole@blm.gov. People who
use a telecommunications device for the
deaf may call the Federal Relay Service
(FRS) at 1–800–877–8339 to contact the
BLM during normal business hours. The
FRS is available 24 hours a day, 7 days
a week, to leave a message or question
with the above individual. You will
receive a reply during normal business
hours.
SUPPLEMENTARY INFORMATION: The lands
surveyed are:
ADDRESSES:
Fairbanks Meridian, Alaska
T. 15 N., R. 17 E., accepted May 14, 2024.
T. 16 N., R. 17 E., accepted May 14, 2024.
T. 17 N., R. 17 E., accepted May 14, 2024.
T. 15 N., R. 18 E., accepted May 14, 2024.
T. 16 N., R. 18 E., accepted May 14, 2024.
T. 17 N., R. 18 E., accepted May 14, 2024.
T. 15 N., R. 19 E., accepted May 14, 2024.
T. 17 N., R. 19 E., accepted May 14, 2024.
T. 13 N., R. 20 E., accepted May 14, 2024.
T. 14 N., R. 20 E., accepted May 14, 2024.
T. 15 N., R. 20 E., accepted May 14, 2024.
T. 16 N., R. 20 E., accepted May 14, 2024.
T. 17 N., R. 20 E., accepted May 14, 2024.
T. 15 N., R. 21 E., accepted May 14, 2024.
T. 16 N., R. 21 E., accepted May 14, 2024.
Kateel River Meridian, Alaska
U.S. Survey No. 14639, accepted April 29,
2024, situated in T. 18 N., R. 10 W.
Seward Meridian, Alaska
T. 21 N., R. 48 W., accepted May 13, 2024.
T. 20 N., R. 49 W., accepted May 13, 2024.
T. 17 N., R. 50 W., accepted May 13, 2024.
T. 18 N., R. 50 W., accepted May 13, 2024.
T. 19 N., R. 50 W., accepted May 13, 2024.
T. 20 N., R. 50 W., accepted May 13, 2024.
T. 19 N., R. 51 W., accepted May 13, 2024.
T. 20 N., R. 51 W., accepted May 13, 2024.
T. 19 N., R. 55 W., accepted May 13, 2024.
T. 21 N., R. 55 W., accepted May 13, 2024.
T. 22 N., R. 55 W., accepted May 13, 2024.
T. 18 N., R. 56 W., accepted May 13, 2024.
T. 19 N., R. 56 W., accepted May 13, 2024.
T. 20 N., R. 56 W., accepted May 13, 2024.
T. 21 N., R. 56 W., accepted May 13, 2024.
T. 22 N., R. 59 W., accepted May 13, 2024.
A person or party who wishes to
protest one or more plats of survey
identified above must file a written
notice of protest with the State Director
for the BLM in Alaska. The protest may
be filed by mailing to BLM State
E:\FR\FM\07JNN1.SGM
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]]>Agencies
[Federal Register Volume 89, Number 111 (Friday, June 7, 2024)]
[Notices]
[Pages 48674-48680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12459]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
[RR83530000, 234R5065C6, RX.59389832.1009676]
National Environmental Policy Act Implementing Procedures for the
Bureau of Reclamation
AGENCY: Office of the Secretary, Interior.
ACTION: Notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior (Department), Bureau of
Reclamation (Reclamation) proposes to revise seven categorical
exclusions (CE) under the National Environmental Policy Act of 1969
(NEPA) in Reclamation's NEPA implementing procedures, Departmental
Manual (DM) at part 516, chapter 14. The proposed revisions would
clarify existing CEs on certain financial assistance funding, water-
related contracting, and use authorization actions to allow for more
consistent interpretation and more efficient review of appropriate
actions based on Reclamation's experience implementing these CEs. The
Department, on behalf of Reclamation, invites public comment on the
proposed revisions.
DATES: Submit written comments on or before July 8, 2024.
ADDRESSES: Send written comments electronically to [email protected], or
by mail to Bureau of Reclamation, Attn: USBR CE, 1849 C Street NW,
Suite 7069, Washington, DC 20240. Supporting documentation used in
preparing the proposed CE revisions is available for public inspection
at www.usbr.gov/nepa. The public can also view the CE substantiation
report at www.usbr.gov/nepa. The web address for Reclamation's current
procedures, at series 31, part 516, chapter 14, is https://www.doi.gov/document-library/departmental-manual/516-dm-14-managing-nepa-process-bureau-reclamation.
