Notice2024-07894
Notice of Adoption of a Fish and Wildlife Service Categorical Exclusion Under the National Environmental Policy Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 15, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 73 (Monday, April 15, 2024)</title>
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[Federal Register Volume 89, Number 73 (Monday, April 15, 2024)]
[Notices]
[Pages 26141-26142]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="/cdn-cgi/l/email-protection#65110d0a17154b0f10090c04250015044b020a13"><span class="__cf_email__" data-cfemail="e99d81869b99c7839c858088a98c9988c78e869f">[email protected]</span></a>, or Alaina
McCurdy, WIFIA, by phone at 202-565-5795, or by email at
<a href="/cdn-cgi/l/email-protection#87eae4e4f2f5e3fea9e6ebe6eee9e6c7e2f7e6a9e0e8f1"><span class="__cf_email__" data-cfemail="18757b7b6d6a7c6136797479717679587d6879367f776e">[email protected]</span></a>.
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]
BILLING CODE 6560-50-P
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