Notice2024-12459
National Environmental Policy Act Implementing Procedures for the Bureau of Reclamation
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Published
June 7, 2024
Issuing agencies
Interior Department
Abstract
The Department of the Interior (Department), Bureau of Reclamation (Reclamation) proposes to revise seven categorical exclusions (CE) under the National Environmental Policy Act of 1969 (NEPA) in Reclamation's NEPA implementing procedures, Departmental Manual (DM) at part 516, chapter 14. The proposed revisions would clarify existing CEs on certain financial assistance funding, water- related contracting, and use authorization actions to allow for more consistent interpretation and more efficient review of appropriate actions based on Reclamation's experience implementing these CEs. The Department, on behalf of Reclamation, invites public comment on the proposed revisions.
Full Text
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<title>Federal Register, Volume 89 Issue 111 (Friday, June 7, 2024)</title>
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[Federal Register Volume 89, Number 111 (Friday, June 7, 2024)]
[Notices]
[Pages 48674-48680]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12459]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
[RR83530000, 234R5065C6, RX.59389832.1009676]
National Environmental Policy Act Implementing Procedures for the
Bureau of Reclamation
AGENCY: Office of the Secretary, Interior.
ACTION: Notice and request for comments.
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SUMMARY: The Department of the Interior (Department), Bureau of
Reclamation (Reclamation) proposes to revise seven categorical
exclusions (CE) under the National Environmental Policy Act of 1969
(NEPA) in Reclamation's NEPA implementing procedures, Departmental
Manual (DM) at part 516, chapter 14. The proposed revisions would
clarify existing CEs on certain financial assistance funding, water-
related contracting, and use authorization actions to allow for more
consistent interpretation and more efficient review of appropriate
actions based on Reclamation's experience implementing these CEs. The
Department, on behalf of Reclamation, invites public comment on the
proposed revisions.
DATES: Submit written comments on or before July 8, 2024.
ADDRESSES: Send written comments electronically to <a href="/cdn-cgi/l/email-protection#186d6b7a6a477b7d586d6b7a6a367f776e"><span class="__cf_email__" data-cfemail="7a0f09180825191f3a0f091808541d150c">[email protected]</span></a>, or
by mail to Bureau of Reclamation, Attn: USBR CE, 1849 C Street NW,
Suite 7069, Washington, DC 20240. Supporting documentation used in
preparing the proposed CE revisions is available for public inspection
at <a href="http://www.usbr.gov/nepa">www.usbr.gov/nepa</a>. The public can also view the CE substantiation
report at <a href="http://www.usbr.gov/nepa">www.usbr.gov/nepa</a>. The web address for Reclamation's current
procedures, at series 31, part 516, chapter 14, is <a href="https://www.doi.gov/document-library/departmental-manual/516-dm-14-managing-nepa-process-bureau-reclamation">https://www.doi.gov/document-library/departmental-manual/516-dm-14-managing-nepa-process-bureau-reclamation</a>.
FOR FURTHER INFORMATION CONTACT: Shane Hunt (he/him) via phone at 916-
202-7158, or via email at <a href="/cdn-cgi/l/email-protection#a2d7d1c0d0fdc1c7e2d7d1c0d08cc5cdd4"><span class="__cf_email__" data-cfemail="7b0e08190924181e3b0e081909551c140d">[email protected]</span></a>. Individuals 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:
[[Page 48675]]
Background
Reclamation was established in 1902. Its original mission was civil
works construction to develop the water resources of the arid Western
United States to promote the settlement and economic development of
that region. Reclamation developed hundreds of projects to store and
deliver water. That substantial infrastructure development contributed
to making Reclamation the largest wholesale supplier of water and the
second largest producer of hydropower in the United States.
