Notice2024-27790
Notice of Adoption of Department of Energy Categorical Exclusions Under the National Environmental Policy Act
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Published
December 2, 2024
Issuing agencies
Agriculture DepartmentRural Utilities ServiceRural Housing ServiceRural Business-Cooperative Service
Abstract
Rural Development (RD), a mission area within the United States Department of Agriculture (USDA) announces its adoption of seven Categorical Exclusions (CEs) from the United States Department of Energy (DOE) under the National Environmental Policy Act (NEPA) to use in RD programs and funding opportunities. This notice describes the categories of proposed actions for which RD intends to use the DOE CEs and describes the consultation between the agencies.
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<title>Federal Register, Volume 89 Issue 231 (Monday, December 2, 2024)</title>
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[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Notices]
[Pages 95170-95173]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27790]
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DEPARTMENT OF AGRICULTURE
Rural Utilities Service
Rural Housing Service
Rural Business-Cooperative Service
[Docket No. RUS-24-AGENCY-0035]
Notice of Adoption of Department of Energy Categorical Exclusions
Under the National Environmental Policy Act
AGENCY: Rural Utilities Service, Rural Housing Service and Rural
Business-Cooperative Service, Rural Development, USDA.
ACTION: Notice.
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SUMMARY: Rural Development (RD), a mission area within the United
States Department of Agriculture (USDA) announces its adoption of seven
Categorical Exclusions (CEs) from the United States Department of
Energy (DOE) under the National Environmental Policy Act (NEPA) to use
in RD programs and funding opportunities. This notice describes the
categories of proposed actions for which RD intends to use the DOE CEs
and describes the consultation between the agencies.
DATES: This action is effective upon publication.
FOR FURTHER INFORMATION CONTACT: Alan Hachey, Environmental Protection
Specialist, Environmental and Historic Preservation Division, Rural
Utilities Service, 1400 Independence Avenue SW, Mail Stop 1548, Room
4004, Phone: (202) 205-5381; Email: <a href="/cdn-cgi/l/email-protection#1d7c717c7333757c7e7578645d686e797c337a726b"><span class="__cf_email__" data-cfemail="244548454a0a4c45474c415d64515740450a434b52">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
RD's mission is to increase economic opportunity and improve the
quality of life for all rural Americans. This mission is met by
providing loans, grants, loan guarantees, and technical assistance
through a multitude of programs aimed at creating and improving
infrastructure, businesses, and housing throughout rural America. RD is
divided into three agencies, the Rural Utilities Service, Rural
Business-Cooperative Service, and Rural Housing Service, each with
unique programs that play an important role in helping RD reach its
goals.
RD's programs must comply with NEPA, 42 U.S.C. 4321-4347, which
requires Federal agencies to consider the environmental effects of
their proposed actions in their decision-making processes and inform
and engage the public in those processes. Congress enacted NEPA to
establish a national policy for the environment, provide for the
establishment of the Council on Environmental Quality (CEQ), and for
other purposes as detailed on <a href="http://NEPA.gov">NEPA.gov</a> (<a href="http://ceq.doe.gov">ceq.doe.gov</a>). CEQ issued
regulations implementing NEPA, 40 CFR parts 1500 through 1508 (CEQ
regulations).
To comply with NEPA, agencies determine the appropriate level of
review of any major Federal action--an environmental impact statement
(EIS), environmental assessment (EA), or CE. It is the agency's
responsibility, in accordance with NEPA and the CEQ regulations, to
prepare documentation that supports their level of review.
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. 4336c). 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 (40 CFR 1501.4(e)(2024)). This notice documents RD's adoption of
seven DOE CEs under Section 109 of NEPA for future use in RD programs
and funding opportunities.
II. Identification of the Categorical Exclusions and Additional
Conditions for Application
RD provides loans, grants and technical assistance to build
critical infrastructure like electric, broadband, water systems, and
hospitals. The programs expand access to electric, telecommunications,
and transportation infrastructure, and support business growth,
healthcare, education, housing, and other community essentials.
[[Page 95171]]
RD has identified the following CEs for adoption, which are listed
in DOE's NEPA procedures as CEs B4.1, B4.4, B4.8, B4.13, B4.14, B5.1,
and B5.16 of 10 CFR part 1021, subpart D, Appendix B. The final rule
establishing or revising CEs B4.13, B4.14, and B5.16 was published by
DOE on April 30, 2024 (89 FR 34074-01). The DOE text of each CE has
been included in quotations following each identified CE. RD intends to
apply these CEs to projects undertaken directly by RD, requiring an
approval by RD, or financed in whole or in part through Federal funds
made available by RD programs.
