Procedures for Implementing the National Environmental Policy Act

Published date27 March 2020
Citation85 FR 17434
Record Number2020-05964
SectionRules and Regulations
CourtTennessee Valley Authority
Federal Register, Volume 85 Issue 60 (Friday, March 27, 2020)
[Federal Register Volume 85, Number 60 (Friday, March 27, 2020)]
                [Rules and Regulations]
                [Pages 17434-17467]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-05964]
                [[Page 17433]]
                Vol. 85
                Friday,
                No. 60
                March 27, 2020
                Part III Tennessee Valley Authority-----------------------------------------------------------------------18 CFR Part 1318 Procedures for Implementing the National Environmental Policy Act;
                Final Rule
                Federal Register / Vol. 85 , No. 60 / Friday, March 27, 2020 / Rules
                and Regulations
                [[Page 17434]]
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                TENNESSEE VALLEY AUTHORITY
                18 CFR Part 1318
                Procedures for Implementing the National Environmental Policy Act
                AGENCY: Tennessee Valley Authority.
                ACTION: Final rule.
                -----------------------------------------------------------------------
                SUMMARY: This final rule amends the procedures of the Tennessee Valley
                Authority (TVA) for implementing the National Environmental Policy Act
                (NEPA). The final rule is codified in Title 18 of the Code of Federal
                Regulations, as part 1318 of Chapter XIII (Tennessee Valley Authority).
                DATES: This final rule is effective April 27, 2020.
                FOR FURTHER INFORMATION CONTACT: Matthew Higdon, NEPA Specialist,
                Tennessee Valley Authority, 400 W. Summit Hill Drive #11B-K, Knoxville,
                Tennessee 37902. Telephone: 865-632-8051. Email: [email protected].
                SUPPLEMENTARY INFORMATION:
                I. Background
                 This final rule revises TVA's implementing procedures for assessing
                the effects of TVA's actions in accordance with NEPA, as amended (42
                U.S.C. 4321 et seq.). The Council on Environmental Quality (CEQ)
                regulations at 40 CFR 1505.1 and 1507.3 require Federal agencies to
                adopt procedures as necessary to supplement CEQ's regulations
                implementing NEPA and to consult with CEQ during their development. TVA
                first established its procedures for implementing NEPA in 1980 (45 FR
                54511-15, August 15, 1980), and amended the procedures in 1983 (48 FR
                19264, April 28, 1983) to incorporate requirements relating to
                floodplain management and protection of wetlands, among other things.
                 In 2016, TVA completed an internal review of its NEPA procedures
                and practices and identified the need to revise some of its procedures
                to more accurately address TVA's current mission, program areas, or
                organizational structure. TVA also found that updating the procedures
                is necessary to address the evolving energy market place, current
                communication trends, and CEQ guidance issued subsequent to the initial
                TVA NEPA procedures. In addition, TVA identified opportunities to
                improve its practices and to clarify the procedures to ensure
                environmental compliance and improve the decision-making process. In
                updating its procedures, TVA ensures that the procedures reduce
                paperwork and delay to the extent possible.
                 The final rule incorporates: (1) Updates to organizational
                references to clarify roles and responsibilities within TVA; (2)
                acknowledgement of the use of modern notification and communication
                methods to improve public participation; (3) revisions to TVA's list of
                categorical exclusions (CEs) to include common actions that have been
                demonstrated to have no significant effect on the human environment and
                to remove CEs for actions which TVA rarely or no longer undertakes; and
                (4) revisions to improve the clarity of the procedures and remove
                redundant and outdated information.
                 When established in 1980, TVA's NEPA implementing procedures were
                contained in TVA Instruction IX (Environmental Review), a section of
                TVA's administrative code of internal policies and procedures. Under
                the final rule, the procedures are codified in Title 18 of the Code of
                Federal Regulations (CFR), as part 1318 of Chapter XIII (Tennessee
                Valley Authority), with the heading of part 1318 as ``Implementation of
                the National Environmental Policy Act of 1969.'' The regulations are
                organized under subparts A through G of part 1318. Incorporating TVA's
                NEPA procedures in the CFR at 18 CFR part 1318 is intended to promote
                greater transparency in the NEPA process.
                 On June 8, 2017, TVA published the proposed rule to revise its NEPA
                procedures in the Federal Register, initiating a 60-day public review
                period (82 FR 26620). In response to public requests for an extension,
                on July 28, 2017 (82 FR 35133) TVA extended the comment period for an
                additional 30 days. The extended comment period closed on September 6,
                2017.
