National Environmental Policy Act (NEPA) Compliance
| Published date | 13 June 2019 |
| Citation | 84 FR 27544 |
| Record Number | 2019-12195 |
| Section | Proposed rules |
| Court | Forest Service |
Federal Register, Volume 84 Issue 114 (Thursday, June 13, 2019)
[Federal Register Volume 84, Number 114 (Thursday, June 13, 2019)]
[Proposed Rules]
[Pages 27544-27559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12195]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 220
RIN 0596-AD31
National Environmental Policy Act (NEPA) Compliance
AGENCY: Forest Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency) is
proposing revisions to its National Environmental Policy Act (NEPA)
regulations. The Agency proposes these revisions to increase efficiency
in its environmental analysis while meeting NEPA's requirements and
fully honoring its environmental stewardship responsibilities. The
proposed rule would contribute to increasing the pace and scale of work
accomplished on the ground and would help the Agency achieve its
mission to sustain the health, diversity, and productivity of the
nation's forests and grasslands to meet the needs of present and future
generations. Public input has informed the development of the proposed
rule, including through an Advance Notice of Proposed Rulemaking. The
Agency is now requesting public comment on the revisions in the
proposed rule. The Agency will carefully consider all public comments
in preparing the final rule.
DATES: Comments must be received in writing by August 12, 2019.
ADDRESSES: Please submit comments via one of the following methods:
1. Public participation portal (preferred): https://www.regulations.gov/.
2. Mail: NEPA Services Group, c/o Amy Barker; USDA Forest Service,
125 South State Street, Suite 1705, Salt Lake City, UT 84138.
3. Email: [email protected].
All comments, including names and addresses when provided, are
placed in the record and are available for public inspection and
copying. The public may inspect comments received online via the public
reading room at https://www.regulations.gov/, or at U.S. Forest
Service, Ecosystem Management Coordination, 201 14th St. SW, 2 Central,
Washington, DC 20024. Visitors are encouraged to call ahead to 202-205-
1475 to facilitate entry to the building.
FOR FURTHER INFORMATION CONTACT: Christine Dawe; Director, Ecosystem
Management Coordination; 406-370-8865. Individuals who use
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m.
and 8:00 p.m., Eastern Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background
The Forest Service is proposing revisions to its NEPA procedures
(36 CFR part 220, which are located at https://www.fs.fed.us/emc/nepa/nepa_procedures/index.htm) with the goal of increasing efficiency of
environmental analysis while meeting NEPA's requirements. The Forest
Service is not fully meeting agency expectations, nor the expectations
of the public, partners, and stakeholders, to improve the health and
resilience of forests and grasslands, create jobs, and provide economic
and recreational benefits. The Agency spends considerable financial and
personnel resources on NEPA analyses and documentation. The Agency is
proposing these revisions to make more efficient use of those
resources. The Agency will continue to hold true to its commitment to
deliver to decision makers scientifically based, high-quality analysis
that honors its environmental stewardship responsibilities while
maintaining robust public participation. These values are at the core
of the Forest Service mission and are compatible with gaining
efficiency in NEPA analysis and documentation.
Reforming the Forest Service's NEPA procedures is needed at this
time for a variety of reasons. An increasing percentage of the Agency's
resources have been spent each year to provide for wildfire
suppression, resulting in fewer resources available for other
management activities, such as restoration. In 1995, wildland fire
management funding made up 16 percent of the Forest Service's annual
spending, compared to 57 percent in 2018. Along with a shift in
funding, there has also been a corresponding shift in staff from non-
fire to fire programs, with a 39 percent reduction in all non-fire
personnel since 1995.
The Consolidated Appropriations Act of 2018 (2018 Omnibus Bill)
included a new budget authority for FY 2020 to FY 2027, which will
provide federal agencies with a new budget authority of over $20
billion for fighting wildfires, in addition to regular appropriations.
While this budget stability is welcome, the trends discussed above make
it imperative that the Agency makes the most efficient use of available
funding and resources to fulfill its environmental analysis and
decision making responsibilities.
Additionally, the Agency has a backlog of more than 5,000
applications for new special use permits and renewals of existing
special use permits that are awaiting environmental analysis and
decision. On average, the Forest Service annually receives 3,000
applications for new special use permits. Over 80 million acres of
National Forest System (NFS) land are in need of restoration to reduce
the risk of wildfire, insect epidemics, and forest diseases.
Increasing the efficiency of environmental analysis would enable
the Agency to do more to increase the health and productivity of our
national forests and grasslands and be more responsive to requests for
goods and services. The Agency's goal is to complete project decision
making in a timelier manner, improve or eliminate inefficient processes
and steps, and, where appropriate, increase the scale of analysis and
the number of activities in a single analysis and decision. Improving
the efficiency of environmental analysis and decision making will help
the agency ensure that lands and watersheds are sustainable, healthy,
and productive; mitigate wildfire risk; and contribute to the economic
health of rural communities through use and access opportunities.
Council on Environmental Quality (CEQ) regulations at 40 CFR 1507.3
require Federal agencies to adopt procedures, as necessary, to
supplement CEQ's regulations for implementing NEPA (40 CFR parts 1500-
1508), and to
[[Page 27545]]
consult with CEQ during their development and prior to publication in
the Federal Register. CEQ encourages agencies to periodically review
their NEPA procedures. The Agency developed the proposed rule in
consultation with CEQ.
The Forest Service's NEPA regulations were promulgated in 2008,
when the Agency codified its NEPA procedures in the Code of Federal
Regulations (CFR), at 36 CFR 220. However, the Agency's NEPA
regulations, in large part, still reflect the policies and practices
established by the Agency's 1992 NEPA Manual and Handbook. When the
Agency promulgated its NEPA regulations in 2008, it stated, ``the
additions to the Forest Service NEPA procedures in this rule are
intended to provide an environmental analysis process that better fits
with modern thinking on decisionmaking, collaboration, and adaptive
management by describing a process for incremental alternative
development and development of adaptive management alternatives'' (73
FR 43084). The proposed rule would further modernize the Agency's NEPA
policy by incorporating lessons learned and experience gained over the
past 10 years.
Advance Notice of Proposed Rulemaking (ANPR)
The Agency published an ANPR on January 3, 2018 (83 FR 302). The
Agency received 34,674 comments in response to the ANPR, of which 1,229
were unique. Most of the unique comments expressed support for the
Agency's effort to identify efficiencies in the NEPA process. The
unique comments in support of the ANPR all generally acknowledged that
there is room for increased efficiency in the Agency's NEPA process.
Some of these comments expressed unqualified support for increasing
efficiency; other comments supported the Agency's goals, but included
caveats that these gains should not come at a cost to public
involvement or conservation of natural resources.
There were three form letter campaigns in response to the ANPR.
Approximately 33,000 form letter comments came from two form letter
campaigns, which urged the Forest Service to reject any proposal to
weaken the Agency's NEPA process. The Forest Service received about 600
comments from a third form letter campaign in favor of the Agency's
efficiency goals as stated in the ANPR. The Agency will not regard form
letters as ``votes'' as to whether the proposed rule should go forward.
The Agency will continue to take public input into account as it
revises its NEPA regulations. The Agency believes it is possible to
make its NEPA regulations more efficient while remaining true to NEPA's
intent of informed decision making, and without weakening the Agency's
NEPA process.
Many of the comments received are beyond the scope of the Agency's
NEPA regulations, but pertain to other issues relevant to the Agency's
environmental analysis and decision making, such as ensuring sufficient
funding is available, hiring and training Agency personnel, the
objections processes under 36 CFR 218, and the land management planning
processes under 36 CFR 219. An executive summary of comments received
in response to the ANPR is available at: https://www.fs.fed.us/emc/nepa/revisions/index.htm. Public comments received in response to the
ANPR are available at: https://cara.ecosystem-management.org/Public/ReadingRoom?project=ORMS-1797.
Section-by-Section Description of Changes in the Proposed Rule
The order of the sections of the proposed rule has been rearranged
to align with the levels of NEPA documentation. The proposed rule would
not change the order or headings of 36 CFR 220.1, 220.2, 220.3, or
220.4. The proposed rule would revise the order and headings of 36 CFR
220.5, 220.6, and 220.7 to read as follows:
Section 220.5 Categorical Exclusions
Section 220.6 Environmental Assessment and Decision Notice
Section 220.7 Environmental Impact Statement and Record of Decision
The proposed rule sequentially addresses general guidance,
Categorical Exclusions (CE), Environmental Assessments (EA), and
Environmental Impacts Statement (EIS). This is a more logical order
than previous versions.
Section 220.3 Definitions
The proposed rule would add a definition to this section for
condition-based management. Condition-based management is defined as a
system of management practices based on implementation of specific
design elements from a broader proposed action, where the design
elements vary according to a range of on-the-ground conditions in order
to meet intended outcomes. Condition-based management is not a new
management approach for the Forest Service, but the Agency proposes to
codify it based on existing practice to provide clear, consistent
direction on its use, and to encourage more widespread use. Agency
experience has shown that condition-based management can be useful for
landscape-scale projects and analysis. As with adaptive management, not
all proposed actions lend themselves to condition-based management, and
the proposed rule is not intended to require its use for any particular
type of proposed action.
Section 220.4 General Requirements
Paragraph (c) states the responsible official's obligation to
coordinate and integrate the NEPA review with agency decision making,
and lists requirements for meeting that obligation. The proposed rule
would add ``Leading the proposal development and environmental analysis
process, to ensure a focused approach'' as the first item in the list
and renumbers the existing items that follow. This addition emphasizes
the importance of the responsible official's active, engaged, and
focused involvement in the NEPA process.
The proposed rule would combine and revise paragraphs (d) and (e),
resulting in a new paragraph (d), Scoping and Public Notice. These
revisions reflect the Agency's proposed approach to scoping and public
engagement. Paragraph (d) would maintain the Agency's requirement to
provide public notice, through the Schedule of Proposed Actions, of all
proposed actions that will be documented with a decision memo, EA, or
EIS. The Agency will continue to require scoping for EISs in accordance
with CEQ regulations at 40 CFR 1501.7. Outside of the minimum
requirements listed at (d)(1) and (2) of this section, additional
public engagement is at the discretion of the local responsible
official, except where specified by applicable statutes and
regulations. For example, the current 36 CFR 218 regulations require
public comment for EAs that are subject to the Project-Level
Predecisional Administrative Review Process.
As a result of the revision of paragraphs (d) and (e) into one
paragraph (d), paragraphs (f) through (i) would be re-designated as (e)
through (h), respectively.