FOR FURTHER INFORMATION CONTACT: Shane Hunt (he/him) via phone at 916-
202-7158, or via email at [email protected]. Individuals 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:
[[Page 48675]]
Background
Reclamation was established in 1902. Its original mission was civil
works construction to develop the water resources of the arid Western
United States to promote the settlement and economic development of
that region. Reclamation developed hundreds of projects to store and
deliver water. That substantial infrastructure development contributed
to making Reclamation the largest wholesale supplier of water and the
second largest producer of hydropower in the United States.
Reclamation carries out numerous activities in support of its
modern-day mission and authorities. NEPA requires Federal agencies to
assess the potential environmental effects of proposed major Federal
actions. If a major Federal action would have significant impacts on
the quality of the human environment, an agency prepares an
environmental impact statement (EIS) to describe the reasonably
foreseeable effects associated with the proposed action, as well as a
reasonable range of alternatives (see 42 U.S.C. 4332(2)(C)). An agency
prepares an environmental assessment (EA) when a proposed action will
not have a reasonably foreseeable significant effect on the quality of
the human environment, or if the significance of such effect is unknown
(see 42 U.S.C. 4336(a)(2), 40 CFR 1501.5(a)). A Federal agency also
identifies in its agency NEPA implementing procedures categories of
actions that normally do not significantly affect the quality of the
human environment and therefore do not require the preparation of an EA
or an EIS, subject to the consideration of extraordinary circumstances
(see 42 U.S.C. 4336e(1), 40 CFR 1501.4 and 43 CFR 46.215). When
appropriately established and applied, these CEs allow agencies to
protect the environment while operating more efficiently by focusing
their resources on proposals that may have significant environmental
impacts. In the late 1970s and early 1980s, the Department established
Reclamation-specific NEPA implementing procedures, including 30 CEs,
which are found in chapter 14 of part 516 of the Departmental Manual
(516 DM 14). The Department and Reclamation, through this notice,
propose to revise seven of those CEs, as discussed below.
Since developing Reclamation's NEPA implementing procedures,
several government-wide and Departmental efforts have encouraged
agencies and bureaus to modernize and streamline environmental reviews
and, where appropriate, establish new CEs or revise existing ones. The
Council on Environmental Quality (CEQ) recommends that agencies
periodically review and update, as necessary, their NEPA implementing
procedures, including their CEs.\1\
---------------------------------------------------------------------------
\1\ See 40 CFR 1507.3 and CEQ's 2010 guidance on Establishing,
Applying, and Revising Categorical Exclusions Under the National
Environmental Policy Act, https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf.
---------------------------------------------------------------------------
Reclamation has amassed extensive knowledge and experience
analyzing actions under NEPA. In 2016, Reclamation comprehensively
reviewed its existing CEs at 516 DM 14, which were originally
established in the early 1980s. Through the review process and based on
more than 40 years of agency experience implementing these CEs,
Reclamation identified several examples of actions for which new and
revised CEs would improve NEPA compliance by enhancing efficiencies and
ensuring clear and consistent interpretation for NEPA practitioners,
project proponents, and the public. Specifically, Reclamation's NEPA
practitioners and program subject matter experts (CE Working Group)
reviewed the original purpose and history of the applicability and use
for each of Reclamation's existing CEs. Reclamation's CE Working Group
identified issues and challenges contributing to inconsistent
interpretation of the actions or scope covered by the CEs, as well as
opportunities to modify or add new actions to CEs when those
modifications or actions would not result in significant environmental
effects.
The CE Working Group found that CEs with clearly defined language
and consistent application by NEPA practitioners did not require
changes at this time. The CE Working Group identified seven CEs, which
are covered by this notice, for revisions to promote consistent
interpretation and application by eliminating confusing or outdated
terminology and authorities. The CE Working Group also identified 12
existing CEs and potentially new CEs, not addressed in this notice,
that required either substantial changes, additional language, or a
more thorough review to promote consistent interpretation and to expand
their scope to include similar actions with similar ranges of potential
impacts. On May 24, 2019, Reclamation established one new CE for
transfers of title. Upon completion of the title transfer CE,
Reclamation determined its next priority was to revise the seven
existing CEs that are the subject of this notice.
