Notice of Adoption of Department of Energy Categorical Exclusions Under the National Environmental Policy Act, 63912-63914 [2024-17272]

Agencies

• DEPARTMENT OF AGRICULTURE
• Rural Business-Cooperative Service
• Rural Housing Service
• Rural Utilities Service

[Federal Register Volume 89, Number 151 (Tuesday, August 6, 2024)]
[Notices]
[Pages 63912-63914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17272]


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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

Rural Housing Service

Rural Business-Cooperative Service

[Docket No. RUS-24-Agency-0023]


Notice of Adoption of Department of Energy Categorical Exclusions 
Under the National Environmental Policy Act

AGENCY: Rural Utilities Service, Rural Housing Service and Rural 
Business-Cooperative Service, Rural Development, USDA.

ACTION: Notice.

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SUMMARY: Rural Development (RD), a mission area within the United 
States Department of Agriculture (USDA) announces its intention to 
adopt three Categorical Exclusions (CEs) from the United States 
Department of Energy (DOE) under the National Environmental Policy Act 
(NEPA) to use in RD programs and funding opportunities. This notice 
describes the categories of proposed actions for which RD intends to 
use the DOE CEs and describes the consultation between the agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: Alan Hachey, Environmental Protection 
Specialist, Environmental and Historic Preservation Division, Rural 
Utilities Service, 1400 Independence Avenue SW, Mail Stop 1548, Room 
4004, Phone: (202) 205-5381; Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    RD's mission is to increase economic opportunity and improve the 
quality of life for all rural Americans. This mission is met by 
providing loans, grants, loan guarantees, and technical assistance 
through a multitude of programs aimed at creating and improving 
infrastructure, businesses, and housing throughout rural America. RD is 
divided into three agencies, the Rural Utilities Service, Rural 
Business-Cooperative Service and Rural Housing Service, each with 
unique programs that play an important role in helping RD reach its 
goals.
    RD's programs must comply with NEPA, 42 U.S.C. 4321 et seq., which 
requires Federal agencies to consider the environmental effects of 
their proposed actions in their decision-making processes and inform 
and engage the public in those processes. Congress enacted NEPA to 
establish a national policy for the environment, provide for the 
establishment of the Council on Environmental Quality (CEQ), and for 
other purposes as detailed on NEPA.gov (https://ceq.doe.gov/). CEQ 
issued regulations implementing NEPA, 40 CFR parts 1500 through 1508 
(CEQ regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review of any major Federal action--an environmental impact statement 
(EIS), environmental assessment (EA), or CE. It is the agency's 
responsibility, in accordance with NEPA and the CEQ regulations, to 
prepare documentation that supports their level of review.
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to adopt and use another agency's 
CEs for a category of proposed agency actions (42 U.S.C. 4336c). To use 
another agency's CEs under section 109, the adopting agency must 
identify the relevant CEs listed in another agency's (``establishing 
agency'') NEPA procedures that cover the adopting agency's category of 
proposed actions or related actions; consult with the establishing 
agency to ensure that the proposed adoption of the CE to a category of 
actions is appropriate; identify to the public the CE that the adopting 
agency plans to use for its proposed actions; and document adoption of 
the CE. 40 CFR 1501.4(e)(2024). This notice documents RD's adoption of 
three DOE CEs under section 109 of NEPA for future use in RD programs 
and funding opportunities.

II. Identification of the Categorical Exclusions and Additional 
Conditions for Application

    RD provides loans, grants and technical assistance to build 
critical infrastructure like electric, broadband, water systems, and 
hospitals. The programs expand access to electric, telecommunications, 
and transportation infrastructure, and support business growth, 
healthcare, education, housing, and other community essentials.
    RD has identified the following CEs for adoption, which are listed 
in DOE's NEPA procedures as CEs B5.4, B5.5, and B5.23 of 10 CFR part 
1021, subpart D, appendix B. These CEs were established April 24, 1992 
(57 FR 15144), and October 13, 2011 (76 FR 63787). The DOE text of each 
CE has been included