The proposed rule outlines an approach for ``right-sizing'' the
public engagement and scoping processes to each proposed action. The
proposed rule language aligns with additional guidance being added to
the draft directives, specifically in the Forest Service Handbook. This
guidance encourages early and ongoing engagement with the public and
other external partners (such as other Federal agencies, Tribes,
States, and local
[[Page 27546]]
governments) that is not limited to a single NEPA process.
The proposed rule would add a new paragraph (i), Determination of
NEPA Adequacy. This paragraph outlines a process for determining
whether a completed Forest Service NEPA analysis can satisfy NEPA's
requirements for a subsequent proposed action. The process requires the
consideration of the following factors: The similarity between the
prior decision and the proposed actions, the adequacy of the range of
alternatives for the proposed action, any significant new circumstances
or information since the prior decision, and the adequacy of the impact
analysis for the proposed action. The Determination of NEPA Adequacy is
modelled after the Department of Interior, Bureau of Land Management's
use of that procedure. Other Federal agencies also provide for
comparable approaches in their NEPA procedures. Adding the
Determination of NEPA Adequacy to Forest Service NEPA procedures would
provide the Agency an opportunity to be more efficient by reducing
redundant analyses of substantially similar proposed actions with
substantially similar impacts, and is consistent with CEQ policy to
reduce paperwork and avoid redundancy.
The proposed rule would move the provisions on adaptive management
from current Sec. Sec. 220.5(e) and 220.7(b)(iv) to Sec. 220.4(j).
This change would add adaptive management to the general requirements
section of the regulation; the current regulation discusses adaptive
management separately under the sections on EAs and EISs.
The proposed rule would also add a new paragraph (k) for condition-
based management, specifying that the proposed action and one or more
alternatives may include condition-based management.
The proposed rule would also add a new paragraph (l) on
supplementation and new information, specifying when supplements are
required.
Section 220.5 Environmental Impact Statement and Record of Decision
The proposed rule would revise the heading of Sec. 220.5 to read
as follows: Section 220.5 Categorical Exclusions. The proposed rule
would revise all of the paragraphs of Sec. 220.5 by replacing all of
the text with new text based on current Sec. 220.6, paragraphs (a)
through (f). Additionally, revisions are proposed within these
paragraphs (a) through (f) to provide clarity, revise the list of
extraordinary circumstances, and propose changes and additions to
categorical exclusions in paragraphs (d) and (e).
Clarifications Regarding Categorical Exclusions (CE)
The proposed rule would clarify in paragraph (a) that a proposed
action may be categorically excluded if it is within one or more of the
categories listed in 7 CFR part 1b.3, 36 CFR 220.5(d), or 36 CFR
220.5(e). Categorical exclusions are categories of actions that
normally will not result in individual or cumulative significant
impacts on the quality of the human environment and, therefore, do not
require analysis or documentation in either an EA or EIS (40 CFR
1508.4). Where a proposed action consists of multiple activities, and
all of the activities that comprise the proposed action fall within one
or more CEs, the responsible official may rely on multiple categories
for a single proposed action. This approach shall not be used to avoid
any express constraints or limiting factors that apply to a particular
CE. This clarification to paragraph (a) is consistent with CEQ's
definition of CEs as categories of actions that do not individually or
cumulatively have a significant effect on the environment.
Paragraph (a) further explains that CEs are independently
established and constraints or limitations in a particular categorical
exclusion do not constrain or limit the operation of other categorical
exclusions. For example, an express spatial or temporal limitation in
one CE should not be construed to apply to another similar CE that is
otherwise silent on spatial or temporal limits.
The proposed rule would adjust and refine instructions for
evaluating extraordinary circumstances. The proposed rule would revise
the list of resource conditions to be considered in determining whether
extraordinary circumstances warrant analysis and documentation in an EA
or EIS. The proposed rule would remove ``sensitive species'' from item
(i). The Agency's 2012 planning regulations marked a transition away
from the term ``sensitive species,'' and retention of the term in the
NEPA procedures is unnecessary. All land management plans have
direction to provide for the diversity of plant and animal communities
and support the persistence of native species in the plan area. All
Forest Service projects must comply with relevant land management
plans; therefore, it is not necessary to include sensitive species in
the list of resource conditions.
The proposed rule also would add wild and scenic rivers to the list
of Congressionally designated areas in Sec. 220.5(b)(1)(iii), and move
potential wilderness areas from (b)(1)(iv) to (b)(1)(iii) to add it to
the list of Congressionally designated areas. The proposed rule would
revise Sec. 220.5(b)(1)(iv) to include roadless areas designated under
36 CFR part 294, including Idaho and Colorado Roadless Areas.
In Sec. 220.5(b)(2), the proposed rule would clarify the degree of
effects threshold for determining whether extraordinary circumstances
exist. The proposed rule explains that extraordinary circumstances
exist when there is a cause-and-effect relationship between the
proposed action and listed resource conditions, and the responsible
official determines that there is a likelihood of substantial adverse
effects to the listed resource conditions. Additionally, the proposed
rule explains that when evaluating extraordinary circumstances, the
responsible official may also consider whether the long-term beneficial
effects outweigh short-term adverse effects.
The proposed rule would revise Sec. 220.5(c) to clarify that in
addition to the Sec. 220.4(d) requirements for public notice in the
Schedule of Proposed Actions, the responsible official may choose to
conduct additional public engagement activities to involve key
stakeholders and interested parties. Additional public engagement would
be conducted commensurate with the nature of the decision being made.
Changes to Existing CEs and Proposed New CEs
The proposed rule would add several new CEs. The Forest Service
developed these CEs pursuant to CEQ's regulations at 40 CFR 1507.3 and
the November 23, 2010, CEQ guidance memorandum on ``Establishing,
Applying, and Revising Categorical Exclusions under the National
Environmental Policy Act''(https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf).
The Forest Service is uniquely situated when compared to other
Federal agencies in terms of using CEs to satisfy NEPA's procedural
requirements. The Forest Service manages the National Forest System to
sustain multiple uses of its renewable resources in perpetuity while
maintaining the long-term health and productivity of the land. To
achieve this goal, each unit of the National Forest System is managed
according to a land management plan. A land management plan is a
programmatic document supported by an EIS and Record of Decision. A
land management plan guides the sustainable, integrated resource
management of the resources within the plan area in the context of the
broader landscape. Land
[[Page 27547]]
management plans ``must provide for social, economic, and ecological
sustainability within Forest Service authority and consistent with the
inherent capability of the plan area'' (36 CFR 219.8).\1\ Ecological
sustainability refers to the capability of ecosystems to maintain
ecological integrity (36 CFR 219.19).
---------------------------------------------------------------------------
\1\ Similarly, National Forests managed under land management
plans developed pursuant to the 1982 planning regulations ``shall
provide for multiple use and sustained yield of goods and services
from the National Forest System in a way that maximizes long term
net public benefits in an environmentally sound manner'' (36 CFR
219.1(a) (1982)).
---------------------------------------------------------------------------
Each Forest Service proposed action, including those authorized
with a CE, must be consistent with the applicable land management plan
(16 U.S.C. 1604(i)). Forest Service proposed actions, including those
authorized with a CE, are developed using an interdisciplinary approach
to identify design features to limit adverse environmental effects;
ensure consistency with land management plans; and take into account
applicable plan goals, objectives, and desired conditions, and other
applicable laws, regulations, and policies.
Categorical exclusions do not apply where there are extraordinary
circumstances in which a normally excluded action may have a
significant environmental effect (40 CFR 1508.4). Nor do these
administratively established CEs represent a final determination of the
level of NEPA review to be undertaken, as the responsible official
still retains discretion to prepare an EA or EIS. Activities conducted
under these CEs must be consistent with Agency procedures and
applicable land management plans, and must comply with all applicable
Federal and State laws for protecting the environment. The proposed CEs
were developed considering other applicable Agency procedures and
policies, and specific limitations were imposed on some of the
categories based on these considerations. The Agency believes it is
appropriate to establish these CEs as a means to reduce paperwork and
delays, consistent with CEQ regulations for implementing NEPA at 40 CFR
1500.4(p) and 1500.5(k).
In accordance with CEQ's 2010 guidance memorandum, the Forest
Service reviewed and analyzed past actions, including their supporting
NEPA documentation, to develop initial outlines of potential new CEs.
The Agency convened discussions on the proposed CEs with Agency leaders
and subject matter experts to further refine the proposals. The Agency
also conducted follow up engagement with Forest Service personnel
familiar with the previously implemented actions, on units where those
actions were located, to determine whether the effects of projects as
implemented were consistent with predictions in the NEPA analysis. The
Forest Service also reviewed and analyzed the comparable CEs of other
federal agencies for benchmarking the proposals. The Agency's proposal
is based on data from implementing comparable past actions; the expert
judgment of the responsible officials who made the findings for
projects reviewed for this supporting statement; information from other
professional staff, experts, and scientific analyses; and a review and
comparison of similar CEs implemented by other Federal agencies. Based
on its review of all the information provided, the Forest Service
believes that actions covered by the proposed CEs would not
individually or cumulatively have significant effects on the human
environment, as defined at 40 CFR 1508.27.
The Forest Service has prepared supporting statements for each of
its proposed new CEs. These supporting statements summarize the
administrative record and rationale for the new CEs. The supporting
statements support the Forest Service's initial determination that each
CE does not individually or cumulatively have significant impacts. The
supporting statements provide the background and context for why these
proposals were developed and how they fit in with Agency and
Departmental priorities; explain existing policy related to the
activities covered by the proposed CE; and document the process by
which the Forest Service developed the proposals. The supporting
statements are available online at https://www.fs.fed.us/emc/nepa/revisions/index.htm. For additional information on any of the proposed
CEs described below, please see the associated supporting statements,
which include a larger discussion of the rationale for the proposed
CEs. The justification for proposed CEs (d)(11), (d)(12), and (e)(3),
is included in the supporting statement for Certain Special Uses
Projects and its associated appendices. The justification for proposed
CEs (e)(20-25) is included in the supporting statement for Certain
Infrastructure Projects and its associated appendices.
The justification for proposed CE (e)(26) is included in the
supporting statement for Certain Restoration Projects and its
associated appendices.
Section 220.5(d) Categories of Actions for Which a Project or Case File
and Decision Memo Are not Required
The proposed rule would consolidate the existing CE at (e)(15),
which requires a decision memo, with the existing CE at (d)(10), which
does not require a decision memo, as a new CE at (d)(11). CEs (e)(15)
and (d)(10) would be removed. The existing CEs both cover clerical
modification or reauthorization of existing special uses. Both of these
CEs apply only when modification or reauthorization of an existing
special use does not involve changes in the authorized facilities or
increase the scope or intensity of authorized activities. Both of these
CEs are also used only when the permit holder is in full compliance
with the terms and conditions of the special use authorization. These
criteria would also apply to the new CE at (d)(11). Due to their
similarities, there is often confusion over which CE to use.
