[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Notices]
[Pages 3908-3911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00452]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
[MO 4500183156]
Notice of Adoption of Categorical Exclusions Under Section 109 of
the National Environmental Policy Act
AGENCY: Office of the Secretary, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior is notifying the public and
documenting the adoption of two U.S. Forest Service, one National Park
Service, and three U.S. Fish and Wildlife Service categorical
exclusions (CXs) by the Bureau of Land Management (BLM), under section
109 of the National Environmental Policy Act (NEPA). In accordance with
section 109, this notice identifies the types of actions to which the
BLM will apply the CXs, the considerations that the BLM will use in
determining the applicability of the CXs, and the consultation between
the agencies on the use of the CXs, including application of
extraordinary circumstances.
DATES: The adoption is effective January 15, 2025.
FOR FURTHER INFORMATION CONTACT: Amelia Savage, Senior Planning and
Environmental Analyst, Division of Support, Planning and NEPA,
[email protected], telephone (480) 307-8665.
SUPPLEMENTARY INFORMATION:
Background
Program Backgrounds
1. Visitor Use
The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701-
1787) establishes the BLM's multiple use and sustained yield mandate.
In managing the public lands in accordance with FLPMA, the BLM
occasionally issues temporary closure and restriction orders under 43
CFR 8364.1 to protect persons, property, public lands, and resources.
The need to temporarily close or restrict the use of public land arises
in various situations, for example where a recreation site requires
routine maintenance or where construction or heavy visitor use is
causing erosion or the creation of unauthorized trails, or when an
unforeseen event warrants agency action. As resource uses and demands
for access to public lands have increased, the need for the BLM to
issue temporary closure and restriction orders to protect persons,
property, and the public lands and their resources has also increased.
2. Aquatic Resources
Riparian and wetland areas, lakes, streams, and aquifers on public
lands managed by the BLM are among the most important, productive, and
diverse resources in the Nation, providing sustained value to the
American public. They provide habitat for myriad species of plants,
fish, and wildlife; provide ecosystem services such as drinking water,
pollination, and nutrient cycling; attenuate effects of wildfires,
floods, and drought; and are key to the vitality of local economies and
communities. BLM-managed lands include approximately 4,600 square miles
of lakes and reservoirs, over 155,000 miles of streams and rivers, and
over 20,000 square miles of wetlands and riparian areas. The BLM
Aquatic Resources Program protects and restores water
[[Page 3909]]
resources, riparian and wetland areas, and aquatic habitats to provide
functioning ecosystems for a combination of balanced and diverse uses,
including fish and wildlife and the long-term needs of future
generations. The Aquatic Resources Program restores the physical and
ecological processes associated with healthy ecosystems to ensure that
public land management based on multiple use and sustained yield
principles provides healthy and productive habitat for fish and
wildlife.
3. Land Acquisitions
The BLM may purchase or acquire land and interests in land from a
willing seller (including access easements, conservation easements,
mineral or water rights) if funding is available, acquisition is
supported in a land use plan, and there are no title defects, hazardous
materials, or other local issues that might limit such acquisition.
Acquiring land through purchase can enhance recreation opportunities,
preserve open space, strengthen resource protection, and provide an
alternative for transferring ownership to the BLM when a land exchange
or other options are not available. The BLM may accept donations of
land as a gift to the United States if the lands are contiguous to, and
``block-up'' with, existing public lands.
4. Rights-of-Way
The BLM Realty Program processes applications for rights-of-way or
other land use authorizations for specific use of parcels of public
land for a specified period that facilitate commercial, non-commercial,
recreational, and conservation activities to ensure that the public
lands are working landscapes managed for the use and enjoyment of
current and future generations, including for communication sites,
transmission lines, fiber optic infrastructure, and renewable energy.
The BLM has discretion to grant rights-of-way when doing so is in the
public interest.
National Environmental Policy Act and Categorical Exclusions
NEPA as amended, at 42 U.S.C. 4321-4347, requires all Federal
agencies to consider the environmental impact of their proposed actions
before deciding whether and how to proceed. 42 U.S.C. 4321, 4332.
NEPA's 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).
Under NEPA and the CEQ's NEPA implementing regulations, a Federal
agency establishes categorical exclusions (CX)s--categories of actions
that normally do not have a significant effect on the human
environment, individually or in the aggregate, and therefore do not
require preparation of an environmental assessment (EA) or an
environmental impact statement (EIS)--in their agency NEPA procedures.
42 U.S.C. 4336e(1); 40 CFR 1501.4, 1507.3, 1508.1(e). If an agency
determines that a CX 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); 43 CFR
46.205(c). If no extraordinary circumstances are present or if further
analysis determines that the extraordinary circumstances do not involve
the potential for significant environmental impacts, the agency may
apply the CX to the proposed action without preparing an EA or EIS. 42
U.S.C. 4336(a)(2), 40 CFR 1501.4.