Reclamation carries out numerous activities in support of its
modern-day mission and authorities. NEPA requires Federal agencies to
assess the potential environmental effects of proposed major Federal
actions. If a major Federal action would have significant impacts on
the quality of the human environment, an agency prepares an
environmental impact statement (EIS) to describe the reasonably
foreseeable effects associated with the proposed action, as well as a
reasonable range of alternatives (see 42 U.S.C. 4332(2)(C)). An agency
prepares an environmental assessment (EA) when a proposed action will
not have a reasonably foreseeable significant effect on the quality of
the human environment, or if the significance of such effect is unknown
(see 42 U.S.C. 4336(a)(2), 40 CFR 1501.5(a)). A Federal agency also
identifies in its agency NEPA implementing procedures categories of
actions that normally do not significantly affect the quality of the
human environment and therefore do not require the preparation of an EA
or an EIS, subject to the consideration of extraordinary circumstances
(see 42 U.S.C. 4336e(1), 40 CFR 1501.4 and 43 CFR 46.215). When
appropriately established and applied, these CEs allow agencies to
protect the environment while operating more efficiently by focusing
their resources on proposals that may have significant environmental
impacts. In the late 1970s and early 1980s, the Department established
Reclamation-specific NEPA implementing procedures, including 30 CEs,
which are found in chapter 14 of part 516 of the Departmental Manual
(516 DM 14). The Department and Reclamation, through this notice,
propose to revise seven of those CEs, as discussed below.
Since developing Reclamation's NEPA implementing procedures,
several government-wide and Departmental efforts have encouraged
agencies and bureaus to modernize and streamline environmental reviews
and, where appropriate, establish new CEs or revise existing ones. The
Council on Environmental Quality (CEQ) recommends that agencies
periodically review and update, as necessary, their NEPA implementing
procedures, including their CEs.\1\
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\1\ See 40 CFR 1507.3 and CEQ's 2010 guidance on Establishing,
Applying, and Revising Categorical Exclusions Under the National
Environmental Policy Act, <a href="https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf">https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf</a>.
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Reclamation has amassed extensive knowledge and experience
analyzing actions under NEPA. In 2016, Reclamation comprehensively
reviewed its existing CEs at 516 DM 14, which were originally
established in the early 1980s. Through the review process and based on
more than 40 years of agency experience implementing these CEs,
Reclamation identified several examples of actions for which new and
revised CEs would improve NEPA compliance by enhancing efficiencies and
ensuring clear and consistent interpretation for NEPA practitioners,
project proponents, and the public. Specifically, Reclamation's NEPA
practitioners and program subject matter experts (CE Working Group)
reviewed the original purpose and history of the applicability and use
for each of Reclamation's existing CEs. Reclamation's CE Working Group
identified issues and challenges contributing to inconsistent
interpretation of the actions or scope covered by the CEs, as well as
opportunities to modify or add new actions to CEs when those
modifications or actions would not result in significant environmental
effects.
The CE Working Group found that CEs with clearly defined language
and consistent application by NEPA practitioners did not require
changes at this time. The CE Working Group identified seven CEs, which
are covered by this notice, for revisions to promote consistent
interpretation and application by eliminating confusing or outdated
terminology and authorities. The CE Working Group also identified 12
existing CEs and potentially new CEs, not addressed in this notice,
that required either substantial changes, additional language, or a
more thorough review to promote consistent interpretation and to expand
their scope to include similar actions with similar ranges of potential
impacts. On May 24, 2019, Reclamation established one new CE for
transfers of title. Upon completion of the title transfer CE,
Reclamation determined its next priority was to revise the seven
existing CEs that are the subject of this notice.
The proposed revisions to the seven CEs correct and modernize
terminology and authorities, as well as clarify the scope of activities
and constraints. While the effect of certain proposed CE revisions
would be to broaden CE application to include additional actions, as
explained more fully below, the proposed changes are consistent with
the existing CEs' intent as well as the underlying activities and
impact-based constraints contemplated by the existing CEs from their
inception. The result of these proposed changes is that the CEs'
underlying activities and the constraints used to define them remain
intact. Further, Reclamation's record of CE checklists and EAs with
findings of no significant impact (FONSIs) support these proposed
changes for actions that normally do not have a significant effect on
the human environment. This notice provides a comparison of the
existing and proposed CE language and the specific history, basis, and
rationale for each proposed revised CE.