                 TVA consulted with CEQ on the proposed and final rule. During their
                review of the final rule, CEQ suggested edits to TVA's procedures to
                improve the grammar and clarity of the procedures and to ensure the
                procedures comply with CEQ procedures. After TVA incorporated this
                input, CEQ issued a letter to TVA on February 19, 2020, stating that
                CEQ reviewed this rule and found it to be in conformity with NEPA and
                CEQ regulations implementing NEPA (per 40 CFR 1507.3 and NEPA section
                102(2)(B), 42 U.S.C. 4332(2)(B)). If CEQ finalizes its ongoing
                rulemaking (85 FR 1684), TVA will review and undertake additional
                revisions to its procedures to ensure consistency with the revised CEQ
                regulations as necessary.
                 Like TVA's previous NEPA procedures, the final rule supplements the
                CEQ regulations. The rule was drafted with the objective of minimizing
                repetition of requirements already contained in the CEQ regulations and
                with the understanding that the TVA-specific regulations would be
                applied with the CEQ regulations. The final rule includes many words
                and phrases that are defined in either the NEPA statute or CEQ
                regulations (including at 40 CFR part 1508). In addition, the final
                rule includes definitions for certain terms.
                 In its Notice of Proposed Rule, TVA addressed the implementation of
                Executive Order (E.O.) 13690, Establishing a Federal Flood Risk
                Management Standard and a Process for Further Soliciting and
                Considering Stakeholder Input. On August 15, 2017, during the public
                comment period on TVA's proposed rule, E.O. 13690 was revoked by
                executive action (E.O. 13807, Establishing Discipline and
                Accountability in the Environmental Review and Permitting Process for
                Infrastructure Projects). TVA made changes to Subpart G of the final
                rule to reflect that E.O. 13690 was revoked.
                 After considering the public comments on the proposed rule,
                additional internal review, and consultation with CEQ, TVA made
                numerous changes to the proposed rule that are included in the final
                rule. Public comments and TVA responses are addressed in Section II
                below. The TVA responses explain those changes that are based on public
                input. All changes are summarized in Section III below.
                II. Comments on the Proposed Rule and TVA's Responses
                 During the 2017 public review period, TVA received 1,572 responses,
                consisting of letters, emails, statements, phone calls, and web-based
                submissions. Of those, 61 responses contained original substantive
                comments. The remaining responses were variations of four form letters
                addressing several general topics, which are addressed below. Comments
                were received from individuals, trade associations, nongovernmental
                organizations, local, State and Federal entities, and a tribal
                government. The comments received by TVA are available on the TVA NEPA
                website (https://www.tva.gov/nepa).
                 TVA received substantive comments on all subparts of the proposed
                rule except Subpart B, which addresses the initiation of the NEPA
                process. Most commenters, including those who submitted comments in
                variations of form letters, expressed general opposition to TVA's
                proposal to establish new CEs. The primary reasons cited for this
                opposition were the beliefs that adding CEs would increase the
                [[Page 17435]]
                potential for adverse environmental impacts and that additional CEs
                would reduce or eliminate the public's ability to be informed of
                proposed TVA actions and their impacts and to participate in the
                decision-making process. TVA also received numerous comments that were
                not substantive because they included statements that were conclusory,
                unclear and/or vague, and statements related to specific TVA projects
                or operations rather than to the proposed rule.
                 The following discussion includes the comments received, TVA's
                responses to the comments, and a description of changes made by TVA to
                the rule based on the comments. TVA has also prepared a Comment-
                Response document to allow commenters to see how their comments are
                addressed; the identities of commenters are not provided in the
                responses below for the sake of brevity, given the volume of similar
                comments, but are included in the Comment-Response document available
                at the TVA NEPA website (https://www.tva.gov/nepa).
                A. General Comments on the Proposed Rule
                 Comment: TVA's proposal would reduce transparency, limit TVA's
                obligation to solicit public input about proposed actions, and reduce
                recordkeeping regarding TVA decisions. NEPA requires that TVA inform
                the public on matters that impact people and the environment.
                 Response: TVA recognizes that compliance with NEPA and other
                environmental laws and requirements is of great interest to the people
                it serves. TVA remains committed to being a good steward of the
                environment and incorporating appropriate opportunities for public
                review into agency planning and decisionmaking.
