Adoption of United States Forest Service Categorical Exclusions Under the National Environmental Policy Act, 59726-59729 [2024-16087]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Notices]
[Pages 59726-59729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16087]


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DEPARTMENT OF ENERGY


Adoption of United States Forest Service Categorical Exclusions 
Under the National Environmental Policy Act

AGENCY: Office of the General Counsel, Department of Energy.

ACTION: Notice of adoption of categorical exclusions.

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SUMMARY: The Department of Energy (DOE or the Department) has 
identified categorical exclusions established by the United States 
Forest Service (USFS) that cover categories of actions pertinent to DOE 
operations. This notice identifies those USFS categorical exclusions 
and announces that DOE has adopted them for the Department's future use 
pursuant to section 109 of the National Environmental Policy Act (NEPA) 
and the Council on Environmental Quality (CEQ) NEPA regulations.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: For further information, contact Ms. 
Carrie Abravanel, Deputy Director, Office of NEPA Policy and 
Compliance, at [email protected] or 202-586-4600.

SUPPLEMENTARY INFORMATION:

I. Background

    The National Environmental Policy Act, as amended, seeks to ensure 
that Federal agencies consider the environmental effects of their 
proposed major actions in their decision-making processes. 42 U.S.C. 
4321 et seq. NEPA establishes three types of review for proposed 
actions--environmental impact statement, environmental assessment, and 
categorical exclusion--each involving different levels of information 
and analysis. An environmental impact statement is a detailed analysis 
of reasonably foreseeable environmental effects prepared for a major 
Federal action significantly affecting the quality of the human 
environment. 42 U.S.C. 4332(2)(C) and 40 CFR part 1502 and section 
1508.1(l). An environmental assessment is a concise public document 
prepared by a Federal agency to set forth the basis for its finding of 
no significant impact or its determination that an environmental impact 
statement is necessary. 42 U.S.C. 4336(b)(2) and 40 CFR 1501.5, 1501.6, 
and 1508.1(j). A categorical exclusion is a category of actions that 
the agency has determined, in its agency NEPA procedures, normally does 
not have a significant effect on the human environment and therefore 
does not require preparation of an environmental assessment or

[[Page 59727]]

environmental impact statement. 40 CFR 1501.4, 1507.3(c)(8), and 
1508.1(e). If an agency determines that a categorical exclusion covers 
a proposed action, it then evaluates the proposed action for 
extraordinary circumstances in which a normally excluded action may 
have a significant effect. 40 CFR 1501.4(b). If no extraordinary 
circumstances are present, the agency may apply the categorical 
exclusion to the proposed action without preparing an environmental 
assessment or environmental impact statement. 42 U.S.C. 4336(a)(2), 40 
CFR 1501.4. If an extraordinary circumstance exists, the agency 
nevertheless may apply the categorical exclusion if the agency 
``conducts an analysis and determines that the proposed action does not 
in fact have the potential to result in significant effects 
notwithstanding the extraordinary circumstance, or the agency modifies 
the action to avoid the potential to result in significant effects.'' 
40 CFR 1501.4(b)(1).
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to ``adopt'' another Federal 
agency's categorical exclusions for proposed actions. 42 U.S.C. 4336c. 
To use another agency's categorical exclusions under section 109, the 
adopting agency (``borrowing agency'') must identify the relevant 
categorical exclusions listed in another agency's (``establishing 
agency'') NEPA procedures that covers the borrowing agency's category 
of proposed actions or related actions; consult with the establishing 
agency to ensure that the proposed adoption of the categorical 
exclusion for a category of actions is appropriate; identify to the 
public the categorical exclusions that the borrowing agency plans to 
use for its proposed actions; and document adoption of the categorical 
exclusions. Id. This process is incorporated into the CEQ regulations 
at 40 CFR 1501.4(e).