The proposed revisions to the seven CEs correct and modernize
terminology and authorities, as well as clarify the scope of activities
and constraints. While the effect of certain proposed CE revisions
would be to broaden CE application to include additional actions, as
explained more fully below, the proposed changes are consistent with
the existing CEs' intent as well as the underlying activities and
impact-based constraints contemplated by the existing CEs from their
inception. The result of these proposed changes is that the CEs'
underlying activities and the constraints used to define them remain
intact. Further, Reclamation's record of CE checklists and EAs with
findings of no significant impact (FONSIs) support these proposed
changes for actions that normally do not have a significant effect on
the human environment. This notice provides a comparison of the
existing and proposed CE language and the specific history, basis, and
rationale for each proposed revised CE.
[[Page 48676]]
516 DM 14.5--Operation and Maintenance Activities
[Water-related contracts]
------------------------------------------------------------------------
Existing CE language Proposed revised CE language
------------------------------------------------------------------------
D4. Approval, execution, and D4. Approval, execution,
implementation of water service administration, and
contracts for minor amounts of long- implementation of water-
term water use or temporary or interim related contracts and contract
water use where the action does not renewals, amendments,
lead to long-term changes and where supplements, and assignments,
the impacts are expected to be and water transfers,
localized. exchanges, and replacements,
for which one or more of the
following apply: (a) for minor
amounts of long-term water
use, where impacts are
expected to be localized; (b)
for temporary or interim water
use \2\ where the action does
not lead to long-term changes
and where the impacts are
expected to be localized; or
(c) where the only result will
be to implement an
administrative or financial
practice or change. A ``water-
related'' contract is any
legally binding agreement to
which Reclamation becomes a
party, pursuant to its
authority under Federal law
that (1) makes water available
from or to the United States;
(2) allows water to be stored,
carried, or delivered in
facilities Reclamation owns,
manages, operates, or funds;
or (3) establishes operation,
maintenance, and replacement
responsibilities for such
facilities.
D14. Approval, renewal, transfer, and D14. Reserved.
execution of an original, amendatory,
or supplemental water service or
repayment contract where the only
result will be to implement an
administrative or financial practice
or change.
------------------------------------------------------------------------
Reclamation proposes to revise the current D4 and D14 CEs for
clarity and to promote consistent interpretation, focused on impacts-
based constraints, while ensuring that the actions potentially covered
by the proposed D4 CE would not have a significant effect on the human
environment. Reclamation proposes to combine the current D4 and D14 CEs
into the proposed D4 CE and reserve D14 for future use if needed.
---------------------------------------------------------------------------
\2\ Reclamation policy PEC P05 defines temporary and interim as
short-term meaning 10 years or less.
---------------------------------------------------------------------------
The CE Working Group review found that Reclamation routinely used
the current D4 and D14 CEs and that there are extensive records of CE
checklists and EAs with FONSIs to document that the water contract
actions described therein did not result in significant effects.
Reclamation's review also identified several challenges arising from
the way CEs D4 and D14 are defined--in particular, how the water-
related contract types (water service, repayment, etc.) and contract
actions (approval, execution, renewal, etc.) should be read in relation
to applicable impacts-based constraints.
Inconsistencies in the current D4 and D14 CEs have led to unclear
expectations and varying application by NEPA practitioners. This lack
of clarity has led to increased costs and resource expenditures when
Reclamation prepares EAs rather than using the current D4 or D14 CEs.
The current D4 and D14 CEs apply only to certain contract types and
contracting actions. For instance, the current D4 CE only lists water
service contracts and original contract execution. The current D14 CE
omits contract implementation--Reclamation's performance of the
contract once it is executed--and applies only to water service and
repayment contracts. Further, the historic record establishing these
current CEs does not describe the reasons for the omissions and
differences regarding contract types and contract actions or provide
guidance about how to interpret the differences. Nor are there now
discernable, relevant reasons for the distinctions. The relevant
distinctions for purposes of the current CEs are water amount, duration
of the contract, and magnitude of the impact. The intention of
Reclamation's proposed revisions to the current D4 and D14 CEs is to
resolve these issues by simplifying contract types to include all
``water-related'' contracts and all contract actions to more clearly
define the applicability of the proposed D4 CE based on an action's
impacts.
