Notice2026-03697
Integrate the National Environmental Policy Act Into the Northern Border Regional Commission's (NBRC) Decision-Making Processes
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
February 24, 2026
Issuing agencies
Northern Border Regional Commission
Abstract
The Northern Border Regional Commission (NBRC) is integrating the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321- 4347), as amended, into the Northern Border Regional Commission's (NBRC) decision-making processes. This notice identifies proposed actions for which it intends to use the adopted procedures.
Full Text
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[Federal Register Volume 91, Number 36 (Tuesday, February 24, 2026)]
[Notices]
[Pages 8831-8842]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-03697]
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NORTHERN BORDER REGIONAL COMMISSION
Integrate the National Environmental Policy Act Into the Northern
Border Regional Commission's (NBRC) Decision-Making Processes
AGENCY: Northern Border Regional Commission.
ACTION: Notice of adoption of NEPA procedures.
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SUMMARY: The Northern Border Regional Commission (NBRC) is integrating
the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-
4347), as amended, into the Northern Border Regional Commission's
(NBRC) decision-making processes. This notice identifies proposed
actions for which it intends to use the adopted procedures.
DATES: The procedures identified below are available for the NBRC to
use for its proposed actions effective upon publication.
FOR FURTHER INFORMATION CONTACT: Sarah Waring, NBRC Executive
Director, telephone number: 603-369-3001, email: <a href="/cdn-cgi/l/email-protection#80f3f7e1f2e9eee7c0eee2f2e3aee7eff6"><span class="__cf_email__" data-cfemail="3142465043585f56715f5343521f565e47">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Section 1: General Information
1.1 Purpose
The purpose of these procedures is to integrate the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347), as
amended, into the Northern Border Regional Commission's (NBRC)
decision-making processes.
1.2 Environmental Policy
It is the policy of NBRC to:
(a) Ensure that NBRC actions are in compliance with NEPA prior to
the irreversible and irretrievable commitment of resources.
(b) Integrate NEPA requirements with other planning and
environmental review and consultation requirements at the earliest
reasonable time.
(c) Use the NEPA process to achieve a balance between economic
development and the preservation and enhancement of the environment.
[[Page 8832]]
(d) Use the NEPA process, to the maximum extent possible, to
identify a reasonable range of alternatives to proposed actions to
avoid or minimize adverse environmental effects.
(e) Use the NEPA process to inform decisions for all NBRC funding
programs and policies.
(f) Review closely related and federally funded connected actions
in the same NEPA analysis using the best available data.
1.3 Applicability and Scope
These procedures apply to the grant programs, projects, and
activities administered, implemented, and funded by NBRC. NEPA does not
apply to a proposed action that or for which:
(a) Does not result in final agency action under the Administrative
Procedure Act, see 5 U.S.C. 704;
(b) Is exempted from NEPA by law;
(c) Compliance with NEPA would clearly and fundamentally conflict
with the requirements of another provision of law;
(d) Congress by statute has prescribed decisional criteria with
sufficient completeness and precision such that NBRC retains no
residual discretion to alter its action based on the consideration of
environmental factors, such that NBRC's function is nondiscretionary
within the meaning of NEPA Sec. 106(a)(4) and/or Sec. 111(10)(B)(vii)
(42 U.S.C. 4336(a)(4) and Sec. 4336e(10)(B)(vii), respectively);
(e) The proposed action is an action for which another statute's
requirements serve the function of agency compliance with the Act;
(f) Do not meet the definition of a major Federal action under NEPA
(42 U.S.C. 4336e(10)). Actions that do not met the definition of major
Federal action include routine administrative activities that support
NBRC operations (including, but not limited to, budgeting, program
management, record keeping, and grant monitoring activities).
In determining whether NEPA applies to a proposed NBRC action, NBRC
will consider only the action or project at hand.
These procedures also have information relevant to third parties
who participate in or otherwise assist NBRC in the NEPA process,
including, but not limited to, states, tribes, units of local
government, and other applicants for NBRC assistance.
1.4 Definitions, Terms, and Abbreviations
(a) All definitions of words and phrases used in these procedures
are consistent with the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321-4347).
(b) The following terms are used throughout these procedures:
(1) Sponsor: A non-federal entity applying for financial assistance
from NBRC. Applicants include the state governments of Maine, New
Hampshire, Vermont, and New York; local governments (e.g., village,
town, city, and county); other political subdivisions of states (e.g.,
regional planning commissions, authorities of the state); Indian tribes
(as defined in 25 U.S.C. 4103(13)(B), or ``federally recognized Indian
tribe''); and non-profit entitles.
(2) Authorization: means any license, permit, approval, finding,
determination, or other administrative decision issued by an agency
that is required or authorized under Federal law in order to implement
a proposed action.
(3) Connected Actions: a separate Federal action that is closely
related to the proposed NBRC action and should be addressed in a single
environmental document because the proposed NBRC action:
(i) Automatically triggers the separate Federal action, which
independently would require the preparation of additional environmental
documents;
(ii) Cannot proceed unless the separate Federal action is taken
previously or simultaneously; or is an interdependent part of a larger
Federal action that includes a separate Federal action, which mutually
depend on the larger Federal action for their justification.
(4) Effects or impacts: changes to the human environment from the
proposed action or alternatives that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives.
(i) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic (such as
the effects on employment), social, or health effects. Effects
appropriate for analysis under NEPA may be either beneficial or
adverse, or both, with respect to these values.
(ii) A ``but for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects should
generally not be considered if they are remote in time, geographically
remote, or the product of a lengthy causal chain. Effects do not
include those effects that NBRC has no ability to prevent due to the
limits of its regulatory authority, or that would occur regardless of
the proposed action, or that would need to be initiated by a third
party.
(5) Emergency circumstances: Those situations for which there is a
disaster or imminent threat to life, property, or important natural,
cultural, or historical resources. Extraordinary Circumstances: Factors
or conditions that suggest a normally categorically excluded action may
result in significant environmental effects.
(6) Finding of No Significant Impact (FONSI): A FONSI is a brief
written determination by NBRC that a proposed action will not result in
significant environmental effects and therefore does not require the
preparation of an Environmental Impact Statement, as defined at 42
U.S.C. 4336e(7). A FONSI should include or summarize the findings of
the Environmental Assessment and shall identify any mitigation
measures. NBRC is mindful that in this respect NEPA itself does not
require or authorize NBRC to impose any mitigation measures.
(7) Human environment: comprehensively the natural and physical
environment and the relationship of Americans with that environment.
(See also the definition of ``effects'' in paragraph 4 of this
section.)
(8) Jurisdiction by law: agency authority to approve, veto, or
finance all or part of the proposal.
(9) Mitigation: Measures that avoid, minimize, or compensate for
effects caused by a proposed action or alternatives as described in an
environmental document or record of decision and that have a nexus to
those effects. While NEPA requires consideration of mitigation, it does
not mandate the form or adoption of any mitigation. Mitigation
includes:
i. Avoiding the impact altogether by not taking a certain action or
parts of an action.
ii. Minimizing effects by limiting the degree or magnitude of the
action and its implementation.
iii. Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
iv. Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
v. Compensating for the impact by replacing or providing substitute
resources or environments.
(10) NEPA decision document: Record of environmental consideration,
Finding of No Significant Impact, or record of decision for a proposed
action.
(11) NEPA process: all measures necessary for compliance with the
requirements of section 2 and title I of NEPA Sec. 102(2), 42 U.S.C.
4332(2).
[[Page 8833]]
(12) Notice of intent: a public notice that NBRC will prepare and
consider an environmental document.
(13) Participating agency: a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(14) Publish and publication: methods found by NBRC to efficiently
and effectively make environmental documents and information available
for review by interested persons, including electronic publication.
