Notice of Adoption of Department of Energy Categorical Exclusions Under the National Environmental Policy Act, 95170-95173 [2024-27790]

Agencies

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

[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Notices]
[Pages 95170-95173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27790]


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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

Rural Housing Service

Rural Business-Cooperative Service

[Docket No. RUS-24-AGENCY-0035]


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 adoption of seven 
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: 

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. 4321-4347, 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 (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 
seven 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.

[[Page 95171]]

    RD has identified the following CEs for adoption, which are listed 
in DOE's NEPA procedures as CEs B4.1, B4.4, B4.8, B4.13, B4.14, B5.1, 
and B5.16 of 10 CFR part 1021, subpart D, Appendix B. The final rule 
establishing or revising CEs B4.13, B4.14, and B5.16 was published by 
DOE on April 30, 2024 (89 FR 34074-01). The DOE text of each CE has 
been included 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 and require the preparation of an 
environmental review document to ensure the following: (1) Consistency 
with the DOE's NEPA procedures at 10 CFR 1021 Subpart D, Appendix B 
which require an evaluation of ``integral elements'' to confirm the 
proposal will have no significant impacts on the resources identified 
in DOE environmental procedures; (2) Compliance with RD's NEPA 
procedures at 7 CFR 1970.52 which address extraordinary circumstances; 
and (3) Confirmation that 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.

B4.1 Contracts, Policies, and Marketing and Allocation Plans for 
Electric Power

    ``Establishment and implementation of contracts, policies, and 
marketing and allocation plans related to electric power acquisition 
that involve only the use of the existing transmission system and 
existing generation resources operating within their normal operating 
limits.''
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions (e.g., the implementation of 
or amendments to Power Purchase Agreements (PPAs) entered into by DOE). 
An example of a project type where this CE could be applied by RD 
includes, but is not limited to, the implementation of PPAs proposed 
for funding through the Empowering Rural America Program (NewERA) 
Program.

B4.4 Power Marketing Services and Activities

    ``Power marketing services and power management activities 
(including, but not limited to, storage, load shaping and balancing, 
seasonal exchanges, and other similar activities), provided that the 
operations of generating projects would remain within normal operating 
limits. (See B4.14 of this appendix for energy storage systems.)''
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions (e.g., advanced metering 
infrastructure, distribution automation, energy storage systems, load 
control). An example of a project type where this CE could be applied 
by RD includes, but is not limited to, the funding of grid 
modernization infrastructure through the Electric Infrastructure Loan & 
Loan Guarantee, NewERA, or Powering Affordable Clean Energy (PACE) 
Programs to integrate renewable energy generation projects.

B4.8 Electricity Transmission Agreements

    ``New electricity transmission agreements, and modifications to 
existing transmission arrangements, to use a transmission facility of 
one system to transfer power of and for another system, provided that 
no new generation projects would be involved and no physical changes in 
the transmission system would be made beyond the previously disturbed 
or developed facility area.''
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions. (e.g., new electricity 
transmission agreements or modifications to existing agreements). An 
example of a project type where this CE could be applied by RD 
includes, but is not limited to, modifications to existing agreements 
that enable the transmission of power from renewable energy projects 
proposed for funding through the Electric Infrastructure Loan & Loan 
Guarantee, NewERA, or PACE Programs.

B4.13 Upgrading and Rebuilding Existing Powerlines and Related 
Provisions

    ``Upgrading or rebuilding existing electric powerlines, which may 
involve relocations of small segments of the powerlines within an 
existing powerline right-of-way or within otherwise previously 
disturbed or developed lands (as discussed at 10 CFR 1021.410(g)(1)). 
Upgrading or rebuilding existing electric powerlines also may involve 
widening an existing powerline right-of-way to meet current electrical 
standards if the widening remains within previously disturbed or 
developed lands and only extends into a small area beyond such lands as 
needed to comply with applicable electrical standards. Covered actions 
would be in accordance with applicable requirements, including the 
integral elements listed at the start of appendix B of this part; and 
would incorporate appropriate design and construction standards, 
control technologies, and best management practices. This categorical 
exclusion does not apply to underwater powerlines. As used in this 
categorical exclusion, ``small'' has the meaning discussed at 10 CFR 
1021.410(g)(2).''
    The terms ``small'' and ``small-scale'' are defined in 10 CFR 
1021.410(g)(2), and RD agrees to apply the adopted CEs in a manner 
consistent with DOE's definitions.
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions (upgrading or rebuilding 
powerlines located in existing rights of way or within otherwise 
previously disturbed or developed lands). An example of a project type 
where this CE could be applied by RD includes, but is not limited to, 
the upgrading or rebuilding of an existing overhead or underground 
powerline relocating within an existing utility or transportation 
right-of-way or within otherwise previously disturbed or developed 
lands proposed for funding through the Electric Infrastructure Loan & 
Loan Guarantee Program. RD would not apply this CE to underwater 
powerline projects.