[[Page 48676]]
516 DM 14.5--Operation and Maintenance Activities
[Water-related contracts]
------------------------------------------------------------------------
Existing CE language Proposed revised CE language
------------------------------------------------------------------------
D4. Approval, execution, and D4. Approval, execution,
implementation of water service administration, and
contracts for minor amounts of long- implementation of water-
term water use or temporary or interim related contracts and contract
water use where the action does not renewals, amendments,
lead to long-term changes and where supplements, and assignments,
the impacts are expected to be and water transfers,
localized. exchanges, and replacements,
for which one or more of the
following apply: (a) for minor
amounts of long-term water
use, where impacts are
expected to be localized; (b)
for temporary or interim water
use \2\ where the action does
not lead to long-term changes
and where the impacts are
expected to be localized; or
(c) where the only result will
be to implement an
administrative or financial
practice or change. A ``water-
related'' contract is any
legally binding agreement to
which Reclamation becomes a
party, pursuant to its
authority under Federal law
that (1) makes water available
from or to the United States;
(2) allows water to be stored,
carried, or delivered in
facilities Reclamation owns,
manages, operates, or funds;
or (3) establishes operation,
maintenance, and replacement
responsibilities for such
facilities.
D14. Approval, renewal, transfer, and D14. Reserved.
execution of an original, amendatory,
or supplemental water service or
repayment contract where the only
result will be to implement an
administrative or financial practice
or change.
------------------------------------------------------------------------
Reclamation proposes to revise the current D4 and D14 CEs for
clarity and to promote consistent interpretation, focused on impacts-
based constraints, while ensuring that the actions potentially covered
by the proposed D4 CE would not have a significant effect on the human
environment. Reclamation proposes to combine the current D4 and D14 CEs
into the proposed D4 CE and reserve D14 for future use if needed.
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\2\ Reclamation policy PEC P05 defines temporary and interim as
short-term meaning 10 years or less.
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The CE Working Group review found that Reclamation routinely used
the current D4 and D14 CEs and that there are extensive records of CE
checklists and EAs with FONSIs to document that the water contract
actions described therein did not result in significant effects.
Reclamation's review also identified several challenges arising from
the way CEs D4 and D14 are defined--in particular, how the water-
related contract types (water service, repayment, etc.) and contract
actions (approval, execution, renewal, etc.) should be read in relation
to applicable impacts-based constraints.
Inconsistencies in the current D4 and D14 CEs have led to unclear
expectations and varying application by NEPA practitioners. This lack
of clarity has led to increased costs and resource expenditures when
Reclamation prepares EAs rather than using the current D4 or D14 CEs.
The current D4 and D14 CEs apply only to certain contract types and
contracting actions. For instance, the current D4 CE only lists water
service contracts and original contract execution. The current D14 CE
omits contract implementation--Reclamation's performance of the
contract once it is executed--and applies only to water service and
repayment contracts. Further, the historic record establishing these
current CEs does not describe the reasons for the omissions and
differences regarding contract types and contract actions or provide
guidance about how to interpret the differences. Nor are there now
discernable, relevant reasons for the distinctions. The relevant
distinctions for purposes of the current CEs are water amount, duration
of the contract, and magnitude of the impact. The intention of
Reclamation's proposed revisions to the current D4 and D14 CEs is to
resolve these issues by simplifying contract types to include all
``water-related'' contracts and all contract actions to more clearly
define the applicability of the proposed D4 CE based on an action's
impacts.
The range of proposed water-related contract actions covered under
the current D4 and D14 CEs are substantially the same among
Reclamation's contract types. Reclamation enters into a variety of
water-related contract types and carries out contract actions to amend,
supplement, or renew these contracts after their original execution.
Water service contracts provide project water at contractually
established water rates pursuant to section 9(c)(2) or 9(e) of the
Reclamation Project Act of 1939 (1939 Act),\3\ section 9 of the Water
Conservation and Utilization Act of 1939,\4\ the Sale of Water for
Miscellaneous Purposes Act of 1920,\5\ or other authorities. Repayment
contracts, pursuant to 9(d) of the 1939 Act, provide project water in
exchange for contractors' agreement to repay a set amount of the
government's project costs in a given time.
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\3\ Public Law 76-260, 9; 53 Stat. 1187, 1193; 43 U.S.C. 485h.
\4\ Public Law 76-398, 9; 53 Stat 1418; 1124; 16 U.S.C. 590z-7.