The range of proposed water-related contract actions covered under
the current D4 and D14 CEs are substantially the same among
Reclamation's contract types. Reclamation enters into a variety of
water-related contract types and carries out contract actions to amend,
supplement, or renew these contracts after their original execution.
Water service contracts provide project water at contractually
established water rates pursuant to section 9(c)(2) or 9(e) of the
Reclamation Project Act of 1939 (1939 Act),\3\ section 9 of the Water
Conservation and Utilization Act of 1939,\4\ the Sale of Water for
Miscellaneous Purposes Act of 1920,\5\ or other authorities. Repayment
contracts, pursuant to 9(d) of the 1939 Act, provide project water in
exchange for contractors' agreement to repay a set amount of the
government's project costs in a given time.
---------------------------------------------------------------------------
\3\ Public Law 76-260, 9; 53 Stat. 1187, 1193; 43 U.S.C. 485h.
\4\ Public Law 76-398, 9; 53 Stat 1418; 1124; 16 U.S.C. 590z-7.
\5\ Public Law 66-147, 41 Stat. 451; 43 U.S.C. 521.
---------------------------------------------------------------------------
While water service and repayment contracts are core types of
contracts that Reclamation holds, Reclamation also enters into a
variety of other water-related contracts. These include excess capacity
contracts, which allow others to store and move non-project water in
Federal works; contracts to transfer Federal operation and maintenance
responsibilities to water user organizations; and water exchange or
replacement contracts. The current D4 and D14 do not expressly include
the range of Reclamation water-related contract types. The proposed
revisions to the D4 CE expand the potential application of the proposed
CE to encompass the variety of water-related contracts entered into by
Reclamation. Including them enhances Reclamation's ability to comply
with NEPA efficiently and effectively, consistent with 40 CFR 1501.4
where they meet the impact-based constraints, rather than based on
distinctions that relate instead to the legal and financial aspects of
contract actions.
The potential application of the proposed D4 CE is inclusive of
more types of water-related contracts as discussed above; however, the
proposed D4 CE establishes meaningful limits to
[[Page 48677]]
its application. All water-related contracts affect the delivery and
use of water or the operation of related facilities and involve
relatively large or small water amounts. Any water-related contract may
be subject to actions that only result in implementation of an
administrative or financial practice or change. Accordingly, rather
than limiting CE application based on the legal or financial
characteristics of contracts and contract actions, the proposed D4 CE
contains impact-based constraints on its application.
To date, Reclamation has prepared numerous EAs and FONSIs for
water-related contract requests, which www.usbr.gov/nepa provides. In
this notice's supporting documentation, Reclamation includes the review
of 25 water-related contract EAs and FONSIs completed between 2011 and
2022. These EAs and FONSIs demonstrate that, absent extraordinary
circumstances, the types of water-related contracts that the proposed
D4 CE would cover, result in no significant effects.
To inform its proposed updates to the current D4 and D14 CEs,
Reclamation also analyzed the impact-based constraints in these
existing CEs. The constraint limiting the scope and effects for the
existing D14 CE, ``where the only result will be to implement an
administrative or financial practice or change,'' is clear, easily
understood, and consistently applied by NEPA practitioners. In
contrast, the impact-based constraints in the current D4 CE create
confusion regarding its application. Due to its grammatical
construction, most notably the lack of punctuation, the current D4 CE
does not clearly present the relationship between the impact-based
constraints and D4 CE's application. To resolve the confusion created
by the current D4 CE and provide clarity and consistency, Reclamation
proposes to revise the D4 CE to distinctly list each impact-based
constraint.
Reclamation determined that the application of the proposed D4 CE
should continue to be determined by changes in water quantity relative
to the affected project or water system. Reclamation also considered
whether the absolute water-related contract water amounts, for
instance, limiting application by acre-feet of water, should constrain
the application of the proposed D4 CE. Ultimately, Reclamation rejected
specifying water amounts because the effects to a water system
resulting from a water-related contract's specified changes in water
quantity are relative; effects depend on the size and unique
characteristics of the water system. For example, an amount of contract
water that would be minor to the Columbia River might be significant to
the Middle Rio Grande River. Therefore, Reclamation proposes the
continued use of ``minor'' as an appropriate constraint for water
quantity under the proposed D4 CE. The current D4 CE successfully
applies the constraint and based on a review of past CE use, EAs, and
FONSIs, the use of the term ``minor'' when coupled with the other
impact-based constraints included in the proposed CE, and absent any
extraordinary circumstances, will normally not significantly affect the
quality of the human environment. Likewise, system-specific
characteristics, such as hydrological interconnections and local
environmental sensitivities, will affect Reclamation's assessment of
whether a water-related contract action's impacts would be considered
minor, lead to long-term changes, or be localized. Reclamation has not
quantified these impact-based constraints in the past, and for the
reasons noted above, finds that these constraints do not require
quantification in the proposed D4 CE.