Section 109 of NEPA, enacted as part of the Fiscal Responsibility
Act of 2023, allows a Federal agency to adopt another agency's CX for a
category of proposed agency actions. 42 U.S.C. 4336c. To rely on
another agency's CX under Section 109, the adopting agency must
identify the relevant CX 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 CX for a category of
actions is appropriate; identify to the public the CX that the adopting
agency plans to use for its proposed actions; and document adoption of
the CX. 42 U.S.C. 4336c. The BLM has prepared this notice to describe
how it has met applicable statutory requirements for the adoption of
six CXs, 36 CFR 220.6(e)(7), 36 CFR 220.6(e)(18), 516 DM 8.5 (A)4, 516
DM 8.5 (B)3, 516 DM 8.5 (C)4 and 516 DM 12.5 (D)2, and to notify the
public.
The Department of the Interior (Department)'s NEPA procedures are
codified at 43 CFR part 46. These procedures address compliance with
NEPA. The Department's protocol for application of CXs is at 43 CFR
46.205. The Department's CXs available to all bureaus within the
Department are listed in 43 CFR 46.210. Additional Department-wide NEPA
policy is found in the Department's Departmental Manual (DM), in
chapters 1 through 4 of part 516. Supplementary NEPA procedures for the
Department's bureaus are published in additional chapters in part 516
of the DM. Chapter 11 of the 516 DM covers the BLM's NEPA procedures
and the BLM CXs are listed in 516 DM 11.9.
Categorical Exclusions That Are Adopted
The BLM has identified the U.S. Forest Service (USFS) CX, found at
36 CFR 220.6(e)(7) regarding modification or maintenance of stream or
lake aquatic habitat improvement structures using native materials or
normal practices for adoption. The BLM will rely on this CX to approve
projects that modify or maintain existing habitat improvement
structures to restore streams or lake aquatic habitat. Examples of
BLM's intended uses include those described in the USFS CX, and are
also inclusive of, but are not limited to, modifying or maintaining
existing habitat improvement structures that mimic or promote natural
processes using natural materials, and modifying or maintaining fish
screens. Consistent with the terms of the CX, the BLM will not rely on
this CX to support approval of projects that include installation of
new structures or improvements where no structure or improvement has
been installed before.
The BLM has identified the USFS CX, found at 36 CFR 220.6(e)(18),
regarding restoring wetlands, streams, riparian areas or other water
bodies, for adoption. The BLM intends to rely on this CX for projects
that remove, replace, or modify existing water control structures to
restore streams or other water bodies; wetlands, including wet meadows;
and riparian areas to improve water quality, habitat for native
species, and overall ecosystem function, and to remove barriers to
habitat connectivity. Examples of BLM's intended uses include those
described in the USFS CX, and are also inclusive of, but not limited
to, removing, replacing, repairing, or modifying existing structures--
such as fish screens, legacy rip-rap, and protective enclosures--with
wildlife-friendly fencing. Consistent with the terms of the CX, the BLM
will not rely on this CX to support approval of projects that include
installation of new structures or improvements where no structure or
improvement has been installed before.
Per 36 CFR 220.6(e), the USFS, when relying on these CXs, develops
a supporting record and a decision memo. Under CEQ NEPA regulations, at
40 CFR 1501.4(e)(5), agencies publish documentation of the application
of an adopted CX. Therefore, the documentation the BLM develops for
each reliance on this adopted CX will be similar to USFS documentation,
and the
[[Page 3910]]
BLM will publish the documentation on its publicly available National
NEPA Register (https://eplanning.blm.gov/eplanning-ui/home).
The BLM has identified the U.S. Fish and Wildlife Service (FWS) CX,
found at 516 DM 8.5 (A)4, regarding acquisition of real property
obtained either through discretionary acts or when acquired by law,
whether by way of condemnation, donation, escheat, right-of-entry,
escrow, exchange, lapses, purchase, or transfer, that will be under the
jurisdiction or control of the United States, for adoption. Examples of
how the BLM would rely on this CX include, but are not limited to,
acquisition of lands from a willing seller through exchange, sale,
escheat, right-of-entry, escrow, lapses, donation of access easements,
conservation easements, mineral or water rights under the exchange
provisions of Section 206 of the FLPMA, or through acquisition under
FLPMA Section 205 as allowable under a land use plan. This includes
acquisitions consistent with the Uniform Relocation Act, the Land and
Water Conservation Fund Act, and the Federal Land Transaction
Facilitation Act. The CX language requires that acquisitions be in
accordance with 602 DM 2 and the Service's procedures. As the BLM and
FWS are bureaus within the Department, both are required to follow the
process set forth in Departmental policy at 602 DM 2, Real Property
Pre-Acquisition Environmental Sites Assessments. FWS-specific policy
and procedures are found in the FWS Manual (www.fws.gov/policy-library/manuals). The BLM evaluated FWS's real property management and land
acquisition procedures found in parts 340 through 343 and compared them
to BLM Acquisition Handbook (H-2100-1). These policies outline how each
agency is required to complete the acquisition processes, including,
appraisals, survey property boundaries, and title curative and
conveyance actions. While the FWS's land acquisition procedures
incorporate FWS-specific land acquisition authorities, the policies and
procedures are similar to those of the BLM.