\5\ Public Law 66-147, 41 Stat. 451; 43 U.S.C. 521.
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While water service and repayment contracts are core types of
contracts that Reclamation holds, Reclamation also enters into a
variety of other water-related contracts. These include excess capacity
contracts, which allow others to store and move non-project water in
Federal works; contracts to transfer Federal operation and maintenance
responsibilities to water user organizations; and water exchange or
replacement contracts. The current D4 and D14 do not expressly include
the range of Reclamation water-related contract types. The proposed
revisions to the D4 CE expand the potential application of the proposed
CE to encompass the variety of water-related contracts entered into by
Reclamation. Including them enhances Reclamation's ability to comply
with NEPA efficiently and effectively, consistent with 40 CFR 1501.4
where they meet the impact-based constraints, rather than based on
distinctions that relate instead to the legal and financial aspects of
contract actions.
The potential application of the proposed D4 CE is inclusive of
more types of water-related contracts as discussed above; however, the
proposed D4 CE establishes meaningful limits to
[[Page 48677]]
its application. All water-related contracts affect the delivery and
use of water or the operation of related facilities and involve
relatively large or small water amounts. Any water-related contract may
be subject to actions that only result in implementation of an
administrative or financial practice or change. Accordingly, rather
than limiting CE application based on the legal or financial
characteristics of contracts and contract actions, the proposed D4 CE
contains impact-based constraints on its application.
To date, Reclamation has prepared numerous EAs and FONSIs for
water-related contract requests, which <a href="http://www.usbr.gov/nepa">www.usbr.gov/nepa</a> provides. In
this notice's supporting documentation, Reclamation includes the review
of 25 water-related contract EAs and FONSIs completed between 2011 and
2022. These EAs and FONSIs demonstrate that, absent extraordinary
circumstances, the types of water-related contracts that the proposed
D4 CE would cover, result in no significant effects.
To inform its proposed updates to the current D4 and D14 CEs,
Reclamation also analyzed the impact-based constraints in these
existing CEs. The constraint limiting the scope and effects for the
existing D14 CE, ``where the only result will be to implement an
administrative or financial practice or change,'' is clear, easily
understood, and consistently applied by NEPA practitioners. In
contrast, the impact-based constraints in the current D4 CE create
confusion regarding its application. Due to its grammatical
construction, most notably the lack of punctuation, the current D4 CE
does not clearly present the relationship between the impact-based
constraints and D4 CE's application. To resolve the confusion created
by the current D4 CE and provide clarity and consistency, Reclamation
proposes to revise the D4 CE to distinctly list each impact-based
constraint.
Reclamation determined that the application of the proposed D4 CE
should continue to be determined by changes in water quantity relative
to the affected project or water system. Reclamation also considered
whether the absolute water-related contract water amounts, for
instance, limiting application by acre-feet of water, should constrain
the application of the proposed D4 CE. Ultimately, Reclamation rejected
specifying water amounts because the effects to a water system
resulting from a water-related contract's specified changes in water
quantity are relative; effects depend on the size and unique
characteristics of the water system. For example, an amount of contract
water that would be minor to the Columbia River might be significant to
the Middle Rio Grande River. Therefore, Reclamation proposes the
continued use of ``minor'' as an appropriate constraint for water
quantity under the proposed D4 CE. The current D4 CE successfully
applies the constraint and based on a review of past CE use, EAs, and
FONSIs, the use of the term ``minor'' when coupled with the other
impact-based constraints included in the proposed CE, and absent any
extraordinary circumstances, will normally not significantly affect the
quality of the human environment. Likewise, system-specific
characteristics, such as hydrological interconnections and local
environmental sensitivities, will affect Reclamation's assessment of
whether a water-related contract action's impacts would be considered
minor, lead to long-term changes, or be localized. Reclamation has not
quantified these impact-based constraints in the past, and for the
reasons noted above, finds that these constraints do not require
quantification in the proposed D4 CE.