                 TVA's final rule supplements but does not supersede the CEQ's
                regulations implementing NEPA, which contain public involvement
                requirements. The final rule retains CEQ's requirements to involve and
                consider public and interagency comments during the decision-making
                process and to include such comments and responses in the
                administrative record. CEQ regulations instruct agencies to apply CEs,
                where appropriate, because they can ``reduce paperwork and delay, so
                that EAs or EISs are targeted toward proposed actions that truly have
                the potential to cause significant environmental effects'' (Final
                Guidance for Federal Departments and Agencies on Establishing,
                Applying, and Revising Categorical Exclusions under the National
                Environmental Policy Act, 75 FR 75628, 75631, December 6, 2010; see
                also 40 CFR 1500.5(k)).
                 A CE is a form of NEPA compliance, and not an exemption from NEPA.
                A CE is established for a category of actions that TVA has determined,
                based on analysis and experience, do not individually or cumulatively
                have potential to cause significant impacts to the human environment
                and, therefore, do not require the preparation of an environmental
                assessment (EA) or an environmental impact statement (EIS). The final
                rule does not reduce TVA's obligation to comply with NEPA, as some
                commenters assert. Rather, CEs make TVA's compliance with NEPA more
                efficient by allowing TVA to focus its resources on reviewing proposed
                actions that have the potential for significant environmental impacts.
                TVA is committed to conducting thorough, systematic, and
                interdisciplinary reviews of its projects and incorporating those
                findings into its decisionmaking.
                 Although there is no requirement under NEPA or CEQ regulations to
                do so, to ensure transparency, TVA has added a paragraph in the final
                rule that addresses the circumstances in which the public should be
                notified before a CE is used. As stated in the final rule (Sec.
                1318.200(f)), TVA may consider public notice before a CE is used if TVA
                determines that the public may have relevant and important information
                relating to the proposal that will assist TVA in its decisionmaking.
                 TVA notes that public notice and/or involvement has been and will
                continue to be provided for certain actions for which CEs may be used.
                For instance, TVA routinely conducts public meetings when planning new
                transmission lines, provides notice and comment on certain land actions
                (e.g., land disposals and commercial recreation requests), and, as
                addressed in Subpart G of the final rule, issues notices on certain
                actions impacting wetlands even when those actions come under CEs.
                These notices are listed on TVA's ``Get Involved Stay Involved''
                website (https://www.tva.gov/About-TVA/Get-Involved-Stay-Involved).
                 In addition, TVA will periodically publish to the TVA NEPA website
                a list of completed actions for which TVA has prepared CE documentation
                to improve transparency regarding these minor actions.
                 Comment: TVA should continue to uphold the spirit and intent of
                NEPA. TVA's amendments to its procedures weakens the original intent of
                NEPA.
                 Response: The final rule does not reduce TVA's obligation to comply
                with NEPA and the establishment of new CEs does not represent a move by
                TVA away from its commitment to comply with NEPA. Rather, CEs make
                TVA's compliance with NEPA more efficient by allowing TVA to focus its
                resources on reviewing proposed actions that have the potential for
                significant environmental impacts. TVA is committed to conducting
                thorough, systematic, and interdisciplinary reviews of its projects and
                incorporating the findings of those reviews into its decisionmaking.
                 Comment: We oppose the proposed amendments to the TVA NEPA
                procedures. We do not trust TVA and do not believe TVA is doing what is
                best for those in the Valley.
                 Response: TVA regrets that some stakeholders hold this view, and
                remains committed to transparency and involving the public in its
                decisionmaking. TVA's overarching environmental policy is to promote
                proactive environmental sustainability in a balanced and ecologically
                sound manner, support sustainable economic growth in the Tennessee
                Valley, and produce cleaner, reliable and affordable power. The update
                to the NEPA procedures is consistent with this policy and is intended
                to promote environmental stewardship and ensure legal compliance. The
                updated procedures also facilitate the implementation of TVA's mission,
                use of evolving energy industry and communication methods, and
                improvement of its business practices. In addition, TVA is
                incorporating new guidance, directives and legal precedents that are
                relevant to NEPA practices. Nothing in the final rule eliminates TVA's
                obligation to continue to comply with all applicable local, state and
                federal laws addressing environmental protection when conducting its
                activities. TVA remains dedicated to these environmental mandates and
                to being good stewards of the environment and public lands it manages.