Consolidation of the existing CEs would increase efficiency and reduce
confusion over which category to apply when issuing special use
authorizations to replace an existing or expired special use
authorization, when such issuance is a purely clerical action to
account for administrative changes. Establishment and use of this
consolidated CE would also help to reduce the backlogs for processing
renewals of existing authorizations.
Proposed new CE (d)(12) would cover the issuance of a new
authorization or amendment of an existing authorization for activities
that occur on existing roads or trails, in existing facilities, or in
areas where activities are consistent with the applicable land
management plan or other documented decision. In the Agency's
experience, the potential for special uses to have significant effects
on the human environment is generally avoided when special uses occur
on existing NFS roads or NFS trails, in existing facilities, or in
areas where activities are consistent with the applicable land
management plan or other documented decision. New CE (d)(12) would
create more efficiencies in the processing of both new authorizations
and renewals of existing authorizations.
Section 220.5(e) Categories of Actions for Which a Project or Case File
and Decision Memo Are Required
The proposed rule would expand existing CE (e)(3) to cover the
approval, modification, or continuation of special uses of NFS lands
that require less than 20 acres of land. The current version of CE
(e)(3) is limited to minor special uses
[[Page 27548]]
that require less than five contiguous acres of land. The proposed rule
would also remove the term ``minor.'' The presence of ``minor'' in CE
(e)(3) has caused confusion among Agency personnel because it is not a
term of art in this context. The Agency has substantial experience
authorizing special uses. A review of EAs and associated FONSIs
relevant to this proposed CE found that approval, modification, or
continuation of special uses that require less than 20 acres of NFS
lands does not have the potential to have significant effects on the
environment. The level of effects associated with the proposed actions
in the CE are expected to be below the threshold for significant
environmental effects.
The proposed rule would expand the scope of CE (e)(20) to include
lands occupied by National Forest System roads and trails. The current
version of this CE, which was established in 2013, is limited to lands
occupied by unauthorized roads and trails. CE (e)(20) would allow
activities that restore, rehabilitate, or stabilize lands occupied by
roads and trails to a more natural condition. The proposal to expand CE
20 to include NFS roads and trails was made based on a review of
implementation of existing CE (e)(20), a review of the record and
supporting statement from when CE (e)(20) was established (which has
been incorporated in the record), subject matter expertise, and a
review of other road and trail management projects that included
decommissioning activities for NFS roads and NFS trails. A review of
EAs and associated FONSIs for the projects that included the proposed
activities found that none of them predicted significant effects on the
human environment. Regardless of whether the activity undertaken is the
restoration of lands occupied by an NFS road or NFS trail or
unauthorized road or trail, the actions and environmental impacts are
generally the same.
Proposed new CE (e)(21) would cover the construction,
reconstruction, decommissioning, relocation, or disposal of buildings,
infrastructure, or other improvements at an existing administrative
site, as that term is defined in section 502(1) of Public Law 109-54
(119 Stat. 559; 16 U.S.C. 580d note). Use of this CE would be limited
to existing administrative sites, and used alongside other established
Agency processes, such as those processes used for facility master
planning and identifying the appropriate level of analysis for a
specific project. Many Forest Service administrative facilities are in
need of reconstruction or major repair or could be decommissioned or
disposed of, reducing the Agency's footprint. Accumulating deferred
maintenance can result in deterioration of performance, increased
repair costs, a decrease in asset value, along with health and safety
concerns. The activities proposed in CE (e)(21) would help the Agency
more efficiently address these issues. The proposed CE was developed
with input from subject matter experts. A review of projects and their
associated EAs and FONSIs found that no significant effects were
predicted on the human environment. Based on a review of past actions,
a review of CEs implemented by other agencies, and the Forest Service's
extensive experience implementing projects that allow for the use and
management of administrative sites, the Forest Service has concluded
that this proposed category of actions does not have individual or
cumulative significant effects and, therefore, should be categorically
excluded from documentation in an EA or EIS.
Proposed new CE (e)(22) would cover the construction,
reconstruction, decommissioning, or disposal of buildings,
infrastructure, or improvements at an existing recreation site. This
would include infrastructure or improvements that are adjacent or
connected to an existing site and provide access or utilities for that
site. Recreation sites include, but are not limited to, campgrounds and
camping areas, picnic areas, day use areas, fishing sites, interpretive
sites, visitor centers, trailheads, ski areas, and observation sites.
This CE would apply to both existing recreation sites managed by the
Forest Service and sites managed under special use authorities. Use of
this CE would be limited to existing recreation sites and used
alongside other established Agency processes, such as those processes
used for facility master planning and for screening special use permit
applications (36 CFR 251).
Proposed new CE (e)(23) would cover the conversion of an
unauthorized or non-NFS trail or trail segments to an NFS trail, when
determined appropriate by the responsible official and consistent with
applicable land management plan direction, travel management decisions,
trail-specific direction, and other related direction. When considering
conversion of an unauthorized trail to an NFS trail, the responsible
official should also consider whether the converted route would meet
Trail Management Objectives and provide the desired recreation
experience, and the route's long-term maintenance needs.
Similar to the Agency's administrative sites, recreation sites and
facilities are also in need of major repair or decommissioning.
Additionally, unauthorized trails that have been created over time by
users do not meet technical or environmental protection standards.
Proposed CEs (e)(22) and (23) would help the Forest Service more
efficiently address recreation management needs in order to reduce
environmental and public safety concerns. A suite of recreation
management and trails management projects completed using an EA and
their associated FONSIs were reviewed during development of these
proposed CEs, along with input from subject matter experts and review
of other Agency CEs. Based on this review, consideration of projects
being developed in compliance with other policies and practices
mentioned above, and subject matter expertise, the Agency does not
expect that the proposed actions undertaken in proposed CEs (e)(22) and
(23) would individually or cumulatively have significant environmental
effects. Proposed new CE (e)(24) would cover the construction or
realignment of up to 5 miles of NFS roads, reconstruction of up to 10
miles of NFS roads and associated parking areas, opening or closing an
NFS road, and culvert or bridge rehabilitation or replacement along NFS
roads. The mileage limitations included in this proposed CE were
established from a review of previously implemented actions,
discussions and coordination with Agency transportation program
managers, and a review of existing CEs related to roads management in
use by other Federal agencies.
Proposed new CE (e)(25) would cover the conversion of an
unauthorized or non-National Forest System (non-NFS) road to an NFS
road. When determining whether to convert a non-NFS road to an NFS
road, the responsible official would also consider outcomes related to
the local unit's travel analysis process, travel management decisions,
and overall goals and objectives of the transportation program.
Proposed CEs (e)(24) and (25) were developed with a focus on
increasing efficiency and management of National Forest System roads.
The Forest Service infrastructure includes over 370,000 miles of roads
and 13,000 road and trail bridges. Recreational use and need for access
to NFS lands on NFS roads continues to increase; these roads are also
used for resource protection. Deterioration of roads over time
increases risk of erosion, landslides, and slope failure, which creates
environmental and safety concerns.
[[Page 27549]]
These proposed CEs would help the Forest Service more efficiently
address some of these growing concerns. Based upon a review of
previously implemented projects and subject matter expertise and
building on the Agency's extensive background in managing NFS roads and
associated infrastructure, such as bridges, the Forest Service
anticipates that the level of effects associated with proposed actions
covered by the proposed CEs to be below the threshold for significant
environmental effects.
Proposed new CE (e)(26) would cover ecosystem restoration or
resilience activities, in compliance with the applicable land
management plan, taking into account plan goals, objectives, or desired
conditions. Activities to improve ecosystem health, resilience, or
other watershed conditions cannot exceed 7,300 acres. When commercial
or non-commercial timber harvest activities are proposed (Sec.
220.5(a)(26)(i)(H) and (i)(I)), they must be carried out in combination
with at least one additional restoration activity to qualify for the
CE, and harvested acres cannot exceed 4,200 of the 7,300 acres. The
Forest Service defines restoration as ``the process of assisting the
recovery of an ecosystem that has been degraded, damaged, or destroyed.
Ecological restoration focuses on reestablishing the composition,
structure, pattern, and ecological processes necessary to facilitate
terrestrial and aquatic ecosystems sustainability, resilience, and
health under current and future conditions'' (36 CFR 219.19 and FSM
2020).
The Forest Service reviewed recently implemented actions to develop
this proposed CE by randomly selecting a sample of 68 projects from
over 718 projects completed under an EA from fiscal years 2012 to 2016.
The average of commercial and non-commercial harvest activities from
the 68 sampled EAs was 4,237 acres, and the average of total project
activities was 7,369 acres. Further information on these projects is
available in the supporting statement for Certain Restoration Projects
and its associated appendices.
Proposed CE (e)(26) was developed with the intent to allow the
Agency to more efficiently implement projects that include restoration
activities to improve forest health and resiliency to disturbances and
to improve terrestrial and aquatic habitat and other watershed
conditions. The Agency has implemented forest and watershed restoration
projects for decades. Through this experience, the Agency has found
that in certain circumstances the environmental effects of some
restoration activities have not been individually or cumulative
significant. Based on this experience, professional expertise, and
analysis of EAs and associated FONSIs for previously implemented
projects, the Agency does not expect that the restoration activities
proposed in this CE would result in potentially significant effects.
Proposed new CE (e)(27) would cover a Forest Service action that
will be implemented jointly with another Federal agency where the
action qualifies for a CE of the other Federal agency. If the Forest
Service chooses to use another Federal agency's CE to cover a proposed
action, the responsible official must obtain written confirmation from
the other Federal agency that the CE applies to the proposed action.
Proposed actions covered by this CE would remain subject to applicable
land management plan direction and other applicable laws, regulations,
and policies.
36 CFR Section 220.6 Categorical Exclusions
The proposed rule would revise the heading of Sec. 220.6 to read
as follows: Section 220.6 Environmental Assessment and Decision Notice.
The proposed rule would revise all of the paragraphs of section 220.6
by replacing all of the text with new text based on current Sec.
220.7, paragraphs (a) through (d). Additionally, revisions are proposed
within these paragraphs, including adding a paragraph on public
involvement.
The proposed rule would revise paragraph (a) to state that an EA,
which is prepared to determine whether to prepare either a FONSI or
EIS, may be prepared in any format. This revision emphasizes the
primary purpose of preparing an EA according to CEQ's regulations at 40
CFR 1508.9. The proposed rule would add new paragraph (c) and relabel
the subsequent items in Sec. 220.6. Paragraph (c) would clarify that
in addition to the public notice requirements listed at Sec. 220.4(d),
and any requirements specified by applicable statutes or regulations
(such as 36 CFR part 218), the responsible official may choose to
conduct additional public engagement opportunities to involve key
stakeholders and interested parties. Additional involvement would be
conducted commensurate with the nature of the decision being made.
