[Federal Register Volume 90, Number 7 (Monday, January 13, 2025)]
[Notices]
[Pages 2735-2739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00485]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
[RR83530000, 256R5065C6, RX.59389832.1009676]
National Environmental Policy Act Implementing Procedures for the
Bureau of Reclamation (516 DM 14)
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of revisions.
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SUMMARY: This notice announces the revision of seven categorical
exclusions (CEs) listed in the Bureau of Reclamation's procedures for
compliance with the National Environmental Policy Act of 1969 (NEPA).
The revisions clarify existing CEs on certain financial assistance
funding, water-related contracting, and use authorization actions to
allow for more consistent interpretation and more efficient review of
appropriate actions based on the Reclamation's experience implementing
these CEs.
DATES: The revised categorical exclusions are incorporated into
Reclamation's NEPA procedures, located at Chapter 14 of Part 516 of the
Departmental Manual (516 DM 14), effective January 13, 2025.
ADDRESSES: The revised CEs can be found at the web address for
Reclamation's revised NEPA procedures, 516 DM 14: https://www.doi.gov/document-library/departmental-manual/516-dm-14-managing-nepa-process-bureau-reclamation.
FOR FURTHER INFORMATION CONTACT: Shane Hunt (he/him) via phone at 916-
202-7158, or via email at [email protected]. Individuals who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
The Bureau of Reclamation (Reclamation) was established in 1902.
Its original mission was civil works construction to develop the water
resources of the arid Western United States to promote the settlement
and economic development of that region. Reclamation developed hundreds
of projects to store and deliver water. That substantial infrastructure
development contributed to making Reclamation the largest wholesale
supplier of water and the second largest producer of hydropower in the
United States.
On June 7, 2024, the Department of the Interior (Department)
published a Federal Register notice (89 FR 48674) proposing revisions
to seven categorical exclusions (CEs) in Reclamation's NEPA
implementing procedures, 516 DM 14. During the 30-day comment period,
Reclamation received 14 comment letters and emails. A detailed summary
of comments on the proposed revisions and Reclamation's responses are
noted below.
Reclamation has reviewed the comments and has taken them into
consideration in finalizing the revised CEs. Reclamation continues to
find it appropriate to revise the seven CEs to promote consistent
interpretation and application by eliminating confusing or outdated
terminology and authorities, as well as clarifying the scope of
activities and constraints. Reclamation edited the revised CEs to
respond to comments, as noted below, and revised the CEs in 516 DM 14,
section 14.5, paragraph D entitled, ``Operation and Maintenance
Activities,'' and paragraph F entitled, ``Financial Assistance, Loans,
and Funding.''
Comments on the Proposal
The Department solicited comments from the public on the potential
revisions to the CEs through a 30-day public comment period, announced
in the Federal Register on June 7, 2024 (89 FR 48674). Reclamation
considered all comments received to date, and Reclamation has
responded, as provided below, to all substantive issues raised in the
public comments.
Reclamation received 14 letters and emails from state governments,
water and irrigation districts, water user organizations, and Tribal
Nations. Individual comments included several that restated the
objectives, limitations, and rationale for the proposed CE revisions,
several that expressed general support or opposition for the proposed
CE revisions, and several that provided more extensive detailed
comments regarding the proposed CE revisions.
Reclamation appreciates the interest and participation of all
respondents. Reclamation has noted the comments that provided general
support and general opposition. For comments providing additional
detail, questions, and suggestions, Reclamation, where appropriate,
grouped the common comments and responds to the comments as follows:
Comment 1--Transparency and public input: Commenter expressed
concern that the CE revisions would shift the analysis of project
impacts to an internal process without public input.