(15) Related action: an action undertaken by an agency, e.g., a
permitting action, some other type of authorization action, an analysis
required by statute, or the like, that bears a relationship to other
actions undertaken by other agencies relevant to NEPA, e.g., that a set
of related actions are all related to one overarching project.
(16) Reasonable alternatives: a reasonable range of alternatives
that are technically and economically feasible, meet the purpose and
need for the proposed action, and, where applicable, meet the goals of
the applicant.
(17) Reasonably foreseeable: sufficiently likely to occur such that
a person of ordinary prudence would take it into account in reaching a
decision.
(18) Scope: consists of the range of actions, alternatives, and
effects to be considered in an environmental document. The scope of an
individual statement may depend on its relationship with other
statements.
(19) Tiering: refers to the coverage of general matters in broader
environmental impact statements or environmental assessments (such as
national program or policy statements) with subsequent narrower
statements or environmental analyses (such as regional or basin-wide
program statements or ultimately site-specific statements)
incorporating by reference the general discussions and concentrating
solely on the issues specific to the statement subsequently prepared.
(c) The following abbreviations are used throughout these
procedures:
(1) CATEX--Categorical Exclusion
(2) EA--Environmental Assessment
(3) EIS--Environmental Impact Statement
(4) FONSI--Finding of No Significant Impact
(5) MOA--Memorandum of Agreement
(6) NBRC--Northern Border Regional Commission
(7) NEPA--National Environmental Policy Act
(8) NOA--Notice of Availability
(9) NOI--Notice of Intent
(10) ROD--Record of Decision
(11) REC--Record of Environmental Consideration
1.5 Determining the Appropriate Level of NEPA Review
(a) If NBRC determines that NEPA applies to a proposed action or
decision, NBRC will then determine the appropriate level of NEPA review
in the following sequence and manner. At all steps in the following
process, NBRC will consider the proposed action or project at hand and
its effects.
1. If NBRC has established, or adopted pursuant to NEPA Sec. 109,
a categorical exclusion that covers the proposed action, NBRC will
analyze whether to apply the categorical exclusion to the proposed
action and apply the categorical exclusion, if appropriate, pursuant to
Section 3.
2. If another agency has already established a categorical
exclusion that covers the proposed action, NBRC will consider whether
to adopt that exclusion pursuant to Section 3 so that it can be applied
to the proposed action at issue, and to future actions or decisions of
that type.
3. If the proposed action warrants the establishment of a new
categorical exclusion, or the revision of an existing categorical
exclusion, NBRC will consider whether to establish or revise, and then
apply the categorical exclusion to the proposed action.
4. If NBRC cannot apply a categorical exclusion to the proposed
action NBRC will consider the proposed action's reasonably foreseeable
effects and then will:
i. If the proposed action is not likely to have reasonably
foreseeable significant effects or the significance of the effects is
unknown, develop an environmental assessment.
ii. if the proposed action is likely to have reasonably foreseeable
significant effects, develop an environmental impact statement.
5. When considering whether the reasonably foreseeable effects of
the proposed action are significant, NBRC will analyze the potentially
affected environment and degree of the effects of the action. NBRC may
use any reliable data source and will not undertake new research unless
it is essential to evaluating alternatives and the cost and time of
obtaining it are not unreasonable.
i. In considering the potentially affected environment, NBRC may
consider, as appropriate to the specific action, the affected area
(national, regional, or local) and its resources.
ii. In considering the degree of the effects, NBRC may consider the
following, as appropriate to the specific action:
1. Both short- and long-term effects.
2. Both beneficial and adverse effects.
3. Effects on public health and safety.
4. Economic effects.
5. Effects on the quality of life of the American people.
Section 2: Roles and Responsibilities
2.1 Federal and Intergovernmental Relationships
NBRC is a partnership between the federal government and the states
of Maine, New Hampshire, New York, and Vermont with a mission to fund
economic development and infrastructure projects throughout designated
counties in the four states. The federal government provides all
funding for NBRC grants. NBRC will work as either a lead, joint lead,
or cooperating agency and may invite other agencies to serve as the
lead agency, a joint lead agency, or a cooperating agency. (See Also
Section 8: Lead and Cooperating Agencies)
2.2 NBRC Responsibilities
(a) Federal Co-Chair: The Federal Co-Chair serves as the senior
federal representative within NBRC. The Federal Co-Chair has the
authority and responsibility to:
(1) Provide strategic direction and ensure that the requirements of
these procedures are fully integrated into the planning and decision
making for all policies, programs, activities, and operations of NBRC.
(2) Delegate the authority to the Executive Director to implement
the requirements of these procedures.
(3) Collaborate with State Co-Chairs to coordinate activities and
serve as the official responsible for making decisions in accordance
with the requirements of these procedures.
(b) NBRC Executive Director: NBRC's Executive Director serves as
NBRC's NEPA decision maker, as delegated by the Commission, and has
overall responsibility for NBRC's NEPA compliance and implementation.
The Executive Director has the authority and responsibility to:
(1) Provide written approval to establish a schedule of longer than
one year for an EA when NBRC is acting as the lead or joint lead
agency.
(2) Provide written approval to establish a schedule or deadline of
longer than two years for an EIS when NBRC is acting as the lead or
joint lead agency.
(3) Sign or delegate signature authority for all CATEXs, FONSIs,
and RODs.
[[Page 8834]]
(4) Review and approve requests for NBRC to serve as the lead
agency for joint federal actions, where NBRC and one or more federal
agencies are cooperating on a project.
(5) Consult with the Council on Environmental Quality (CEQ) to
discuss whether alternative arrangements for NEPA compliance are needed
when emergency circumstances require action with reasonably foreseeable
significant environmental effects without observing the provisions of
these procedures.
(c) NBRC Grant Attorney: The NBRC Grant Attorney will serve as the
Chief Public Engagement Officer responsible for facilitating community
engagement, to the extent appropriate, in NBRC's NEPA process. The NBRC
Grant Attorney, in this role, has the authority and responsibility to:
(1) Oversee and coordinate community involvement in environmental
reviews across NBRC to the extent appropriate.
(2) Provide technical assistance to communities to enhance their
understanding and participation in the NEPA process.
(d) NBRC Program Staff: NBRC Program Staff (including, but not
limited to, NBRC's Director of Programs and Partnerships, Program
Attorney and Program Managers) oversee and support the NEPA process by:
(1) Informing applicants of the requirement to comply with NEPA at
the time of application and upon award.
(2) Approving applicant-selected contractors obtained for preparing
NEPA documents for which NBRC is the lead or sole federal agency. The
following criteria must be considered when approving a contractor:
(1) The capability and capacity of the contractor to complete the
scope of work.
(2) The contractor performing the scope of work does not have a
conflict of interest. A conflict of interest would exist if the
contractor selected to prepare NEPA documentation has a financial or
other interest in the project's outcome.
(3) Providing the status of NEPA analyses to applicants and
interested parties in a timely manner.
(4) Developing a schedule for the completion of EISs and EAs,
including creating milestones for all environmental reviews, permits,
and authorizations required for the implementation of the action and
consultation with applicants regarding deadlines, when necessary,
consistent with NEPA 42 U.S.C. 4336a(a)(2)(D).
(5) Providing direction and guidance to applicants on NEPA-related
matters.
(6) Ensuring sufficient EAs, EISs, and public notices are prepared
for NBRC proposed actions.
(7) Independently reviewing EAs, EISs, supporting environmental
documentation, and public notices prepared and submitted by applicants
to ensure sufficiency. This responsibility includes a review of the
purpose and need and reasonable range of alternatives.
(8) Preparing NEPA decision documents for all NBRC proposed actions
and ensuring they include applicable mitigation measures.
(9) Ensuring that REC documentation is maintained for all proposed
actions that qualify as a CATEX.