Section 220.7 Environmental Assessment and Decision Notice
The proposed rule would revise the heading of Sec. 220.7 to read
as follows: Section 220.7 Environmental Impact Statement and Record of
Decision. The proposed rule would revise all of the paragraphs of Sec.
220.7 by replacing all of the text with new text based on current Sec.
220.5, paragraphs (a) through (g). Additionally, revisions are proposed
within these paragraphs (a) through (g), including adding a paragraph
on public notice and scoping.
The proposed rule, in paragraph (a) of this section, would revise
the list of classes of actions normally requiring an EIS. The proposed
rule would add development of a new land management plan or land
management plan revision in accordance with 36 CFR 219.7. The proposed
rule also would add mining operations that authorize surface
disturbance on greater than 640 acres over the life of the proposed
action. The proposed rule would remove classes of actions that would
substantially alter the undeveloped character of an inventoried
roadless area or a potential wilderness area. The Agency proposes this
change in part because the activities that have the greatest potential
to affect the roadless character of these lands are addressed
separately by the Roadless Area Conservation Rule and state-specific
roadless rules at 36 CFR part 294. Potential wilderness areas are a
class of Congressionally designated lands where management must conform
with the establishing statute's requirements, and therefore presumptive
preparation of an EIS is not required. The responsible official would
continue to prepare an EIS for proposed actions where impacts may be
significant.
Proposed new paragraph (b) would require scoping for an EIS to be
carried out in accordance with CEQ requirements at 40 CFR 1501.7.
Paragraph (b) also clarifies that no single scoping technique is
required or prescribed; however, while public notice shall be provided
in the Schedule of Proposed Actions as required at Sec. 220.4(d), the
Schedule of Proposed Actions shall not be the sole scoping mechanism.
Current paragraphs (b) through (g) would be re-designated as (c)
through (h), respectively.
The proposed rule would revise current paragraph (e) relating to
EIS alternatives and re-designate it as paragraph (f). The proposed
rule would clarify that each alternative other than the no action
alternative must meet the purpose and need. The proposed rule also
would eliminate the requirement for alternatives to address one or more
significant issues related to the proposed action. Alternatives may,
but are not required to, address issues related to the proposed action.
For example, an alternative may simply
[[Page 27550]]
address a different way of responding to the purpose and need for
action, consistent with CEQ's requirement to develop alternatives ``in
any proposal which involves unresolved conflicts concerning alternative
uses of available resources'' (40 CFR 1501.2(c); 1507.2(d)).
``Unresolved conflicts'' and issues often overlap, but not in every
instance.
Proposed Revisions to Forest Service Directives
Forest Service Manual 1950 and Handbook 1909.15
The Forest Service will propose revisions to its directives, Forest
Service Handbook (FSH 1909.15) and Manual (FSM 1950), in conjunction
with this rulemaking. FSM 1950 provides descriptions of Forest Service
NEPA authority, objectives, policy, and responsibilities. Forest
Service Handbook 1909.15 provides explanatory guidance interpreting CEQ
and Forest Service procedures in regulation. A subsequent notice will
be published in the Federal Register announcing the availability of the
proposed directives and list information on how to comment on the
proposed directives. When the notice is published, the proposed
directives and a copy of the Federal Register notice will be posted at
https://www.fs.fed.us/emc/nepa/revisions/index.htm.
Regulatory Certifications
National Environmental Policy Act
The proposed rule would revise agency procedures and guidance for
implementing NEPA. Forest Service NEPA procedures are procedural
guidance to assist in the fulfillment of agency responsibilities under
NEPA, but are not the agency's final determination of what level of
NEPA analysis is required for a particular proposed action. The CEQ set
forth the requirements for establishing agency NEPA procedures in its
regulations at 40 CFR 1505.1 and 1507.3. The CEQ regulations do not
require agencies to conduct NEPA analyses or prepare NEPA documentation
when establishing their NEPA procedures. The determination that
establishing agency NEPA procedures does not require NEPA analysis and
documentation has been upheld in Heartwood, Inc. v. U.S. Forest
Service, 230 F.3d 947, 954-55 (7th Cir. 2000).
Energy Effects
This proposed rule has been reviewed under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this proposed rule
does not constitute a significant energy action as defined in the
Executive Order.
Consultation and Coordination With Indian Tribal Governments
This proposed rule has been reviewed under Executive Order 13175 of
November 6, 2000, Consultation and Coordination with Indian Tribal
Governments. The Forest Service is sending letters inviting federally
recognized Tribes and Alaska Native Corporations to begin consultation
on the proposed rule. The Forest Service will continue to conduct
government-to-government consultation on the rule until the final rule
is published.
Pursuant to Executive Order 13175, the Agency has assessed the
impact of this proposed rule on Indian tribal governments and has
determined that the proposed rule would not significantly or uniquely
affect communities of Indian tribal governments. The proposed rule
deals with administrative procedures for complying with the
requirements of the National Environmental Policy Act and, as such, has
no direct effect on the occupancy and use of NFS land.
The Agency has also determined that this proposed rule would not
impose substantial direct compliance costs on Indian tribal
governments. This proposed rule does not mandate tribal participation
in the Forest Service NEPA process.
The proposed directives will emphasize and recognize the benefit of
including Tribes in public engagement strategies. The proposed
directives will also highlight opportunities to leverage existing data
from Tribes and analyses, along with other Federal, State, or local
agencies to gain efficiency in the NEPA process. Inclusion of Tribes,
tribal members, tribal organizations, and Alaska Native Corporations in
public engagement strategies is beneficial; however, the proposed
directives will also recognize these efforts are not a substitute for
fulfilling Tribal consultation requirements.
Executive Orders 12866
This proposed rule has been reviewed under USDA procedures and
Executive Order (E.O.) 12866 issued September 30, 1993, on regulatory
planning and review, and the major rule provisions of the Small
Business Regulatory Enforcement and Fairness Act (5 U.S.C. 800). The
Office of Management and Budget (OMB) has determined that this is a
significant rule as defined by E.O. 12866 and therefore will be subject
to interagency review.
Many benefits and costs associated with the rule are not
quantifiable. Benefits (or cost reductions) derived from the
opportunities for public engagement to more fully address public
concerns, timely and focused environmental analysis, flexibility in
preparation of environmental documents, and improved decision making
indicate a positive net benefit of the proposed rule. The proposed rule
aims to increase efficiency of environmental analysis while remaining
true to NEPA's intent of informed decision making and without weakening
the Agency's NEPA process. The proposed rule is expected to increase
the pace and scale of forest and grassland management operations on the
ground, thereby helping sustain the health of forests and grasslands
and meet the needs of the public. The direct benefits of the proposed
rule are, therefore, reduced costs and time spent on environmental
analysis, where costs include those incurred by the Forest Service as
well as by proponents or the public engaged in the environmental
analysis process. The indirect benefits to the public are also expected
to increase, as the proposed rule would provide for timelier
development of, access to, and use of forest ecosystem goods and
services, which are provided by healthier and more productive forests.
For example, by implementing Determination of NEPA Adequacy, the
Agency anticipates reductions in time and cost as a result of reducing
redundant analyses. Use of condition-based management provides
flexibility to account for changing conditions on the ground over time.
Condition-based management also allows the Agency to satisfy NEPA
despite uncertainty through validation of data and assumptions relied
upon in NEPA analysis prior to implementation. Use of condition-based
management may increase the scope and scale of analyses and the number
of activities authorized in a single analysis and decision. These
efficiencies may reduce total Agency costs and decisionmaking time.
These concepts, however, will take some time to become well-established
and widely used; potential benefits will occur over time.
From Fiscal Years 2014 to 2018, the Agency's average annual
environmental analysis workload included approximately 1,590 CEs and
277 EAs. The average time to decision for CEs was 206 days and for EAs
was 687 days. The proposed rule includes development of 7 new CEs with
a decision memo. Focusing on the new CEs, the Agency assumes for the
[[Page 27551]]
purpose of this analysis that each CE may be used an average of 1 to 30
times a year. Under these assumptions, the proposed rule may
potentially result in 7 to 210 decision memos being completed in lieu
of a decision notice. As a result, the Agency may complete NEPA
analysis on these projects an average of 1 to 16 months earlier, per
project. In practice, these figures will vary dependent upon the
project and nature of the CE being used. The Agency also anticipates
use of the new CEs to slowly increase over time, taking into account
time for adoption across the agency as has been observed during
implementation of other new CEs over the course of the past several
years. The Agency has recent experience implementing new CEs, such as
the three soil and water restoration CEs that were established in 2013
and recent legislative amendments to the Healthy Forests Restoration
Act (HFRA) Section 603 and 605, in 2014 and 2018, respectively.
There is potential for some time and cost savings by removing
formal scoping periods for some EAs and CEs; however, under existing
scoping practices, other work on a project often continues during
scoping and not every day is actively spent working on a project.
Therefore, it is difficult to quantify estimated savings. The changes
proposed place emphasis on right-sizing public engagement opportunities
and allow for discretion and flexibility in our scoping and public
engagement mechanisms. This approach will allow the Agency to
concentrate resources on projects that are potentially more complex or
have greater public interest. Increased discretion and flexibility can
provide more transparency, provide timelier responses to public needs,
and accelerate decisionmaking.
Some members of the public may perceive the changes to scoping as a
cost. However, the Agency's public engagement requirements will still
exceed the requirements of CEQ's NEPA regulations notifying the public
through posting all EISs, EAs, and CEs with an associated decision memo
to the Schedule of Proposed Actions. This perceived cost is further
reduced in the case of EAs due to the Agency's requirement under 36 CFR
218 to provide notice and an opportunity to comment.
Executive Order 13771
The proposed rule has been reviewed in accordance with E.O. 13771
on reducing regulation and controlling regulatory costs, and is
considered an E.O. deregulatory action. The impacts of the proposed
rule are as discussed above.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a `major rule', as defined by 5 U.S.C. 804(2).
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Flexibility Enforcement Fairness Act of 1996 and
Executive Order 13272, requires an agency to prepare a regulatory
flexibility analysis of rules which have received a significant
determination by the Office of Management and Budget under Executive
Order 12866. The proposed rule only directly affects the Forest
Service, and as such, will not have a significant impact on a
substantial number of small entities. The proposed rule is expected to
have a minor positive indirect effect on small entities, including
small government entities, by increasing efficiencies in environmental
analysis and decision making, improving clarity, and reducing delays
associated with NEPA compliance.