Response 1--The Council on Environmental Quality (CEQ) and
Department's NEPA implementing regulations do not require public notice
for an agency to use a CE. As provided in CEQ regulations and guidance,
establishing, revising, and appropriately using CEs is consistent with
NEPA. CEs
[[Page 2736]]
are not exemptions or waivers from NEPA. Rather, they are a type of
NEPA review intended to accomplish the purposes of NEPA, efficiently
and effectively. The establishment and revision of a CE is a public
process through which the agency must demonstrate that the category of
actions would not normally have significant effects, individually or in
the aggregate. Having made such a demonstration, subject to public
review and comment, the agency may then apply the CE to complete the
NEPA environmental review process for proposals that do not require an
environmental assessment (EA) or environmental impact statement (EIS),
which are more resource intensive than applying a CE. Reclamation has
and will continue to meet requirements under NEPA and other laws and
regulations, ensuring the appropriate level of analysis and public
engagement, consistent with regulations and policies.
Comment 2--Scope of CE D4: Commenters recommended adding language
to CE D4 to clearly cover Warren Act contracts, administrative
operating agreements, and other administrative actions.
Response 2--The scope of the revised CE language already captured
many of the suggested additions. A Warren Act contract is a type of
``water-related contracts'' covered under the proposed revision, as it
is a legally binding agreement to which Reclamation is a party,
pursuant to its authority under Federal law that allows for water to be
stored. A commenter suggested including ``administrative operating
agreements.'' CE D4 includes the administration of operation and
maintenance contracts, which addresses the suggested inclusion of
``administrative operating agreements.'' Reclamation considers the
suggested inclusion of other ``administrative actions'' to be overly
broad. The text of D4 does include administration of water-related
contracts, which would include many ``administrative actions.'' For
these reasons, Reclamation declines to adopt these suggestions.
Comment 3--Concerns regarding Tribal resources and consultation:
Commenters expressed concerns that CE D8 and CE E1 have the potential
to adversely affect Tribal resources and that Reclamation may not
adequately conduct Tribal consultation or implement National Historic
Preservation Act Programmatic Agreements when relying on the CEs.
Response 3--Reclamation met with both Tribes that commented on the
proposal to better understand their concerns. Many of the concerns were
related to compliance with laws and policies other than NEPA. The level
of NEPA analysis, including the use of a CE, does not affect
Reclamation's obligations under other laws, including the Native
American Graves Protection and Repatriation Act, the National Historic
Preservation Act, and the Archaeological Resources Protection Act, and
related policies, or its obligation to engage in government-to-
government consultation, in cases where that obligation arises.
Furthermore, when relying on the CEs, Reclamation will review the
proposed action against the extraordinary circumstances listed in the
Department's NEPA regulations at 43 CFR 46.215, which include in part,
consideration of impacts on public health and safety; natural resources
and unique geographic characteristics as historic or cultural
resources; park, recreation, or refuge lands; wilderness areas; wild or
scenic rivers; national natural landmarks, sole or principal drinking
water aquifers; prime farmlands; wetlands; floodplains; national
monuments; migratory birds; and other ecologically significant or
critical areas; unresolved conflicts concerning alternative uses of
available resources; unique or unknown environmental risks; precedent
for future decision-making; historic properties; listed species or
critical habitat; low income or minority populations; access by Indian
religious practitioners to, and for ceremonial use of, Indian sacred
sites and the physical integrity of those sites; and contribution to
the introduction, continued existence, or spread of invasive plants or
non-native invasive species. Reclamation will document the evaluation
in a CE Checklist. If any extraordinary circumstance exists,
Reclamation will conduct additional NEPA analysis. In addition,
Reclamation must follow Departmental policy and procedures regarding
Tribal consultation (512 DM 4, 512 DM 5), regardless of level of NEPA
review.
Comment 4--Concerns regarding National Historic Preservation Act
Compliance: A commenter expressed concerns about how a change in the
CEs might affect National Historic Preservation Act Section 106
compliance, especially in the context of region-wide programmatic
agreements, and the potential for Federal actions to affect historic
properties of religious and cultural significance to Indian Tribes.
