Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act, 54411-54413 [2024-14449]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 89, Number 126 (Monday, July 1, 2024)]
[Notices]
[Pages 54411-54413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14449]


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DEPARTMENT OF AGRICULTURE

Forest Service


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

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Notice of adoption of multiple Categorical Exclusions from the 
Department of Commerce, the Department of Energy, the Bureau of Land 
Management, the National Telecommunications and Information 
Administration, and the Bureau of Indian Affairs.

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SUMMARY: The U.S. Department of Agriculture, Forest Service, is 
adopting multiple categorical exclusions (CEs) from several agencies as 
listed: Department of Commerce CEs A4 and A6; Department of Energy CE 
B5.23; Bureau of Land Management CE D2; National Telecommunications and 
Information Administration CEs C-4 through C-8; and Bureau of Indian 
Affairs CE L.1 pursuant to section 109 of the National Environmental 
Policy Act for future application to Forest Service decisions 
concerning land management activities that are similar in nature.. This 
notice describes the categories and details the consultation between 
the respective agencies.

DATES: The CE adoptions take effect on July 1, 2024.

FOR FURTHER INFORMATION CONTACT: Andrea Pahlevanpour, Assistant 
Director, Forest Service, Ecosystem Management Coordination, by phone 
at 771-216-0229 or via email to [email protected].
    Individuals who use telecommunications devices for the hearing 
impaired may call 711 to reach the Telecommunications Relay Service, 24 
hours a day, every day of the year, including holidays.

SUPPLEMENTARY INFORMATION:

I. National Environmental Policy Act and Categorical Exclusions

    The National Environmental Policy (NEPA) (42 U.S.C. 4321-4347), as 
amended, requires all Federal agencies to consider the environmental 
impact of their proposed actions before deciding whether and how to 
proceed (42 U.S.C. 4321, 4332). The aims of NEPA are to ensure that 
agencies consider the potential environmental effects of their proposed 
actions in their decision-making processes and inform and involve the 
public in that process (42 U.S.C. 4332). NEPA created the Council on 
Environmental Quality, which promulgated NEPA implementing regulations, 
40 CFR parts 1500 through 1508 (Council on Environmental Quality 
regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review for a proposed action. Where required, these levels of review 
may be documented in an environmental impact statement (EIS), an 
environmental assessment (EA), or by reliance on a CE (40 CFR 1501.3). 
If a proposed action is likely to have significant environmental 
effects, the agency will prepare an EIS and document its decision in a 
record of decision. 40 CFR 1502, 1505.2. If the proposed action is not 
likely to have significant environmental effects or where the level of 
significance is unknown, the agency will prepare an EA, which involves 
a more concise analysis and process than an EIS (40 CFR 1501.5). 
Following preparation of an EA, the agency may reach a finding of no 
significant impact if the analysis shows that the action will have no 
significant effects (40 CFR 1501.6). If, following preparation of an 
EA, the agency finds that the proposed action will have significant 
effects, it will prepare an EIS before issuing any decision to 
authorize the action (40 CFR 1501.6(a)(3)).
    Under NEPA and the Council on Environmental Quality's implementing 
regulations, a Federal agency can establish CEs--categories of actions 
that the agency has determined normally do not significantly affect the 
quality of the human environment--in its agency NEPA procedures 42 
U.S.C. 4336(e)(1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an 
agency determines that a CE covers a proposed action, the agency then 
evaluates the proposed action for any extraordinary circumstances in 
which a normally excluded action may have a significant effect (40 CFR 
1501.4(b)). Responsible Officials in the Forest Service evaluate 
proposed actions for extraordinary circumstances in accordance with the 
Forest Service's NEPA implementing regulations at 36 CFR 220.6. If no 
extraordinary circumstances are found or if further analysis determines 
that the extraordinary circumstances do not involve the potential for 
significant environmental impacts, the agency may rely on the CE to 
approve the proposed action without preparing an EA or an EIS, 42 
U.S.C. 4336(a)(2), 40 CFR 1501.4. If extraordinary circumstances exist, 
the agency may nonetheless categorically exclude the proposed action if 
it determines that there are means to avoid the impacts or otherwise 
modify the action sufficient to avoid significant effects, 40 CFR 
1501.4(b)(1).
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to ``adopt a categorical exclusion 
listed in another agency's NEPA procedures for a category of proposed 
agency actions for which the categorical exclusion was established.'' 
42 U.S.C. 4336c. To adopt another agency's categorical exclusion under 
section 109, the adopting agency: (1) identifies the relevant 
categorical exclusion listed in another agency's (``establishing 
agency'') NEPA procedures ``that covers a category of proposed actions 
or related actions''; (2) consults with the establishing agency ``to 
ensure that the proposed adoption of the categorical exclusion for a 
category of actions is appropriate''; (3) ``identifies to the public 
the categorical exclusion that the [adopting] agency plans to use for 
its proposed actions''; and (4) documents adoption of the categorical 
exclusion. See 42 U.S.C. 4336c.
    This notice documents the Forest Service's adoption of Department 
of Commerce CEs: A-4 (Siting, construction, operation of microwave or 
radio communication towers less than 200 feet in height without guy 
wires on