Finally, as described above, the type of water-related contract or
contract action is not an effective measure of environmental effects or
means of defining a CE's application. The impact-based constraints
limiting use of the CEs based on elements of water delivery (amount,
duration, and area impacted) are more meaningful to determine the
relationship of an action to the potential for significant impacts to
the environment. Emphasis on using impact-based constraints to define
those water-related contracts eligible for use of the proposed D4 CE
would standardize its application across water-related contract actions
as well as ensure the covered actions would not result in significant
effects.
To clarify the application of CEs pertaining to water-related
contract actions and to focus on impact-based constraints, Reclamation
proposes to consolidate the current D4 and D14 CEs into one CE, the
proposed D4 CE. Reclamation then proposes to revise the current D4 CE
to replace ``water service contract'' with the more inclusive ``water-
related contract,'' which is defined in the proposed D4 CE and the
Reclamation Manual Policy, Water-Related Contracts and Charges--General
Principles and Requirements (PEC P05), 4.R. The proposed text of D4 CE
then uses a list format for each of the impact-based constraints
limiting the application of the proposed D4 CE to increase clarity.
This includes ``temporary or interim water use'' which PEC P05, 4.P
defines as short-term meaning 10 years or less. Based on the
consideration of the contract types, within the context of the impact-
based constraints and absent any extraordinary circumstances,
Reclamation determines that the additional contract types would not
have a significant impact on the quality of the human environment.
516 DM 14.5--Operation and Maintenance Activities
[Use authorizations]
------------------------------------------------------------------------
Existing CE language Proposed revised CE language
------------------------------------------------------------------------
D8. Renewal of existing grazing, D8. Issuance or renewal of use
recreation management, or cabin site authorizations (as defined in
leases which do not increase the level 43 CFR 429.2, including
of use or continue unsatisfactory crossing agreements which
environmental conditions. provide rights-of-way) that
provide right-of-use of
Reclamation land, facilities,
or waterbodies where one or
more of the following apply:
(a) work is minor and impacts
are expected to be localized;
(b) the action does not lead
to a major public or private
action; (c) the only result of
the authorization will be to
implement an administrative or
financial practice or change;
or (d) the level of use or
impacts to resources is not
increased.
D10. Issuance of permits, licenses, D10. Reserved.
easements, and crossing agreements
which provide right-of-way over Bureau
lands where the action does not allow
for or lead to a major public or
private action.
------------------------------------------------------------------------
[[Page 48678]]
Reclamation's CE Working Group review found that the existing D8
and D10 CEs, as well as other Reclamation CEs for substantially similar
use authorization actions, such as D9 that covers the ``issuance of
permits for removal of gravel or sand by an established process from
existing quarries,'' are routinely applied to use authorization
activities. The extensive collection of CE checklists for the existing
D8 and D10 CEs and other use authorization CEs demonstrate that these
activities do not have significant effects absent extraordinary
circumstances. The list of use authorization types in the current D10
CE is consistent with the use authorizations included in 43 CFR 429.2
(i.e., easements, leases, licenses, permits, and consent documents).
Reclamation also found confusion regarding the existing D8 and D10 CEs'
applicability to use authorization renewals, issuances, and reissuances
related to underlying use authorization activities. For example, the
current D10 CE does not explicitly include renewal of use
authorizations. As a result of this omission, NEPA practitioners
interpret the current D10 CE differently with some employing the
current D10 CE to reissue expiring use authorizations and others
determining that the current D10 CE is not applicable in the same
circumstances.