II. The USFS Categorical Exclusions that DOE Is Adopting

A. Text of the USFS Categorical Exclusions

    DOE is adopting seven categorical exclusions established by USFS. 
These categorical exclusions are listed in the USFS NEPA procedures at 
36 CFR 220.6(e). That section of the USFS NEPA procedures includes 25 
categorical exclusions numbered (e)(1)-(e)(25). DOE is adopting these 
seven categorical exclusions: (e)(11), (e)(12), (e)(13), (e)(14), 
(e)(18), (e)(19), and (e)(20). The text of these categorical exclusions 
is:
    1. (e)(11) Post-fire rehabilitation activities, not to exceed 4,200 
acres (such as tree planting, fence replacement, habitat restoration, 
heritage site restoration, repair of roads and trails, and repair of 
damage to minor facilities such as campgrounds), to repair or improve 
lands unlikely to recover to a management approved condition from 
wildland fire damage, or to repair or replace minor facilities damaged 
by fire. Such activities:
    (i) Shall be conducted consistent with Agency and Departmental 
procedures and applicable land and resource management plans;
    (ii) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and
    (iii) Shall be completed within 3 years following a wildland fire.
    2. (e)(12) Harvest of live trees not to exceed 70 acres, requiring 
no more than 2 mile of temporary road construction. Do not use this 
category for even-aged regeneration harvest or vegetation type 
conversion. The proposed action may include incidental removal of trees 
for landings, skid trails, and road clearing. Examples include, but are 
not limited to:
    (i) Removal of individual trees for sawlogs, specialty products, or 
fuelwood, and
    (ii) Commercial thinning of overstocked stands to achieve the 
desired stocking level to increase health and vigor.
    3. (e)(13) Salvage of dead and/or dying trees not to exceed 250 
acres, requiring no more than \1/2\ mile of temporary road 
construction. The proposed action may include incidental removal of 
live or dead trees for landings, skid trails, and road clearing. 
Examples include, but are not limited to:
    (i) Harvest of a portion of a stand damaged by a wind or ice event 
and construction of a short temporary road to access the damaged trees, 
and
    (ii) Harvest of fire-damaged trees.
    4. (e)(14) Commercial and non-commercial sanitation harvest of 
trees to control insects or disease not to exceed 250 acres, requiring 
no more than 2 mile of temporary road construction, including removal 
of infested/infected trees and adjacent live uninfested/uninfected 
trees as determined necessary to control the spread of insects or 
disease. The proposed action may include incidental removal of live or 
dead trees for landings, skid trails, and road clearing. Examples 
include, but are not limited to:
    (i) Felling and harvest of trees infested with southern pine 
beetles and immediately adjacent uninfested trees to control expanding 
spot infestations, and
    (ii) Removal and/or destruction of infested trees affected by a new 
exotic insect or disease, such as emerald ash borer, Asian long horned 
beetle, and sudden oak death pathogen.
    5. (e)(18) Restoring wetlands, streams, riparian areas or other 
water bodies by removing, replacing, or modifying water control 
structures such as, but not limited to, dams, levees, dikes, ditches, 
culverts, pipes, drainage tiles, valves, gates, and fencing, to allow 
waters to flow into natural channels and floodplains and restore 
natural flow regimes to the extent practicable where valid existing 
rights or special use authorizations are not unilaterally altered or 
canceled. Examples include but are not limited to:
    (i) Repairing an existing water control structure that is no longer 
functioning properly with minimal dredging, excavation, or placement of 
fill, and does not involve releasing hazardous substances;
    (ii) Installing a newly-designed structure that replaces an 
existing culvert to improve aquatic organism passage and prevent 
resource and property damage where the road or trail maintenance level 
does not change;
    (iii) Removing a culvert and installing a bridge to improve aquatic 
and/or terrestrial organism passage or prevent resource or property 
damage where the road or trail maintenance level does not change; and
    (iv) Removing a small earthen and rock fill dam with a low hazard 
potential classification that is no longer needed.
    6. (e)(19) Removing and/or relocating debris and sediment following 
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian 
systems to pre-disturbance conditions, to the extent practicable, such 
that site conditions will not impede or negatively alter natural 
processes. Examples include but are not limited to:
    (i) Removing an unstable debris jam on a river following a flood 
event and relocating it back in the floodplain and stream channel to 
restore water flow and local bank stability;
    (ii) Clean-up and removal of infrastructure flood debris, such as, 
benches, tables, outhouses, concrete, culverts, and asphalt following a 
hurricane from a stream reach and adjacent wetland area; and
    (iii) Stabilizing stream banks and associated stabilization 
structures to reduce erosion through bioengineering techniques 
following a flood event,