Response 4--As noted in comment and response 3, actions reviewed
under the revised CEs are still subject to other Federal laws,
including the Native American Graves Protection and Repatriation Act,
the National Historic Preservation Act and the Archaeological Resources
Protection Act; to Departmental policies; and to the extraordinary
circumstances review outlined in 43 CFR 46.215, which include
consideration of Tribal and cultural resources, and Reclamation will
document the evaluation in a CE Checklist. The level of NEPA analysis
does not affect Reclamation's obligations under any of the cultural
resource laws or policies.
Comment 5--Expressed concerns with use of undefined terms like
``minor,'' ``localized,'' ``temporary,'' ``interim,'' and ``related''
in the proposed CE revisions: Commenters were concerned that the terms
``minor,'' ``localized,'' ``temporary,'' ``interim,'' and ``related''
in the CEs are undefined or lacked specificity. Commenters recommended
defining, replacing or establishing a quantified threshold. One
commenter recommended replacing the term ``minor'' with the term ``does
not allow for or lead to a major public or private action'' for CEs D4
and E1.
Response 5--CEQ guidance \1\ advises agencies to ``clearly define
the eligible category of actions, as well as any physical, temporal, or
environmental factors that would constrain its use.'' Reclamation's
revised CEs are intended to appropriately define and limit use to only
those actions that normally do not have a significant effect on the
human environment, individually or in the aggregate. Reclamation
considered the specific language recommendations, concerns, and other
suggestions on this topic. After careful consideration, Reclamation
decided not to modify the identified terms because these terms as
currently used sufficiently describe the CEs, while allowing
Reclamation to apply the CEs in a range of appropriate contexts.
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\1\ See CEQ's 2010 guidance on Establishing, Applying, and
Revising Categorical Exclusions Under the National Environmental
Policy Act, p. 5, https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf.
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Regarding the terms ``minor'' and ``localized,'' Reclamation has
over 40 years of successful and appropriate implementation of its
existing CEs, several of which include these same terms. Reclamation's
record of applying its existing CEs (including those using the terms
``minor'' or ``localized'') for previously implemented actions is well
documented in Reclamation's CE Checklists. In addition, Reclamation
reviewed 71 EAs with FONSIs and summarized them in the CE
substantiation report that was included in supporting documentation for
the Federal Register notice announcing the proposed CE revision in June
2024.
[[Page 2737]]
These 71 EAs with FONSIs analyze actions that the proposed CE revisions
are designed to cover once finalized. Furthermore, the evaluation of
the extraordinary circumstances in the Department's NEPA regulations at
43 CFR 46.215 helps to identify cases in which an action may have a
significant effect and, therefore, application of the CE would not be
appropriate.
Moreover, terms such as ``minor'' and ``localized'' allow
Reclamation to appropriately consider the impacts of the proposed
action in the context of the specific action and action location. For
example, under D4, minor and localized considerations would include
potential effects on the aquatic system, project operations, fish and
wildlife resources, and the magnitude of the action in relation to
hydrologic conditions. Under D8, minor and localized considerations
would include things such as physical size, surrounding land use, and
extent of potential ground disturbance on previously undisturbed land.
Lastly, under E1, minor and localized considerations would include
physical size and surrounding land use.
Replacing the term ``minor'' with ``does not allow for or lead to a
major public or private action'' in CEs D4 or E1 would not lead to an
improvement in the application of the CEs. Rather, the term minor and
the impact-based constraints included in the D4 and E1 CEs are more
appropriate to evaluate the types of actions covered by these CEs and
the potential environmental impacts.