Reclamation proposes to revise the current D8 and D10 CEs to more
clearly describe when a use authorization CE applies. First,
Reclamation proposes to combine the existing D8 and D10 CEs into one
CE, the proposed D8 CE, and reserve D10 for future use if needed. Next,
Reclamation proposes to include in the proposed D8 CE the term ``use
authorization.'' Similar to the scope of the current D10 CE, the
proposed D8 CE covers the Reclamation use authorization activities by
incorporating language from and a reference to 43 CFR 429.2, including
crossing agreements which provide rights-of-way for consistency in
interpretation. Finally, the proposed D8 CE specifies the terms and
conditions for which Reclamation will issue a use authorization for its
land, facilities, or waterbodies.
Much like the rationale supporting the use of impact-based
constraints for water-related contracts and contracting actions in the
proposed D4 CE, for the proposed D8 CE, the use authorization type does
not as effectively identify environmental effects or define the
proposed CE's application as the underlying use authorization actions
and impact-based constraints. Therefore, Reclamation is proposing to
revise the D8 CE to clarify the actions that fall under ``use
authorizations'' and list the impact-based constraints on the
application of the proposed D8 CE. In the aggregate, the forgoing
revisions in the proposed D8 CE will standardize its application and
will not expand the scope of actions covered under the current D8 and
D10 CEs.
Reclamation has prepared numerous CE checklists and EAs analyzing
use authorization proposals covering actions within the scope of the
proposed D8 CE that resulted in FONSIs. Reclamation's CE substantiation
report summarizes 13 use authorization EAs with FONSIs completed
between 2006 and 2022. These EAs and FONSIs demonstrate that the
issuance and renewal of use authorization included in the proposed D8
CE typically result in no significant impacts. The proposed D8 CE is
consistent with 43 CFR part 429 and contemporary Reclamation Manual
policies and directives and standards and will lead to improved, more
efficient analysis of these actions.
516 DM 14.5--Financial Assistance, Loans, and Funding Activities
------------------------------------------------------------------------
Existing CE language Proposed revised CE language
------------------------------------------------------------------------
E1. Rehabilitation and Betterment Act E1. Financial assistance,
loans and contracts which involve cooperative agreements,
repair, replacement, or modification grants, loans, contracts, or
of equipment in existing structures or other funding, where the
minor repairs to existing dams, underlying actions being
canals, laterals, drains, pipelines, funded (a) would be covered by
and similar facilities. another Reclamation CE if
Reclamation were implementing
the action itself, or (b)
where the work to be done is
confined to areas already
impacted by farming or
development activities, work
is considered minor, and where
the impacts are expected to be
localized.
E2. Small Reclamation Projects Act E2. Reserved.
grants and loans where the work to be
done is confined to areas already
impacted by farming or development
activities, work is considered minor,
and where the impacts are expected to
be localized.
E3. Distribution System Loans Act loans E3. Reserved.
where the work to be done is confined
to areas already impacted by farming
or developing activities, work is
considered minor, and where the
impacts are expected to be localized.
------------------------------------------------------------------------
Reclamation's CE Working Group review found that the existing E1,
E2, and E3 CEs, which are the current CEs pertaining to financial
assistance actions, are too narrowly defined by specific, outdated
program authorities that Reclamation policy now disfavors. Reclamation
has gained several authorities for financial assistance through the
SECURE Water Act, Infrastructure Investment and Jobs Act, Inflation
Reduction Act, and others to provide critical funding for water and
energy infrastructure, restoration, drought, and conservation projects
that are integral to Reclamation and Department missions.
Rather than tying the CE to particular authorities, Reclamation
proposes that the revisions describe the underlying activity with
impact-based constraints, allowing Reclamation to use the CE across
current and future programs. The existing E1, E2, and E3 CEs too
narrowly define the listed program authorities for Reclamation's
contemporary program portfolio. Further, many of the actions funded by
Reclamation's current financial assistance programs would qualify for
these and other existing CEs because the underlying activities are
either already covered by another Reclamation CE if Reclamation were
implementing the action itself, or the activities (e.g., ``work [. . .]
confined to areas already impacted by farming or developing activities,
work is considered minor, and where the impacts are expected to be
localized.'') are consistent with the existing E1, E2, and E3 CEs.
Given Reclamation's inability to access existing E1, E2, and E3 CEs
because of their narrow definitions of authority, Reclamation's current
practice is to prepare EAs and FONSIs for many financial assistance
actions. To
[[Page 48679]]
address the current E1, E2, and E3 CEs' obsolescence and avoid similar
issues in the future, Reclamation proposes to remove all reference to
specific program authorities in the proposed E1 CE. The proposed
revised CE, in turn, is substantiated based on the EAs and FONSIs that
Reclamation has prepared in the absence of such an existing CE, as
outlined in the accompanying CE substantiation report.