(10) Creating and maintaining the administrative record for all
NEPA-related decisions, ensuring that it includes all relevant
documents, correspondence, and materials that support the decision-
making process.
(11) Publishing the documentation of the application of any CATEXs,
EAs, or EISs or the use of mitigated FONSIs on NBRC's website.
(12) NBRC Program Staff may utilize contractors to support
responsibilities 3-11 listed above.
2.3 Applicant Preparation of NEPA Documents (NEPA Sec. 107(f))
(a) Applicants must work under NBRC direction and assist NBRC in
fulfilling its NEPA obligations by preparing NEPA analyses and
documents that comply with the provisions of NEPA and the requirements
set forth in these procedures. Applicant responsibilities related to
preparing NEPA analyses and documents may include, but are not limited
to, the following:
(1) Preparing EAs, EISs, and supporting environmental
documentation.
(2) Submitting all NEPA and supporting environmental documents
created pursuant to these procedures to NBRC for review and approval
before public distribution.
(3) Creating and distributing public notices when appropriate.
(4) Coordinating public hearings and meetings as required.
(5) For proposed actions for which NBRC is the lead or sole federal
agency, consult and receive approval from NBRC prior to obtaining a
contractor for preparing an EA or EIS document.
(6) Informing NBRC promptly of any difficulties encountered in
meeting the established schedule and milestones and recommending
adjustments as needed to ensure compliance.
2.4 Timing of NEPA Process
(a) As the Supreme Court has repeatedly held, NEPA is governed by a
``rule of reason.'' Congress supplied the measure of that reason in the
2023 revision of NEPA by setting the deadlines in NEPA Sec. 107(g), 42
U.S.C. 4336a(g). These deadlines indicate Congress's determination that
an agency, working within Congress's allocation of resources, has
presumptively spent a reasonable amount of time on analysis and the
document should issue, absent very unusual circumstances. In such
circumstances, an extension will be given only for such time as is
necessary to complete the analysis. NEPA should begin at the earliest
practicable time. For NBRC, this is generally during the application
process or after the notification of award. To ensure timely decision
making, and consistent with NEPA (42 U.S.C. 4336a(g)(1)), NBRC shall
complete the following:
(1) EAs not later than 1 year after the sooner of:
(1) The environmental assessment will publish (unless the deadline
is extended pursuant to the provision below), at the latest, on the day
the deadline elapses, in as substantially complete form as is possible.
(2) Start date. The applicable start date will be the day NBRC
decides, through consultation with the sponsor, that an EA is required.
(3) End date. The applicable end date will be one year from the
start date.
(4) Deadline extensions. If NBRC determines it is not able to meet
the deadline prescribed by NEPA Sec. 107(g)(1)(B), 42 U.S.C.
4336a(g)(1)(B), it must consult with the applicant, if any, pursuant to
NEPA Sec. 107(g)(2), 42 U.S.C. 4336a(g)(2). After such consultation,
if needed, and for cause stated, it may establish a new deadline. Cause
for establishing a new deadline is only established if the
environmental assessment is so incomplete, at the time at which NBRC
determines it is not able to meet the statutory deadline, that issuance
pursuant to subsection (x) above would, in NBRC's view, result in an
inadequate analysis. Such new deadline must provide only so much
additional time as is necessary to complete such environmental
assessment. The announcement of the new deadline will specify the
reason why the environmental assessment was not able to be completed
under the statutory deadline and whether the applicant consented to the
new deadline.
(5) Certification Related to Deadline. When the environmental
assessment is
[[Page 8835]]
published, a responsible official will certify (and the certification
will be incorporated into the environmental assessment) that the
resulting environmental assessment represents NBRC's good-faith effort
to fulfill NEPA's requirements within the congressional timeline; that
such effort is substantially complete; that, in NBRC's expert opinion,
it has thoroughly considered the factors mandated by NEPA; and that, in
NBRC's judgment, the analysis contained therein is adequate to inform
and reasonably explain NBRC's final decision regarding the proposed
federal action.
(2) EISs not later than 2 years after the sooner of:
(1) The EIS will publish (unless the deadline is extended pursuant
to the provision below), at the latest, on the day the deadline
elapses, in as substantially complete form as is possible.
(2) Start date. The applicable start date will be the day NBRC
issues a Notice of Intent (NOI) to prepare an EIS.
(3) End date. The applicable end date will be two years from the
start date.
(4) Deadline extensions. If NBRC determines it is not able to meet
the deadline prescribed by NEPA Sec. 107(g)(1)(B), 42 U.S.C.
4336a(g)(1)(B), it must consult with the applicant, if any, pursuant to
NEPA Sec. 107(g)(2), 42 U.S.C. 4336a(g)(2). After such consultation,
if needed, and for cause stated, it may establish a new deadline. Cause
for establishing a new deadline is only established if the EIS is so
incomplete, at the time at which NBRC determines it is not able to meet
the statutory deadline, that issuance would, in NBRC's view, result in
an inadequate analysis. Such new deadline must provide only so much
additional time as is necessary to complete such EIS. The announcement
of the new deadline will specify the reason why the EIS was not able to
be completed under the statutory deadline and whether the applicant
consented to the new deadline.
(5) Certification Related to Deadline. When the EIS is published, a
responsible official will certify (and the certification will be
incorporated into the EIS) that the resulting EIS represents NBRC's
good-faith effort to fulfill NEPA's requirements within the
congressional timeline; that such effort is substantially complete;
that, in NBRC's expert opinion, it has thoroughly considered the
factors mandated by NEPA; and that, in NBRC's judgment, the analysis
contained therein is adequate to inform and reasonably explain NBRC's
final decision regarding the proposed federal action.
(b) The following actions cannot occur until the NEPA process is
complete:
(1) An irretrievable commitment of (federal or non-federal) funds
for the proposed action, including a commitment of funds that may
result in an adverse environmental effect or limit the choice of
reasonable alternatives for a proposed action.
(2) Issuance of a full notice to proceed for a proposed action.
(3) NBRC may allow applicants to take preliminary actions necessary
to support an application (e.g., planning, design, or early
acquisitions) only if those actions do not prejudice the NEPA review or
limit the choice of a reasonable range of alternatives. NBRC retains
full discretion to select any alternative or the no action alternative
regardless of such early actions.
Section 3: Categorical Exclusions
3.1 CATEX Overview
A CATEX is a category of actions that normally does not
significantly affect the quality of the human environment within the
meaning of section 102(2)(C) of NEPA and, therefore, does not require
the preparation of an EA or EIS to comply with NEPA.
(a) To qualify for a CATEX, an action must meet the following
criteria:
(1) The proposed action fits entirely within one of NBRC's CATEXs
(listed in Section 3.2 of these procedures).
(2) The proposed action has not been segmented or mischaracterized
(e.g., as temporary) in order to meet the requirement for the CATEX and
does not have any connected actions, as defined in Section 1.4 of these
procedures, or other closely related actions that are likely to result
in significant effects.
(3) Extraordinary circumstances are not present, unless:
<bullet> NBRC determines that, notwithstanding the extraordinary
circumstance, the proposed agency action is not likely to result in
reasonably foreseeable adverse significant effects; or
<bullet> NBRC or the applicant modifies the proposed action to
avoid those effects.
Extraordinary circumstances that must be considered are listed in
Section 3.3 of these procedures.
(b) Proposed actions that qualify as a CATEX are still subject to
compliance with other applicable federal, state, tribal, and local
environmental and historic preservation requirements.
3.2 NBRC List of Categorical Exclusions
The following text contains NBRC's categorical exclusions list.
NBRC will review this list on a case-by-case basis to determine whether
changes or additions are needed. The written record for adopting NBRC's
categorical exclusions can be found on NBRC's website.