[[Page 54412]]

previously disturbed ground) and A-6 (Fiber optic cable to transmission 
structures or burying fiber optic cable in existing transmission line 
rights-of-way); Bureau of Land Management's CE D. Rangeland Management. 
(2) (Placement and use of temporary (not to exceed one month) portable 
corrals and water troughs, providing no new road construction is 
needed); Bureau of Indian Affairs CE L Roads and Transportation (1) 
(Approval of utility installations along or across a transportation 
facility located in whole within the limits of the roadway right-of-
way); National Telecommunications and Information Administration's CEs 
C-4 through C-8 (concerning new telecommunication and broadband 
installation); and Department of Energy CE B5.23 (Electronic vehicle 
charging stations).

II. Additional Considerations Related to the Forest Service CEs

1. Decision Memo

    The Forest Service requires at 36 CFR 220.6(e) that, ``A supporting 
record is required and the decision to proceed must be documented in a 
decision memo for the categories of action in paragraphs (e)(1) through 
(25) of this section.'' For all the CEs adopted in this notice, the 
Forest Service will require a decision memo even if the originating 
agency's NEPA Procedures do not require it.

2. Extraordinary Circumstances

    Forest Service NEPA regulations state that a CE may only be applied 
``if there are no extraordinary circumstances related to the proposed 
action'' and if the proposed action is within a CE listed within a 
category as specified in regulations. 36 CFR 220.6(a). Forest Service 
NEPA regulations list seven resource conditions that ``should be 
considered in determining whether extraordinary circumstances related 
to a proposed action warrant further analysis and documentation in an 
EA or an EIS'', 36 CFR 220.6(b).
    For the Department of the Interior CEs adopted from the Bureau of 
Land Management and the Bureau of Indian Affairs in this notice, the 
Forest Service will also apply the Department of the Interior's 
extraordinary circumstances criteria set forth in 43 CFR 46.215(a) 
through (l), which are slightly different from the Forest Service's 
resource conditions that should be considered in evaluating 
extraordinary circumstances.

III. Consultation With Departments and Agencies on CE Adoption

1. Department of Commerce Consultation

    In April 2024, the Forest Service conducted consultation with the 
Department of Commerce on adoption of several CE categories. Through 
those consultation and coordination efforts, the Department and agency 
mutually agreed that the Forest Service's adoption of CE A-4 
(communication towers) and CE A-6 (fiber optic cable) is appropriate. 
This notice documents the Forest Service's adoption of Department of 
Commerce CEs for such actions.

2. Department of Energy Consultation

    In 2023, the Department of Energy conducted consultation with the 
Forest Service for adoption of a CE covering electric vehicle charging 
stations (B5.23). Through those consultation and coordination efforts, 
the Department and agency mutually agreed that the Forest Service's 
adoption of CE B5.23 (vehicle charging stations) is appropriate.