Finally, as described above, the type of water-related contract or
contract action is not an effective measure of environmental effects or
means of defining a CE's application. The impact-based constraints
limiting use of the CEs based on elements of water delivery (amount,
duration, and area impacted) are more meaningful to determine the
relationship of an action to the potential for significant impacts to
the environment. Emphasis on using impact-based constraints to define
those water-related contracts eligible for use of the proposed D4 CE
would standardize its application across water-related contract actions
as well as ensure the covered actions would not result in significant
effects.
To clarify the application of CEs pertaining to water-related
contract actions and to focus on impact-based constraints, Reclamation
proposes to consolidate the current D4 and D14 CEs into one CE, the
proposed D4 CE. Reclamation then proposes to revise the current D4 CE
to replace ``water service contract'' with the more inclusive ``water-
related contract,'' which is defined in the proposed D4 CE and the
Reclamation Manual Policy, Water-Related Contracts and Charges--General
Principles and Requirements (PEC P05), 4.R. The proposed text of D4 CE
then uses a list format for each of the impact-based constraints
limiting the application of the proposed D4 CE to increase clarity.
This includes ``temporary or interim water use'' which PEC P05, 4.P
defines as short-term meaning 10 years or less. Based on the
consideration of the contract types, within the context of the impact-
based constraints and absent any extraordinary circumstances,
Reclamation determines that the additional contract types would not
have a significant impact on the quality of the human environment.
516 DM 14.5--Operation and Maintenance Activities
[Use authorizations]
------------------------------------------------------------------------
Existing CE language Proposed revised CE language
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D8. Renewal of existing grazing, D8. Issuance or renewal of use
recreation management, or cabin site authorizations (as defined in
leases which do not increase the level 43 CFR 429.2, including
of use or continue unsatisfactory crossing agreements which
environmental conditions. provide rights-of-way) that
provide right-of-use of
Reclamation land, facilities,
or waterbodies where one or
more of the following apply:
(a) work is minor and impacts
are expected to be localized;
(b) the action does not lead
to a major public or private
action; (c) the only result of
the authorization will be to
implement an administrative or
financial practice or change;
or (d) the level of use or
impacts to resources is not
increased.
D10. Issuance of permits, licenses, D10. Reserved.
easements, and crossing agreements
which provide right-of-way over Bureau
lands where the action does not allow
for or lead to a major public or
private action.
------------------------------------------------------------------------
[[Page 48678]]
Reclamation's CE Working Group review found that the existing D8
and D10 CEs, as well as other Reclamation CEs for substantially similar
use authorization actions, such as D9 that covers the ``issuance of
permits for removal of gravel or sand by an established process from
existing quarries,'' are routinely applied to use authorization
activities. The extensive collection of CE checklists for the existing
D8 and D10 CEs and other use authorization CEs demonstrate that these
activities do not have significant effects absent extraordinary
circumstances. The list of use authorization types in the current D10
CE is consistent with the use authorizations included in 43 CFR 429.2
(i.e., easements, leases, licenses, permits, and consent documents).
Reclamation also found confusion regarding the existing D8 and D10 CEs'
applicability to use authorization renewals, issuances, and reissuances
related to underlying use authorization activities. For example, the
current D10 CE does not explicitly include renewal of use
authorizations. As a result of this omission, NEPA practitioners
interpret the current D10 CE differently with some employing the
current D10 CE to reissue expiring use authorizations and others
determining that the current D10 CE is not applicable in the same
circumstances.
Reclamation proposes to revise the current D8 and D10 CEs to more
clearly describe when a use authorization CE applies. First,
Reclamation proposes to combine the existing D8 and D10 CEs into one
CE, the proposed D8 CE, and reserve D10 for future use if needed. Next,
Reclamation proposes to include in the proposed D8 CE the term ``use
authorization.'' Similar to the scope of the current D10 CE, the
proposed D8 CE covers the Reclamation use authorization activities by
incorporating language from and a reference to 43 CFR 429.2, including
crossing agreements which provide rights-of-way for consistency in
interpretation. Finally, the proposed D8 CE specifies the terms and
conditions for which Reclamation will issue a use authorization for its
land, facilities, or waterbodies.