3.2.1 CATEX 1--Formulating Comprehensive Economic Development and
Infrastructure Plans
The formulation of and/or updates to comprehensive economic
development and infrastructure plans at the site, local, or regional
level. To qualify for this CATEX, the following conditions must be met:
(a) Scope of Activity:
(1) Limited to the creation and drafting of comprehensive economic
development and infrastructure plans.
(b) Implementation Limitations:
(1) Limited to the development of plans without permitting any on-
the-ground execution or implementation.
Given these limitations no significant environmental effects are
expected.
3.2.2 CATEX 2--Workforce Development, Education, and Training Programs
Workforce development, education, and training programs, including
but not limited to support for workforce initiatives, afterschool
partnerships, leadership programs, nursing residency expansions, and
job training programs. To qualify for this CATEX, the following
conditions must be met:
(a) Implementation Limitations:
(1) Does not include any construction or renovation of facilities
(i.e., no ground-disturbing activities) to support such initiatives.
3.2.3 CATEX 3--Equipment Acquisition, Installation, and Maintenance
Purchase, repair, upgrade, replacement, removal, or installation of
new equipment (e.g., machinery, tools, devices, instruments) and
associated sitework (e.g., preparing equipment foundations, installing
support structures, and making adjustments to existing infrastructure
to accommodate the new equipment). To qualify for this CATEX, the
following conditions must be met:
(a) Capacity Consideration:
(1) The future use of the equipment will not result in an increase
in demand that exceeds the capacity of the existing infrastructure and
resources, including sewer, water, energy, roads, and parking.
[[Page 8836]]
(b) Equipment Restrictions:
(1) This CATEX would not apply to projects involving substantial
construction, renovation, or expansion. ``Substantial'' in this context
refers to modifications that change the size, scope, or function of the
existing infrastructure beyond minor adjustments or enhancements.
(2) Installation or relocation and operation of machinery and
equipment (including, but not limited to, laboratory equipment,
electronic hardware, manufacturing machinery, maintenance equipment,
and health and safety equipment) can qualify for this CATEX provided
that uses of the installed or relocated items are consistent with the
general missions of the receiving structure.
3.2.4 CATEX 4--Modifications to Existing Facilities
Renovation, repair, remodeling, demolition, or expansion of
existing facilities and associated sitework (e.g., parking lot
construction, installation of outdoor features such as playgrounds and
storage sheds, and stormwater management infrastructure). Facilities
include buildings intended for commercial, community, or healthcare
purposes, as well as buildings associated with transportation
infrastructure like airports, railways, and bus stations. Examples
include airport hangars, barns, hospitals, visitor centers, libraries,
and train stations. To qualify for this CATEX, the following conditions
must be met:
(a) Capacity Consideration:
(1) The future use of the facility will not result in an increase
in occupancy that exceeds the capacity of the existing surrounding
infrastructure and resources, including sewer, water, energy, roads,
and parking.
(b) Urbanized or Previously Developed Land:
(1) The existing facilities and associated sitework must be either
located in designated ``urbanized areas,'' as defined by the Census
Bureau, or on land that has been previously developed. Previously
developed areas are those where historical grading or landscaping has
been undertaken.
3.2.5 CATEX 5--New Facilities
Construction of new facilities and associated sitework (e.g.,
parking lot construction, installation of outdoor features such as
playgrounds and storage sheds, and stormwater management
infrastructure). Facilities include buildings intended for commercial,
community, or healthcare purposes, as well as buildings associated with
transportation infrastructure like airports, railways, and bus
stations. Examples include airport hangars, barns, hospitals, visitor
centers, libraries, and train stations. To qualify for this CATEX, the
following conditions must be met:
(a) Facility Size:
(1) The facility must have a footprint of less than 20,000 square
feet when completed, and the project area must be less than two acres
of surface land area.
(b) Capacity Consideration:
(1) The new facility will not exceed the capacity of the existing
surrounding infrastructure and resources, including sewer, water,
energy, roads, and parking.
(c) Urbanized or Previously Developed Land:
(1) The new facility and associated sitework must be located in
designated ``urbanized areas,'' as defined by the Census Bureau, or on
land that has been previously developed. Previously developed areas are
those where historical grading or landscaping has been undertaken.
3.2.6 CATEX 6--Modifications to Existing Utility Infrastructure
Repair, reconstruction, rehabilitation, replacement, additions to,
or removal of existing utility infrastructure and associated sitework
(e.g., valve and meter installation, manhole construction, and
stormwater management installation). Utility infrastructure includes
but is not limited to water supply systems (including wells), sewage
systems (including wastewater treatment plants and septic tanks), gas
pipelines, and electrical systems. To qualify for this CATEX, the
following conditions must be met:
(a) Limitations on wells:
(1) New wells must connect to an existing water system. The
installation of new wells is not permitted in areas with existing or
reasonably foreseeable water shortages.
(b) Capacity Consideration:
(1) The future use of the utility infrastructure will not result in
an increase in capacity that exceeds the ability of the existing
surrounding infrastructure and resources that support it. This includes
considerations for water supply, sewage treatment, gas distribution,
and electrical grids.
(c) Urbanized or Previously Developed Areas:
(1) The utility infrastructure and associated sitework must either
be located in designated ``urbanized areas,'' as defined by the Census
Bureau, or on land that has been previously developed. Previously
developed areas are those where historical grading or landscaping has
been undertaken.
3.2.7 CATEX 7--Modifications to Existing Telecommunications
Infrastructure
Repair, reconstruction, rehabilitation, replacement, addition to,
or removal of existing telecommunications infrastructure and associated
sitework (e.g., trenching and conduit installation, tower foundation
construction, and equipment shelter installation).
Telecommunications infrastructure includes but is not limited to
communication lines, cellular towers, fiber-optic cables, and related
equipment (e.g., antennas and transceivers, amplifiers and repeaters,
and power supply units). To qualify for this CATEX, the following
conditions must be met:
(a) Urbanized or Previously Developed Areas:
(1) The telecommunications infrastructure and associated sitework
must either be located in designated ``urbanized areas,'' as defined by
the Census Bureau, or be on land that has been previously developed.
Previously developed areas are those where historical grading,
landscaping, or existing infrastructure has been established.
(b) Tower Height:
(1) For projects involving towers, the total height must not exceed
200 feet.
3.2.8 CATEX 8--Modifications to Existing Transportation Infrastructure
Repair, reconstruction, rehabilitation, demolition, addition to, or
improvement of existing transportation infrastructure and associated
sitework (e.g., traffic signs and parking infrastructure, stormwater
management, and trailhead amenities). Transportation infrastructure
includes but is not limited to parking areas/infrastructure, roads,
railways, bridges, sidewalks, and trails. To qualify for this CATEX,
the following conditions must be met:
(a) Integration with Existing Transportation Infrastructure:
(1) The additions to transportation infrastructure must integrate
with the existing transportation network.
(b) Capacity Consideration:
(1) The future use of the transportation infrastructure will not
result in an increase in capacity that exceeds the capability of the
existing surrounding infrastructure and resources that support it,
including sewer, water, energy, and parking.
(c) Urbanized or Previously Developed Areas:
(1) The transportation infrastructure and associated sitework must
either be
[[Page 8837]]
located in designated ``urbanized areas,'' as defined by the Census
Bureau, or on land that has been previously developed. Previously
developed areas are those where historical grading or landscaping has
been undertaken.
(d) Exclusions:
(1) Prohibits projects resulting in a change to the mode of
transportation e.g., a bike path that is expanded to ATV use. Excludes
water-related infrastructure projects, including ports, harbors, docks,
and related facilities.