Federalism
The Agency has considered this proposed rule under the requirements
of Executive Order 13132, Federalism. The Agency has concluded that the
rule conforms with the federalism principles set out in this Executive
Order; will not impose any compliance costs on the states; and will not
have substantial direct effects on the States or the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Agency has determined that no further assessment of
federalism implications is necessary.
No Takings Implications
This rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, and it
has been determined that the rule does not pose the risk of a taking of
protected private property.
Civil Justice Reform
This proposed rule has been reviewed under E.O. 12988, Civil
Justice Reform. Under the proposed rule, (1) all State and local laws
and regulations that conflict with this proposed rule or impede its
full implementation will be preempted; (2) no retroactive effect is
given to this proposed rule; and (3) exhaustion of administrative
proceedings before parties may file suit in court challenging its
provisions is required.
Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) of
1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of the
proposed rule on State, local, and Tribal governments, and the private
sector. This proposed rule would not compel the expenditure of $100
million or more by any State, local, or Tribal government, or anyone in
the private sector. Therefore, this proposed rule is not subject to the
requirements of section 202 and 205 of the UMRA.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any additional recordkeeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law, or are
not already approved for use, and therefore imposes no additional
paperwork burden on the public. Accordingly, the review provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects in 36 CFR Part 220
Administrative practices and procedures, Environmental impact
statements, Environmental protection, National forests, Science and
technology.
0
Therefore, for the reasons set forth in the preamble, the Department of
Agriculture proposes to amend chapter II of Title 36 of the Code of
Federal Regulations by revising part 220 to read as follows:
PART 220--National Environmental Policy Act (NEPA) Compliance
Sec.
220.1 Purpose and scope.
220.2 Applicability.
220.3 Definitions.
220.4 General requirements.
220.5 Categorical exclusions.
220.6 Environmental assessment and decision notice.
220.7 Environmental impact statement and record of decision.
Authority: 42 U.S.C. 4321 et seq.; E.O. 11514; 40 CFR parts
1500-1508; 7 CFR part 1b.
[[Page 27552]]
Sec. 220.1 Purpose and scope.
(a) Purpose. This part establishes Forest Service, U.S. Department
of Agriculture (USDA) procedures for compliance with the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and
the Council on Environmental Quality (CEQ) regulations for implementing
the procedural provisions of NEPA (40 CFR parts 1500 through 1508).
(b) Scope. This part supplements and does not lessen the
applicability of the CEQ regulations, and is to be used in conjunction
with the CEQ regulations and USDA regulations at 7 CFR part 1b.
Sec. 220.2 Applicability.
This part applies to all organizational elements of the Forest
Service. Consistent with 40 CFR 1500.3, no trivial violation of this
part shall give rise to any independent cause of action.
Sec. 220.3 Definitions.
The following definitions supplement, by adding to, the terms
defined at 40 CFR parts 1500 through 1508.
Adaptive management. A system of management practices based on
clearly identified intended outcomes and monitoring to determine if
management actions are meeting those outcomes; and, if not, to
facilitate management changes that will best ensure that those outcomes
are met or re-evaluated. Adaptive management stems from the recognition
that knowledge about natural resource systems is sometimes uncertain.
Condition-based management. A system of management practices based
on implementation of specific design elements from a broader proposed
action, where the design elements vary according to a range of on-the-
ground conditions in order to meet intended outcomes. Condition-based
management stems from the recognition that the environment is dynamic,
changing as ecosystems respond to changing natural and human-caused
events.
Decision document. A record of decision, decision notice or
decision memo.
Decision memo. A concise written record of the responsible
official's decision to implement an action categorically excluded from
analysis and documentation in an environmental impact statement (EIS)
or environmental assessment (EA).
Decision notice. A concise written record of the responsible
official's decision when an EA and finding of no significant impact
(FONSI) have been prepared.
Environmentally preferable alternative. The environmentally
preferable alternative is the alternative that will best promote the
national environmental policy as expressed in NEPA's section 101 (42
U.S.C. 4321). Ordinarily, the environmentally preferable alternative is
that which causes the least harm to the biological and physical
environment; it also is the alternative which best protects and
preserves historic, cultural, and natural resources. In some
situations, there may be more than one environmentally preferable
alternative.
Reasonably foreseeable future actions. Those Federal or non-Federal
activities not yet undertaken, for which there are existing decisions,
funding, or identified proposals. Identified proposals for Forest
Service actions are described in Sec. 220.4(a).
Responsible official. The Agency employee who has the authority to
make and implement a decision on a proposed action.
Schedule of proposed actions (SOPA). A Forest Service document that
provides public notice about those proposed Forest Service actions for
which a record of decision, decision notice, or decision memo would be
or has been prepared. The SOPA also identifies a contact for additional
information on proposed actions.
Sec. 220.4 General requirements.
(a) Proposed actions subject to the NEPA requirements. As required
by 42 U.S.C. 4321 et seq., a Forest Service proposal is subject to the
NEPA requirements when all of the following apply:
(1) The Forest Service has a goal and is actively preparing to make
a decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated (see 40 CFR 1508.23);
(2) The proposed action is subject to Forest Service control and
responsibility (see 40 CFR 1508.18);
(3) The proposed action would cause effects on the natural and
physical environment and the relationship of people with that
environment (see 40 CFR 1508.14); and
(4) The proposed action is not statutorily exempt from the
requirements of section 102(2)(C) of the NEPA (42 U.S.C. 4332(2)(C)).
(b) Emergency responses. When the responsible official determines
that an emergency exists that makes it necessary to take urgently
needed actions before preparing a NEPA analysis and any required
documentation in accordance with the provisions in Sec. Sec. 220.5,
220.6, and 220.7 of this part, then the following provisions apply.
(1) The responsible official may take actions necessary to control
the immediate impacts of the emergency and are urgently needed to
mitigate harm to life, property, or important natural or cultural
resources. When taking such actions, the responsible official shall
take into account the probable environmental consequences of the
emergency action and mitigate foreseeable adverse environmental effects
to the extent practicable.
(2) If the responsible official proposes emergency actions other
than those actions described in paragraph (b)(1) of this section, and
such actions are not likely to have significant environmental impacts,
the responsible official shall document that determination in an EA and
FONSI prepared in accord with these regulations. If the responsible
official finds that the nature and scope of proposed emergency actions
are such that they must be undertaken prior to preparing any NEPA
analysis and documentation associated with a CE or an EA and FONSI, the
responsible official shall consult with the Washington Office about
alternative arrangements for NEPA compliance. The Chief or Associate
Chief of the Forest Service may grant emergency alternative
arrangements under NEPA for environmental assessments, findings of no
significant impact and categorical exclusions (FSM 1950.41a).
Consultation with the Washington Office shall be coordinated through
the appropriate regional office.
(3) If the responsible official proposes emergency actions other
than those actions described in paragraph (b)(1) of this section and
such actions are likely to have significant environmental impacts, then
the responsible official shall consult with CEQ, through the
appropriate regional office and the Washington Office, about
alternative arrangements in accordance with CEQ regulations at 40 CFR
1506.11 as soon as possible.
(c) Agency decisionmaking. For each Forest Service proposal (Sec.
220.4(a)), the responsible official shall coordinate and integrate NEPA
review and relevant environmental documents with agency decisionmaking
by:
(1) Leading the proposal development and environmental analysis
process, to ensure a focused approach;
(2) Completing the environmental document review before making a
decision on the proposal;
(3) Considering environmental documents, public and other agency
comments (if any) on those documents,
[[Page 27553]]
and agency responses to those comments;
(4) Including environmental documents, comments, and responses in
the administrative record;
(5) Considering the alternatives analyzed in environmental
document(s) before rendering a decision on the proposal; and
(6) Making a decision encompassed within the range of alternatives
analyzed in the environmental documents.
(d) Scoping and public notice. Minimum requirements for scoping and
public notice are listed below, except where specified by applicable
statutes or regulations (for example, 36 CFR part 218). Additional
public involvement is at the discretion of the local responsible
official.
(1) The Forest Service will publish to the Schedule of Proposed
Actions (SOPA) all proposed actions that will be documented with a
decision memo, environmental assessment, or environmental impact
statement. The local responsible official shall ensure the SOPA is
updated and notify the public of the availability of the SOPA.
(2) Scoping is required for all Forest Service environmental impact
statements (40 CFR 1501.7).
(e) Cumulative effects considerations of past actions. Cumulative
effects analysis shall be carried out in accordance with 40 CFR 1508.7
and in accordance with ``The Council on Environmental Quality Guidance
Memorandum on Consideration of Past Actions in Cumulative Effects
Analysis'' dated June 24, 2005. The analysis of cumulative effects
begins with consideration of the direct and indirect effects on the
environment that are expected or likely to result from the alternative
proposals for agency action. Agencies then look for present effects of
past actions that are, in the judgment of the agency, relevant and
useful because they have a significant cause-and-effect relationship
with the direct and indirect effects of the proposal for agency action
and its alternatives. CEQ regulations do not require the consideration
of the individual effects of all past actions to determine the present
effects of past actions. Once the agency has identified those present
effects of past actions that warrant consideration, the agency assesses
the extent that the effects of the proposal for agency action or its
alternatives will add to, modify, or mitigate those effects. The final
analysis documents an agency assessment of the cumulative effects of
the actions considered (including past, present, and reasonably
foreseeable future actions) on the affected environment. With respect
to past actions, during the public involvement process and subsequent
preparation of the analysis, the agency must determine what information
regarding past actions is useful and relevant to the required analysis
of cumulative effects. Cataloging past actions and specific information
about the direct and indirect effects of their design and
implementation could, in some contexts, be useful to predict the
cumulative effects of the proposal. The CEQ regulations, however, do
not require agencies to catalogue or exhaustively list and analyze all
individual past actions. Simply because information about past actions
may be available or obtained with reasonable effort does not mean that
it is relevant and necessary to inform decisionmaking. (40 CFR 1508.7)
(f) Classified information. To the extent practicable, the
responsible official shall segregate any information that has been
classified pursuant to Executive order or statute. The responsible
official shall maintain the confidentiality of such information in a
manner required for the information involved. Such information may not
be included in any publicly disclosed documents. If such material
cannot be reasonably segregated, or if segregation would leave
essentially meaningless material, the responsible official must
withhold the entire analysis document from the public; however, the
responsible official shall otherwise prepare the analysis documentation
in accord with applicable regulations. (40 CFR 1507.3(c))
(g) Incorporation by reference. Material may be incorporated by
reference into any environmental or decision document. This material
must be reasonably available to the public and its contents briefly
described in the environmental or decision document. (40 CFR 1502.21)
(h) Applicants. The responsible official shall make policies or
staff available to advise potential applicants of studies or other
information foreseeably required for acceptance of their applications.
Upon acceptance of an application as provided by 36 CFR 251.54(g) the
responsible official shall initiate the NEPA process.
