Notice2023-20238
Notice of Adoption of Electric Vehicle Charging Stations Categorical Exclusion Under the National Environmental Policy Act
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Published
September 20, 2023
Issuing agencies
Transportation Department
Abstract
The U.S. Department of Transportation (DOT) is adopting the Department of Energy's (DOE's) Electric Vehicle Charging Stations Categorical Exclusion (CE) under the National Environmental Policy Act to use in DOT programs and funding opportunities administered by DOT. This notice describes the categories of proposed actions for which DOT intends to use DOE's CEs and describes the consultation between the agencies.
Full Text
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<title>Federal Register, Volume 88 Issue 181 (Wednesday, September 20, 2023)</title>
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[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Notices]
[Pages 64972-64973]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20238]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
Notice of Adoption of Electric Vehicle Charging Stations
Categorical Exclusion Under the National Environmental Policy Act
AGENCY: Office of the Secretary, U.S. Department of Transportation.
ACTION: Notice of adoption of categorical exclusion.
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SUMMARY: The U.S. Department of Transportation (DOT) is adopting the
Department of Energy's (DOE's) Electric Vehicle Charging Stations
Categorical Exclusion (CE) under the National Environmental Policy Act
to use in DOT programs and funding opportunities administered by DOT.
This notice describes the categories of proposed actions for which DOT
intends to use DOE's CEs and describes the consultation between the
agencies.
DATES: This action is effective upon publication.
FOR FURTHER INFORMATION CONTACT: April Marchese, Deputy Director, P-30,
Office of Environment, by phone at 202-366-2074, or by email at
<a href="/cdn-cgi/l/email-protection#5a3b2a28333674373b2839323f293f1a3e352e743d352c"><span class="__cf_email__" data-cfemail="6e0f1e1c070240030f1c0d060b1d0b2e0a011a40090118">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
National Environmental Policy Act and Categorical Exclusions
The National Environmental Policy Act (NEPA), 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 impacts, 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'' or 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, an agency must
identify the relevant CEs listed in another agency's (``establishing
agency'') NEPA procedures that cover its 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 agency plans to use
for its proposed actions; and document adoption of the CE. Id.
This notice documents DOT's adoption of DOE's Electric Vehicle
Charging Stations CE under section 109 of NEPA to use in DOT programs
and funding opportunities administered by DOT Operating
Administrations.
II. Identification of the Categorical Exclusion
DOE's Electric Vehicle Charging Stations CE
DOE's electric vehicle charging stations CE is codified in DOE's
NEPA procedures as CE B5.23 of 10 CFR part 1021, subpart D, appendix B,
as follows:
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.
``Previously disturbed or developed'' refers to land that has been
changed such that its functioning ecological processes have been and
remain altered by human activity. The 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).
The DOE CE also includes additional conditions referred to as
integral elements. (10 CFR part 1021 subpt. D, app. B) In order to
apply this CE, the proposal 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 DOT 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
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
[[Page 64973]]
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.
Proposed DOT Category of Actions
DOT intends to apply this categorical exclusion to any DOT EV
charging station project undertaken directly by DOT, to any EV charger
action requiring an approval by DOT, or to any project that is financed
in whole or in part through Federal funds made available by DOT
(including the National Electric Vehicle Infrastructure Formula Program
or the Charging and Fueling Infrastructure Discretionary Grant
Program).
The CE allows for the installation, modification, operation, and
removal of EV charging stations. DOT will consider each proposal for EV
charging stations to ensure that the proposal is within the scope of
the CE. DOT intends to apply this CE in a manner consistent with DOE's
application--to the same types of proposals (which have included a wide
variety of locations on and off Federal property, differences in local
conditions, various numbers of EV charging stations per proposal, and
different types of equipment and technologies including Level 1, Level
2, and DC Fast Charging stations).
III. Consideration of Extraordinary Circumstances
When applying this CE, DOT will evaluate the proposals to ensure
evaluation of integral elements listed above. In addition, in
considering extraordinary circumstances, DOT will consider whether the
proposed action has the potential to result in significant effects as
described in DOE's extraordinary circumstances listed at 10 CFR
1021.410(b)(2). DOE defines extraordinary circumstances as unique
situations presented by specific proposals, including, but not limited
to, scientific controversy about the environmental effects of the
proposal; uncertain effects or effects involving unique or unknown
risks; and unresolved conflicts concerning alternative uses of
available resources. In addition, DOT will also consider if there are
any extraordinary circumstances with regards to section 4(f).
IV. Consultation With DOE and Determination of Appropriateness
DOT and DOE consulted on the appropriateness of DOT's adoption of
the CE from June 2023 through early August 2023. DOT and DOE's
consultation included a review of DOE's experience developing and
applying the CE, as well as the types of actions for which DOT plans to
utilize the CE. These DOT actions are very similar to the type of
projects that DOE funds and therefore the impacts of DOT projects will
be very similar to the impacts of DOE projects, which are not
significant, absent the existence of extraordinary circumstances that
could involve potentially significant impacts. Therefore, DOT has
determined that its proposed use of the CE as described in this notice
would be appropriate. Additional documentation of DOE and DOT's
consultation is available upon request.
V. Notice to the Public and Documentation of Adoption
This notice serves to identify to the public and document DOT's
adoption of DOE's CE for electric vehicle charging stations. The notice
identifies the types of actions to which DOT will apply the CE, as well
as the considerations that DOT will use in determining whether an
action is within the scope of the CE.
Issued under authority delegated in 49 CFR 1.25(b).
Carlos Monje, Jr.,
Under Secretary of Transportation for Policy, U.S. Department of
Transportation.
[FR Doc. 2023-20238 Filed 9-19-23; 8:45 am]
BILLING CODE 4910-9X-P
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