89 FR 77 pgs. 28797-28800 - Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act
Type: NOTICEVolume: 89Number: 77Pages: 28797 - 28800
Pages: 28797, 28798, 28799, 28800Docket number: [BLM_HQ-FRN_MO4500178304]
FR document: [FR Doc. 2024-08382 Filed 4-18-24; 8:45 am]
Agency: Interior Department
Official PDF Version: PDF Version
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
[BLM_HQ-FRN_MO4500178304]
Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act
AGENCY:
Office of the Secretary, Interior.
ACTION:
Notice of adoption of categorical exclusions under section 109 of the National Environmental Policy Act.
SUMMARY:
The Department of the Interior (Department) is adopting the United States Forest Service's (USFS) categorical exclusion for short-term mineral, energy, or geothermal investigations and the Department of the Navy's (DON) categorical exclusion for pre-lease upland exploration activities for oil, gas, or geothermal reserves, ( e.g., geophysical surveys) pursuant to section 109 of the National Environmental Policy Act (NEPA) to use for proposed Bureau of Land Management (BLM) approval of geothermal exploration operations. This notice describes the limited categories of proposed actions for which the BLM intends to use the USFS and DON categorical exclusions and details the consultation between the respective agencies.
DATES:
The adoption takes effect on April 19, 2024.
FOR FURTHER INFORMATION CONTACT:
[top] Lorenzo Trimble, Geologist-National
Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
I. National Environmental Policy Act and Categorical Exclusions
NEPA (42 U.S.C. 4321-4347, as amended) requires all Federal agencies to consider the environmental impact of their proposed actions before deciding whether and how to proceed. 42 U.S.C. 4321, 4332. NEPA's aims are to ensure that agencies consider the potential environmental effects of their proposed actions in their decision-making processes and inform and involve the public in that process. 42 U.S.C. 4332. NEPA created the Council on Environmental Quality (CEQ), which promulgated NEPA implementing regulations, 40 CFR parts 1500 through 1508 (CEQ regulations).
To comply with NEPA, agencies determine the appropriate level of review for a proposed action. Where required, these levels of review may be documented in an environmental impact statement (EIS), an environmental assessment (EA), or by reliance on a categorical exclusion. 40 CFR 1501.3. If a proposed action is likely to have significant environmental effects, the agency will prepare an EIS and document its decision in a record of decision. 40 CFR 1502, 1505.2. If the proposed action is not likely to have significant environmental effects or where the level of significance is unknown, the agency will prepare an EA, which involves a more concise analysis and process than an EIS. 40 CFR 1501.5. Following preparation of an EA, the agency may reach a finding of no significant impact if the analysis shows that the action will have no significant effects. 40 CFR 1501.6. If, following preparation of an EA, the agency finds that the proposed action may have significant effects, it will prepare an EIS before issuing any decision to authorize the action.
Under NEPA and CEQ's implementing regulations, a Federal agency can establish categorical exclusions-categories of actions that the agency has determined normally do not significantly affect the quality of the human environment-in its agency NEPA procedures. 42 U.S.C. 4336(e)(1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a categorical exclusion covers a proposed action, the agency then evaluates the proposed action for any extraordinary circumstances in which a normally excluded action may have a significant effect. 40 CFR 1501.4(b). Responsible Officials in the Department's bureaus evaluate proposed actions for the presence of extraordinary circumstances in accordance with the Department's NEPA implementing regulations at 43 CFR 46.205 and 46.215. If no extraordinary circumstances are present or if further analysis determines that the extraordinary circumstances do not involve the potential for significant environmental impacts, the agency may rely on the categorical exclusion to approve the proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 40 CFR 1501.4. If any extraordinary circumstances are present, the agency may nonetheless categorically exclude the proposed action if it determines that there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects. 40 CFR 1501.4(b)(1).
Section 109 of NEPA, enacted as part of the Fiscal Responsibility Act of 2023, allows a Federal agency to "adopt a categorical exclusion listed in another agency's NEPA procedures for a category of proposed agency actions for which the categorical exclusion was established." 42 U.S.C. 4336c. To adopt another agency's categorical exclusion under section 109, the adopting agency: (1) identifies the relevant categorical exclusion listed in another agency's ("establishing agency") NEPA procedures "that covers a category of proposed actions or related actions"; (2) consults with the establishing agency "to ensure that the proposed adoption of the categorical exclusion for a category of actions is appropriate"; (3) "identif[ies] to the public the categorical exclusion that the [adopting] agency plans to use for its proposed actions"; and (4) documents adoption of the categorical exclusion. 42 U.S.C. 4336c. This notice documents the Department's adoption of the USFS categorical exclusion for short-term mineral, energy, or geothermal investigations and the DON categorical exclusion for pre-lease exploration activities for use by the BLM.