(i) Determination of NEPA Adequacy. (1) NEPA analysis performed for
a previous proposed action can suffice for a new proposed action. A
Determination of NEPA Adequacy (DNA) is a tool to determine whether a
previously completed NEPA analysis can satisfy NEPA's requirements for
a subsequent proposed action. In making this determination, the
responsible official shall evaluate:
(i) Is the new proposed action essentially similar to a previously
analyzed proposed action or alternative analyzed in detail in previous
NEPA analysis?
(ii) Is the range of alternatives previously analyzed adequate
under present circumstances?
(iii) Is there any significant new information or circumstances
relevant to environmental concerns that would substantially change the
analysis in the existing NEPA document(s)?
(iv) Are the direct, indirect, and cumulative effects that would
result from implementation of the new proposed action similar (both
quantitatively and qualitatively) to those analyzed in the existing
NEPA document(s)?
(2) A DNA for a new proposed action shall be included in the
project record for the new proposed project or activity. New project
and activity decisions made in reliance on a DNA shall be subject to
all applicable notice, comment, and administrative review processes.
(j) Adaptive Management. The proposed action and any alternatives
to the proposed action may include adaptive management. An adaptive
management proposal or alternative must clearly identify the
adjustment(s) that may be made when monitoring during project
implementation indicates that the action is not having its intended
effect, or is causing unintended and undesirable effects. The NEPA
analysis must disclose not only the effect of the proposed action or
alternative but also the effect of the adjustment. Such proposal or
alternative must also describe the monitoring that would take place to
inform the responsible official during implementation whether the
action is having its intended effect.
(k) Condition-based management. The proposed action and any
alternatives may include condition-based management. A condition-based
management alternative must clearly identify the management actions
that will be undertaken, and any design elements that will be
implemented, when a certain set or range of conditions are present. The
NEPA analysis must disclose the effects of all condition-based actions,
taking into account design elements that limit such actions. Such
proposal or alternative must also describe the process by which
conditions will be validated prior to implementation.
(l) Supplementation and new information. (1) The responsible
official shall prepare supplements to either draft or final
environmental impact
[[Page 27554]]
statements (40 CFR 1502.9(c) or environmental assessments if:
(i) The agency makes substantial changes in the proposed action
that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action
or its impacts and there remains Federal action to occur.
(2) The responsible official may prepare a supplemental information
report to document the review of potentially significant new
circumstances or information. If a supplemental information report is
prepared, it shall be included in the project record.
Sec. 220.5 Categorical exclusions.
(a) General. A proposed action may be categorically excluded from
analysis and documentation in an EA or EIS when there are no
extraordinary circumstances related to the proposed action, and the
proposed action is within one or more of the categories listed at 7 CFR
part 1b.3 or 36 CFR 220.5(d) or (e). All categories are independently
established and do not constrain or limit the operation of each other.
Multiple categories may be relied upon for a single proposed action
when a single category does not cover all aspects of the proposed
action.
(b) Resource conditions. (1) Resource conditions that should be
considered in determining whether extraordinary circumstances related
to a proposed action warrant analysis and documentation in an EA or an
EIS are:
(i) Federally listed threatened or endangered species or designated
critical habitat and species proposed for Federal listing or proposed
critical habitat;
(ii) Flood plains, wetlands, or municipal watersheds;
(iii) Congressionally designated areas, such as wilderness,
wilderness study areas, potential wilderness areas, wild and scenic
rivers, or national recreation areas;
(iv) Roadless areas designated under 36 CFR part 294;
(v) Research natural areas;
(vi) American Indian and Alaska Native religious or cultural sites;
and
(vii) Archaeological sites, or historic properties or areas.
(2) The mere presence of one or more of these resource conditions
does not preclude use of a categorical exclusion. Extraordinary
circumstances exist when there is a cause-and-effect relationship
between a proposed action and listed resource conditions and the
responsible official determines that there is a likelihood of
substantial adverse effects. The responsible official may consider
whether long-term beneficial effects outweigh short-term adverse
effects in making this determination.
(c) Public involvement. In addition to public notice in the SOPA,
as required at 220.4(d), the responsible official may choose to conduct
additional public engagement activities to involve key stakeholders and
interested parties. This additional involvement shall be conducted
commensurate with the nature of the decision to be made.
(d) Categories of actions for which a project or case file and
decision memo are not required. A supporting record and a decision memo
are not required, but at the discretion of the responsible official,
may be prepared for the following categories:
(1) Orders issued pursuant to 36 CFR part 261--Prohibitions to
provide short-term resource protection or to protect public health and
safety. Examples include but are not limited to:
(i) Closing a road to protect bighorn sheep during lambing season,
and
(ii) Closing an area during a period of extreme fire danger.
(2) Rules, regulations, or policies to establish service-wide
administrative procedures, program processes, or instructions. Examples
include but are not limited to:
(i) Adjusting special use or recreation fees using an existing
formula;
(ii) Proposing a technical or scientific method or procedure for
screening effects of emissions on air quality related values in Class I
wildernesses;
(iii) Proposing a policy to defer payments on certain permits or
contracts to reduce the risk of default;
(iv) Proposing changes in contract terms and conditions or terms
and conditions of special use authorizations;
(v) Establishing a service-wide process for responding to offers to
exchange land and for agreeing on land values; and
(vi) Establishing procedures for amending or revising forest land
and resource management plans.
(3) Repair and maintenance of administrative sites. Examples
include but are not limited to:
(i) Mowing lawns at a district office;
(ii) Replacing a roof or storage shed;
(iii) Painting a building; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(4) Repair and maintenance of roads, trails, and landline
boundaries. Examples include but are not limited to:
(i) Authorizing a user to grade, resurface, and clean the culverts
of an established NFS road;
(ii) Grading a road and clearing the roadside of brush without the
use of herbicides;
(iii) Resurfacing a road to its original condition;
(iv) Pruning vegetation and cleaning culverts along a trail and
grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.
(5) Repair and maintenance of recreation sites and facilities.
Examples include but are not limited to:
(i) Applying registered herbicides to control poison ivy on
infested sites in a campground;
(ii) Applying registered insecticides by compressed air sprayer to
control insects at a recreation site complex;
(iii) Repaving a parking lot; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(6) Acquisition of land or interest in land. Examples include but
are not limited to:
(i) Accepting the donation of lands or interests in land to the
NFS, and
(ii) Purchasing fee, conservation easement, reserved interest deed,
or other interests in lands.
(7) Sale or exchange of land or interest in land and resources
where resulting land uses remain essentially the same. Examples include
but are not limited to:
(i) Selling or exchanging land pursuant to the Small Tracts Act;
(ii) Exchanging NFS lands or interests with a State agency, local
government, or other non-Federal party (individual or organization)
with similar resource management objectives and practices;
(iii) Authorizing the Bureau of Land Management to issue leases on
producing wells when mineral rights revert to the United States from
private ownership and there is no change in activity; and
(iv) Exchange of administrative sites involving other than NFS
lands.
(8) Approval, modification, or continuation of minor short-term (1
year or less) special uses of NFS lands. Examples include but are not
limited to:
(i) Approving, on an annual basis, the intermittent use and
occupancy by a State-licensed outfitter or guide;
(ii) Approving the use of NFS land for apiaries; and
(iii) Approving the gathering of forest products for personal use.
(9) Issuance of a new permit for up to the maximum tenure allowable
under the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b)
for an existing ski area when such issuance is a purely ministerial
action to account for administrative changes, such as a change in
ownership of ski area improvements, expiration of the current permit,
or a change in the statutory authority applicable to the current
permit. Examples include, but are not limited to:
[[Page 27555]]
(i) Issuing a permit to a new owner of ski area improvements within
an existing ski area with no changes to the master development plan,
including no changes to the facilities or activities for that ski area;
(ii) Upon expiration of a ski area permit, issuing a new permit to
the holder of the previous permit where the holder is not requesting
any changes to the master development plan, including changes to the
facilities or activities; and
(iii) Issuing a new permit under the National Forest Ski Area
Permit Act of 1986 to the holder of a permit issued under the Term
Permit and Organic Acts, where there are no changes in the type or
scope of activities authorized and no other changes in the master
development plan.
(10) [Reserved]
(11) Issuance of a new special use authorization to replace an
existing or expired special use authorization, when such issuance is a
purely clerical action to account for administrative changes, such as a
change in ownership of authorized improvements or expiration of the
current authorization, and where there are no changes to the authorized
facilities or increases in the scope or intensity of authorized
activities. The applicant or holder must be in compliance with all the
terms and conditions of the existing or expired special use
authorization. Subject to the foregoing conditions, examples include
but are not limited to:
(i) Issuing a new authorization to replace a powerline
authorization that is at the end of its term;
(ii) Issuing a new permit to replace an expired permit for a road
that continues to be used as access to non-NFS lands.
(iii) Issuing a new permit to replace an outfitting and guiding
permit that is at the end of its term, or to convert a transitional
priority use outfitting and guiding permit to a priority use outfitting
and guiding permit.
(12) Issuance of a new authorization or amendment of an existing
authorization for activities that occur on existing roads or trails, in
existing facilities, or in areas where activities are consistent with
the applicable land management plan or other documented decision.
Subject to the foregoing condition, examples include but are not
limited to:
(i) Issuance of an outfitting and guiding permit for mountain
biking on NFS trails that are not closed to mountain biking;
(ii) Issuance of a permit to host a motorcycle enduro ride on
existing roads;
(iii) Issuance of an outfitting and guiding permit for backcountry
skiing;
(iv) Issuance of a permit for a one time use of existing facilities
for fund raising activities and other recreational events.
(v) Issuance of a campground concession permit for an existing
campground that has previously been operated by the Forest Service.
(e) Categories of actions for which a project or case file and
decision memo are required. A supporting record is required and the
decision to proceed must be documented in a decision memo for the
categories of action in paragraphs (e)(1) through (28) of this section.
As a minimum, the project or case file should include any records
prepared, such as: The names of interested and affected people, groups,
and agencies contacted; the determination that no extraordinary
circumstances exist; a copy of the decision memo; and a list of the
people notified of the decision.
(1) Construction and reconstruction of trails. Examples include,
but are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook,
and
(ii) Reconstructing an existing trail to allow use by individuals
with disabilities.
(2) Additional construction or reconstruction of existing telephone
or utility lines in a designated corridor. Examples include, but are
not limited to:
(i) Replacing an underground cable trunk and adding additional
phone lines, and
(ii) Reconstructing a power line by replacing poles and wires.