3. Bureau of Land Management Consultation

    In June of 2024, the Forest Service completed consultation with the 
Bureau of Land Management regarding adoption of CE D. Rangeland 
Management. (2): ``Placement and use of temporary (not to exceed one 
month) portable corrals and water troughs, providing no new road 
construction is needed.'' After several meetings, the agencies mutually 
agreed that the Forest Service's adoption of this CE is appropriate.

4. National Telecommunications and Information Administration 
Consultation

    In May 2024, the Forest Service consulted with the National 
Telecommunications and Information Administration regarding adoption of 
CE's C-4 through C-8 concerning new telecommunication and broadband 
installation CEs. The agencies mutually agreed that Forest Service 
adoption of the CEs is appropriate.

5. Bureau of Indian Affairs Consultation

    In May 2024, the Forest Service consulted with the Bureau of Indian 
Affairs to adopt CE L Roads and Transportation. (1)) covering approval 
of utility installations along or across a transportation facility 
located in whole within the limits of the roadway right-of-way). 
Through those consultation and coordination efforts, the agencies 
mutually agreed that the Forest Service's adoption of CE L. Roads and 
Transportation. (1) is appropriate.

IV. Identification of CEs

1. Department of Commerce CEs

    A-4: Siting, construction, operation of microwave or radio 
communication towers less than 200 feet in height without guy wires on 
previously disturbed ground.
    A-6: Adding fiber optic cable to transmission structures or burying 
fiber optic cable in existing transmission line rights-of-way.

2. Department of Energy CE

    B5.23: The installation, modification, operation, and removal of 
electric vehicle charging stations, using commercially available 
technology, within a previously disturbed or developed area. Covered 
actions are limited to areas where access and parking are in accordance 
with applicable requirements (such as local land use and zoning 
requirements) in the proposed project area and would incorporate 
appropriate control technologies and best management practices.
    ``Previously disturbed or developed'' refers to land that has been 
changed such that ``its functioning ecological processes have been and 
remain altered by human activity. The phrase encompasses areas that 
have been transformed from natural cover to non-native species or a 
managed state, including, but not limited to, utility and electric 
power transmission corridors and rights-of-way, and other areas where 
active utilities and currently used roads are readily available.'' 10 
CFR 1021.410(g)(1).
    The Department of Energy CE also includes additional conditions 
referred to as integral elements. (10 CFR part 1021 subpt. D, app. B) 
In order to apply this CE, the proposal must be one that would not
    (1) Threaten a violation of applicable statutory, regulatory, or 
permit requirements for environment, safety, and health, or similar 
requirements of the Department of Energy or Executive Orders;
    (2) Require siting and construction or major expansion of waste 
storage, disposal, recovery, or treatment facilities (including 
incinerators), but the proposal may include categorically excluded 
waste storage, disposal, recovery, or treatment actions or facilities;
    (3) Disturb hazardous substances, pollutants, contaminants, or 
Comprehensive Environmental Response, Compensation and Liability

[[Page 54413]]