Regarding the additional terms highlighted by the commenters, the
terms ``temporary'' and ``interim'' used in CE D4 are defined in the
Reclamation Manual Policy, Water-Related Contracts and Charges--General
Principles and Requirements (PEC P05). Under that policy, temporary
contracts are limited to one year or less and interim contracts are
limited to 10 years or less. Similarly, the term ``related'' only
appears in CE D4 as part of the term ``water-related contract(s),''
which is also defined in Reclamation policy PEC P05 as any repayment or
water service contract and any other legally binding agreement executed
pursuant to Reclamation law or to the Water Conservation and
Utilization Act of 1939 that: (1) makes water available from or through
the facilities of a Federal project that Reclamation manages, operates,
or funds; or (2) establishes Operation and Maintenance or Operation,
Maintenance, and Replacements responsibilities for such facilities and/
or other responsibilities related to ensuring that such facilities
continue to serve their intended purposes; or (3) makes water available
to the United States. Consistent with that policy, Reclamation adds the
phrase ``limited to 1 year or less'' after the term temporary and the
phrase ``limited to 10 years or less'' after the term interim in
parentheses to the text of the final D4 CE.
Comment 6--Concerns with scope of actions that might qualify for
the CEs: A commenter expressed concern with the scope of activities
that might qualify for the CEs and lack of definitions and
quantifications of terminology including ``minor construction,''
``minor amounts of water,'' and ``localized.''
Response 6--As described in response 5, Reclamation considers it
appropriate to retain the terms ``minor'' and ``localized'' in the CEs
because Reclamation has over 40 years of successful and appropriate
implementation of its existing CEs, several of which include these
terms. Further, Reclamation also considered whether the absolute water-
related contract water amounts, for instance, limiting application by
acre-feet of water, should constrain the application of the D4 CE.
Ultimately, Reclamation declines to specify water amounts because the
effects to a water system resulting from a water-related contract's
specified changes in water quantity are relative; effects depend on the
size and unique characteristics of the water system. For example, an
amount of contract water that would be minor to the Columbia River
might be significant to the Middle Rio Grande River. Reclamation will
assess each CE application on a case-by-case basis using impact-based
constraints in the CE and the list of extraordinary circumstances at 43
CFR 46.215 and will document the evaluation in a CE Checklist.
Comment 7--Adequate definition of flexibility and clear standards:
A commenter suggested the need for an ``adequate definition of'' the
flexibility Reclamation intends to provide in the revised CEs to ensure
everyone is aware of ``clear standards and when they apply.''
Response 7--Reclamation considers the language within the CEs,
including the impact-based constraints, coupled with a review of
extraordinary circumstance at 43 CFR 46.215, to sufficiently define the
standards of when Reclamation can rely on the CEs for proposed actions.
Reclamation will continue to document this review in a CE Checklist. In
addition, Reclamation has over 40 years of successful and appropriate
implementation of its existing CEs that will enable Reclamation to
successfully and appropriately apply the revised CEs.
Comment 8--Adding grazing back to D8: A commenter recommended
adding the word ``grazing'' back into the revised CE language of D8.
Response 8--The language of the D8 CE is consistent with 43 CFR
part 429 and contemporary Reclamation Manual policies. Grazing is
included in the list of types of uses covered by 43 CFR 429.3, so it
does not need to be specifically mentioned in the CE text. Therefore,
Reclamation does not incorporate this suggestion into the CE text.
Comment 9--Removing ``work is minor'' from D8: Commenters
recommended removing the phrase ``work is minor'' from D8 since the CE
includes reference to the project not leading to a major action and
that limiting factor is sufficient.
Response 9--Reclamation accepted this recommendation by removing
the phrase ``work is minor and'' then adding the phrase ``of the
action'' after ``impacts.'' Reclamation retains the word ``minor'' but
moves it to the end of the sentence as described in the section below,
``Additional Clarifying Changes.''
Comment 10--Adding specific action or list of actions to E1: A
commenter suggested including reference to specific types of projects
as examples of actions to be covered by the CE within the CE itself,
including canal lining/relining/piping, gate replacement, Supervisor
Control and Data Acquisition (SCADA) installation, etc.