                 Comment: TVA's proposal to amend its procedures for implementing
                NEPA endangers public health, safety and the environment. The proposed
                rule increases the potential for adverse environmental impacts.
                 Response: Protecting public health and safety is among the key
                considerations in all NEPA reviews, including the establishment and
                application of CEs, and is TVA's highest priority. The final rule
                addresses how TVA considers adverse impacts to the environment,
                including impacts to sensitive resources, during its decision-making
                processes. The procedures also address consideration of measures to
                [[Page 17436]]
                minimize or mitigate such impacts. TVA will continue to adhere to all
                applicable local, state and federal laws and regulations when
                implementing actions that may potentially impact the environment.
                 Comment: TVA is completely ignoring NEPA procedures when engaging
                in environmental projects, and TVA has weakened the burden of proof and
                is now considering too many projects to be minor.
                 Response: TVA is revising its procedures to improve its NEPA
                compliance by clarifying and updating its procedures (last updated over
                35 years ago) to make them more accurately reflect TVA's mission and
                program activities. CEQ regulations and guidance outline a process by
                which agencies may establish CEs for actions that are unlikely to
                result in significant environmental impacts and encourages their use to
                reduce paperwork and delay, and allow agencies to focus their EAs and
                EISs on proposed actions that truly have the potential to cause
                significant environmental effects. (See response to the first comment
                above). CEQ's regulations also require agencies to ``continue to review
                their policies and procedures and in consultation with the Council to
                revise them as necessary to ensure full compliance with the purposes
                and provisions of NEPA.'' 40 CFR 1507.3(a). TVA has complied with these
                requirements in establishing the additional list of CEs and revising
                other CEs. Many of the new CEs reflect actions that TVA had previously
                excluded under more broadly defined CEs. Newly defined categories and
                revisions to existing CEs provide clarification and transparency
                regarding the type of actions covered by a CE and help limit its use to
                specific actions.
                 Comment: The proposed procedures do not address the increased
                uncertainty due to climate change and state that TVA must practice
                caution in relying on the impact findings of past decades as its basis
                for conclusions about potential impacts of future actions.
                 Response: TVA notes that CEQ guidance states that an agency's past
                experience should serve as the basis for identifying whether a proposed
                activity is one that normally does not require further environmental
                review (75 FR 75631, December 6, 2010). Although past experience serves
                as the basis for the list of CEs, TVA relied on a variety of supporting
                information in establishing its CEs. TVA recognizes the importance of
                understanding changes in the environment, including climate change, and
                of using high quality information and scientific analyses to inform its
                decisionmaking. For instance, TVA routinely considers climate change
                adaptation and potential greenhouse gas emissions when conducting
                environmental reviews. TVA specialists draw upon experience as well as
                available science to identify potential environmental impacts of
                actions and address any uncertainty.
                 Comment: TVA should continue to comply with all applicable state or
                federal regulations during the NEPA process.
                 Response: TVA will continue to comply with applicable local, state
                and federal laws when conducting its activities. TVA remains committed
                to coordination and consultation with other government agencies
                throughout the region in the intergovernmental review for assessing
                impacts of its actions. TVA's experience affirms that such coordination
                benefits TVA's decision-making processes and results in fewer
                environmental impacts.
                 Comment: We are concerned about the wind energy project proposed to
                be constructed near Crab Orchard, Tennessee. TVA should conduct reviews
                under NEPA of these types of projects and TVA should be the lead
                federal agency on the project.
                 Response: The concerns expressed in this comment relate to a
                specific wind energy development project that is no longer under
                consideration. While comments related to the Crab Orchard project are
                outside the scope of this rulemaking process, TVA notes that the final
                rule includes procedures for determining the scope of the federal
                action being proposed, including wind energy projects, and appropriate
                levels of environmental review and public involvement for those
                actions.
                 Comment: The Tennessee Wildlife Federation wishes to collaborate
                with TVA to develop and establish policies to fill in any critical gaps
                in public communication and understanding that may result from approval
                of key CE, and to provide important guidance and needed transparency.
                TVA should plan for worst-case scenarios to ensure consistency in the
                future in the absence of the formal NEPA requirements.
                 Response: Thank you for expressing interest in collaborating with
                TVA. We will continue to seek opportunities for collaboration with
                stakeholders to improve our decision-making processes.