[[Page 63913]]

in quotations following each identified CE. RD intends to apply these 
CEs to projects undertaken directly by RD, requiring an approval by RD, 
or financed in whole or in part through Federal funds made available by 
RD programs.
    RD will review each action to ensure the following: (1) Compliance 
with the DOE's NEPA procedures at 10 CFR 1021 subpart D, appendix B 
which require an evaluation of ``integral elements''; (2) Compliance 
with RD's NEPA procedures at 7 CFR 1970.52 which address extraordinary 
circumstances; and (3) Confirmation the action has not been segmented 
as required by DOE's NEPA procedures at 10 CFR 1021.410(b)(3). The 
evaluation of integral elements and segmentation is further described 
in this section. The evaluation of extraordinary circumstances is 
further described in Section III.
    B5.4 Repair or replacement of pipelines. ``Repair, replacement, 
upgrading, rebuilding, or minor relocation of pipelines within existing 
rights-of-way, provided that the actions are in accordance with 
applicable requirements (such as Army Corps of Engineers permits under 
section 404 of the Clean Water Act). Pipelines may convey materials 
including, but not limited to, air, brine, carbon dioxide, geothermal 
system fluids, hydrogen gas, natural gas, nitrogen gas, oil, produced 
water, steam, and water.''
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions (being located in existing 
rights of way, in accordance with applicable requirements, and 
conveying the same types of materials identified by the DOE CE such as 
natural gas). An example of a project type where this CE could be 
applied by RD includes, but is not limited to, the repair or 
replacement of a gas transmission pipeline in an existing utility or 
transportation right-of-way that provides natural gas to an existing 
power plant operated by a utility cooperative.
    RD's existing CE pertaining to gas lines (and water and 
wastewater), 7 CFR 1970.54(b)(2), applies to ``Improvement and 
expansion of existing water, wastewater, and gas utility systems: (i) 
Within one mile of currently served areas irrespective of the percent 
of increase in new capacity, or (ii) increasing capacity not more than 
30 percent of the existing user population.'' RD's CE applies only to 
projects occurring within one mile of currently served areas or to 
projects that increase capacity by no more than 30 percent of the 
existing user population. DOE's CE would provide flexibility to RD's 
program in that it does not limit the proximity of the pipelines to the 
area serviced and does not have a limit on increased capacity, but 
instead limits the covered projects through the requirements to remain 
within existing rights-of-way and to comply with applicable 
requirements (such as Army Corps of Engineers permits under section 404 
of the Clean Water Act). Additionally, RD's CE is limited to water, 
wastewater, and gas utility systems, while DOE's CE applies more 
broadly to pipelines of different kinds.
    B5.5 Short pipeline segments. ``Construction and subsequent 
operation of short (generally less than 20 miles in length) pipeline 
segments conveying materials (such as air, brine, carbon dioxide, 
geothermal system fluids, hydrogen gas, natural gas, nitrogen gas, oil, 
produced water, steam, and water) between existing source facilities 
and existing receiving facilities (such as facilities for use, reuse, 
transportation, storage, and refining), provided that the pipeline 
segments are within previously disturbed or developed rights-of-way.''
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions (which have included pipeline 
segments which are constructed and operated within previously disturbed 
or developed rights-of-way and conveying the same types of materials 
identified by the DOE CE such as natural gas). An example of a project 
type where this CE could be applied by RD includes, but is not limited 
to, the construction of a short pipeline segment alone in an existing 
utility or transportation right-of-way to provide natural gas to an 
existing power plant operated by a rural utility cooperative.
    RD does not have an existing CE that addresses new construction of 
pipeline segments other than for water and wastewater. DOE's CE does 
not limit the type of gases and liquids a pipeline can convey. RD is 
seeing an increase in applicants retrofitting existing generation 
plants with lower carbon emitting resources, such as natural gas. 
Modifications underway include the conversion from coal to co-firing 
natural gas plants. The DOE CE would address the action of constructing 
new natural gas pipeline segments for such plant modifications.
    B5.23 Electric vehicle charging stations. ``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.'' The CE will be applied in a manner consistent 
with DOE's application--to the same types of actions (which have 
included a wide variety of locations on and off Federal property, 
differences in local conditions, various numbers of EV charging 
stations per action, and different types of equipment and technologies 
including Level 1, Level 2, and DC Fast Charging stations).
    RD intends to apply this CE towards the construction of electric 
vehicle charging stations proposed by applicants in previously 
disturbed or developed areas including, but not limited to, existing 
facilities such as headquarters, warehouses, and other support 
buildings used by electric utility cooperatives and other applicant 
types. As applicants increasingly focus on green energy and long-term 
sustainability goals, RD anticipates those efforts will also include 
the replacement of applicants' fleets from gas powered to electric 
vehicles. RD will review the action for integral elements, 
extraordinary circumstances and segmentation to ensure that the CE is 
still applicable. Reducing the Department's reliance on fossil fuels 
and reducing emissions will improve sustainability in accordance with 
Executive Order 14008, Tackling the Climate Crisis at Home and Abroad. 
RD does not currently have a CE for this application.
    Additional conditions applicable to DOE's CEs: When analyzing 
``Previously disturbed or developed area,'' RD will use DOE's 
definition of ``land that has been changed such that its functioning 
ecological processes have been and remain altered by human activity.'' 
DOE further clarifies that ``[t]he 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)). DOE's definition of ``Previously disturbed or 
developed area'' is substantially the same as the definition RD uses. 
RD defines ``[p]reviously disturbed or developed area'' as ``[l]and 
that has been changed such that its functioning ecological processes 
have been and remain altered by human activity,'' which ``encompasses 
areas that have been

