Notice2024-08382
Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act
Primary source
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Published
April 19, 2024
Effective
April 19, 2024
Issuing agencies
Interior Department
Abstract
The Department of the Interior (Department) is adopting the United States Forest Service's (USFS) categorical exclusion for short- term mineral, energy, or geothermal investigations and the Department of the Navy's (DON) categorical exclusion for pre-lease upland exploration activities for oil, gas, or geothermal reserves, (e.g., geophysical surveys) pursuant to section 109 of the National Environmental Policy Act (NEPA) to use for proposed Bureau of Land Management (BLM) approval of geothermal exploration operations. This notice describes the limited categories of proposed actions for which the BLM intends to use the USFS and DON categorical exclusions and details the consultation between the respective agencies.
Full Text
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<title>Federal Register, Volume 89 Issue 77 (Friday, April 19, 2024)</title>
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[Federal Register Volume 89, Number 77 (Friday, April 19, 2024)]
[Notices]
[Pages 28797-28800]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08382]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
[BLM_HQ-FRN_MO4500178304]
Adoption of Categorical Exclusions Under Section 109 of the
National Environmental Policy Act
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of adoption of categorical exclusions under section 109
of the National Environmental Policy Act.
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SUMMARY: The Department of the Interior (Department) is adopting the
United States Forest Service's (USFS) categorical exclusion for short-
term mineral, energy, or geothermal investigations and the Department
of the Navy's (DON) categorical exclusion for pre-lease upland
exploration activities for oil, gas, or geothermal reserves, (e.g.,
geophysical surveys) pursuant to section 109 of the National
Environmental Policy Act (NEPA) to use for proposed Bureau of Land
Management (BLM) approval of geothermal exploration operations. This
notice describes the limited categories of proposed actions for which
the BLM intends to use the USFS and DON categorical exclusions and
details the consultation between the respective agencies.
DATES: The adoption takes effect on April 19, 2024.
FOR FURTHER INFORMATION CONTACT: Lorenzo Trimble, Geologist--National
[[Page 28798]]
Geothermal Program Lead, National Renewable Energy Coordination Office
(330), telephone: 775-224-0267, or email: <a href="/cdn-cgi/l/email-protection#5f332b2d36323d333a1f3d333271383029"><span class="__cf_email__" data-cfemail="1d71696f74707f71785d7f7170337a726b">[email protected]</span></a>.
Individuals in the United States 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:
I. National Environmental Policy Act and Categorical Exclusions
NEPA (42 U.S.C. 4321-4347, as amended) 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 that agencies consider the potential
environmental effects of their proposed actions in their decision-
making processes and inform and involve the public in that process. 42
U.S.C. 4332. 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 for a proposed action. Where required, these levels of review
may be documented in an environmental impact statement (EIS), an
environmental assessment (EA), or by reliance on a categorical
exclusion. 40 CFR 1501.3. If a proposed action is likely to have
significant environmental effects, the agency will prepare an EIS and
document its decision in a record of decision. 40 CFR 1502, 1505.2. If
the proposed action is not likely to have significant environmental
effects or where the level of significance is unknown, the agency will
prepare an EA, which involves a more concise analysis and process than
an EIS. 40 CFR 1501.5. Following preparation of an EA, the agency may
reach a finding of no significant impact if the analysis shows that the
action will have no significant effects. 40 CFR 1501.6. If, following
preparation of an EA, the agency finds that the proposed action may
have significant effects, it will prepare an EIS before issuing any
decision to authorize the action.
Under NEPA and CEQ's implementing regulations, a Federal agency can
establish categorical exclusions--categories of actions that the agency
has determined normally do not significantly affect the quality of the
human environment--in its 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 categorical exclusion covers a proposed action, the agency then
evaluates the proposed action for any extraordinary circumstances in
which a normally excluded action may have a significant effect. 40 CFR
1501.4(b). Responsible Officials in the Department's bureaus evaluate
proposed actions for the presence of extraordinary circumstances in
accordance with the Department's NEPA implementing regulations at 43
CFR 46.205 and 46.215. 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 rely on the categorical exclusion to approve the proposed
action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 40 CFR
1501.4. If any extraordinary circumstances are present, the agency may
nonetheless categorically exclude the proposed action if it determines
that there are circumstances that lessen the impacts or other
conditions sufficient to avoid significant effects. 40 CFR
1501.4(b)(1).