3.3 Extraordinary Circumstances
NBRC will review each proposed action that is covered by a CATEX
listed in Section 3.2 of these procedures to determine whether
extraordinary circumstances specific to the project exist, due to its
location, activities, or other relevant factors. NBRC will review each
of the following extraordinary circumstances in this section to
determine whether they apply to the proposed action prior to making a
final CATEX determination. If an extraordinary circumstance is present,
NBRC will determine whether, notwithstanding the extraordinary
circumstance, the proposed agency action is not likely to result in
reasonably foreseeable adverse significant effects, or if the proposed
action can be modified to avoid those effects. If NBRC determines that
it cannot apply the categorical exclusion to the proposed action, NBRC
will prepare an environmental assessment or EIS, as appropriate.
The following text contains NBRC's extraordinary circumstances
list.
(a) Health and Safety: The action has the potential to
significantly adversely affect public health and safety.
(b) Hazardous Materials: The action involves the use,
transportation, distribution, storage, or disposal of hazardous
substances, pollutants, contaminants, or petroleum and natural gas
products in a manner that may result in significant environmental
effects.
(c) Noise: The action has the potential to generate excessive or
prolonged noise levels that may adversely impact sensitive noise
receptors and disrupt quiet environments, such as natural habitats or
recreational areas, leading to disturbances in wildlife behavior or
recreational activities.
(d) Regulatory Compliance: The action has the potential to violate
federal, state, Tribal, or local laws or other requirements, or be
inconsistent with federal, state, Tribal, or local policies for the
human environment.
(e) Historic and Cultural Resources: The action has the potential
to significantly adversely affect historic or cultural properties,
sites, or resources, including those listed on national or state
registers, or those eligible for such designation.
(f) Environmental Resources: The action has the potential to
significantly adversely affect environmental resources, including, but
not limited to, species listed or proposed to be listed under the
Endangered Species Act, designated critical habitat, wetlands,
floodplains, federally protected waters, and prime or unique farmland.
(g) Unique Risk/Uncertainty: The action involves uncertain risks,
impacts, or scientifically controversial factors that may affect the
human environment.
(h) Precedent Setting: The action establishes a precedent for
future actions with the potential for significant environmental
effects.
(i) Scientific Controversy: The action has the potential to
generate scientific controversy related to the environmental effects of
the proposed action.
(j) Scope and Size: The circumstances may arise in which usually
categorically excluded actions may have a significant environmental
impact and, therefore, may generate a requirement for further
environmental analysis. Examples of situations where such unique
circumstances may be present include actions of greater scope or size
than generally experienced for a particular category of action.
3.4 CATEX Decision Making
(a) A record of environmental consideration (REC) must be completed
for all proposed actions that qualify as a CATEX within the meaning of
these procedures. REC documentation must include the following:
(1) A description of the proposed action.
(2) Identification of the applicable CATEX for the proposed action.
(3) Documentation demonstrates that extraordinary circumstances
were considered and none were identified, or that the presence of
extraordinary circumstances will be sufficiently mitigated.
(4) The signature of an NBRC employee with authority to sign NEPA
documentation.
(b) If NBRC identifies mitigation measures that are necessary to
mitigate extraordinary circumstances for an individual action, NBRC
will:
(1) Document the determination that the proposed action, with the
identified mitigation measures, does not have the potential to result
in significant effects despite the presence of extraordinary
circumstances.
(2) Issue a public notification stating NBRC's intention to apply
the CATEX with the identified mitigation measures to the proposed
action and publish the determination on the NBRC website.
(3) Inform the applicant that mitigation measures are required.
(4) Enforce compliance with the agreed-upon mitigation measures to
ensure that the action does not result in significant environmental
effects.
(c) NBRC will apply NBRC-established CATEXes (Section 3.2), not the
adopted CATEXes (Section 3.5), in situations where the proposed action
could qualify for either NBRC-established CATEXes or adopted CATEXes.
3.5 Application of CATEXs Adopted From Another Agency's NEPA Procedures
Section 109 of NEPA (42 U.S.C. 4336c) allows agencies to adopt and
apply another agency's CATEX to their proposed actions. When NBRC has
identified a CATEX from another agency's (hereinafter the ``issuing
agency'') NEPA procedures that it would like to apply to NBRC actions,
NBRC must complete the following:
(a) Consultation with the issuing agency: Through consultation with
the issuing agency, NBRC must document the following:
(1) The issuing agency's applicable CATEX.
(2) A description of the types of NBRC proposed action(s) that the
CATEX would be applied to.
(3) The determination that the application of the issuing agency's
CATEX to the NBRC action type is appropriate.
(4) The extraordinary circumstances defined by the issuing agency
that must be considered when applying the CATEX.
(5) The extraordinary circumstances defined by NBRC that must be
considered when applying the CATEX.
(b) Consult with the agency that established the CATEX to ensure
that the proposed adoption of the CATEX to a category of actions is
appropriate.
(c) Public notification: NBRC must issue a public notification
stating the intention of NBRC to apply the issuing agency's CATEX to
NBRC proposed actions.
(d) Documentation of the adoption: NBRC will document the adoption
by listing the CATEX or CATEXs that have been adopted on the agency's
website.
(e) Implementation: When implementing NEPA for a proposed action by
applying the CATEX from another agency's NEPA procedures (for which
consultation with the issuing
[[Page 8838]]
agency and public notification have already been completed), NBRC must
do the following for each individual proposed action:
(1) Confirm the proposed action meets the definition of the action
type identified in the MOA.
(2) Review the proposed action against the extraordinary
circumstances identified in the MOA.
(3) Document the use of another agency's CATEX for the NBRC
proposed action it applies to. Documentation must list the CATEX NBRC
is applying and include the REC documentation requirements listed in
Section 3.4.
3.6 Public Involvement for NBRC CATEXs
(a) NBRC will require public notification of the use of a CATEX in
the following situations:
(1) When modifications are necessary to address extraordinary
circumstances for a proposed action, as detailed in Section 3.4(b).
(2) When applying a CATEX from another agency's NEPA procedures to
a specific NBRC project, as detailed in Section 3.5.
(b) Public notifications, when required, will be issued to inform
the public of NBRC's intention to apply the CATEX, and documentation
will be published on the NBRC website.
(c)
Section 4: Environmental Assessments
4.1 EA Overview (42 U.S.C. 4336(b)(2))
An EA is a brief analysis used when a proposed action's effect is
unknown or unlikely to be significant. In preparing (or supervising the
preparation of), an EA NBRC will focus the analysis on whether the
environmental effects of the action or project at hand are significant.
Similarly, NBRC will ensure the EA documents where and how NBRC drew a
reasonable and manageable line relating to its consideration of any
environmental effects from the action or project at hand that extend
outside the geographical territory of the project or might materialize
later in time.
4.2 EA Requirements
(a) Purpose and need: The EA must define the reasons why action by
NBRC and the applicant is needed. This should be stated in the EA as
the underlying purpose and need for the proposed action.
(b) Proposed Action: The EA must clearly describe the proposed
action, including but not limited to its timing, scale, scope, and
other relevant details necessary to understand the activity.
(c) Alternatives: The following categories of alternatives may be
included in an EA:
(1) Reasonable Range of Alternatives: Reasonable range of
alternatives to the proposed action must be identified in the EA,
including an analysis of any adverse environmental impacts of not
implementing the proposed agency action in the case of a no action
alternative, that are, in NBRC's expert judgment, technically and
economically feasible, and meet the purpose and need of the proposal.
(2) Alternatives Considered but Dismissed: Alternatives that were
considered, but eliminated from detailed study due to affordability,
practicality, or readiness may also be included in the EA. For these
alternatives, a high-level description of the alternative and why it
was dismissed from further analysis should be included in the EA.
(d) Affected environment:
(1) The environmental trends, resources, and existing environmental
conditions in the project area should be described using the best
available data.
(e) Environmental consequences:
(1) The EA must discuss the environmental consequences that would
result from the implementation of the reasonable range of alternatives.