Reclamation also has determined that the underlying financial
assistance activities in the existing E1, E2, and E3 CEs remain
relevant, and has updated the impact-based constraints in these CEs
based on the analysis of these recent EAs and FONSIs. Accordingly,
Reclamation proposes to include impact-based constraints from the
existing E1, E2, and E3 CEs in the proposed E1 CE. The underlying
financial assistance actions retained in the proposed E1 CE include
funded actions that another Reclamation CE, if Reclamation were
implementing the action itself, would cover. The impact-based
constraints from the E2 and E3 CEs also are in the proposed E1 CE,
limiting the application of the proposed E1 CE to financial actions for
``work [. . .] confined to areas already impacted by farming or
developing activities, work is considered minor, and where the impacts
are expected to be localized.''
These impact-based constraints limit the application of the
proposed E1 CE to financial assistance activities that normally will
not have significant environmental impacts.
Reclamation also proposes to expand the types of financial
assistance actions covered under the proposed E1 CE to include
financial assistance, cooperative agreements, grants, loans, contracts,
and a catch-all ``other funding.'' This revision allows the proposed E1
CE to be potentially applicable to all financial assistance types,
including grants, loans, and funding for applicant, sponsor or partner
actions as long as the financial assistance action is consistent with
the underlying financial assistance actions and impacts-based
constraints defined in the proposed E1 CE. Because the financial
assistance authorities assigned to Reclamation by law are subject to
change, and Reclamation would like to avoid obsolescence, the proposed
E1 CE draft focuses on the underlying financial assistance activity
funded rather than the funding program authority, allowing for
application consistent with current and future authorities.
Similar to the rationale for water-related contracts and
contracting actions in the proposed D4 CE and use authorization actions
in the proposed D8 CE, for the proposed E1 CE, the authority type does
not as effectively identify environmental effects or define the
proposed CE's application as the underlying financial assistance
actions and impact-base constraints. Therefore, Reclamation is
proposing to revise the current E1, E2, and E3 CEs to remove the
specificity of funding program authorities, clarify the underlying
financial assistance actions and impact constraints on their
application, and combine into one proposed E1 CE, with E2 and E3
reserved for future use if needed. While Reclamation expects these
proposed revisions to increase the types of financial assistance
actions that qualify for the proposed E1 CE, the scope of these actions
is consistent with existing definitions of underlying financial
assistance activities and impact-based constraints.
Reclamation has prepared numerous CE checklists and EAs analyzing
financial assistance proposals covering actions with the scope of the
proposed E1 CE that resulted in FONSIs. Reclamation has summarized 33
EAs with FONSIs completed between 2016 and 2022 in its CE
substantiation report included in this notice's supporting
documentation, which support a determination that the proposed CE
revisions would not result in significant impacts for financial
assistance actions. Additional Financial Assistance EAs with FONSIs can
be accessed at www.usbr.gov/nepa that also demonstrate that types of
proposals included in the proposed E1 CE typically result in no
significant effects. The proposed E1 CE is consistent with contemporary
Reclamation authorities and will lead to improved, more efficient
analysis of these actions.
Categorical Exclusion Determination
The Department and Reclamation find that the categories of actions
described in the proposed CEs normally do not have a significant effect
on the human environment absent extraordinary circumstances. This
finding is based on Reclamation's comprehensive review of CEs, EAs, and
FONSIs; its history and over 40 years of experience analyzing actions
under NEPA and using these CEs; the rationale for the proposed
revisions described above; and consistent determinations made under CE
checklists and EAs with FONSIs that these actions normally do not have
a significant effect on the human environment. Since establishing the
existing contracting and use authorization CEs in the late 1970s and
early 1980s, Reclamation estimates it has prepared thousands of CE
checklists documenting that these actions did not result in significant
effects. In addition, since the early 1980s, Reclamation estimates it
has prepared hundreds of EAs and FONSIs for financial assistance
actions similar to those actions that would be covered under the
proposed E1 CE that were not included in the narrow definition of the
specific authorities in the E1, E2, and E3 CEs. Further, Reclamation
estimates that it has prepared hundreds of additional EAs and FONSIs
for contracting and use authorization actions closely related to the
D4, D8, D10, and D14 CEs that either did not meet strict interpretation
of those CE definitions, or where a water-related contract or use
authorization CE was not applied because of uncertainty surrounding the
description of the proposal type, proposal activities, or impact-based
constraints. The frequent use of these existing CEs, experience
preparing EAs and FONSIs for actions covered by the proposed CEs, and
Reclamation's comprehensive review of how its existing CEs are applied
in practice serve to validate Reclamation's preparation of these
proposed CEs. To further demonstrate the finding that actions under the
proposed CEs would not normally result in significant effects to the
human environment, Reclamation reviewed 71 EAs with FONSIs and
summarized them in the CE substantiation report included in this
notice's supporting documentation. These 71 EAs with FONSIs analyze
actions that the proposed CE revisions are designed to cover in the
future. Additional EAs with FONSIs are also available at www.usbr.gov/nepa.