B4.14 Construction and Operation of Electrochemical-Battery or Flywheel 
Energy Storage Systems

    ``Construction, operation, upgrade, or decommissioning of an 
electrochemical-battery or flywheel energy storage system within a 
previously disturbed or developed area or within a small (as discussed 
at 10 CFR 1021.410(g)(2)) area contiguous to a previously disturbed or 
developed area. Covered actions would be in accordance with applicable 
requirements (such as land use and zoning requirements) in the proposed 
project area and the integral elements listed at the start of appendix 
B of this part, and would incorporate appropriate safety standards 
(including the current National Fire Protection Association 855, 
Standard for the Installation of Stationary Energy Storage Systems), 
design and construction standards, control technologies, and best 
management practices.''
    RD does not have an existing CE that addresses certain energy 
storage systems. Adoption of this CE would benefit RD by covering 
applications with these types of energy storage systems. RD intends to 
apply this CE in

[[Page 95172]]

a manner consistent with DOE's application--to the same types of 
actions (energy storage systems located within a previously disturbed 
or developed area or within a small area contiguous to a previously 
disturbed or developed area). An example of a project type where this 
CE could be applied by RD includes, but is not limited to, the 
construction of battery energy storage systems within or adjacent to 
existing substation sites funded through the Electric Infrastructure 
Loan & Loan Guarantee, NewERA or PACE Programs.

B5.1 Actions To Conserve Energy or Water

    ``(a) Actions to conserve energy or water, demonstrate potential 
energy or water conservation, and promote energy efficiency that would 
not have the potential to cause significant changes in the indoor or 
outdoor concentrations of potentially harmful substances. These actions 
may involve financial and technical assistance to individuals (such as 
builders, owners, consultants, manufacturers, and designers), 
organizations (such as utilities), and governments (such as state, 
local, and tribal). Covered actions include, but are not limited to 
weatherization (such as insulation and replacing windows and doors); 
programmed lowering of thermostat settings; placement of timers on hot 
water heaters; installation or replacement of energy efficient 
lighting, low-flow plumbing fixtures (such as faucets, toilets, and 
showerheads), heating, ventilation, and air conditioning systems, and 
appliances; installation of drip-irrigation systems; improvements in 
generator efficiency and appliance efficiency ratings; efficiency 
improvements for vehicles and transportation (such as fleet changeout); 
transportation management systems (such as traffic signal control 
systems, car navigation, speed cameras, and automatic plate number 
recognition); development of energy-efficient manufacturing, 
industrial, or building practices; and small-scale energy efficiency 
and conservation research and development and small-scale pilot 
projects. Covered actions include building renovations or new 
structures, provided that they occur in a previously disturbed or 
developed area. Covered actions could involve commercial, residential, 
agricultural, academic, institutional, or industrial sectors. Covered 
actions do not include rulemakings, standard-settings, or proposed DOE 
legislation, except for those actions listed in B5.1(b) of this 
appendix.
    (b) Covered actions include rulemakings that establish energy 
conservation standards for consumer products and industrial equipment, 
provided that the actions would not: (1) Have the potential to cause a 
significant change in manufacturing infrastructure (such as 
construction of new manufacturing plants with considerable associated 
ground disturbance); (2) involve significant unresolved conflicts 
concerning alternative uses of available resources (such as rare or 
limited raw materials); (3) have the potential to result in a 
significant increase in the disposal of materials posing significant 
risks to human health and the environment (such as RCRA hazardous 
wastes); or (4) have the potential to cause a significant increase in 
energy consumption in a state or region.''
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions. (e.g., providing financial 
assistance to organizations such as utility cooperatives). An example 
of a project type where this CE could be applied by RD to similar 
project types such as energy efficiency proposals that are funded 
through the Rural Energy for America (REAP) Program.