The length and detail of the effects analysis for each resource area in
the EA should be proportionate to the potential effects of the action
and alternatives.
(2) NBRC will determine the resources, ecosystems, and human
communities that could be impacted by environmental effects, evaluate
the significance of environmental effects, and, when warranted,
subsequently modify the proposed action to avoid, minimize, or mitigate
significant environmental effects.
(1) Page limits:
The text of an environmental assessment is strictly prohibited from
exceeding 75 pages, not including citations or appendices.
(i) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations, and
the like, which substantiate the analysis provided in the environmental
assessment. Appendices are not to be used to provide additional
substantive analysis, because that would circumvent the congressionally
mandated page limits.
(ii) Environmental assessments will be formatted for an 8.5''x11''
page with one-inch margins using a word processor with 12-point
proportionally spaced font, single spaced. Footnotes may be in 10-point
font. Such size restrictions do not apply to explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information, although pages containing such
material do count towards the page limit. When an item of graphical
material is larger than 8.5''x11'', each such item will count as one
page.
(iii) Certification Related to Page Limits. The breadth and depth
of analysis in an environmental assessment will be tailored to ensure
that the environmental analysis does not exceed this page limit. In
this regard, as part of the finalization of the environmental
assessment, a responsible official will certify (and the certification
will be incorporated into the environmental assessment) that NBRC has
considered the factors mandated by NEPA; that the environmental
assessment represents NBRC's good-faith effort to prioritize
documentation of the most important considerations required by the
statute within the congressionally mandated page limits; that this
prioritization reflects NBRC's expert judgment; and that any
considerations addressed briefly or left unaddressed were, in NBRC's
judgment, comparatively not of a substantive nature that meaningfully
informed the consideration of environmental effects and the resulting
decision on how to proceed.
(f) For all environmental documents, NBRC will provide a unique
identification number for tracking purposes, which NBRC will reference
on all associated environmental review documents prepared for the
proposed agency action and in any database or tracking system for such
documents. NBRC will coordinate with the CEQ and other federal agencies
to ensure uniformity of such identification numbers across federal
agencies.
4.3 Classes of Actions Normally Requiring an EA
NBRC actions for which the preparation of an EA is normally
required include, but are not limited to, the following:
(a) Repair, reconstruction, rehabilitation, addition to, or
improvement of existing facilities when the future use of the facility
would exceed the capacity of the existing surrounding infrastructure
and resources or occur in an undeveloped area.
(b) New construction of water, wastewater, gas, and electrical
utility infrastructure.
(c) Repair, reconstruction, rehabilitation, addition to, or
improvement of existing water, wastewater, gas, and electrical utility
[[Page 8839]]
infrastructure when the future use of the utility infrastructure would
exceed the capacity of the existing surrounding infrastructure and
resources or occur in an undeveloped area.
(d) New construction of transportation infrastructure (such as
roads, railways, and trails).
(e) Repair, reconstruction, rehabilitation, addition to, or
improvement of existing transportation infrastructure when the future
use of the transportation infrastructure would exceed the capacity of
the existing surrounding infrastructure and resources or occur in an
undeveloped area.
(f) New construction of telecommunications infrastructure.
(g) Repair, reconstruction, rehabilitation, addition to, or
improvement of existing telecommunications infrastructure when the
infrastructure would be installed in an undeveloped area.
(h) Siting, construction, and operation of solar farms for the
purpose of serving multiple properties.
4.4 EA Decision Making
After an EA is completed, NBRC may make one of the following three
determinations:
(1) Prepare a FONSI (42 U.S.C. 4336(b)(2)): NBRC retains the
responsibility to prepare its own FONSI and shall not delegate this
responsibility to applicants. A FONSI determination is appropriate
under the following circumstances and shall be signed by NBRC's
Executive Director or their designee:
(i) Effects identified in the EA are below the level of
significance.
(ii) Significant effects identified in the EA can be mitigated
below the level of significance. If mitigation is required to reduce
effects below the level of significance, the FONSI shall identify the
mitigation and describe applicable monitoring and enforcement measures
intended to ensure the implementation of the mitigation measures.
(2) Prepare an EIS (42 U.S.C. 4336(b)(1)): If an EA process results
in a finding that a proposed action would have reasonably foreseeable
significant effects, and those effects cannot be mitigated below the
level of significance, NBRC must prepare an EIS.
(3) Reject the proposed action: NBRC may elect to reject a proposed
action from moving forward.
Section 5: Environmental Impact Statements
5.1 EIS Overview (42 U.S.C. 4336(b)(1))
An EIS is an in-depth analysis of resource issues for a proposed
action that is likely to have significant effects. In preparing (or
supervising the preparation of) an EIS, NBRC will focus the analysis on
whether the environmental effects of the action or project at hand are
significant. Similarly, NBRC will ensure the EIS documents where and
how NBRC drew a reasonable and manageable line relating to its
consideration of any environmental effects from the action or project
at hand that extend outside the geographical territory of the project
or might materialize later in time.
5.2 EIS Requirements
(a) Scoping: Scoping will identify important issues that should be
addressed and eliminate non-important issues from further study. It is
intended to help determine the scope of the analysis, identify relevant
environmental concerns, and ensure that significant issues are
appropriately considered. The scoping process will begin as soon as
practicable after a proposed action is sufficiently developed for
agency consideration. For NBRC-funded grants, scoping will begin after
NBRC has identified a need to complete an EIS for the applicant's
proposed action.
(b) Purpose and need: The EIS must define the reasons why action by
NBRC and the applicant is needed. This should be stated in the EIS as
the underlying purpose and need for the proposed action.
(c) Alternatives (42 U.S.C. 4332(2)(C)(iii)): There are the
following four categories of alternatives that should be included in an
EIS:
(1) Reasonable range of alternatives to the proposed action must be
identified in the EIS, including an analysis of any adverse
environmental impacts of not implementing the proposed agency action in
the case of a no action alternative, that are, in NBRC's expert
judgment, technically and economically feasible, and meet the purpose
and need of the proposal.
(2) Alternatives that were considered but eliminated from further
study due to affordability, feasibility, or readiness may also be
included in the EIS. For these alternatives, a high-level description
of the alternative and why it was dismissed from further analysis
should be included in the EIS.
(d) Environmental consequences (42 U.S.C. 4332(2)(C)(i)-(ii)):
(1) The EIS must discuss the environmental consequences that would
result from implementation of the proposed action, no action, and
reasonable alternatives. The length and detail of the effects analysis
for each resource area in the EIS should be proportionate to the
potential effects of the action and alternatives.
(2) NBRC will determine the resources, ecosystems, and human
communities that could be impacted by environmental effects, evaluate
the significance of environmental effects, and subsequently modify the
proposed action to avoid, minimize, or mitigate significant
environmental effects.
(e) After an EIS has been prepared, NBRC shall file the EIS with
the Environmental Protection Agency (EPA), consistent with 42 U.S.C.
7609.
(f) Page limit: Except as provided in paragraph (g) the text of an
EIS will not exceed 150 pages, not including citations or appendices.
(g) An EIS for a proposed agency action of extraordinary complexity
is strictly prohibited from exceeding 300 pages, not including any
citations or appendices. NBRC will determine at the earliest possible
stage of preparation of an EIS whether the conditions for exceeding the
page limit in paragraph (a) are present.
(h) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations, and
the like, which substantiate the analysis provided in the environmental
assessment. Appendices are not to be used to provide additional
substantive analysis, because that would circumvent the congressionally
mandated page limits.
(i) EISs will be prepared on 8.5''x11'' paper with one-inch margins
using a word processor with 12-point proportionally spaced font, single
spaced. Footnotes may be in 10-point font. Such size restrictions do
not apply to explanatory maps, diagrams, graphs, tables, and other
means of graphically displaying quantitative or geospatial information.