                 Comment: TVA lacks the authority to reinterpret NEPA and CEQ
                regulations in its implementing procedures. TVA impermissibly
                paraphrases the CEQ regulations and improperly constrains its
                obligations to comply with requirements set forth in NEPA and the CEQ
                regulations.
                 Response: CEQ instructs agencies to develop their own NEPA
                procedures that supplement CEQ regulations (40 CFR 1507.3(a)). TVA's
                regulations were drafted to minimize repetition of requirements already
                contained in the CEQ regulations and with the understanding that the
                TVA-specific regulations would be applied in conjunction with the CEQ
                regulations. The TVA regulations include many words and phrases that
                are specifically defined in either the NEPA statute or CEQ regulations
                (40 CFR part 1508). TVA's regulations include definitions for certain
                terms to assist in implementing NEPA, not to reinterpret NEPA or CEQ's
                regulations. TVA coordinated the review of its amended procedures with
                the CEQ to ensure compliance with NEPA and CEQ's regulations. On
                February 19, 2020, CEQ notified TVA that the final rule conforms to
                NEPA and the CEQ regulations.
                 The commenter asserted that TVA improperly paraphrases CEQ
                regulations with its statement in the proposed rule that EAs should
                address ``important environmental issues.'' CEQ regulations do
                emphasize that agencies concentrate their efforts and attention on
                important issues when completing environmental analysis. Nonetheless,
                because of the emphasis in NEPA on the ``significance'' of
                environmental impacts, TVA revised the sentence in the final rule by
                replacing ``important environmental issues'' with ``issues that are
                potentially significant.''
                 Comment: Given the complexity of TVA's proposed rule, TVA did not
                provide adequate time for the public to review the proposed rule.
                 Response: The publication of the proposed rule in the Federal
                Register initiated a 60-day public comment period (82 FR 26620, June 8,
                2017). After publication of the notice, TVA received stakeholder
                requests to extend the comment period; in response, TVA extended the
                period an additional 30 days. The 90-day comment period ended on
                September 6, 2017. Just prior to the close of the review period, one
                commenter requested a further extension of the comment period. TVA
                considers 90 days to be adequate; E.O. 13563, Improving Regulation and
                Regulatory Review, establishes 60 days as the standard duration of
                comment periods for informal rulemaking processes (75 FR 3821, January
                21, 2011).
                 Comment: TVA has not provided adequate documentation to the public
                to evaluate the basis for TVA's proposed rule.
                [[Page 17437]]
                 Response: TVA's Federal Register notice provided relevant
                supplementary information associated with the proposed rule, including
                a lengthy statement of the basis and a description of the proposed
                changes to each section of the procedures (82 FR 26620, June 8, 2017).
                TVA also prepared and made available its Proposed Categorical
                Exclusions Supporting Documentation (Supporting Documentation) for the
                proposed CEs to describe its review of the CEs and to support its
                findings that certain categories of actions do not result in
                significant environmental effects. TVA prepared the document to comply
                with CEQ's guidance to agencies on substantiating changes to agency CEs
                (75 FR 75628, December 6, 2010). The organization that made this
                comment submitted a Freedom of Information Act (FOIA) request seeking
                several thousand records associated with almost 700 NEPA reviews. TVA
                fulfilled the request in compliance with FOIA.
                B. Comments on Subpart A--General Information
                 Comment: TVA cannot define the term ``controversial'' as proposed
                in Subpart A of its proposed rule.
                 Response: The language in the rule reflects current case law
                addressing the meaning of ``controversial'' under NEPA. Courts have
                consistently held that controversy refers to disagreement with respect
                to the characterization of the effects on the quality of the human
                environment, rather than opposition to a proposal. See, e.g., Native
                Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir.
                2005) (stating that mere opposition or uncertainty does not render a
                project ``controversial'' under NEPA); River Road Alliance, Inc. v.
                Corps of Engineers, 764 F.2d 445, 451 (7th Cir. 1985) (``[P]ublic
                opposition [to a project] would be the environmental counterpart to the
                `heckler's veto' of First Amendment law.'').
                 TVA will continue to consider the context and intensity of a
                potential impact to determine whether the action has the potential to
                significantly affect the environment; the definition of
                ``controversial'' clarifies that a dispute as to the size, nature or
                effect of the action's impacts must be supported by scientific
                commentary that casts doubt on the agency's methodology or data.