Reclamation recognizes that certain proposed actions, when reviewed
on a case-by-case basis, may trigger one or more extraordinary
circumstances, and for those proposed actions where a normally excluded
action may have a significant effect, Reclamation will prepare an EA or
EIS (see 43 CFR 46.215). In such cases, the proposed actions could have
significant environmental effects and require additional NEPA analysis
(see 40 CFR 1501.4(b)). Thus, prior to applying any CE, Reclamation
will review the proposed action to ensure it is covered by the CE and
evaluate the proposed action for any extraordinary circumstances.
Reclamation requires that any action for which a Reclamation CE is used
must be documented with a CE checklist to demonstrate (a) the
applicability of the CE, and (b) verification that no extraordinary
circumstances are present such that a normally excluded action may have
a significant effect. In such cases, Reclamation will conduct
additional
[[Page 48680]]
NEPA analysis and prepare an EA or EIS, as appropriate.
The Department, on behalf of Reclamation, invites comments on these
proposed CE revisions and will consider all comments received by the
comment deadline. Comments should be as specific as possible and
provide detail to explain the importance of the issues raised in the
comment to Reclamation's proposed rulemaking.
Public Disclosure Statement
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment including your personal identifying
information may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Amended Text for the Departmental Manual
The proposed text would modify 516 DM as set forth below:
Part 516: National Environmental Policy Act of 1969
Chapter 14: Managing the NEPA Process--Bureau of Reclamation
* * * * *
14.5 Categorical Exclusions
* * * * *
D. Operation and Maintenance Activities
* * * * *
(4) Approval, execution, administration, and implementation of
water-related contracts and contract renewals, amendments, supplements,
and assignments, and water transfers, exchanges, and replacements, for
which one or more of the following apply: (a) for minor amounts of
long-term water use, where impacts are expected to be localized; (b)
for temporary or interim water use where the action does not lead to
long-term changes and where the impacts are expected to be localized;
or (c) where the only result will be to implement an administrative or
financial practice or change. A ``water-related contract'' is any
legally binding agreement to which Reclamation becomes a party,
pursuant to its authority under Federal law that (1) makes water
available from or to the United States; (2) allows water to be stored,
carried, or delivered in facilities Reclamation owns, manages,
operates, or funds; or (3) establishes operation, maintenance, and
replacement responsibilities for such facilities.
* * * * *
(8) Issuance or renewal of use authorizations (as defined in 43 CFR
429.2, including crossing agreements which provide rights-of-way) that
provide right-of-use of Reclamation land, facilities, or waterbodies
where one or more of the following apply: (a) work is minor and impacts
are expected to be localized; (b) the action does not lead to a major
public or private action; (c) the only result of the authorization will
be to implement an administrative or financial practice or change; or
(d) the level of use or impacts to resources is not increased.
* * * * *
(10) Reserved.
* * * * *
(14) Reserved.
* * * * *
E. Financial Assistance, Loans, and Funding
(1) Financial assistance, cooperative agreements, grants, loans,
contracts, or other funding, where the underlying actions being funded
(a) would be covered by another Reclamation CE if Reclamation were
implementing the action itself; or (b) where the work to be done is
confined to areas already impacted by farming or development
activities, work is considered minor, and where the impacts are
expected to be localized.
(2) Reserved.
(3) Reserved.
Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2024-12459 Filed 6-6-24; 8:45 am]
BILLING CODE 4332-90-P