Much like the rationale supporting the use of impact-based
constraints for water-related contracts and contracting actions in the
proposed D4 CE, for the proposed D8 CE, the use authorization type does
not as effectively identify environmental effects or define the
proposed CE's application as the underlying use authorization actions
and impact-based constraints. Therefore, Reclamation is proposing to
revise the D8 CE to clarify the actions that fall under ``use
authorizations'' and list the impact-based constraints on the
application of the proposed D8 CE. In the aggregate, the forgoing
revisions in the proposed D8 CE will standardize its application and
will not expand the scope of actions covered under the current D8 and
D10 CEs.
Reclamation has prepared numerous CE checklists and EAs analyzing
use authorization proposals covering actions within the scope of the
proposed D8 CE that resulted in FONSIs. Reclamation's CE substantiation
report summarizes 13 use authorization EAs with FONSIs completed
between 2006 and 2022. These EAs and FONSIs demonstrate that the
issuance and renewal of use authorization included in the proposed D8
CE typically result in no significant impacts. The proposed D8 CE is
consistent with 43 CFR part 429 and contemporary Reclamation Manual
policies and directives and standards and will lead to improved, more
efficient analysis of these actions.
516 DM 14.5--Financial Assistance, Loans, and Funding Activities
------------------------------------------------------------------------
Existing CE language Proposed revised CE language
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E1. Rehabilitation and Betterment Act E1. Financial assistance,
loans and contracts which involve cooperative agreements,
repair, replacement, or modification grants, loans, contracts, or
of equipment in existing structures or other funding, where the
minor repairs to existing dams, underlying actions being
canals, laterals, drains, pipelines, funded (a) would be covered by
and similar facilities. another Reclamation CE if
Reclamation were implementing
the action itself, or (b)
where the work to be done is
confined to areas already
impacted by farming or
development activities, work
is considered minor, and where
the impacts are expected to be
localized.
E2. Small Reclamation Projects Act E2. Reserved.
grants and loans where the work to be
done is confined to areas already
impacted by farming or development
activities, work is considered minor,
and where the impacts are expected to
be localized.
E3. Distribution System Loans Act loans E3. Reserved.
where the work to be done is confined
to areas already impacted by farming
or developing activities, work is
considered minor, and where the
impacts are expected to be localized.
------------------------------------------------------------------------
Reclamation's CE Working Group review found that the existing E1,
E2, and E3 CEs, which are the current CEs pertaining to financial
assistance actions, are too narrowly defined by specific, outdated
program authorities that Reclamation policy now disfavors. Reclamation
has gained several authorities for financial assistance through the
SECURE Water Act, Infrastructure Investment and Jobs Act, Inflation
Reduction Act, and others to provide critical funding for water and
energy infrastructure, restoration, drought, and conservation projects
that are integral to Reclamation and Department missions.
Rather than tying the CE to particular authorities, Reclamation
proposes that the revisions describe the underlying activity with
impact-based constraints, allowing Reclamation to use the CE across
current and future programs. The existing E1, E2, and E3 CEs too
narrowly define the listed program authorities for Reclamation's
contemporary program portfolio. Further, many of the actions funded by
Reclamation's current financial assistance programs would qualify for
these and other existing CEs because the underlying activities are
either already covered by another Reclamation CE if Reclamation were
implementing the action itself, or the activities (e.g., ``work [. . .]
confined to areas already impacted by farming or developing activities,
work is considered minor, and where the impacts are expected to be
localized.'') are consistent with the existing E1, E2, and E3 CEs.
Given Reclamation's inability to access existing E1, E2, and E3 CEs
because of their narrow definitions of authority, Reclamation's current
practice is to prepare EAs and FONSIs for many financial assistance
actions. To
[[Page 48679]]
address the current E1, E2, and E3 CEs' obsolescence and avoid similar
issues in the future, Reclamation proposes to remove all reference to
specific program authorities in the proposed E1 CE. The proposed
revised CE, in turn, is substantiated based on the EAs and FONSIs that
Reclamation has prepared in the absence of such an existing CE, as
outlined in the accompanying CE substantiation report.