[[Page 59728]]

including the use of living and nonliving plant materials in 
combination with natural and synthetic support materials, such as 
rocks, riprap, geo-textiles, for slope stabilization, erosion 
reduction, and vegetative establishment and establishment of 
appropriate plant communities (bank shaping and planting, brush 
mattresses, log, root wad, and boulder stabilization methods).
    7. (e)(20) Activities that restore, rehabilitate, or stabilize 
lands occupied by roads and trails, including unauthorized roads and 
trails and National Forest System roads and National Forest System 
trails, to a more natural condition that may include removing, 
replacing, or modifying drainage structures and ditches, reestablishing 
vegetation, reshaping natural contours and slopes, reestablishing 
drainage-ways, or other activities that would restore site productivity 
and reduce environmental impacts. Examples include but are not limited 
to:
    (i) Decommissioning a road to a more natural state by restoring 
natural contours and removing construction fills, loosening compacted 
soils, revegetating the roadbed and removing ditches and culverts to 
reestablish natural drainage patterns;
    (ii) Restoring a trail to a natural state by reestablishing natural 
drainage patterns, stabilizing slopes, reestablishing vegetation, and 
installing water bars; and
    (iii) Installing boulders, logs, and berms on a road segment to 
promote naturally regenerated grass, shrub, and tree growth.

B. Additional Considerations Related to the USFS Categorical Exclusions

1. Decision Memo
    USFS regulations state, ``A supporting record is required and the 
decision to proceed must be documented in a decision memo for the 
categories of action in paragraphs (e)(1) through (25) of this section. 
As a minimum, the project or case file should include any records 
prepared, such as: The names of interested and affected people, groups, 
and agencies contacted; the determination that no extraordinary 
circumstances exist; a copy of the decision memo; and a list of the 
people notified of the decision. . . .'' 36 CFR 220.6(e).
2. Extraordinary Circumstances
    USFS NEPA procedures state that a categorical exclusion may only be 
applied ``if there are no extraordinary circumstances related to the 
proposed action'' and if the proposed action is within a categorical 
exclusion listed within U.S. Department of Agriculture or USFS 
procedures. 36 CFR 220.6(a). The USFS NEPA procedures list seven 
resource conditions that ``should be considered in determining whether 
extraordinary circumstances related to a proposed action warrant 
further analysis and documentation'' in an environmental assessment or 
an environmental impact statement:
    (i) Federally listed threatened or endangered species or designated 
critical habitat, species proposed for Federal listing or proposed 
critical habitat, or Forest Service sensitive species;
    (ii) Flood plains, wetlands, or municipal watersheds;
    (iii) Congressionally designated areas, such as wilderness, 
wilderness study areas, or national recreation areas;
    (iv) Inventoried roadless area or potential wilderness area;
    (v) Research natural areas;
    (vi) American Indians and Alaska Native religious or cultural 
sites; and
    (vii) Archaeological sites, or historic properties or areas.
    The USFS NEPA procedures also state that, ``The mere presence of 
one or more of these resource conditions does not preclude use of a 
categorical exclusion (CE). It is the existence of a cause-effect 
relationship between a proposed action and the potential effect on 
these resource conditions, and if such a relationship exists, the 
degree of the potential effect of a proposed action on these resource 
conditions that determines whether extraordinary circumstances exist.'' 
36 CFR 220.6(b).