Response 10--Reclamation does not consider it necessary to add a
list of specific types of projects as examples of actions the E1 CE
will cover in order for Reclamation staff to properly apply the CE. In
addition, Reclamation believes that including a predefined list of
example project types could lead to inadvertently limiting the scope of
eligible projects and lead to potential misunderstandings or missed
opportunities for potential actions that fall outside the specified
examples. Reclamation will assess each CE application on a case-by-case
basis using impact-based constraints in the CE and the list of
extraordinary circumstances at 43 CFR 46.215. Therefore, Reclamation
declines to adopt this suggestion.
Comment 11--Adding ``removed, introduced, or conveyed'' to D4: A
commenter recommended adding ``removed, introduced, or conveyed'' to
the description of allowable uses of water within water-related
contracts covered by the D4 CE as these terms were used to describe how
water would
[[Page 2738]]
be used for projects evaluated within the EAs summarized in the
substantiation report for the CE revisions.
Response 11--Reclamation agrees with the commenter's rationale and
suggested language for D4 and adds the language to the final CE to
further clarify the range of actions the CE is intended to describe.
Comment 12--Concerns with notification process for proposed CE
revisions: One commenter expressed concerns with the notification
process for the proposed CE revisions and requested additional
coordination.
Response 12--Reclamation issued a news release on June 5, 2024,
requesting public review and comment on the proposed CE revisions. On
June 7, 2024, the Department published a notice in the Federal Register
(89 FR 48674) seeking public review and comment on Reclamation's
proposed CE revisions. See 40 CFR 1507.3(c)(8)(ii). Reclamation
coordinated with the commenter to discuss the proposed CE revisions and
their concerns.
Comment 13--Comments outside the scope of the proposed CE
revisions: Commenters recommended that Reclamation consider revising
additional existing CEs, adoption of CEs from other agencies,
development of additional CEs, training for Reclamation staff and non-
federal partners, and other ideas related to Reclamation's
implementation of NEPA.
Response 13--Reclamation appreciates the suggestions and
recommendations that were submitted; however, Reclamation notes that
these comments are outside the scope of the proposed CE revisions.
Reclamation will take the suggestions and recommendations under
advisement in the future.
Additional Clarifying Changes
While considering the comments and recommendations Reclamation
received during the public comment period on the proposed CE revisions,
Reclamation incorporated several changes as described above. In
addition, Reclamation has made a few additional changes from the CE
text proposed in June 2024. These additional changes and the rationale
for them are described below.
For the D4 CE, Reclamation reinstates the qualifying statement that
the ``action does not lead to long-term changes'' in the CE language
related to its application for water-related contracts involving minor
amounts of long-term water use. This qualifying language was originally
included as a condition for all actions under the CE. The text of
proposed CE revision could have been interpreted as omitting this
essential condition for long-term water-related contracts. To clarify
that this condition remains applicable to all actions covered by the
CE, Reclamation is reintroducing this qualifying language for long-term
water-related contracting actions, consistent with the original CE
text. Reclamation also adds ``minor and'' before both instances of the
word ``localized'' in the CE language. Reclamation makes this change to
emphasize the use of impact-based constraints to guide the application
of the CE. For the D8 CE, Reclamation changes ``provide right of use of
Reclamation land'' to ``authorize use of Reclamation land'' to align
the terminology in the CE with the terminology in 43 CFR part 429 on
the use of Reclamation land, facilities, and waterbodies. Reclamation
changes the beginning of (a) from ``work is minor and impacts are
expected to be localized'' to ``impacts of the action are expected to
be minor and localized.'' Reclamation makes this change to emphasize
the use of impact-based constraints to guide the application of the CE
in combination with the addition of language clarifying the terms
``minor'' and ``localized'' for the CE in response to public comments.
For the E1 CE, Reclamation moves ``(a)'' to before the phrase ``the
underlying action being funded'' and revised ``actions'' to ``action''
in the same phrase to improve readability. Reclamation revises the
introduction to (b) from ``where the work to be done is confined'' to
``the action is confined'' to improve consistency within the CE
language. Reclamation removes the phrase ``work is considered minor''
and the word ``where'' after ``and'' from (b). Then Reclamation adds
``minor and'' before the word ``localized'' in the CE language.