(3) Approval, modification, or continuation of special uses that
require less than 20 acres of NFS lands. Subject to the preceding
condition, examples include but are not limited to:
(i) Approving the construction of a meteorological sampling site;
(ii) Approving the use of land for a one-time group event;
(iii) Approving the construction of temporary facilities for
filming of staged or natural events or studies of natural or cultural
history;
(iv) Approving the use of land for a 40-foot utility corridor that
crosses four miles of a national forest;
(v) Approving the installation of a driveway or other facilities
incidental to use of a private residence;
(vi) Approving new or additional telecommunication facilities,
improvements, or use at a site already used for such purposes;
(vii) Approving the expansion of an existing gravel pit or the
removal of mineral materials from an existing community pit or common-
use area;
(viii) Approving the continued use of land where such use has not
changed since authorized and no change in the physical environment or
facilities are proposed.
(4) [Reserved]
(5) Regeneration of an area to native tree species, including site
preparation that does not involve the use of herbicides or result in
vegetation type conversion. Examples include, but are not limited to:
(i) Planting seedlings of superior trees in a progeny test site to
evaluate genetic worth, and
(ii) Planting trees or mechanical seed dispersal of native tree
species following a fire, flood, or landslide.
(6) Timber stand and/or wildlife habitat improvement activities
that do not include the use of herbicides or do not require more than 1
mile of low standard road construction. Examples include, but are not
limited to:
(i) Girdling trees to create snags;
(ii) Thinning or brush control to improve growth or to reduce fire
hazard including the opening of an existing road to a dense timber
stand;
(iii) Prescribed burning to control understory hardwoods in stands
of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve
plant vigor.
(7) Modification or maintenance of stream or lake aquatic habitat
improvement structures using native materials or normal practices.
Examples include, but are not limited to:
(i) Reconstructing a gabion with stone from a nearby source;
(ii) Adding brush to lake fish beds; and
(iii) Cleaning and resurfacing a fish ladder at a hydroelectric
dam.
(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 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;
[[Page 27556]]
(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.
(9) Implementation or modification of minor management practices to
improve allotment condition or animal distribution when an allotment
management plan is not yet in place. Examples include, but are not
limited to:
(i) Rebuilding a fence to improve animal distribution;
(ii) Adding a stock watering facility to an existing water line;
and
(iii) Spot seeding native species of grass or applying lime to
maintain forage condition.
(10) [Reserved]
(11) Post-fire rehabilitation activities, not to exceed 4,200 acres
(such as tree planting, fence replacement, habitat restoration,
heritage site restoration, repair of roads and trails, and repair of
damage to minor facilities such as campgrounds), to repair or improve
lands unlikely to recover to a management approved condition from
wildland fire damage, or to repair or replace minor facilities damaged
by fire. Such activities:
(i) Shall be conducted consistent with Agency and Departmental
procedures and applicable land and resource management plans;
(ii) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and
(iii) Shall be completed within 3 years following a wildland fire.
(12) Harvest of live trees not to exceed 70 acres, requiring no
more than \1/2\ mile of temporary road construction. Do not use this
category for even-aged regeneration harvest or vegetation type
conversion. The proposed action may include incidental removal of trees
for landings, skid trails, and road clearing. Examples include, but are
not limited to:
(i) Removal of individual trees for sawlogs, specialty products, or
fuelwood, and
(ii) Commercial thinning of overstocked stands to achieve the
desired stocking level to increase health and vigor.
(13) Salvage of dead and/or dying trees not to exceed 250 acres,
requiring no more than \1/2\ mile of temporary road construction. The
proposed action may include incidental removal of live or dead trees
for landings, skid trails, and road clearing. Examples include, but are
not limited to:
(i) Harvest of a portion of a stand damaged by a wind or ice event
and construction of a short temporary road to access the damaged trees,
and
(ii) Harvest of fire-damaged trees.
(14) Commercial and non-commercial sanitation harvest of trees to
control insects or disease not to exceed 250 acres, requiring no more
than \1/2\ mile of temporary road construction, including removal of
infested/infected trees and adjacent live uninfested/uninfected trees
as determined necessary to control the spread of insects or disease.
The proposed action may include incidental removal of live or dead
trees for landings, skid trails, and road clearing. Examples include,
but are not limited to:
(i) Felling and harvest of trees infested with southern pine
beetles and immediately adjacent uninfested trees to control expanding
spot infestations, and
(ii) Removal and/or destruction of infested trees affected by a new
exotic insect or disease, such as emerald ash borer, Asian long horned
beetle, and sudden oak death pathogen.
(15) [Reserved]
(16) Plan amendments developed in accordance with 36 CFR part 219
et seq. that provide broad guidance and information for project and
activity decisionmaking in a NFS unit. Proposals for actions that
approve projects and activities, or that command anyone to refrain from
undertaking projects and activities, or that grant, withhold or modify
contracts, permits or other formal legal instruments, are outside the
scope of this category and shall be considered separately under Forest
Service NEPA procedures.
(17) Approval of a Surface Use Plan of Operations for oil and
natural gas exploration and initial development activities, associated
with or adjacent to a new oil and/or gas field or area, so long as the
approval will not authorize activities in excess of any of the
following:
(i) One mile of new road construction;
(ii) One mile of road reconstruction;
(iii) Three miles of individual or co-located pipelines and/or
utilities disturbance; or
(iv) Four drill sites.
(18) Restoring wetlands, streams, riparian areas or other water
bodies by removing, replacing, or modifying water control structures
such as, but not limited to, dams, levees, dikes, ditches, culverts,
pipes, drainage tiles, valves, gates, and fencing, to allow waters to
flow into natural channels and floodplains and restore natural flow
regimes to the extent practicable where valid existing rights or
special use authorizations are not unilaterally altered or canceled.
Examples include but are not limited to:
(i) Repairing an existing water control structure that is no longer
functioning properly with minimal dredging, excavation, or placement of
fill, and does not involve releasing hazardous substances;
(ii) Installing a newly-designed structure that replaces an
existing culvert to improve aquatic organism passage and prevent
resource and property damage where the road or trail maintenance level
does not change;
(iii) Removing a culvert and installing a bridge to improve aquatic
and/or terrestrial organism passage or prevent resource or property
damage where the road or trail maintenance level does not change; and
(iv) Removing a small earthen and rock fill dam with a low hazard
potential classification that is no longer needed.
(19) Removing and/or relocating debris and sediment following
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian
systems to pre-disturbance conditions, to the extent practicable, such
that site conditions will not impede or negatively alter natural
processes. Examples include but are not limited to:
(i) Removing an unstable debris jam on a river following a flood
event and relocating it back in the floodplain and stream channel to
restore water flow and local bank stability;
(ii) Clean-up and removal of infrastructure flood debris, such as,
benches, tables, outhouses, concrete, culverts, and asphalt following a
hurricane from a stream reach and adjacent wetland area; and
(iii) Stabilizing stream banks and associated stabilization
structures to reduce erosion through bioengineering techniques
following a flood event, including the use of living and nonliving
plant materials in combination with natural and synthetic support
materials, such as rocks, riprap, geo-textiles, for slope
stabilization, erosion reduction, and vegetative establishment and
establishment of appropriate plant communities (bank shaping and
planting, brush mattresses, log, root wad, and boulder stabilization
methods).
(20) Activities that restore, rehabilitate, or stabilize lands
occupied by roads and trails, including unauthorized roads and trails
and NFS roads and NFS trails, to a more natural
[[Page 27557]]
condition that may include removing, replacing, or modifying drainage
structures and ditches, reestablishing vegetation, reshaping natural
contours and slopes, reestablishing drainage-ways, or other activities
that would restore site productivity and reduce environmental impacts.
Examples include but are not limited to:
(i) Decommissioning a road to a more natural state by restoring
natural contours and removing construction fills, loosening compacted
soils, revegetating the roadbed and removing ditches and culverts to
reestablish natural drainage patterns;
(ii) Restoring a trail to a natural state by reestablishing natural
drainage patterns, stabilizing slopes, reestablishing vegetation, and
installing water bars; and
(iii) Installing boulders, logs, and berms on a road segment to
promote naturally regenerated grass, shrub, and tree growth.
(21) Construction, reconstruction, decommissioning, relocation, or
disposal of buildings, infrastructure, or other improvements at an
existing administrative site, as that term is defined in section 502(1)
of Public Law 109-54 (119 Stat. 559; 16 U.S.C. 580d note). Examples
include but are not limited to:
(i) Relocating an administrative facility to another existing
administrative site;
(ii) Construction, reconstruction, or expansion of an office, a
warehouse, a lab, a greenhouse, or a fire-fighting facility;
(iii) Surface or underground installation or decommissioning of a
water or waste disposal system infrastructure;
(iv) Disposal of an administrative building; and
(v) Construction or reconstruction of communications
infrastructure.
(22) Construction, reconstruction, decommissioning, or disposal of
buildings, infrastructure, or improvements at an existing recreation
site either managed by the Forest Service or managed under special use
authorities, including infrastructure or improvements that are adjacent
or connected to an existing recreation site and provide access or
utilities for that site. Recreation sites include but are not limited
to campgrounds and camping areas, picnic areas, day use areas, fishing
sites, interpretive sites, visitor centers, trailheads, ski areas, and
observation sites. Activities within this category are intended to
apply to facilities located on recreation sites managed by the Forest
Service and those managed by concessioners under a special use
authorization. Examples include but are not limited to:
(i) Constructing, reconstructing, or expanding a toilet or shower
facility;
(ii) Constructing or reconstructing a fishing pier, wildlife
viewing platform, dock, or other constructed feature at a recreation
site;
(iii) Installing or reconstructing a water or waste disposal
system;
(iv) Constructing or reconstructing campsites;
(v) Disposal of facilities at a recreation site;
(vi) Constructing or reconstructing a boat landing;
(vii) Replacing a chair lift at a ski area;
(viii) Constructing or reconstructing a parking area or trailhead;
and
(ix) Reconstructing or expanding a recreation rental cabin.
(23) Converting a non-NFS or unauthorized trail or trail segment to
an NFS trail when determined appropriate by the responsible official
and consistent with applicable land management plan direction, travel
management decisions, trail-specific decisions, and other related
direction. Examples include but are not limited to:
(i) Converting an unauthorized trail that crosses land acquired by
the Forest Service to an NFS trail; and
(ii) Converting an unauthorized trail to an NFS trail, including
associated repair and reconstruction activities, to enhance access and
recreation opportunities.
(24) Construction or realignment of up to 5 miles of NFS roads,
reconstruction of up to 10 miles of NFS roads and associated parking
areas, opening or closing an NFS road, and culvert or bridge
rehabilitation or replacement along NFS roads. Examples include but are
not limited to:
(i) Reconstructing an NFS road or parking area to address deferred
maintenance;
(ii) Constructing an NFS road to improve access to a trailhead or
parking area;
(iii) Modifying the surface of an NFS road;
(iv) Rerouting an NFS road to minimize resource impacts;
(v) Closing an NFS road to address resource impacts; and
(vi) Shoulder widening or other safety improvements within the
right-of-way for an NFS road.