When an item of graphical material is larger than 8.5''x11'', each such
item will count as one page.
(j) Certification Related to Page Limits. The breadth and depth of
analysis in an EIS will be tailored to ensure that the EIS does not
exceed these page limits. In this regard, as part of the finalization
of the EIS, a responsible official will certify that NBRC has
considered the factors mandated by NEPA; that the EIS represents NBRC's
good-faith effort to prioritize documentation of the most important
considerations required by the statute within the congressionally
mandated page limits; that this prioritization reflects NBRC's expert
judgment; and that any considerations addressed briefly or left
unaddressed were, in NBRC's judgment, comparatively unimportant or
frivolous.
[[Page 8840]]
(k) For all environmental documents, NBRC will provide a unique
identification number for tracking purposes, which NBRC will reference
on all associated environmental review documents prepared for the
proposed agency action and in any database or tracking system for such
documents. NBRC will coordinate with the CEQ and other federal agencies
to ensure uniformity of such identification numbers across federal
agencies.
5.3 Classes of Actions Normally Requiring an EIS
(a) NBRC actions for which an EIS is required include but are not
limited to the following:
(1) Proposed actions for which an EA was initially prepared that
concluded that the proposed action would generate significant effects.
(2) Infrastructure, transportation, or telecommunication projects
that are greater in scope or size and that are likely to significantly
affect the quality of the human environment.
(3) New electrical transmission facilities.
(4) New construction of facilities or structures (such as
commercial facilities, business incubators, community facilities,
health care facilities, airports, railway and bus stations) that are
likely to significantly affect the quality of the human environment.
5.4 Interagency and Public Involvement for EISs
(a) During the process of preparing an EIS, NBRC:
(1) Will obtain the comments of:
(2) any Federal agency that has jurisdiction by law or special
expertise with respect to any environmental impact of the action or
project at hand or is authorized to develop and enforce environmental
standards that govern the action or project at hand.
(3) Appropriate State, Tribal, and local agencies that are
authorized to develop and enforce environmental standards.
(b) May request the comments of:
(1) State, Tribal, or local governments that may be affected by the
proposed action;
(2) Any agency that has requested it receive statements on actions
of the kind proposed;
(3) The applicant, if any; and
(4) The public, including by affirmatively soliciting comments in a
manner designed to inform those persons or organizations who may be
interested in or affected by the proposed action.
(c) This process of obtaining and requesting comments pursuant to
(c) above may be undertaken at any time that is reasonable in the
process of preparing the EIS. NBRC will ensure that the process of
obtaining and requesting comments pursuant to (c) above, and NBRC's
analysis of and response to those comments, does not cause NBRC to
violate the congressionally mandated deadline for completion of an EIS.
(d) Addressing comments contained in EISs. NBRC will address any
substantive comments received consistent with paragraph (c) of this
section in the EIS. In those instances in which NBRC solicits comments
from the public, the request for comments will provide clear
instructions on how comments should be submitted, including electronic
submission, and the dates during which comments will be accepted. The
solicitation of comments should include requests for comments on
specific questions or issues or for information that would be helpful
in informing the decision. NBRC may respond to substantive comments by:
(1) Modifying alternatives, including the proposed action.
(2) Developing and evaluating alternatives not previously given
serious consideration.
(3) Supplementing, improving, or modifying analyses, to include
consideration of science or literature not previously considered.
(4) Making factual corrections.
(5) Stating no action is needed. NBRC may provide brief rationale
for taking no action, such as:
(i) The comment is outside the scope of what is being proposed;
(ii) There is an insufficient causal relationship between the
actions NBRC is proposing and the issue raised and/or recommendation
made;
(iii) The commenter misinterpreted the information provided; or
(iv) The recommendation made does not comply with applicable laws
or regulations and/or are not feasible to implement (technically or
economically), etc.
5.5 EIS Decision Making
(a) Concurrently with the preparation of the EIS, NBRC shall
prepare a ROD. NBRC will publish the ROD in the Federal Register to
give the public notice of NBRC's decision for the proposed action. NBRC
shall not delegate the responsibility for preparation or publication of
the ROD to applicants.
(b) If the ROD incorporates mitigation and the analysis of the
reasonably foreseeable effects of the proposed action is based on the
implementation of that mitigation.
Section 6: Integration of NEPA in NBRC Decision Making
6.1 Decision-Making Process
(a) NBRC shall:
(1) Include relevant environmental documents, comments, and
responses regarding the proposed action throughout the NBRC review and
grant decision-making processes, so decision makers have the best
available information to make informed decisions.
(2) Ensure NBRC's Executive Director has considered all
alternatives discussed in environmental documents prior to making a
decision on a proposed action.
(3) Develop an administrative record during preparation of a NEPA
analysis to inform decision making. NBRC will include any document
prepared, referenced, or used to complete the analysis and inform the
decision in the administrative record.
(b) Interested parties can get information on elements of NBRC's
NEPA process on NBRC's NEPA web page, available on the NBRC website.
6.2 Grants
(a) NBRC staff will work with applicants to integrate NEPA
considerations and NEPA review timelines into project planning, include
NEPA analysis costs in project budgets, and consider project
alternatives to avoid, minimize, or compensate for adverse
environmental effects based on the scope of work.
(b) NBRC may revoke a grant award if an applicant fails to provide
information for a NEPA review.
(c) Actions initiated and/or completed by applicants before
fulfilling NEPA requirements may not be considered for funding.
Section 7: Efficient NEPA Reviews
Wherever practicable, NBRC will utilize the following efficiency
methods to reduce or eliminate duplication, allow for efficient
timelines for the NEPA process, and prepare streamlined and effective
NEPA documents.
7.1 Reliance on Existing Environmental Documents
(a) NBRC may rely on a CATEX determination, final EA, or final EIS
prepared by another agency in whole or in part provided that:
(1) The action covered by the original CATEX determination, EA, or
EIS and the NBRC proposed action are substantially the same; and
[[Page 8841]]
(2) The original CATEX determination, EA, or EIS meets NBRC
standards for an adequate CATEX, EA, or EIS.
NBRC must make its own evaluation of the environmental issues and
take responsibility for the scope and content of the CATEX
determination, EA, or EIS, and confirm, after independent review, the
analysis meets the requirements for an adequate NEPA document
consistent with these procedures and the CEQ regulations. Reliance on
these documents is subject to the following publication requirements:
(a) NBRC must file the EIS as a final statement consistent with 42
U.S.C. 7609.
(b) NBRC must prepare its own FONSI for the action and provide
public notice of the finding.
(c) NBRC must document its reliance on another agency's CATEX
determination, including a determination that no extraordinary
circumstances are present and that NBRC's action is substantially the
same as the action covered by the CATEX determination it is choosing to
rely upon. Additionally, NBRC must publish the CATEX determination on
the NBRC website.
7.2 Supplemental NEPA Analyses and Re-Evaluation
(a) Consistent with NEPA Sec. 108 and 42 U.S.C. 4336b, after
completing a programmatic environmental assessment or environmental
impact statement, NBRC may rely on that document for 5 years if there
are not substantial new circumstances or information about the
significance of adverse effects that bear on the analysis. After 5
years, as long as NBRC reevaluates the analysis in the programmatic
environmental document and any underlying assumption to ensure reliance
on the analysis remains valid and briefly documents its reevaluation
and explains why the analysis remains valid considering any new and
substantial information or circumstances, NBRC may continue to rely on
the document.
(b) A supplemental NEPA analysis shall be prepared only if a major
Federal action remains to occur and:
(1) Substantial changes have been made to the proposed action that
are relevant to environmental concerns; or
(2) There are substantial new circumstances or information about
the significance of adverse effects that bear on the analysis.