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, the adopting agency: (1) identifies the relevant
categorical exclusion listed in another agency's (``establishing
agency'') NEPA procedures ``that covers a category of proposed actions
or related actions''; (2) consults with the establishing agency ``to
ensure that the proposed adoption of the categorical exclusion for a
category of actions is appropriate''; (3) ``identif[ies] to the public
the categorical exclusion that the [adopting] agency plans to use for
its proposed actions''; and (4) documents adoption of the categorical
exclusion. 42 U.S.C. 4336c. This notice documents the Department's
adoption of the USFS categorical exclusion for short-term mineral,
energy, or geothermal investigations and the DON categorical exclusion
for pre-lease exploration activities for use by the BLM.
The Department's NEPA procedures are found at 43 CFR part 46. These
procedures address compliance with NEPA. The Department maintains a
list of categorical exclusions available to all Department bureaus and
offices at 43 CFR 46.210. Additional Department-wide NEPA policy is
found in the Departmental Manual (DM), in chapters 1 through 4 of part
516, available at <a href="https://www.doi.gov/document-library">https://www.doi.gov/document-library</a>. The NEPA
procedures for individual bureaus in the Department are published in
additional chapters of part 516 of the DM. Chapter 11 of the 516 DM
sets forth the BLM's NEPA procedures, and the BLM categorical
exclusions are listed in 516 DM 11.9 and 11.10. (See <a href="https://www.doi.gov/document-library/departmental-manual/516-dm-11-managing-nepa-process-bureau-land-management">https://www.doi.gov/document-library/departmental-manual/516-dm-11-managing-nepa-process-bureau-land-management</a>.)
II. Identification of the Categorical Exclusions
USFS Categorical Exclusion for Short-Term Mineral, Energy, or
Geophysical Investigations
The USFS categorical exclusion for short-term mineral, energy, or
geophysical investigations is found at 36 CFR 220.6(e)(8), and states
as follows:
Short-term (1 year or less) mineral, energy, or geophysical
investigations and their incidental support activities that may
require cross-country travel by vehicles and equipment, construction
of less than 1 mile of low standard road, or use and minor repair of
existing roads. Examples include but are not limited to:
(i) Authorizing geophysical investigations which use existing
roads that may require incidental repair to reach sites for drilling
core holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or
surface charge methods;
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for
investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an
approved site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair
of an existing road and the construction of 1/3 mile of temporary
road; clearing vegetation from an acre of land for trenches, drill
pads, or support facilities.
The USFS conducts review of any proposed reliance on its
categorical exclusion according to its extraordinary circumstances
review protocol found at 36 CFR 220.6.
DON Categorical Exclusion for Pre-Lease Upland Exploration
Activities for Oil, Gas or Geothermal Reserves
The DON categorical exclusion for pre-lease exploration activities
is found at 32 CFR 775.6(f)(39), and states as follows:
[[Page 28799]]
``Pre-lease upland exploration activities for oil, gas or
geothermal reserves (e.g., geophysical surveys).''
The DON conducts review of any proposed reliance on its categorical
exclusion according to its extraordinary circumstances review protocol
found at 32 CFR 775.6(e).
Proposed Department Category of Actions
Both the USFS and the DON categorical exclusions allow for pre-
leasing exploration activities, geophysical surveys, or geophysical
investigations. Those activities are included in the BLM's definition
of geothermal ``exploration operations.'' See 43 CFR 3200.1. The DON
categorical exclusion broadly allows activities meeting the BLM's
definition of geothermal ``exploration operations,'' but specifies that
these be conducted at the pre-leasing stage. Both the USFS and DON
categorical exclusions could be applied to the BLM's approval of
geothermal exploration operations as provided for under the regulations
implementing the Geothermal Steam Act of 1970 as amended, 30 U.S.C.