III. DOE's Use of the Adopted USFS Categorical Exclusions

A. Types of DOE Actions

    DOE expects to use these USFS categorical exclusions for proposed 
actions that would enhance the safety and reliability of transmission 
operations, including within the systems operated and maintained by 
DOE's Power Marketing Administrations. For example, consistent with 
USFS categorical exclusion (e)(13), trees may be cut, skidded, and 
decked to remove post-wildfire damaged or dead trees to maintain 
transmission line reliability. Also, trees cut over the course of 
routine transmission line vegetation management activities may be 
decked and removed to reduce fuel loading consistent with USFS 
categorical exclusions (e)(12) or (e)(14). Other potential use of USFS 
categorical exclusion (e)(18) and (e)(20) include infrastructure 
repairs at wash and stream crossings, as well as rehabilitation of 
unauthorized roads within a right-of-way in order to protect biological 
and cultural resources. DOE also expects to use these USFS categorical 
exclusions for proposed actions at other DOE sites, some of which 
include large areas of forested and otherwise mostly undeveloped land. 
DOE's use of these USFS categorical exclusions would not be limited to 
these examples and could be used in other circumstances for which their 
use is appropriate.

B. Additional Considerations in DOE's Use of the Adopted Categorical 
Exclusions

    As described in section II.B.1 of this notice, USFS requires 
documentation of the decision to apply any of the categorical 
exclusions previously listed. DOE requires documentation and posting 
online categorical exclusion determinations that rely on any 
categorical exclusion listed in appendix B to DOE's NEPA procedures (10 
CFR 1021.410(e)). DOE will extend these current practices of 
documentation and posting online to categorical exclusion 
determinations made using the adopted USFS categorical exclusions. In 
addition, USFS requires that the ``project or case file should include 
any records prepared, such as: The names of interested and affected 
people, groups, and agencies contacted; the determination that no 
extraordinary circumstances exist; a copy of the decision memo; and a 
list of the people notified of the decision.'' 36 CFR 220.6(e). 
Maintaining these records aligns with DOE practice, and DOE would 
maintain similar records associated with its use of the adopted USFS 
categorical exclusions.
    As described in section II.B.2 of this notice, USFS lists resource 
conditions to evaluate for extraordinary circumstances. In deciding 
whether to use the adopted USFS categorical exclusions, DOE will 
evaluate whether there are extraordinary circumstances associated with 
the proposed action. In doing so, DOE will refer to the resource 
conditions identified by USFS. These resource conditions parallel the 
list of integral elements at the start of appendix B to DOE's NEPA 
procedures. 10 CFR part 1021, subpart D. DOE also will refer to the 
definition of extraordinary circumstances in its own NEPA procedures. 
10 CFR 1021.410(b)(2).
    In addition, when determining whether to use any of the adopted 
USFS categorical exclusions, DOE will apply the other conditions in its 
NEPA

[[Page 59729]]

procedures related to the use of categorical exclusions. These 
conditions are listed in 10 CFR 1021.410.

IV. Consultation With USFS and Determination of Appropriateness

    DOE worked with USFS to identify USFS categorical exclusions that 
could apply to DOE proposed actions and consulted with USFS at various 
times from September 2023 through June 2024. During that consultation, 
the agencies discussed DOE's proposed use of these USFS categorical 
exclusions, USFS past practice when relying on the categorical 
exclusions, the agencies' practices concerning analysis of 
extraordinary circumstances, and USFS documentation requirements when 
applying these categorical exclusions.
    At the conclusion of that process, DOE determined that its proposed 
use of the categorical exclusions as described in this notice would be 
appropriate because the categories of actions for which DOE plans to 
use the categorical exclusions are covered by the USFS categorical 
exclusions. DOE also determined, consistent with a recommendation from 
USFS, that it would not use categorical exclusion (e)(11) for hazard 
tree mitigation or abatement.

V. Conclusion

    This notice documents adoption by DOE of the USFS categorical 
exclusions listed above in accordance with 42 U.S.C. 4336c(4) and the 
CEQ regulations at 40 CFR 1501.4(e), and they are available for use by 
DOE, effective immediately. DOE will maintain a copy of this notice of 
adoption and a written record of DOE's use of the categorical 
exclusions listed in this notice on DOE's NEPA website at 
www.energy.gov/nepa.

Signing Authority

    This document of the Department of Energy was signed on July 17, 
2024, by Samuel T. Walsh, General Counsel, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on July 17, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2024-16087 Filed 7-22-24; 8:45 am]
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