Reclamation also has determined that the underlying financial
assistance activities in the existing E1, E2, and E3 CEs remain
relevant, and has updated the impact-based constraints in these CEs
based on the analysis of these recent EAs and FONSIs. Accordingly,
Reclamation proposes to include impact-based constraints from the
existing E1, E2, and E3 CEs in the proposed E1 CE. The underlying
financial assistance actions retained in the proposed E1 CE include
funded actions that another Reclamation CE, if Reclamation were
implementing the action itself, would cover. The impact-based
constraints from the E2 and E3 CEs also are in the proposed E1 CE,
limiting the application of the proposed E1 CE to financial actions for
``work [. . .] confined to areas already impacted by farming or
developing activities, work is considered minor, and where the impacts
are expected to be localized.''
These impact-based constraints limit the application of the
proposed E1 CE to financial assistance activities that normally will
not have significant environmental impacts.
Reclamation also proposes to expand the types of financial
assistance actions covered under the proposed E1 CE to include
financial assistance, cooperative agreements, grants, loans, contracts,
and a catch-all ``other funding.'' This revision allows the proposed E1
CE to be potentially applicable to all financial assistance types,
including grants, loans, and funding for applicant, sponsor or partner
actions as long as the financial assistance action is consistent with
the underlying financial assistance actions and impacts-based
constraints defined in the proposed E1 CE. Because the financial
assistance authorities assigned to Reclamation by law are subject to
change, and Reclamation would like to avoid obsolescence, the proposed
E1 CE draft focuses on the underlying financial assistance activity
funded rather than the funding program authority, allowing for
application consistent with current and future authorities.
Similar to the rationale for water-related contracts and
contracting actions in the proposed D4 CE and use authorization actions
in the proposed D8 CE, for the proposed E1 CE, the authority type does
not as effectively identify environmental effects or define the
proposed CE's application as the underlying financial assistance
actions and impact-base constraints. Therefore, Reclamation is
proposing to revise the current E1, E2, and E3 CEs to remove the
specificity of funding program authorities, clarify the underlying
financial assistance actions and impact constraints on their
application, and combine into one proposed E1 CE, with E2 and E3
reserved for future use if needed. While Reclamation expects these
proposed revisions to increase the types of financial assistance
actions that qualify for the proposed E1 CE, the scope of these actions
is consistent with existing definitions of underlying financial
assistance activities and impact-based constraints.
Reclamation has prepared numerous CE checklists and EAs analyzing
financial assistance proposals covering actions with the scope of the
proposed E1 CE that resulted in FONSIs. Reclamation has summarized 33
EAs with FONSIs completed between 2016 and 2022 in its CE
substantiation report included in this notice's supporting
documentation, which support a determination that the proposed CE
revisions would not result in significant impacts for financial
assistance actions. Additional Financial Assistance EAs with FONSIs can
be accessed at <a href="http://www.usbr.gov/nepa">www.usbr.gov/nepa</a> that also demonstrate that types of
proposals included in the proposed E1 CE typically result in no
significant effects. The proposed E1 CE is consistent with contemporary
Reclamation authorities and will lead to improved, more efficient
analysis of these actions.
Categorical Exclusion Determination
The Department and Reclamation find that the categories of actions
described in the proposed CEs normally do not have a significant effect
on the human environment absent extraordinary circumstances. This
finding is based on Reclamation's comprehensive review of CEs, EAs, and
FONSIs; its history and over 40 years of experience analyzing actions
under NEPA and using these CEs; the rationale for the proposed
revisions described above; and consistent determinations made under CE
checklists and EAs with FONSIs that these actions normally do not have
a significant effect on the human environment. Since establishing the
existing contracting and use authorization CEs in the late 1970s and
early 1980s, Reclamation estimates it has prepared thousands of CE
checklists documenting that these actions did not result in significant
effects. In addition, since the early 1980s, Reclamation estimates it
has prepared hundreds of EAs and FONSIs for financial assistance
actions similar to those actions that would be covered under the
proposed E1 CE that were not included in the narrow definition of the
specific authorities in the E1, E2, and E3 CEs. Further, Reclamation
estimates that it has prepared hundreds of additional EAs and FONSIs
for contracting and use authorization actions closely related to the
D4, D8, D10, and D14 CEs that either did not meet strict interpretation
of those CE definitions, or where a water-related contract or use
authorization CE was not applied because of uncertainty surrounding the
description of the proposal type, proposal activities, or impact-based
constraints. The frequent use of these existing CEs, experience
preparing EAs and FONSIs for actions covered by the proposed CEs, and
Reclamation's comprehensive review of how its existing CEs are applied
in practice serve to validate Reclamation's preparation of these
proposed CEs. To further demonstrate the finding that actions under the
proposed CEs would not normally result in significant effects to the
human environment, Reclamation reviewed 71 EAs with FONSIs and
summarized them in the CE substantiation report included in this
notice's supporting documentation. These 71 EAs with FONSIs analyze
actions that the proposed CE revisions are designed to cover in the
future. Additional EAs with FONSIs are also available at <a href="http://www.usbr.gov/nepa">www.usbr.gov/nepa</a>.