RD will review each action and require the preparation of an
environmental review document to ensure the following: (1) Consistency
with the DOE's NEPA procedures at 10 CFR 1021 Subpart D, Appendix B
which require an evaluation of ``integral elements'' to confirm the
proposal will have no significant impacts on the resources identified
in DOE environmental procedures; (2) Compliance with RD's NEPA
procedures at 7 CFR 1970.52 which address extraordinary circumstances;
and (3) Confirmation that the action has not been segmented as required
by DOE's NEPA procedures at 10 CFR 1021.410(b)(3). The evaluation of
integral elements and segmentation is further described in this
section. The evaluation of extraordinary circumstances is further
described in Section III.
B4.1 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
``Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
that involve only the use of the existing transmission system and
existing generation resources operating within their normal operating
limits.''
RD intends to apply this CE in a manner consistent with DOE's
application--to the same types of actions (e.g., the implementation of
or amendments to Power Purchase Agreements (PPAs) entered into by DOE).
An example of a project type where this CE could be applied by RD
includes, but is not limited to, the implementation of PPAs proposed
for funding through the Empowering Rural America Program (NewERA)
Program.
B4.4 Power Marketing Services and Activities
``Power marketing services and power management activities
(including, but not limited to, storage, load shaping and balancing,
seasonal exchanges, and other similar activities), provided that the
operations of generating projects would remain within normal operating
limits. (See B4.14 of this appendix for energy storage systems.)''
RD intends to apply this CE in a manner consistent with DOE's
application--to the same types of actions (e.g., advanced metering
infrastructure, distribution automation, energy storage systems, load
control). An example of a project type where this CE could be applied
by RD includes, but is not limited to, the funding of grid
modernization infrastructure through the Electric Infrastructure Loan &
Loan Guarantee, NewERA, or Powering Affordable Clean Energy (PACE)
Programs to integrate renewable energy generation projects.
B4.8 Electricity Transmission Agreements
``New electricity transmission agreements, and modifications to
existing transmission arrangements, to use a transmission facility of
one system to transfer power of and for another system, provided that
no new generation projects would be involved and no physical changes in
the transmission system would be made beyond the previously disturbed
or developed facility area.''
RD intends to apply this CE in a manner consistent with DOE's
application--to the same types of actions. (e.g., new electricity
transmission agreements or modifications to existing agreements). An
example of a project type where this CE could be applied by RD
includes, but is not limited to, modifications to existing agreements
that enable the transmission of power from renewable energy projects
proposed for funding through the Electric Infrastructure Loan & Loan
Guarantee, NewERA, or PACE Programs.
B4.13 Upgrading and Rebuilding Existing Powerlines and Related
Provisions
``Upgrading or rebuilding existing electric powerlines, which may
involve relocations of small segments of the powerlines within an
existing powerline right-of-way or within otherwise previously
disturbed or developed lands (as discussed at 10 CFR 1021.410(g)(1)).
Upgrading or rebuilding existing electric powerlines also may involve
widening an existing powerline right-of-way to meet current electrical
standards if the widening remains within previously disturbed or
developed lands and only extends into a small area beyond such lands as
needed to comply with applicable electrical standards. Covered actions
would be in accordance with applicable requirements, including the
integral elements listed at the start of appendix B of this part; and
would incorporate appropriate design and construction standards,
control technologies, and best management practices. This categorical
exclusion does not apply to underwater powerlines. As used in this
categorical exclusion, ``small'' has the meaning discussed at 10 CFR
1021.410(g)(2).''
The terms ``small'' and ``small-scale'' are defined in 10 CFR
1021.410(g)(2), and RD agrees to apply the adopted CEs in a manner
consistent with DOE's definitions.
RD intends to apply this CE in a manner consistent with DOE's
application--to the same types of actions (upgrading or rebuilding
powerlines located in existing rights of way or within otherwise
previously disturbed or developed lands). An example of a project type
where this CE could be applied by RD includes, but is not limited to,
the upgrading or rebuilding of an existing overhead or underground
powerline relocating within an existing utility or transportation
right-of-way or within otherwise previously disturbed or developed
lands proposed for funding through the Electric Infrastructure Loan &
Loan Guarantee Program. RD would not apply this CE to underwater
powerline projects.