1001 et seq., Public Law 91-581, 84 Stat. 1566, and the Department
intends for the BLM to use these adopted categorical exclusions
exclusively to facilitate approval of such geothermal exploration
operations, and not to use them for oil and gas or other mineral
activities. Geothermal exploration operations do not contact or
directly test a geothermal resource. The BLM Geothermal Resource
Leasing regulations are found at 43 CFR part 3200 and include
provisions defining the scope of geothermal exploration operations as
follows:
. . . any activity relating to the search for evidence of geothermal
resources, where you are physically present on the land and your
activities may cause damage to those lands. Exploration operations
include, but are not limited to, geophysical operations, drilling
temperature gradient wells, drilling holes used for explosive
charges for seismic exploration, core drilling or any other drilling
method, provided the well is not used for geothermal resource
production. It also includes related construction of [routes] and
trails, and cross-country transit by vehicles over public land.
Exploration operations do not include the direct testing of
geothermal resources or the production or utilization of geothermal
resources.
43 CFR 3200.1. (The substitution of the term ``routes'' reflects
current BLM terminology indicating the limited use and temporary nature
of resource access routes.)
The BLM intends to rely on these adopted categorical exclusions as
appropriate to support approval of Notices of Intent to Conduct
Geothermal Exploration Operations (Form 3200-9) (NOIs). Requirements
for reclamation are provided on Form 3200-9 and in the applicable
regulations (See 43 CFR 3251.11(g)). Applications for NOI permits may
be submitted for conforming activities on any federal lands or
interests in lands open to geothermal development (43 CFR 3250.11) and
do not require a lease. The NOI permit application and the associated
regulations governing geothermal exploration operations permitting do
not expressly limit the timeframe for activities. However, if the BLM
were to rely on the adopted USFS categorical exclusion to approve such
a permit, those exploration activities would have to be concluded
within a 1-year timeframe. Implementation of reclamation plans can take
longer, however, and may require extended monitoring to evaluate the
success of the reclamation.
Responsible Officials in the Department will be able to rely on
either the USFS or the DON categorical exclusions, as appropriate, to
process NOIs for qualifying geothermal exploration operations.
Responsible Officials in the Department will document such reliance,
including describing how the proposed action conforms to the terms of
whichever (the USFS or DON) categorical exclusion is relied upon, in
accordance with any applicable Departmental NEPA or BLM NEPA or
geothermal program guidance.
III. Consideration of Extraordinary Circumstances
When applying these categorical exclusions, Responsible Officials
in the Department will evaluate the proposed actions to ensure
evaluation of whether there are any extraordinary circumstances. 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 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 weeds or non-native invasive species. Responsible
Officials in the Department are required to review any proposed action
for which they intend to rely on a categorical exclusion, as provided
at 43 CFR 46.205, by comparing it with the list at 43 CFR 46.215 and
documenting that review in accordance with any applicable Departmental
or bureau NEPA or program guidance.
The Department's list of extraordinary circumstances is comparable
to those of the USFS, found at 36 CFR 220.6(b) and of the DON, found at
32 CFR 775.6(e); therefore, Responsible Officials in the Department
intending to rely on either the USFS or the DON categorical exclusion
will need to review the proposed action only in accordance with the
Department's NEPA regulations at 43 CFR 46.205 and 46.215. The
Responsible Official will assess whether an extraordinary circumstance
is present, and if so, whether there are circumstances that lessen the
impacts or other conditions sufficient to avoid significant effects,
consistent with 40 CFR 1501.4(b). If the Responsible Official cannot
rely on a categorical exclusion to support a decision on a particular
proposed action due to extraordinary circumstances, the Responsible
Official will prepare an EA or EIS, consistent with 40 CFR 1501.4(b)(2)
and 43 CFR 46.205(c).