(25) Converting an unauthorized or non-NFS road to an NFS road.
Examples include but are not limited to:
(i) Converting a non-NFS road that crosses land acquired by the
Forest Service to an NFS road; and
(ii) Converting a non-NFS road to an NFS road to enhance access and
recreation opportunities.
(26) Ecosystem restoration and/or resilience activities on NFS
lands in compliance with the applicable land management plan,
including, but not limited to the plan's goals, objectives, or desired
conditions. Activities to improve ecosystem health, resilience, and
other watershed conditions cannot exceed 7,300 treated acres. If
commercial/non-commercial timber harvest activities are proposed they
must be carried out in combination with at least one additional
restoration activity and harvested acres cannot exceed 4,200 of the
7,300 acres.
(i) Restoration and resilience activities include, but are not
limited to:
(A) Terrestrial and aquatic habitat improvement and/or creation,
(B) Stream restoration, aquatic organism passage, or erosion
control,
(C) Road and/or trail decommissioning (system and non-system),
(D) Control of invasive species and reestablishing native species,
(E) Hazardous fuels reduction and/or wildfire risk reduction,
(F) Prescribed burning,
(G) Reforestation,
(H Commercial harvest, and/or
(I) Non/pre-commercial thinning,
(ii) Road and trail limitation. A restoration/resilience activity
under this category may include:
(A) Construction of permanent roads up to 0.5 miles.
(B) Maintenance or reconstruction of NFS roads and system trails,
such as relocation of road or trail segments to address resource
impacts.
(C) Construction of temporary roads up to 2.5 miles. All temporary
roads constructed for a project under this category shall be
decommissioned no later than 3 years after the date the project is
completed.
(27) A Forest Service action that will be implemented jointly with
another Federal agency and the action qualifies for a categorical
exclusion of the other Federal agency. If the Forest Service chooses to
use another Federal agency's categorical exclusion to cover a proposed
action, the responsible official must obtain written concurrence from
the other Federal agency that the categorical exclusion applies to the
proposed action.
(f) Decision memos. The responsible official shall notify
interested or affected parties of the availability of the decision memo
as soon as practicable after signing. While sections may be combined or
rearranged in the interest of clarity and brevity, decision memos must
include the following content:
(1) A heading, which must identify:
(i) Title of document: Decision Memo;
[[Page 27558]]
(ii) Agency and administrative unit;
(iii) Title of the proposed action; and
(iv) Location of the proposed action, including administrative
unit, county, and State.
(2) Decision to be implemented and the reasons for categorically
excluding the proposed action including:
(i) The category of the proposed action;
(ii) The rationale for using the category or categories;
(iii) A finding that no extraordinary circumstances exist;
(3) Any interested and affected agencies, organizations, and
persons contacted;
(4) Findings required by other laws such as, but not limited to
findings of consistency with the forest land and resource management
plan as required by the National Forest Management Act; or a public
interest determination (36 CFR 254.3(b));
(5) The date when the responsible official intends to implement the
decision and any conditions related to implementation;
(6) Whether the decision is subject to administrative review, the
applicable regulations, and when and where to file a request for
review;
(7) Name, address, and phone number of a contact person who can
supply further information about the decision; and
(8) The responsible official's signature and date when the decision
is made.
Sec. 220.6 Environmental assessment and decision notice.
(a) Environmental assessment. An environmental assessment (EA)
shall be prepared for proposals as described in Sec. 220.4(a) that are
not categorically excluded (Sec. 220.5) and for which the need for an
EIS has not been determined (Sec. 220.7). An EA may be prepared in any
format useful to determine whether to prepare either an EIS or a FONSI,
as long as the requirements of paragraph (b) of this section are met.
The EA may incorporate by reference information that is reasonably
available to the public.
(b) An EA must include the following:
(1) Need for the proposal. The EA must briefly describe the need
for the project.
(2) Proposed action and alternative(s). The EA shall briefly
describe the proposed action and any alternative(s) that meet the need
for action. No specific number of alternatives is required or
prescribed.
(i) When there are no unresolved conflicts concerning alternative
uses of available resources (NEPA, section 102(2)(E)), the EA need only
analyze the proposed action and may proceed without consideration of
additional alternatives.
(ii) The EA may document consideration of a no-action alternative
through the effects analysis by contrasting the impacts of the proposed
action and any alternative(s) with the current condition and expected
future condition if the proposed action were not implemented.
(iii) The description of the proposal and any alternative(s) may
include a brief description of incremental modifications developed
through the analysis process. The documentation of these incremental
changes to a proposed action or alternatives may be incorporated by
reference.
(3) Environmental Impacts of the Proposed Action and
Alternative(s). The EA:
(i) Shall briefly provide sufficient evidence and analysis,
including the environmental impacts of the proposed action and
alternative(s), to determine whether to prepare either an EIS or a
FONSI (40 CFR 1508.9);
(ii) Shall disclose the environmental effects of any adaptive
management adjustments;
(iii) Shall describe the impacts of the proposed action and any
alternatives in terms of context and intensity as described in the
definition of ``significantly'' at 40 CFR 1508.27;
(iv) May discuss the direct, indirect, and cumulative impacts of
the proposed action and any alternatives together in a comparative
description or describe the impacts of each alternative separately; and
(v) May incorporate by reference data, inventories, other
information and analyses.
(4) Agencies and Persons Consulted.
(c) Public involvement. In addition to public notice in the SOPA
and other requirements specified by applicable statutes or regulations
(such as 36 CFR 218), as required at Sec. 220.4(d), the responsible
official may choose to conduct additional public engagement activities
to involve key stakeholders and interested parties. This additional
involvement shall be conducted commensurate with the nature of the
decision to be made.
(d) Decision notice. If an EA and FONSI have been prepared, the
responsible official must document a decision to proceed with an action
in a decision notice unless law or regulation requires another form of
decision documentation. A decision notice must document the conclusions
drawn and the decision(s) made based on the supporting record,
including the EA and FONSI. A decision notice must include:
(1) A heading, which identifies the:
(i) Title of document;
(ii) Agency and administrative unit;
(iii) Title of the project; and
(iv) Location of the action, including county and State.
(2) Decision and rationale;
(3) Brief summary of public involvement;
(4) A statement incorporating by reference the EA and FONSI if not
combined with the decision notice;
(5) Findings required by other laws and regulations applicable to
the decision at the time of decision;
(6) Expected implementation date;
(7) Administrative review opportunities and, when such
opportunities exist, a citation to the applicable regulations and
directions on when and where to file a request for review;
(8) Contact information, including the name, address, and phone
number of a contact person who can supply additional information; and
(9) Responsible Official's signature, and the date the decision
notice is signed.
(e) Notification. The responsible official shall notify interested
and affected parties of the availability of the EA, FONSI, and decision
notice as soon as practicable after the decision notice is signed.
Sec. 220.7 Environmental impact statement and record of decision.
(a) Classes of actions normally requiring environmental impact
statements.
(1) Class 1. Proposals to carry out or to approve aerial
application of chemical pesticides on an operational basis. Examples
include but are not limited to:
(i) Applying chemical insecticides by helicopter on an area
infested with spruce budworm to prevent serious resource loss.
(ii) Authorizing the application of herbicides by helicopter on a
major utility corridor to control unwanted vegetation.
(iii) Applying herbicides by fixed-wing aircraft on an area to
release trees from competing vegetation.
(2) Class 2. Development of a new land management plan or land
management plan revision as provided for in 36 CFR 219.7.
(3) Class 3.Mining operations that involve surface disturbance on
greater than 640 acres over the life of the proposed action.
(b) Public Notice and Scoping. Scoping shall be carried out in
accordance with the requirements of 40 CFR 1501.7. No single scoping
[[Page 27559]]
technique is required or prescribed however, while public notice shall
be provided by the SOPA, as required at Sec. 220.4(d), the SOPA shall
not to be used as the sole scoping mechanism.
(c) Notice of intent. Normally, a notice of intent to prepare an
EIS shall be published in the Federal Register as soon as practicable
after deciding that an EIS will be prepared. Where there is a lengthy
period between the agency's decision to prepare an EIS and the time of
actual preparation, the notice of intent may be published at a
reasonable time in advance of preparation of the draft statement. A
notice must meet the requirements of 40 CFR 1508.22, and in addition,
include the following:
(1) Title of the responsible official(s);
(2) Any permits or licenses required to implement the proposed
action and the issuing authority, to the extent known;
(3) Lead, joint lead, or cooperating agencies if identified; and
(4) Address(es) to which comments may be sent.
(d) Withdrawal notice. A withdrawal notice must be published in the
Federal Register if, after publication of the notice of intent or
notice of availability, an EIS is no longer necessary. A withdrawal
notice must refer to the date and Federal Register page number of the
previously published notice(s).
(e) Environmental impact statement format and content. The
responsible official may use any EIS format and design as long as the
statement is in accord with 40 CFR 1502.10.
(f) Alternative(s). The EIS shall document the examination of
reasonable alternatives to the proposed action. Each alternative other
than the no action alternative must meet the purpose and need of the
proposed action. No specific number of alternatives is required or
prescribed. The responsible official may modify the proposed action and
alternative(s) under consideration prior to issuing a draft EIS. In
such cases, the responsible official may consider the incremental
changes as alternatives considered. The documentation of these
incremental changes to a proposed action or alternatives shall be
included or incorporated by reference in accord with 40 CFR 1502.21.
(g) Circulating and filing draft and final environmental impact
statements. (1) The draft and final EISs shall be filed with the
Environmental Protection Agency's Office of Federal Activities in
Washington, DC (see 40 CFR 1506.9).
(2) Requirements at 40 CFR 1506.9 ``Filing requirements,'' 40 CFR
1506.10 ``Timing of agency action,'' and 40 CFR 1502.19 ``Circulation
of the environmental impact statement'' shall only apply to the last
draft and final EIS, and will not apply to material produced prior to
the draft EIS or between the draft and final EIS which are filed with
EPA.
(3) When the responsible official determines that an extension of
the review period on a draft EIS is appropriate, notice shall be given
in the same manner used for inviting comments on the draft.
(h) Distribution of the record of decision. The responsible
official shall notify interested or affected parties of the
availability of the record of decision as soon as practicable after
signing.
Dated: May 17, 2019.
James E. Hubbard,
Undersecretary, Natural Resources and Environment.
[FR Doc. 2019-12195 Filed 6-12-19; 8:45 am]
BILLING CODE 3411-15-P