B4.14 Construction and Operation of Electrochemical-Battery or Flywheel
Energy Storage Systems
``Construction, operation, upgrade, or decommissioning of an
electrochemical-battery or flywheel energy storage system within a
previously disturbed or developed area or within a small (as discussed
at 10 CFR 1021.410(g)(2)) area contiguous to a previously disturbed or
developed area. Covered actions would be in accordance with applicable
requirements (such as land use and zoning requirements) in the proposed
project area and the integral elements listed at the start of appendix
B of this part, and would incorporate appropriate safety standards
(including the current National Fire Protection Association 855,
Standard for the Installation of Stationary Energy Storage Systems),
design and construction standards, control technologies, and best
management practices.''
RD does not have an existing CE that addresses certain energy
storage systems. Adoption of this CE would benefit RD by covering
applications with these types of energy storage systems. RD intends to
apply this CE in
[[Page 95172]]
a manner consistent with DOE's application--to the same types of
actions (energy storage systems located within a previously disturbed
or developed area or within a small area contiguous to a previously
disturbed or developed area). An example of a project type where this
CE could be applied by RD includes, but is not limited to, the
construction of battery energy storage systems within or adjacent to
existing substation sites funded through the Electric Infrastructure
Loan & Loan Guarantee, NewERA or PACE Programs.
B5.1 Actions To Conserve Energy or Water
``(a) Actions to conserve energy or water, demonstrate potential
energy or water conservation, and promote energy efficiency that would
not have the potential to cause significant changes in the indoor or
outdoor concentrations of potentially harmful substances. These actions
may involve financial and technical assistance to individuals (such as
builders, owners, consultants, manufacturers, and designers),
organizations (such as utilities), and governments (such as state,
local, and tribal). Covered actions include, but are not limited to
weatherization (such as insulation and replacing windows and doors);
programmed lowering of thermostat settings; placement of timers on hot
water heaters; installation or replacement of energy efficient
lighting, low-flow plumbing fixtures (such as faucets, toilets, and
showerheads), heating, ventilation, and air conditioning systems, and
appliances; installation of drip-irrigation systems; improvements in
generator efficiency and appliance efficiency ratings; efficiency
improvements for vehicles and transportation (such as fleet changeout);
transportation management systems (such as traffic signal control
systems, car navigation, speed cameras, and automatic plate number
recognition); development of energy-efficient manufacturing,
industrial, or building practices; and small-scale energy efficiency
and conservation research and development and small-scale pilot
projects. Covered actions include building renovations or new
structures, provided that they occur in a previously disturbed or
developed area. Covered actions could involve commercial, residential,
agricultural, academic, institutional, or industrial sectors. Covered
actions do not include rulemakings, standard-settings, or proposed DOE
legislation, except for those actions listed in B5.1(b) of this
appendix.
(b) Covered actions include rulemakings that establish energy
conservation standards for consumer products and industrial equipment,
provided that the actions would not: (1) Have the potential to cause a
significant change in manufacturing infrastructure (such as
construction of new manufacturing plants with considerable associated
ground disturbance); (2) involve significant unresolved conflicts
concerning alternative uses of available resources (such as rare or
limited raw materials); (3) have the potential to result in a
significant increase in the disposal of materials posing significant
risks to human health and the environment (such as RCRA hazardous
wastes); or (4) have the potential to cause a significant increase in
energy consumption in a state or region.''
RD intends to apply this CE in a manner consistent with DOE's
application--to the same types of actions. (e.g., providing financial
assistance to organizations such as utility cooperatives). An example
of a project type where this CE could be applied by RD to similar
project types such as energy efficiency proposals that are funded
through the Rural Energy for America (REAP) Program.
B5.16 Solar Photovoltaic (PV) Systems and Related Provisions
``The installation, modification, operation, or decommissioning of
commercially available solar photovoltaic systems: (1) Located on a
building or other structure (such as rooftop, parking lot or facility,
or mounted to signage, lighting, gates, or fences); or (2) Located
within a previously disturbed or developed area. (b) Covered actions
would be in accordance with applicable requirements (such as land use
and zoning requirements) in the proposed project area and the integral
elements listed at the start of appendix B of this part and would be
consistent with applicable plans for the management of wildlife and
habitat, including plans to maintain habitat connectivity, and
incorporate appropriate control technologies and best management
practices.''