Act-excluded petroleum and natural gas products that preexist in the 
environment such that there would be uncontrolled or unpermitted 
releases;
    (4) Have the potential to cause significant impacts on 
environmentally sensitive resources. An environmentally sensitive 
resource is typically a resource that has been identified as needing 
protection through Executive Order, statute, or regulation by Federal, 
State, or local government, or a Federally recognized Indian Tribe. An 
action may be categorically excluded if, although sensitive resources 
are present, the action would not have the potential to cause 
significant impacts on those resources (such as construction of a 
building with its foundation well above a sole-source aquifer or upland 
surface soil removal on a site that has wetlands).Environmentally 
sensitive resources include, but are not limited to:
    (i) Property (such as sites, buildings, structures, and objects) of 
historic, archeological, or architectural significance designated by a 
Federal, State, or local government, federally recognized Indian Tribe, 
or Native Hawaiian organization; or property determined to be eligible 
for listing on the National Register of Historic Places;
    (ii) Federally listed threatened or endangered species or their 
habitat (including critical habitat) or federally proposed or candidate 
species or their habitat (Endangered Species Act); state-listed or 
state-proposed endangered or threatened species or their habitat; 
Federally protected marine mammals and Essential Fish Habitat (Marine 
Mammal Protection Act; Magnuson-Stevens Fishery Conservation and 
Management Act); and otherwise Federally protected species (such as the 
Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act);
    (iii) Floodplains and wetlands (as defined in 10 CFR 1022.4, 
``Compliance with Floodplain and Wetland Environmental Review 
Requirements: Definitions,'' or its successor);
    (iv) Areas having a special designation such as Federally and 
State-designated wilderness areas, national parks, national monuments, 
national natural landmarks, wild and scenic rivers, State and Federal 
wildlife refuges, scenic areas (such as National Scenic and Historic 
Trails or National Scenic Areas), and marine sanctuaries;
    (v) Prime or unique farmland, or other farmland of statewide or 
local importance, as defined at 7 CFR 658.2(a), ``Farmland Protection 
Policy Act: Definitions,'' or its successor;
    (vi) Special sources of water (such as sole-source aquifers, 
wellhead protection areas, and other water sources that are vital in a 
region); and
    (vii) Tundra, coral reefs, or rain forests; or
    (5) Involve genetically engineered organisms, synthetic biology, 
governmentally designated noxious weeds, or invasive species, unless 
the proposed activity would be contained or confined in a manner 
designed and operated to prevent unauthorized release into the 
environment and conducted in accordance with applicable requirements, 
such as those of the Department of Agriculture, the Environmental 
Protection Agency, and the National Institutes of Health.

3. Bureau of Land Management CE

    D. Rangeland Management (2): Placement and use of temporary (not to 
exceed one month) portable corrals and water troughs, providing no new 
road construction is needed.

4. National Telecommunications and Information Administration CEs

    C-4: New construction or improvement of land, operations, or 
support facilities, switching stations, maintenance facilities, and 
other non-tower structures supporting wired or wireless communications 
systems in a developed area and/or on previously disturbed ground with 
no more than 1 acre (0.4 hectare) of ground disturbance where the 
proposed facility use is generally compatible with the surrounding land 
use and applicable zoning standards and will not require additional 
support infrastructure.
    C-5: Installing, operating, maintaining, retrofitting, upgrading, 
repairing, removing, and/or replacement of existing microwave or radio 
communication towers, instruments, structures, or buildings that do not 
require ground disturbance outside of the original footprint, including 
installing or collocating equipment such as antennas, microwave dishes, 
or power units. For communications towers at or below 199 feet, 
renovations and equipment additions must not cause the total height of 
the tower to exceed 199 feet. Existing structures must not be eligible 
for listing in the National Register of Historic Places.
    C-6: New construction or improvement of temporary buildings or 
experimental equipment (e.g.,, trailers, prefabricated buildings, and 
test slabs) on previously disturbed ground, with no more than 1 acre 
(0.4 hectare) of ground disturbance, where the proposed facility use is 
generally compatible with the surrounding land use and applicable 
zoning standards and will not require additional support 
infrastructure.
    C-7: New construction of self-supporting (for example, monopole or 
lattice) wireless communication towers at or below 199 feet with no guy 
wires that require less than 1 acre (0.4 hectare) of ground disturbance 
and where another Federal agency would not require an EA or EIS for its 
acquisition, installation, operations, or maintenance.
    C-8: Acquisition, installation, reconstruction, repair by 
replacement, and operation of aerial or buried utility (for example, 
water, sewer, electrical), communication (for example, fiber optic 
cable, data processing cable and similar electronic equipment), and 
security systems that use existing rights-of-way, easements, grants of 
license, distribution systems, facilities, or similar arrangements.

5. Bureau of Indian Affairs CE

    L. Roads and Transportation (1): Approval of utility installations 
along or across a transportation facility located in whole within the 
limits of the roadway right-of-way.

    Dated: June 26, 2024.
Jacqueline Emanuel,
Associate Deputy Chief, National Forest System.
[FR Doc. 2024-14449 Filed 6-28-24; 8:45 am]
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