(c) NBRC may conduct a re-evaluation of the existing EA or EIS and
reach a determination that a supplemental analysis is not required
when:
(1) The proposed action has been fully completed.
(2) The changes to the proposed action are found not to be relevant
to environmental concerns; or
(3) The new circumstances or information are determined not to be
relevant to the significance of adverse effects in the original
analysis.
When a re-evaluation is completed, NBRC must document the
determination reached in the re-evaluation in the project file.
(d) A supplemental NEPA analysis only revisits and updates the
information and analysis that is relevant to the new circumstances and
avoids the need for an entirely new EA or EIS to be prepared.
(e) When preparing a supplemental NEPA analysis, the analysis must
be incorporated into the administrative record of the original EA or
EIS. Supplemental EAs and EISs may be prepared by either tracking
changes in the original EA or EIS or by preparing a separate document
that only discusses the changes in the project scope and/or new
information and the associated changes with regard to effects.
(1) A supplemental EA process concludes with a decision regarding
whether to issue a revised FONSI or a decision to prepare an EIS.
(2) A supplemental EIS process concludes with a decision regarding
whether to issue a revised ROD.
7.3 Eliminating Duplication
NBRC may cooperate with State, Tribal, and local agencies that are
responsible for preparing environmental documents.
To the fullest extent practicable unless specifically prohibited by
law, NBRC will cooperate with State, Tribal, and local agencies to
reduce duplication between NEPA and State, Tribal, and local
requirements, including through use of studies, analysis, and decisions
developed by State, Tribal, or local agencies. Such cooperation may
include:
Joint planning processes;
Joint environmental research and studies;
Joint public hearings (except where otherwise provided by statute);
or
Joint environmental documents.
7.4 Integrating Other Analyses With NEPA
(a) To the fullest extent practicable, unless specifically
prohibited by law, NBRC should integrate other environmental
requirements applicable to the proposed action into the NEPA process.
Analyses, consultation, and public notice periods for other
environmental requirements should be aligned with the NEPA process to
occur concurrently.
(b) Typical federal environmental requirements that may apply
include various statutes, executive orders, and regulations related,
but not limited to, environmental protection, historic preservation,
floodplain management, wetlands, endangered species, clean water, and
clean air.
(c) NEPA documents should include a comprehensive list of all
necessary environmental permits, licenses, and authorizations required
before implementing the proposed action.
7.5 Incorporation by Reference
Incorporation. NBRC may incorporate material, such as planning
studies, analyses, or other relevant information, into environmental
documents by reference when the effect will be to cut down on bulk
without impeding NBRC and public review of the action. When
incorporating material by reference, NBRC will cite, briefly describe
the content and relevance to the environmental document, and make the
materials reasonably available for review by potentially interested
parties. NBRC will not use incorporation as a means to evade the
statutory page limits.
Section 8: Lead and Cooperating Agencies
8.1 Lead and Cooperating Agencies Overview
In many instances, a proposed activity or decision is undertaken in
the context which entails activities or decisions undertaken by other
federal agencies (e.g., where multiple federal authorizations or
analyses are required with respect to a project sponsor's overall
purpose and goal). These activities and decisions are ``related
actions,'' in that they are each the responsibility of a particular
agency but they are all related in a matter relevant to NEPA, e.g., by
their relationship with one overarching project. In such instances,
Congress has provided that the multiple agencies involved shall
determine which of them will be the lead agency pursuant to the
criteria identified in NEPA Sec. 107(a)(1)(A), 42 U.S.C.
4336a(a)(1)(A). When serving as the lead agency, NBRC is ultimately
responsible for completing the NEPA process; when serving as the lead
agency, NBRC will also determine and document the scope of the project
at hand. When a joint lead relationship is established pursuant to NEPA
Sec. 107(a)(1)(B), 42 U.S.C. 4336a(a)(1)(B), NBRC and the other joint
lead agency or
[[Page 8842]]
agencies are collectively responsible for completing the NEPA process.
8.2 Lead Agency
(a) A lead agency is defined as the agency preparing or having
primary responsibility over preparing an EA or EIS. A joint lead agency
is when two agencies share lead agency responsibility.
(b) The following factors shall help determine when NBRC acts as
the lead agency:
(1) Timing and sequence of NBRC funding relative to other federal
funders.
(2) Which agency or agencies have project approval or disapproval
authority.
(3) Duration of NBRC's involvement in the project relative to the
overall project timeline or plan.
(4) Whether NBRC has special expertise relative to the project or
its potential environmental effects.
(5) The magnitude of NBRC's involvement in the project.
(c) As lead agency, NBRC shall:
(1) Develop a schedule and set milestones for all environmental
reviews, permits, and authorizations required for the implementation of
the action, in consultation with the applicant and any joint lead,
cooperating, and participating agencies, as soon as possible.
(2) Determine the purpose and need, scope of the proposed action
and alternatives in consultation with the applicant and any joint lead,
cooperating, and participating agencies, as soon as possible.
(3) Submit required reports to CEQ on any missed deadlines to
enable submission of this information to Congress in accordance with 42
U.S.C. 4336a(h).
(d) For actions in which NBRC acts as a lead agency, NBRC will work
with the cooperating agency or agencies to evaluate a proposed action
in a single EA or EIS and issue a joint FONSI or ROD.
(e) For proposed actions where NBRC shares lead agency
responsibility with another agency, it will share all lead agency
requirements outlined in 42 U.S.C. 4336(a)(1)-(2).
8.3 Cooperating Agency
(a) A cooperating agency is defined as any federal agency (or
state, tribal, or local agency by agreement with the lead agency) other
than the lead agency that has jurisdiction by law or special expertise
with respect to any environmental issue.
(b) NBRC may allow other agencies to participate as a cooperating
agency for a NBRC EA or EIS in the following situations:
(1) When another federal agency has jurisdiction by law over a
portion of the proposed action.
(2) When another federal agency has special expertise with respect
to an environmental issue because of its statutory responsibilities,
agency mission, or related program experience.
(c) When multiple federal agencies are involved in the same
proposed action, NBRC may defer the lead agency role to other federal
agencies.
(d) NBRC may be asked to serve as a cooperating agency in another
agency's NEPA analysis. As a cooperating agency, NBRC will participate
in the NEPA process at the earliest practicable time and will assist in
the development of environmental analysis at the request of the lead
agency.
Section 9: Emergency Circumstances
9.1 Emergency Circumstances
(a) In the event of an emergency circumstance, NBRC may implement
alternative arrangements for actions that would normally require an EA,
and will implement alternative arrangements for action that would
normally require an EIS, pursuant to the following course of action:
(1) Before any emergency action is taken that has the potential for
reasonably foreseeable significant environmental effects, NBRC must
consult with the CEQ to discuss and establish alternative arrangements
for NEPA compliance. This consultation ensures that NBRC considers
environmental factors while responding to the emergency. NBRC may
consult with CEQ on emergency actions not expected to have significant
effects.
(2) Following applicable consultation with CEQ, NBRC may implement
alternative arrangements for NEPA compliance for actions tailored to
control the immediate impacts of the emergency. These arrangements will
be limited to actions necessary to address the emergency situation and
do not constitute a waiver of NEPA requirements.
(3) NBRC will thoroughly document the emergency circumstance,
including the nature of the emergency, any consultations with the CEQ,
any alternative arrangements made, and the steps taken to address the
situation. This documentation will be maintained to ensure transparency
and accountability throughout the process.
Section 10: Conclusion
This notice documents procedures is to integrate the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347), as
amended, into the Northern Border Regional Commission's (NBRC)
decision-making processes, effective immediately.
Jonathan O'Rourke,
Senior Program Specialist.
[FR Doc. 2026-03697 Filed 2-23-26; 8:45 am]
BILLING CODE 6820-SZ-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.