RD intends to apply this CE in a manner consistent with DOE's
application--to the same types of actions (solar photovoltaic systems
located in previously disturbed or developed areas). An example of a
project type where this CE could be applied by RD includes, but is not
limited to, the construction of a ground mount solar photovoltaic
system within a previously disturbed or developed area being funded
through the Infrastructure Loan & Loan Guarantee, NewERA, or PACE
Programs. Adoption of this CE by RD would provide significant
flexibility to approve solar photovoltaic projects without a
predetermined size limit for projects proposed in previously disturbed
or developed areas so long as applicable conditions are met. In its
environmental review, RD will document how the application of this CE
would be consistent with applicable plans for the management of
wildlife and habitat, including plans to maintain habitat connectivity,
and incorporate appropriate control technologies and best management
practices.
Additional conditions applicable to DOE's CEs: DOE defines
``Previously disturbed or developed area'' as ``land that has been
changed such that its functioning ecological processes have been and
remain altered by human activity,'' and further clarifies that ``[t]he
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). DOE's definition of
``Previously disturbed or developed area'' is substantially the same as
the definition RD uses. RD defines ``[p]reviously disturbed or
developed area'' as ``land that has been changed such that its
functioning ecological processes have been and remain altered by human
activity,'' which ``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.'' 7 CFR 1970.6(a).
The DOE CEs include additional conditions referred to as integral
elements (10 CFR part 1021 subpart D, Appendix B). In order to apply
the CEs, the action 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 USDA 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;
[[Page 95173]]
(3) Disturb hazardous substances, pollutants, contaminants, or
Comprehensive Environmental Response, Compensation, and Liability Act
(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.
The CEs being adopted will be used to determine whether each
proposal, individually or cumulatively, will have a significant effect
on the human environment. RD will ensure in its review of each action
that: it has not been segmented as required by DOE regulations at 10
CFR 1021.410(b)(3); it has been reviewed for integral elements; and
that RD is applying the appropriate level of environmental review to
the action as required by the CEQ regulations at 40 CFR 1501.3.
III. Consideration of Extraordinary Circumstances
RD's implementing procedures for extraordinary circumstances at 7
CFR 1970.52 will be used when evaluating projects where the adopted CEs
will be applied because both agencies define extraordinary
circumstances very closely (see 10 CFR 1021.410(b)(2)). RD procedures
for extraordinary circumstances also direct the agency to consider
``characteristics of the geographic area affected by the proposal,''
and include a list of specific ``[s]ignificant adverse environmental
effects that the Agency considers to be extraordinary circumstances.''
Because RD's definition of extraordinary circumstances includes DOE's
definition in its entirety, but also includes additional details that
address considerations relevant to RD's programs, RD will rely on the
language found in RD's implementing procedures. RD's regulations
include the same factors as DOE's regulations, and DOE also requires an
evaluation for the integral elements defined in 10 CFR part 1021
Subpart D, Appendix B.
IV. Consultation With DOE and Determination of Appropriateness
RD and DOE consulted on the appropriateness of RD's adoption of the
CEs in February, April, October, and November of 2024. RD and DOE's
consultation included a review of DOE's experience developing and
applying the CEs, the types of actions for which RD plans to utilize
the CEs, and consideration of extraordinary circumstances. These RD
actions are similar to the type of projects that DOE undertakes or
funds and therefore the effects of RD projects will be similar to the
effects of DOE projects, which are not significant, absent the
existence of extraordinary circumstances that could involve potentially
significant effects. Therefore, RD has determined that its proposed use
of the CEs as described in this notice would be appropriate.
V. Notice to the Public and Documentation of Adoption
This notice serves to identify to the public and document RD's
adoption of DOE's CEs, per 40 CFR 1501.4(e)(3) for contracts, policies,
and marketing and allocation plans for electric power; power marketing
services and activities; electricity transmission agreements; upgrading
and rebuilding of existing powerlines, construction and operation of
electrochemical-battery or flywheel energy storage systems; actions to
conserve energy or water; and solar photovoltaic systems. The notice
identifies the types of actions to which RD will apply the CEs, as well
as the considerations that RD will use in determining whether an action
is within the scope of the CEs.
Issued under authority delegated in 7 CFR 2.17.
Basil I. Gooden,
Under Secretary for Rural Development, U.S. Department of Agriculture.
[FR Doc. 2024-27790 Filed 11-29-24; 8:45 am]
BILLING CODE 3410-XY-P
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