[Federal Register Volume 89, Number 73 (Monday, April 15, 2024)]
[Notices]
[Pages 26141-26142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07894]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL OP-OFA-117]


Notice of Adoption of a Fish and Wildlife Service Categorical 
Exclusion Under the National Environmental Policy Act

AGENCY: Environmental Protection Agency.

ACTION: Notice of adoption of categorical exclusion.

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SUMMARY: The Environmental Protection Agency (EPA) is adopting a Fish 
and Wildlife Service's (FWS) categorical exclusion (CE) for restoration 
activities of wetland, riparian, instream, and native habitats under 
the National Environmental Policy Act (NEPA) to use in certain EPA 
water grants and loan programs administered by EPA. This notice 
describes the categories of proposed actions for which EPA intends to 
use FWS's CE and describes the consultation between the agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: Julia Thorp, Community Grants Program, 
by phone at 202-565-2238, or by email at [email protected], or Alaina 
McCurdy, WIFIA, by phone at 202-565-5795, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

NEPA and CEs

    The National Environmental Policy Act, as amended at, 42 U.S.C. 
4321-4347 (NEPA), requires all Federal agencies to assess the 
environmental impact of their actions. Congress enacted NEPA in order 
to encourage productive and enjoyable harmony between humans and the 
environment, recognizing the profound impact of human activity and the 
critical importance of restoring and maintaining environmental quality 
to the overall welfare of humankind. 42 U.S.C. 4321, 4331. NEPA's twin 
aims are to ensure agencies consider the environmental effects of their 
proposed actions in their decision-making processes and inform and 
involve the public in that process. 42 U.S.C. 4331. NEPA created the 
Council on Environmental Quality (CEQ), which promulgated NEPA 
implementing regulations, 40 CFR parts 1500 through 1508 (CEQ 
regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review--an environmental impact statement (EIS), environmental 
assessment (EA), or CE. 42 U.S.C. 4336. If a proposed action is likely 
to have significant environmental effects, the agency must prepare an 
EIS and document its decision in a record of decision. 42 U.S.C. 4336. 
If the proposed action is not likely to have significant environmental 
effects or the effects are unknown, the agency may instead prepare an 
EA, which involves a more concise analysis and process than an EIS. 42 
U.S.C. 4336. Following the EA, the agency may conclude the process with 
a finding of no significant impact if the analysis shows that the 
action will have no significant effects. If the analysis in the EA 
finds that the action is likely to have significant effects, however, 
then an EIS is required.
    Under NEPA and the CEQ regulations, a Federal agency also can 
establish CEs--categories of actions that the agency has determined 
normally do not significantly affect the quality of the human 
environment--in their 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, 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 or if further analysis determines that the 
extraordinary circumstances do not involve the potential for 
significant environmental effects, the agency may apply the CE to the 
proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 
40 CFR 1501.4. If the extraordinary circumstances have the potential to 
result in significant effects, the agency is required to prepare an EA 
or EIS.
    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. 
4336(c). 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. Id. This notice describes EPA's adoption 
of FWS's CE under section 109 of NEPA to use in EPA's program and 
funding opportunities administered by EPA.

EPA's Programs

    EPA intends to use the FWS's CE for its restoration activities 
under two programs, the Community Grants Program and the Water 
Infrastructure Finance and Innovation Act (WIFIA) Program. EPA's 
Community Grants Program funds projects for drinking water, wastewater, 
stormwater infrastructure, and water quality protection projects, which 
may include restoration projects of wetland, riparian, instream, or 
native habitats. For the Community Grants Program, Congress 
appropriates resources for specifically named water infrastructure 
projects identified as Congressionally Directed Spending and Community 
Project Funding items in Appropriations Acts.
    EPA's WIFIA Program provides credit assistance (also referred to as 
direct loans or loan guarantees) for a range of drinking water and 
wastewater infrastructure projects. Eligible activities include habitat 
protection and restoration projects, such as shoreline activities, 
instream activities, water quality improvements, control of invasive 
vegetative and aquatic species, and fish and wildlife habitat 
conservation efforts.
    Both Community Grants and WIFIA Program activities may involve the 
construction of new or upgrades to existing small structures or 
improvements, such as water control structures, berms, and dikes, for 
the restoration of wetland, riparian, instream, or native habitats, and 
may include revegetation actions, such as the planting of native 
species. These types of restoration activities typically result

[[Page 26142]]

in no or minor adverse effects on the environment.

II. FWS Categorical Exclusions

    EPA is adopting the FWS CE for restoration activities of wetland, 
riparian, instream, and native habitats. EPA has identified the 
following FWS CE listed in the Department of the Interior's (DOI) 
Departmental Manual (516 DM 8.5(B)(3)).

516 DM 8.5(B)(3)

    B. Resource Management.
    (3) The construction of new, or the addition of, small structures 
or improvements, including structures and improvements for the 
restoration of wetland, riparian, instream, or native habitats, which 
result in no or only minor changes in the use of the affected local 
area. The following are examples of activities that may be included.
    (a) The installation of fences.
    (b) The construction of small water control structures.
    (c) The planting of seeds or seedlings and other minor revegetation 
actions.
    (d) The construction of small berms or dikes.
    (e) The development of limited access for routine maintenance and 
management purposes.
    EPA intends to apply this categorical exclusion to restoration 
projects administered by the EPA Community Grants Program and WIFIA 
Program. EPA will consider each proposal for restoration activities to 
ensure that the proposal is within the scope of the CE. In addition, 
EPA will coordinate with affected Federal agencies, states, Tribal, and 
local governments prior to carrying out restoration activities, as 
appropriate.

III. Consultation With FWS and Determination of Appropriateness

    EPA consulted with FWS on the appropriateness of EPA's adoption of 
the CE in November 2023. EPA and FWS's consultation included a review 
of FWS's experience developing and applying the CE, as well as the 
types of actions for which EPA plans to utilize the CE. The EPA actions 
under the Community Grants and WIFIA Programs are very similar to the 
type of projects for which FWS has applied the CE and therefore the 
effects of EPA projects will be very similar to the effects of FWS 
projects, which are not significant, absent extraordinary 
circumstances. Therefore, EPA has determined that its proposed use of 
FWS's CE as described in this notice is appropriate.

IV. Consideration of Extraordinary Circumstances

    When applying this CE, EPA will evaluate whether the proposed 
action has the potential to result in significant effects by reviewing 
both DOI's extraordinary circumstances list found at 43 CFR 46.215 and 
EPA's list of extraordinary circumstances found at 40 CFR 6.204(b).

V. Notice to the Public and Documentation of Adoption

    This notice serves to identify to the public and document EPA's 
adoption of FWS's CE (516 DM 8.5(B)(3)) for restoration activities. 
This notice identifies the types of actions to which EPA will apply the 
CE, as well as the considerations that EPA will use in determining 
whether an action is within the scope of the CE for restoration 
activities.

Andrew D. Sawyers,
Director, Office of Wastewater Management.
[FR Doc. 2024-07894 Filed 4-12-24; 8:45 am]
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