                 Comment: The Commonwealth of Virginia Department of Historic
                Resources encouraged TVA to include a brief statement of the
                possibilities and advantages of the coordinating process and
                documentation required for the preparation of an EA and finding of no
                significant impact (FONSI) or an EIS and Record of Decision (ROD), to
                comply with Section 106 of the National Historic Preservation Act
                (NHPA) in place of the regulations at 36 CFR 800.3 through 800.6.
                 Response: TVA occasionally uses the process established under 36
                CFR 800.8 when beneficial and will continue to do so. The final rule
                encourages early coordination and public involvement in the NEPA
                process. TVA prefers not to include specific provisions relating to
                compliance with the NHPA in its NEPA procedures, but would continue to
                use the process in 36 CFR 800.8 to gain efficiencies.
                C. Comments on Subpart C--Categorical Exclusions
                 Comment: Under its procedures addressing ``extraordinary
                circumstances,'' TVA is adding that ``the mere presence of one or more
                of the resources'' listed does not preclude the use of a CE, and the
                determination of whether extraordinary circumstances exists depends
                upon the existence of a cause-effect relationship between the proposed
                action and the effect on the resources. Regarding threatened and
                endangered species, it is our understanding that consideration of these
                is not specified in the CEs, but the provision (in Sec. 1318.201(b) of
                the final rule) would still allow for an action involving threatened or
                endangered species to be categorically excluded and preclude the
                opportunity for public review and comment. TVA should ensure
                appropriate consideration of species in need of management. If there
                are federally-listed threatened and endangered species on TVA managed
                lands or lands where TVA is working, actions should not be
                categorically excluded.
                 Response: TVA's NEPA procedures require that extraordinary
                circumstances be reviewed prior to determining whether an action
                qualifies as a CE. One of the extraordinary circumstances is whether
                there is potential that threatened or endangered species would be
                significantly impacted by the action (Sec. 1318.201(a)(1)(i) of the
                final rule). TVA's final rule incorporates changes to TVA's list of
                extraordinary circumstances to make it clearer that an impact to
                sensitive resources, including threatened or endangered species, is an
                important factor for consideration in determining whether a CE should
                be used.
                 Under Sec. 1318.201(b), TVA will review the presence of sensitive
                resources as a factor to consider in making a determination whether the
                resource may be impacted by the action. TVA's final rule also clarifies
                that the determination that an extraordinary circumstance will require
                additional environmental review in an EA or an EIS should depend not
                solely on the presence of sensitive resources, but also on the
                potential that those resources would be impacted by the proposed
                action. When appropriate, TVA will consult with the U.S. Fish and
                Wildlife Service to analyze the potential impacts to threatened or
                endangered species and apply appropriate measures to address those
                impacts. TVA would not apply a CE to any action with potential to
                result in the lethal taking of a threatened or endangered species.
                 Comment: The Department of the Interior recommended that TVA modify
                TVA's extraordinary circumstances section (18 CFR 1318.201 of the final
                rule) regarding special status species in a manner that is consistent
                with the Department's language as well as other Federal agencies.
                 Response: In response to the Department of the Interior comment,
                TVA has revised this provision on extraordinary circumstances under
                Sec. 1318.201(a) in the final rule. ``Threatened or endangered
                species'' is replaced with ``Species listed or proposed to be listed
                under the Endangered Species Act on the List of Endangered or
                Threatened Species, or designated Critical Habitat for these species.''
                This change accurately reflects the current practice of TVA to review
                for potential impacts to listed species as well as species proposed to
                be listed, and to the habitat on which such species rely, when
                considering whether it is appropriate to apply a CE to an action.
                 Comment: TVA should identify potential wind turbine projects as
                ``Extraordinary Circumstances.''
                 Response: A commenter who raised concerns about a specific wind
                energy project also stated that a potential electrical transmission
                interconnection to wind turbine projects should be considered an
                extraordinary circumstance. TVA notes the list of extraordinary
                circumstances in the final rule are factors or circumstances in which
                an action listed by TVA as a CE has the potential to cause significant
                environmental effects, thereby requiring further analysis and
                documentation in an EA or an EIS. It would be inappropriate to include
                a specific type of action to the list of extraordinary circumstances;
                however, whether ``extraordinary circumstances'' are present would be
                analyzed for all projects including wind projects. TVA notes that the
                final rule does not include a CE for industrial-scale wind projects of
                the type that are of concern to the commenter.
