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Notice2023-23134

Notice of Adoption of the Department of Energy Electric Vehicle Charging Stations Categorical Exclusion Pursuant to Section 109 of the National Environmental Policy Act

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Published
October 20, 2023

Issuing agencies

Homeland Security Department

Abstract

The Department of Homeland Security (DHS) is adopting the Department of Energy's (DOE) electric vehicle charging stations categorical exclusion (CE) pursuant to section 109 of the National Environmental Policy Act to use for proposed DHS actions. This notice describes the categories of proposed actions for which DHS intends to use DOE's electric vehicle charging stations CE and details the consultation between the agencies.

Full Text

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<title>Federal Register, Volume 88 Issue 202 (Friday, October 20, 2023)</title>
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[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Notices]
[Pages 72525-72527]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23134]


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DEPARTMENT OF HOMELAND SECURITY


Notice of Adoption of the Department of Energy Electric Vehicle 
Charging Stations Categorical Exclusion Pursuant to Section 109 of the 
National Environmental Policy Act

AGENCY: Office of the Secretary, Department of Homeland Security.

ACTION: Notice of adoption of the Department of Energy's electric 
vehicle charging stations categorical exclusion pursuant to section 109 
of the National Environmental Policy Act.

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SUMMARY: The Department of Homeland Security (DHS) is adopting the 
Department of Energy's (DOE) electric vehicle charging stations 
categorical exclusion (CE) pursuant to section 109 of the National 
Environmental Policy Act to use for proposed DHS actions. This notice 
describes the categories of proposed actions for which DHS intends to 
use DOE's electric vehicle charging stations CE and details the 
consultation between the agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: Jennifer DeHart Hass, Director, 
Environmental Planning and Historic Preservation, by phone at 202-834-
4346, or by email at <a href="/cdn-cgi/l/email-protection#a5cfc0cbcbccc3c0d78bcdc4d6d6e5cdd48bc1cdd68bc2cad3"><span class="__cf_email__" data-cfemail="6309060d0d0a0506114d0b021010230b124d070b104d040c15">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

National Environmental Policy Act and Categorical Exclusions

    The National Environmental Policy Act, 42 U.S.C. 4321-4347 (NEPA), 
requires all Federal agencies to assess the environmental impacts of 
their actions. Congress enacted NEPA 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 categorical exclusion. 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. Id. 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. Id. 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 may establish 
in its NEPA implementing procedures categorical exclusions, which are 
categories of actions the agency has determined normally do not 
significantly affect the quality of the human environment. 42 U.S.C. 
4336e(1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency 
determines that a categorical exclusion 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 categorical exclusion to the proposed action without 
preparing an EA or EIS. 42 U.S.C. 4336(a)(2). 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 a categorical exclusion 
listed in another agency's NEPA procedures for a category of proposed 
agency actions for which the categorical exclusion was established. 42 
U.S.C. 4336c. To adopt another agency's categorical exclusion under 
Section 109, an agency must identify the relevant categorical exclusion 
listed in that 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 
categorical exclusion to a category of actions is appropriate; identify 
to the public the categorical exclusion that the

[[Page 72526]]

agency plans to use for its proposed actions; and document adoption of 
the categorical exclusion. Id.
    This notice documents DHS's adoption of DOE's electric vehicle 
charging stations CE under section 109 of NEPA.

II. Identification of the Categorical Exclusion

DOE's Electric Vehicle Charging Stations Categorical Exclusion

    DOE's electric vehicle charging stations categorical exclusion (CE) 
is codified in DOE's NEPA procedures as CE B5.23 in 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 electric vehicle charging stations CE also includes 
additional conditions referred to as integral elements. (10 CFR part 
1021 subpart D, app. B). In order to apply the 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 DHS \1\ or Executive Orders;
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    \1\ Modified from CFR part 1021 subpart D, app. B to reflect DHS 
as the adopting agency.
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    (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 
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 DHS Category of Actions

    The electric vehicle charging stations CE allows for the 
installation, modification, operation, and removal of electric vehicle 
charging stations. The CE could be applied to DHS and its Components' 
electric vehicle charging station projects, including installation, 
operation, modification, and removal of electric vehicle charging 
stations at existing DHS owned or occupied facilities. Reducing the 
Department's reliance on fossil fuels and reducing emissions across the 
Department will improve sustainability in accordance with Executive 
Order 14008, Tackling the Climate Crisis at Home and Abroad. DHS is 
actively working to transition its fleet to electric vehicles to meet 
these requirements across all Components. In support of fleet 
electrification, infrastructure is necessary to support charging of the 
vehicles and DHS is in the process of establishing electric vehicle 
charging stations at existing DHS owned and occupied facilities across 
the United States.
    DHS will consider each proposal for electric vehicle charging 
stations to ensure that the proposal is within the scope of the CE. DHS 
intends to apply this categorical exclusion to the same types of 
proposals to which DOE has applied the CE, which have included a wide 
variety of locations on and off federal property, differences in local 
conditions, various numbers of electric vehicle 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, DHS will evaluate the proposed action to 
ensure evaluation of integral elements listed above. In addition, in 
considering extraordinary circumstances, DHS will consider whether the 
proposed action has the potential to result in significant

[[Page 72527]]

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. Consistent with DHS Instruction Manual 023-01-001-
01, Implementing the National Environmental Policy Act (DHS Instruction 
Manual), DHS will document utilization of this CE and consideration of 
extraordinary circumstances within the DHS Environmental Planning and 
Historic Preservation Decision Support System.

IV. Consultation With DOE and Determination of Appropriateness

    DHS and DOE consulted on the appropriateness of DHS's adoption of 
the electric vehicle charging stations CE from June 2023 through 
September 2023. This consultation included a review of DOE's experience 
developing and applying the CE and the types of actions for which DHS 
plans to utilize the CE. Based on this consultation and review, DHS has 
determined that the types of projects it intends to undertake to 
install, operate, modify, and remove electric vehicle charging stations 
at its facilities are substantially similar to such projects for which 
DOE has applied the CE. Accordingly, the impacts of DHS projects will 
be substantially similar to the impacts of DOE projects, which are not 
significant, absent the existence of extraordinary circumstances. 
Therefore, DHS has determined that its proposed use of the electric 
vehicle charging stations CE, as described within this notice, would be 
appropriate.

Notice to the Public and Documentation of Adoption

    This notice serves to identify to the public and document DHS's 
adoption of DOE's categorical exclusion for electric vehicle charging 
stations and identifies the types of actions to which DHS will apply 
the CE, and the considerations DHS will use in determining whether an 
action is within the scope of the CE. Upon issuance of this notice, the 
adopted electric vehicle charging stations CE will be available to DHS 
and accessible at <a href="http://www.dhs.gov/national-environmental-policy-act">www.dhs.gov/national-environmental-policy-act</a>.

Tracey L. Watkins,
Deputy Chief Readiness Support Officer, Department of Homeland 
Security.
[FR Doc. 2023-23134 Filed 10-19-23; 8:45 am]
BILLING CODE 9112-FF-P


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