B5.16 Solar Photovoltaic (PV) Systems and Related Provisions

    ``The installation, modification, operation, or decommissioning of 
commercially available solar photovoltaic systems: (1) Located on a 
building or other structure (such as rooftop, parking lot or facility, 
or mounted to signage, lighting, gates, or fences); or (2) Located 
within a previously disturbed or developed area. (b) Covered actions 
would be in accordance with applicable requirements (such as land use 
and zoning requirements) in the proposed project area and the integral 
elements listed at the start of appendix B of this part and would be 
consistent with applicable plans for the management of wildlife and 
habitat, including plans to maintain habitat connectivity, and 
incorporate appropriate control technologies and best management 
practices.''
    RD intends to apply this CE in a manner consistent with DOE's 
application--to the same types of actions (solar photovoltaic systems 
located in previously disturbed or developed areas). An example of a 
project type where this CE could be applied by RD includes, but is not 
limited to, the construction of a ground mount solar photovoltaic 
system within a previously disturbed or developed area being funded 
through the Infrastructure Loan & Loan Guarantee, NewERA, or PACE 
Programs. Adoption of this CE by RD would provide significant 
flexibility to approve solar photovoltaic projects without a 
predetermined size limit for projects proposed in previously disturbed 
or developed areas so long as applicable conditions are met. In its 
environmental review, RD will document how the application of this CE 
would be consistent with applicable plans for the management of 
wildlife and habitat, including plans to maintain habitat connectivity, 
and incorporate appropriate control technologies and best management 
practices.
    Additional conditions applicable to DOE's CEs: DOE defines 
``Previously disturbed or developed area'' as ``land that has been 
changed such that its functioning ecological processes have been and 
remain altered by human activity,'' and 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 ``land that has been changed such that its 
functioning ecological processes have been and remain altered by human 
activity,'' which ``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.'' 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, 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;

[[Page 95173]]

    (3) Disturb hazardous substances, pollutants, contaminants, or 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA)--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 will be used to determine whether each 
proposal, individually or cumulatively, will 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 regulations at 10 
CFR 1021.410(b)(3); it has been reviewed for integral elements; and 
that RD is applying the appropriate level of environmental review to 
the action as required by the CEQ regulations at 40 CFR 1501.3.

III. Consideration of Extraordinary Circumstances

    RD's implementing procedures for extraordinary circumstances at 7 
CFR 1970.52 will be used when evaluating projects where the adopted CEs 
will be applied because both agencies define extraordinary 
circumstances very closely (see 10 CFR 1021.410(b)(2)). RD procedures 
for extraordinary circumstances also direct the agency to consider 
``characteristics of the geographic area affected by the proposal,'' 
and include a list of specific ``[s]ignificant adverse environmental 
effects that the Agency considers to be extraordinary circumstances.'' 
Because 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, RD will rely on the 
language found in RD's implementing procedures. RD's regulations 
include the same factors as DOE's regulations, and DOE also requires an 
evaluation for the integral elements defined in 10 CFR part 1021 
Subpart D, Appendix B.

IV. Consultation With DOE and Determination of Appropriateness

    RD and DOE consulted on the appropriateness of RD's adoption of the 
CEs in February, April, October, and November 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, per 40 CFR 1501.4(e)(3) for contracts, policies, 
and marketing and allocation plans for electric power; power marketing 
services and activities; electricity transmission agreements; upgrading 
and rebuilding of existing powerlines, construction and operation of 
electrochemical-battery or flywheel energy storage systems; actions to 
conserve energy or water; and solar photovoltaic systems. The notice 
identifies the types of actions to which RD will apply the CEs, as well 
as the considerations that RD will use in determining whether an action 
is within the scope of the CEs.
    Issued under authority delegated in 7 CFR 2.17.

Basil I. Gooden,
Under Secretary for Rural Development, U.S. Department of Agriculture.
[FR Doc. 2024-27790 Filed 11-29-24; 8:45 am]
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