[[Page 63914]]

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'' (7 CFR 
1970.6(a)).
    The DOE CEs include additional conditions referred to as integral 
elements (10 CFR part 1021 Subpart D, Appendix B). In order to apply 
the CEs, RD will ensure the action 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 USDA 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 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;
    (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.
    The CEs being adopted apply to classes of action that RD has 
determined would not individually or cumulatively have a significant 
effect on the human environment. RD will ensure in its review of each 
action that it has not been segmented as required by DOE's NEPA 
procedures at 10 CFR 1021.410(b)(3) and the appropriate level of 
environmental review is being applied to the action as required by the 
CEQ regulations at 40 CFR 1501.3(b).

III. Consideration of Extraordinary Circumstances

    DOE's implementing procedures for extraordinary circumstances at 10 
CFR 1021.410(b)(2) will be used when evaluating projects where the 
adopted CEs will be applied. RD's definition of extraordinary 
circumstances includes DOE's definition in its entirety, but also 
includes additional details that address considerations relevant to 
RD's programs; therefore, RD will also rely on the language found in 
RD's implementing procedures when evaluating the applicability of an 
adopted CE to a proposal.

IV. Consultation With DOE and Determination of Appropriateness

    RD and the DOE Office of NEPA Policy and Compliance consulted on 
the appropriateness of RD's adoption of the CEs in February and April 
of 2024. RD and DOE's consultation included a review of DOE's 
experience developing and applying the CEs, the types of actions for 
which RD plans to utilize the CEs, and consideration of extraordinary 
circumstances. These RD actions are similar to the type of projects 
that DOE undertakes or funds and therefore the effects of RD projects 
will be similar to the effects of DOE projects, which are not 
significant, absent the existence of extraordinary circumstances that 
could involve potentially significant effects. Therefore, RD has 
determined that its proposed use of the CEs as described in this notice 
would be appropriate.

V. Notice to the Public and Documentation of Adoption

    This notice serves to identify to the public and document RD's 
adoption of DOE's CEs for the repair or replacement of pipelines, short 
pipeline segments, and electric vehicle charging stations. The notice 
identifies the types of actions to which RD will apply the CE, as well 
as the considerations that RD will use in determining whether an action 
is within the scope of the CE.
    Issued under authority delegated in 7 CFR 2.17.

Basil I. Gooden,
Under Secretary for Rural Development, U.S. Department of Agriculture.
[FR Doc. 2024-17272 Filed 8-5-24; 8:45 am]
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