The Department's NEPA procedures are found at 43 CFR part 46. These procedures address compliance with NEPA. The Department maintains a list of categorical exclusions available to all Department bureaus and offices at 43 CFR 46.210. Additional Department-wide NEPA policy is found in the Departmental Manual (DM), in chapters 1 through 4 of part 516, available at https://www.doi.gov/document-library. The NEPA procedures for individual bureaus in the Department are published in additional chapters of part 516 of the DM. Chapter 11 of the 516 DM sets forth the BLM's NEPA procedures, and the BLM categorical exclusions are listed in 516 DM 11.9 and 11.10. (See https://www.doi.gov/document-library/departmental-manual/516-dm-11-managing-nepa-process-bureau-land-management. )
II. Identification of the Categorical Exclusions
USFS Categorical Exclusion for Short-Term Mineral, Energy, or Geophysical Investigations
The USFS categorical exclusion for short-term mineral, energy, or geophysical investigations is found at 36 CFR 220.6(e)(8), and states as follows:
Short-term (1 year or less) mineral, energy, or geophysical investigations and their incidental support activities that may require cross-country travel by vehicles and equipment, construction of less than 1 mile of low standard road, or use and minor repair of existing roads. Examples include but are not limited to:
(i) Authorizing geophysical investigations which use existing roads that may require incidental repair to reach sites for drilling core holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or surface charge methods;
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an approved site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair of an existing road and the construction of 1/3 mile of temporary road; clearing vegetation from an acre of land for trenches, drill pads, or support facilities.
The USFS conducts review of any proposed reliance on its categorical exclusion according to its extraordinary circumstances review protocol found at 36 CFR 220.6.
DON Categorical Exclusion for Pre-Lease Upland Exploration Activities for Oil, Gas or Geothermal Reserves
[top] The DON categorical exclusion for pre-lease exploration activities is found at 32 CFR 775.6(f)(39), and states as follows:
"Pre-lease upland exploration activities for oil, gas or geothermal reserves ( e.g., geophysical surveys)."
The DON conducts review of any proposed reliance on its categorical exclusion according to its extraordinary circumstances review protocol found at 32 CFR 775.6(e).
Proposed Department Category of Actions
Both the USFS and the DON categorical exclusions allow for pre-leasing exploration activities, geophysical surveys, or geophysical investigations. Those activities are included in the BLM's definition of geothermal "exploration operations." See 43 CFR 3200.1. The DON categorical exclusion broadly allows activities meeting the BLM's definition of geothermal "exploration operations," but specifies that these be conducted at the pre-leasing stage. Both the USFS and DON categorical exclusions could be applied to the BLM's approval of geothermal exploration operations as provided for under the regulations implementing the Geothermal Steam Act of 1970 as amended, 30 U.S.C. 1001 et seq., Public Law 91-581, 84 Stat. 1566, and the Department intends for the BLM to use these adopted categorical exclusions exclusively to facilitate approval of such geothermal exploration operations, and not to use them for oil and gas or other mineral activities. Geothermal exploration operations do not contact or directly test a geothermal resource. The BLM Geothermal Resource Leasing regulations are found at 43 CFR part 3200 and include provisions defining the scope of geothermal exploration operations as follows:
. . . any activity relating to the search for evidence of geothermal resources, where you are physically present on the land and your activities may cause damage to those lands. Exploration operations include, but are not limited to, geophysical operations, drilling temperature gradient wells, drilling holes used for explosive charges for seismic exploration, core drilling or any other drilling method, provided the well is not used for geothermal resource production. It also includes related construction of [routes] and trails, and cross-country transit by vehicles over public land. Exploration operations do not include the direct testing of geothermal resources or the production or utilization of geothermal resources.
43 CFR 3200.1. (The substitution of the term "routes" reflects current BLM terminology indicating the limited use and temporary nature of resource access routes.)
The BLM intends to rely on these adopted categorical exclusions as appropriate to support approval of Notices of Intent to Conduct Geothermal Exploration Operations (Form 3200-9) (NOIs). Requirements for reclamation are provided on Form 3200-9 and in the applicable regulations (See 43 CFR 3251.11(g)). Applications for NOI permits may be submitted for conforming activities on any federal lands or interests in lands open to geothermal development (43 CFR 3250.11) and do not require a lease. The NOI permit application and the associated regulations governing geothermal exploration operations permitting do not expressly limit the timeframe for activities. However, if the BLM were to rely on the adopted USFS categorical exclusion to approve such a permit, those exploration activities would have to be concluded within a 1-year timeframe. Implementation of reclamation plans can take longer, however, and may require extended monitoring to evaluate the success of the reclamation.
Responsible Officials in the Department will be able to rely on either the USFS or the DON categorical exclusions, as appropriate, to process NOIs for qualifying geothermal exploration operations. Responsible Officials in the Department will document such reliance, including describing how the proposed action conforms to the terms of whichever (the USFS or DON) categorical exclusion is relied upon, in accordance with any applicable Departmental NEPA or BLM NEPA or geothermal program guidance.