Reclamation recognizes that certain proposed actions, when reviewed
on a case-by-case basis, may trigger one or more extraordinary
circumstances, and for those proposed actions where a normally excluded
action may have a significant effect, Reclamation will prepare an EA or
EIS (see 43 CFR 46.215). In such cases, the proposed actions could have
significant environmental effects and require additional NEPA analysis
(see 40 CFR 1501.4(b)). Thus, prior to applying any CE, Reclamation
will review the proposed action to ensure it is covered by the CE and
evaluate the proposed action for any extraordinary circumstances.
Reclamation requires that any action for which a Reclamation CE is used
must be documented with a CE checklist to demonstrate (a) the
applicability of the CE, and (b) verification that no extraordinary
circumstances are present such that a normally excluded action may have
a significant effect. In such cases, Reclamation will conduct
additional
[[Page 48680]]
NEPA analysis and prepare an EA or EIS, as appropriate.
The Department, on behalf of Reclamation, invites comments on these
proposed CE revisions and will consider all comments received by the
comment deadline. Comments should be as specific as possible and
provide detail to explain the importance of the issues raised in the
comment to Reclamation's proposed rulemaking.
Public Disclosure Statement
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment including your personal identifying
information may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Amended Text for the Departmental Manual
The proposed text would modify 516 DM as set forth below:
Part 516: National Environmental Policy Act of 1969
Chapter 14: Managing the NEPA Process--Bureau of Reclamation
* * * * *
14.5 Categorical Exclusions
* * * * *
D. Operation and Maintenance Activities
* * * * *
(4) Approval, execution, administration, and implementation of
water-related contracts and contract renewals, amendments, supplements,
and assignments, and water transfers, exchanges, and replacements, for
which one or more of the following apply: (a) for minor amounts of
long-term water use, where impacts are expected to be localized; (b)
for temporary or interim water use where the action does not lead to
long-term changes and where the impacts are expected to be localized;
or (c) where the only result will be to implement an administrative or
financial practice or change. A ``water-related contract'' is any
legally binding agreement to which Reclamation becomes a party,
pursuant to its authority under Federal law that (1) makes water
available from or to the United States; (2) allows water to be stored,
carried, or delivered in facilities Reclamation owns, manages,
operates, or funds; or (3) establishes operation, maintenance, and
replacement responsibilities for such facilities.
* * * * *
(8) Issuance or renewal of use authorizations (as defined in 43 CFR
429.2, including crossing agreements which provide rights-of-way) that
provide right-of-use of Reclamation land, facilities, or waterbodies
where one or more of the following apply: (a) work is minor and impacts
are expected to be localized; (b) the action does not lead to a major
public or private action; (c) the only result of the authorization will
be to implement an administrative or financial practice or change; or
(d) the level of use or impacts to resources is not increased.
* * * * *
(10) Reserved.
* * * * *
(14) Reserved.
* * * * *
E. Financial Assistance, Loans, and Funding
(1) Financial assistance, cooperative agreements, grants, loans,
contracts, or other funding, where the underlying actions being funded
(a) would be covered by another Reclamation CE if Reclamation were
implementing the action itself; or (b) where the work to be done is
confined to areas already impacted by farming or development
activities, work is considered minor, and where the impacts are
expected to be localized.
(2) Reserved.
(3) Reserved.
Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2024-12459 Filed 6-6-24; 8:45 am]
BILLING CODE 4332-90-P
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