IV. Consultation With USFS and DON and Determination of Appropriateness
In January and February of 2024, the Department consulted with the
USFS and the DON about the appropriateness of the Department's adoption
of their respective categorical exclusions. Those consultations each
included a review of the USFS's and the DON's experience in
establishing and applying the categorical exclusions, as well as the
types of actions for which the BLM plans to use the categorical
exclusions. Based on those consultations and reviews, the Department
has determined that the types of activities the BLM proposes to
authorize as geothermal exploration operations are substantially
similar to the geothermal resource-related activities for which the
USFS and the DON have applied their respective categorical exclusions.
Accordingly, the impacts of the BLM-authorized geothermal exploration
operations, including the types of pre-lease exploration activities
described in the DON categorical exclusion and the examples of
activities described in the
[[Page 28800]]
USFS categorical exclusion, would be substantially similar to the
impacts of these USFS and the DON actions, which are not significant,
absent extraordinary circumstances. Therefore, the Department has
determined that its proposed use of the USFS and the DON categorical
exclusions to support BLM permitting decisions for qualifying
geothermal exploration operations, as described in this notice, is
appropriate. BLM will not rely on either the USFS or the DON
categorical exclusions to support approval of other mineral or non-
geothermal energy activities. Extending the BLM's use of the USFS and
the DON categorical exclusions to other mineral or non-geothermal
energy activities would require the agency to complete a separate
process to adopt those categorical exclusions for that purpose in
accordance with the requirements of Section 109 of NEPA.
V. Notice to the Public and Documentation of Adoption
This notice serves to identify to the public and document the
Department's adoption of the USFS categorical exclusion for short-term
mineral, energy, or geophysical investigations and the DON categorical
exclusion for pre-lease upland exploration activities for oil, gas, or
geothermal reserves and identifies the types of actions to which
Responsible Officials in the Department will apply the categorical
exclusions, including only approval of permitting for geothermal
exploration operations, and the considerations Responsible Officials in
the Department will use in determining whether an action is within the
scope of the categorical exclusions. Upon issuance of this notice, the
adopted USFS and DON categorical exclusions will be available to the
Department for the BLM to rely upon to authorize geothermal exploration
operations and will be accessible in 516 DM 11, found at <a href="https://www.blm.gov/programs/planning-and-nepa/what-informs-our-plans/nepa">https://www.blm.gov/programs/planning-and-nepa/what-informs-our-plans/nepa</a> and
at <a href="https://www.doi.gov/oepc/nepa/categorical-exclusions">https://www.doi.gov/oepc/nepa/categorical-exclusions</a>.
VI. Proposed Text for the Departmental Manual
The Department will add the following text to chapter 11 of part
516 of the Departmental Manual:
11.11 Categorical Exclusions Adopted Through NEPA Section 109
Responsible Officials will document reliance on the categorical
exclusions listed below, including describing how the proposed action
conforms to the terms of the categorical exclusion relied upon and
application of extraordinary circumstances review consistent with 43
CFR 46.215.
A. Geothermal Exploration Operations
The Department has adopted the following categorical exclusions for
the limited purpose of approving Notices of Intent to Conduct
Geothermal Exploration Operations (Form 3200-9).
(1) U.S. Forest Service, 36 CFR 220.6(e)(8):
Short-term (1 year or less) mineral, energy, or geophysical
investigations and their incidental support activities that may require
cross-country travel by vehicles and equipment, construction of less
than 1 mile of temporary road, or use and minor repair of existing
roads. Examples include, but are not limited to:
(i) Authorizing geophysical investigations which use existing roads
that may require incidental repair to reach sites for drilling core
holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or
surface charge methods;
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for
investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an
approved site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair of
an existing road and the construction of \1/3\ mile of temporary road;
clearing vegetation from an acre of land for trenches, drill pads, or
support facilities.
and
(2) Department of the Navy, 32 CFR 775.6(f)(39):
Pre-lease upland exploration activities for oil, gas, or geothermal
reserves, (e.g., geophysical surveys).
(Authority: 42 U.S.C. 4336c)
Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2024-08382 Filed 4-18-24; 8:45 am]
BILLING CODE 4331-29-P
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