III. Consideration of Extraordinary Circumstances
When applying these categorical exclusions, Responsible Officials in the Department will evaluate the proposed actions to ensure evaluation of whether there are any extraordinary circumstances. The Department's extraordinary circumstances are listed at 43 CFR 46.215 and include, in part, consideration of impacts on public health and safety; natural resources and unique geographic characteristics as historic or cultural resources; park, recreation, or refuge lands; wilderness areas; wild or scenic rivers; national natural landmarks; sole or principal drinking water aquifers; prime farmlands; wetlands; floodplains; national monuments; migratory birds; and other ecologically significant or critical areas; unresolved conflicts concerning alternative uses of available resources; unique or unknown environmental risks; precedent for future decision-making; historic properties; listed species or critical habitat; low income or minority populations; access by Indian religious practitioners to, and for ceremonial use of, Indian sacred sites and the physical integrity of those sites; and contribution to the introduction, continued existence, or spread of invasive weeds or non-native invasive species. Responsible Officials in the Department are required to review any proposed action for which they intend to rely on a categorical exclusion, as provided at 43 CFR 46.205, by comparing it with the list at 43 CFR 46.215 and documenting that review in accordance with any applicable Departmental or bureau NEPA or program guidance.
The Department's list of extraordinary circumstances is comparable to those of the USFS, found at 36 CFR 220.6(b) and of the DON, found at 32 CFR 775.6(e); therefore, Responsible Officials in the Department intending to rely on either the USFS or the DON categorical exclusion will need to review the proposed action only in accordance with the Department's NEPA regulations at 43 CFR 46.205 and 46.215. The Responsible Official will assess whether an extraordinary circumstance is present, and if so, whether there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects, consistent with 40 CFR 1501.4(b). If the Responsible Official cannot rely on a categorical exclusion to support a decision on a particular proposed action due to extraordinary circumstances, the Responsible Official will prepare an EA or EIS, consistent with 40 CFR 1501.4(b)(2) and 43 CFR 46.205(c).
IV. Consultation With USFS and DON and Determination of Appropriateness
[top] In January and February of 2024, the Department consulted with the USFS and the DON about the appropriateness of the Department's adoption of their respective categorical exclusions. Those consultations each included a review of the USFS's and the DON's experience in establishing and applying the categorical exclusions, as well as the types of actions for which the BLM plans to use the categorical exclusions. Based on those consultations and reviews, the Department has determined that the types of activities the BLM proposes to authorize as geothermal exploration operations are substantially similar to the geothermal resource-related activities for which the USFS and the DON have applied their respective categorical exclusions. Accordingly, the impacts of the BLM-authorized geothermal exploration operations, including the types of pre-lease exploration activities described in the DON categorical exclusion and the examples of activities described in the
V. Notice to the Public and Documentation of Adoption
This notice serves to identify to the public and document the Department's adoption of the USFS categorical exclusion for short-term mineral, energy, or geophysical investigations and the DON categorical exclusion for pre-lease upland exploration activities for oil, gas, or geothermal reserves and identifies the types of actions to which Responsible Officials in the Department will apply the categorical exclusions, including only approval of permitting for geothermal exploration operations, and the considerations Responsible Officials in the Department will use in determining whether an action is within the scope of the categorical exclusions. Upon issuance of this notice, the adopted USFS and DON categorical exclusions will be available to the Department for the BLM to rely upon to authorize geothermal exploration operations and will be accessible in 516 DM 11, found at https://www.blm.gov/programs/planning-and-nepa/what-informs-our-plans/nepa and at https://www.doi.gov/oepc/nepa/categorical-exclusions .
VI. Proposed Text for the Departmental Manual
The Department will add the following text to chapter 11 of part 516 of the Departmental Manual:
11.11 Categorical Exclusions Adopted Through NEPA Section 109
Responsible Officials will document reliance on the categorical exclusions listed below, including describing how the proposed action conforms to the terms of the categorical exclusion relied upon and application of extraordinary circumstances review consistent with 43 CFR 46.215.
A. Geothermal Exploration Operations
The Department has adopted the following categorical exclusions for the limited purpose of approving Notices of Intent to Conduct Geothermal Exploration Operations (Form 3200-9).
(1) U.S. Forest Service, 36 CFR 220.6(e)(8):
Short-term (1 year or less) mineral, energy, or geophysical investigations and their incidental support activities that may require cross-country travel by vehicles and equipment, construction of less than 1 mile of temporary road, or use and minor repair of existing roads. Examples include, but are not limited to:
(i) Authorizing geophysical investigations which use existing roads that may require incidental repair to reach sites for drilling core holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or surface charge methods;
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an approved site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair of an existing road and the construction of 1⁄3 mile of temporary road; clearing vegetation from an acre of land for trenches, drill pads, or support facilities.
and
(2) Department of the Navy, 32 CFR 775.6(f)(39):
Pre-lease upland exploration activities for oil, gas, or geothermal reserves, ( e.g., geophysical surveys).
(Authority: 42 U.S.C. 4336c)
Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2024-08382 Filed 4-18-24; 8:45 am]
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