Reclamation makes these changes to emphasize the use of impact-based
constraints to guide the application of the CE.
Categorical Exclusions
The Department and Reclamation find that the category of actions
described in the CEs (below), do not normally have a significant effect
on the human environment, individually or in aggregate. This finding is
based on analysis of the Department's proposal to revise these
Reclamation CEs, including analysis in Reclamation's Substantiation
Report. The Substantiation Report summarizes 71 EAs that resulted in
findings of no significant impact (FONSIs) to demonstrate the finding
that actions under the revised CEs would not normally result in
significant effects to the human environment. The Substantiation Report
and EAs and FONSIs for these projects are available at www.usbr.gov/nepa.
The Department and Reclamation consulted with CEQ on the proposed
and final revisions to the CEs. CEQ issued a letter stating that it has
reviewed the revised CEs and found them to be in conformity with NEPA
and the CEQ NEPA regulations. Therefore, the Department adds the final
revised CEs to the Department Manual at 516 DM 14.5. Reclamation
recognizes that certain proposed actions, when reviewed on a case-by-
case basis, could result in one or more of the extraordinary
circumstances for which it is not appropriate to utilize the CEs (43
CFR 46.215). In such cases, the proposed action could have a
significant environmental effect and would require additional NEPA
analysis. Thus, prior to applying the CEs, Reclamation will continue to
review all extraordinary circumstances listed in the Department's NEPA
regulations. If any extraordinary circumstance exists, Reclamation will
conduct additional NEPA analysis.
Amended Text for the Departmental Manual
Reclamation's NEPA procedures in 516 DM 14 are modified as follows:
Part 516: National Environmental Policy Act of 1969
Chapter 14: Managing the NEPA Process--Bureau of Reclamation
14.5 Categorical Exclusions
D. Operation and Maintenance Activities
(4) Approval, execution, administration, and implementation of
water-related contracts and contract renewals, amendments, supplements,
and assignments, and water transfers, exchanges, and replacements, for
which one or more of the following apply: (a) for minor amounts of
long-term water use, where the action does not lead to long-term
changes and impacts are expected to be minor and localized; (b) for
temporary (limited to 1 year or less) or interim (limited to 10 years
or less) water use where the action does not lead to long-term changes
and where the impacts are expected to be minor and localized; or (c)
where the only result will be to implement an administrative or
financial practice or change. A ``water-related'' contract is any
legally binding agreement to which Reclamation becomes a party,
pursuant to its authority under Federal law that (1) makes water
available from or to the United States; (2) allows water to be
[[Page 2739]]
stored, removed, introduced, conveyed, carried, or delivered in
facilities Reclamation owns, manages, operates, or funds; or (3)
establishes operation, maintenance, and replacement responsibilities
for such facilities.
(8) Issuance or renewal of use authorizations (as defined in 43 CFR
429.2, including crossing agreements which provide rights-of-way) that
authorize use of Reclamation land, facilities, or waterbodies where one
or more of the following apply: (a) impacts of the action are expected
to be minor and localized; (b) the action does not lead to a major
public or private action; (c) the only result of the authorization will
be to implement an administrative or financial practice or change; or
(d) the level of use or impacts to resources is not increased.
(10) Reserved.
(14) Reserved.
E. Financial Assistance, Loans, and Funding
(1) Financial assistance, cooperative agreements, grants, loans,
contracts, or other funding, where (a) the underlying action being
funded would be covered by another Reclamation CE if Reclamation were
implementing the action itself, or (b) the action is confined to areas
already impacted by farming or development activities and the impacts
are expected to be minor and localized.
(2) Reserved.
(3) Reserved.
Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2025-00485 Filed 1-10-25; 8:45 am]
BILLING CODE 4332-90-P