The BLM has identified FWS CX, found at 516 DM 8.5(B)3, regarding
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, for adoption. The
BLM intends to rely on this CX to approve projects that construct new,
or add to, small structures or improvements to restore streams or other
water bodies, wetlands, including wet meadows, riparian areas, and
native habitats. Examples of the BLM's intended uses include those
examples described in the FWS CX, and are also inclusive of, but are
not limited to, installation of small permeable structures that mimic,
promote, and sustain natural processes; installation of wildlife
friendly fences, including drift fences and protective enclosures;
development of limited access for routine maintenance of habitat
structures and improvements; and habitat restoration for both
terrestrial and aquatic habitats.
The BLM has identified FWS CX, found at 516 DM 8.5(C)4, regarding
the issuance or reissuance of permits for limited additional use of an
existing right-of-way for underground or above ground power, telephone,
or pipelines, for adoption. The BLM intends to use this CX for the
realty program, primarily to support ``permitting a new right-of-way,
where no or negligible environmental disturbances are anticipated.''
Examples include, but are not limited to, installation of single power
poles, authorizing a right-of-way for existing roads without existing
rights-of-way, installation of fiber optic cable on existing
structures, and authorizing development of a domestic water source with
negligible environmental disturbances.
The BLM has identified the National Park Service (NPS) CX, found at
516 DM 12.5(D)2, regarding minor changes in amounts or types of visitor
use for the purpose of ensuring visitor safety or resource protection,
for adoption. The BLM intends to use this CX to support approval of
temporary closures or restrictions on the use of designated public
lands, including roads, trails, waterways or specific areas; to protect
persons, property, public lands, or resources; and avoid conflict among
public land users.
Consultation With USFS, FWS, and NPS and Determination of
Appropriateness
The BLM consulted with USFS, FWS, and NPS on the appropriateness of
the adoption of these CXs for BLM's use in April 2024, October 2024,
and October 2024, respectively. The consultation included a review of
USFS, FWS, and NPS experience developing and applying the CXs, as well
as the types of actions for which the BLM plans to utilize the CXs. The
BLM actions are similar in type and scope to the actions that the USFS,
FWS, and NPS conduct and therefore the effects of BLM's actions are
expected to be similar to the effects of USFS, FWS, and NPS actions,
which are not significant, absent the presence of extraordinary
circumstances that could involve potentially significant effects.
Therefore, the Department has determined that adoption of the CXs for
the BLM's use as described in this notice is appropriate.
Consideration of Extraordinary Circumstances
In consultation with the USFS, FWS, and NPS, the BLM evaluated the
extraordinary circumstances to be considered when applying these CXs.
When applying these CXs, Responsible Officials (43 CFR 46.30) within
the BLM will evaluate proposed actions covered by the CXs to determine
whether any extraordinary circumstances are present. The Department's
extraordinary circumstances are listed at 43 CFR 46.215 and include, in
part, consideration of impacts on public health and safety; natural
resources and unique geographic characteristics; 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; 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 weeds or non-
native invasive species. The Department's list of extraordinary
circumstances addresses issues also identified by the USFS and found at
36 CFR 220.6; therefore, Responsible Officials in the BLM intending to
rely on these CXs will review whether the proposed action has the
potential to result in significant effects as described in the
Department's extraordinary circumstances. Since the BLM, FWS, and NPS
are bureaus within the Department, the same extraordinary circumstances
are used for all three bureaus. The Responsible Official will assess
whether an extraordinary circumstance is present. If the Responsible
Official cannot rely on a CX to support a decision to authorize or take
a particular proposed action due to extraordinary circumstances, the
proposed action must be analyzed in an EA or EIS before doing so,
consistent with 40 CFR 1501.4(b)(2) and 43 CFR 46.205(c).
[[Page 3911]]
Notice to the Public and Documentation of Adoption
This notice identifies to the public the BLM's adoption of the
USFS, FWS, and NPS CXs for the BLM's use. The notice identifies the
types of actions to which the BLM would apply the CXs. The
documentation of the adoption will also be available at http://www.blm.gov/programs/planning-and-nepa/what-informs-our-plans/nepa and
at https://www.doi.gov/oepc/nepa/categorical-exclusions. The BLM will
add the adopted CXs to the BLM's NEPA DM Chapter in 516 DM 11.
Authorities
National Environmental Policy Act of 1969, as amended (42 U.S.C.
4321 et seq.).
Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2025-00452 Filed 1-14-25; 8:45 am]
BILLING CODE 4331-27-P