                [[Page 17438]]
                 Comment: The proposed procedures regarding the identification of
                extraordinary circumstances are inconsistent with NEPA and CEQ
                guidance.
                 Response: Under Sec. 1318.201(a), the final rule provides that an
                action that may otherwise be categorically excluded may not be so
                classified if an extraordinary circumstance is present and cannot be
                mitigated. If any of the extraordinary circumstances listed in Section
                1318.201(a) apply to the proposed action, TVA would consider whether
                the proposal can be modified to resolve the circumstances that are
                considered extraordinary. In some cases, such measures to resolve
                extraordinary circumstances may be required through the application of
                other environmental regulatory processes (e.g., the Clean Water Act or
                NHPA) such that the potential for significant impacts to the resource
                is resolved. Other regulatory processes, including consultation with
                State Historic Preservation Officers or the U.S. Fish and Wildlife
                Service, sometimes provide appropriate measures to resolve
                extraordinary circumstances, which facilitate the identification of
                appropriate mitigations, but do not replace TVA's compliance with NEPA.
                 Other agencies have recently promulgated similar procedures for
                extraordinary circumstances, including the National Aeronautics and
                Space Administration, the National Capital Planning Commission, and the
                Air Force Retirement Homes. TVA also notes that the cause-effect
                relationship between a proposed action and the potential effect on
                resources is also considered by the U.S. Forest Service when reviewing
                for extraordinary circumstances (see 36 CFR 220.6(b)(2)).
                 As noted above, when issuing its final 2010 guidance on CEs, CEQ
                stated in its preamble that it had received specific comments noting
                that, ``the determination that an extraordinary circumstance will
                require additional environmental review in an EA or an EIS should
                depend not solely on the existence of the extraordinary circumstance
                but rather on an analysis of its impacts.'' In reply to this comment,
                CEQ stated that it agreed with this perspective (75 FR 75629, December
                6, 2010). TVA's rule is consistent with this guidance. A determination
                of the potential effects of an action and its severity should be
                considered by TVA to identify the situations or environmental settings
                when an otherwise categorically excludable action merits further
                analysis and documentation in an EA or an EIS.
                 Comment: TVA's definition of ``extraordinary circumstances''
                improperly segregates consideration of ``controversy'' from determining
                significance.
                 Response: The division of the section into separate paragraphs
                (with Sec. 1318.201(a)(1) identifying specific environmental resources
                and Sec. 1318.201(a)(2) addressing controversy) does not segregate
                ``controversy'' from the extraordinary circumstances determination.
                Rather, it reflects proper organization: Controversy is included under
                Sec. 1318.201(a)(1) since it is not an ``environmental resource.''
                Consideration of whether the significance of environmental impacts is
                or may be ``highly controversial'' is still an important consideration
                in determining whether extraordinary circumstances exist, and the
                procedures now more clearly reflect CEQ's significance criteria.
                 TVA did not remove consideration of ``other environmentally
                significant resources''; the text of the procedures was revised for
                clarity and TVA added to Sec. 1318.201(a)(1) a statement that it would
                consider whether ``the action has the potential to significantly impact
                environmental resources, including the following resources: . . . .''
                The purpose of this section was not to exclude consideration of
                environmentally significant resources not specifically enumerated, but
                to identify resources most likely to be encountered.
                 Comment: TVA procedures addressing extraordinary circumstances (18
                CFR 1318.201 of the final rule) fail to distinguish between the routine
                mitigation which is a type of best management practice and the more
                expansive mitigation actions described at 40 CFR 1508.20. TVA fails to
                distinguish between actions for which routine procedures address
                impacts and has been overly broad in its discussion of ``mitigated
                actions.'' The procedures contain language about mitigation that would
                allow agencies to downgrade significant impacts that had the potential
                for an EA and public input.
                 Response: As previously stated, TVA's procedures do not supersede
                those of CEQ. The use of the term ``mitigation'' in Sec. 1318.201 is
                consistent with the definition of the word in 40 CFR 1508.20. TVA
                considered the comment and does not find it necessary to include in its
                procedures a distinction between routine and the non-routine
                mitigation, as suggested by the commenter.
                 TVA disagrees with the comment that a CE cannot be used when it is
                possible to modify a proposal to mitigate (as defined at 40 CFR
                1508.20) a potential impact or to resolve an extraordinary
                circumstance. Under the final rule, TVA may modify a proposed action in
                order to resolve or alleviate the circumstances that are considered
                extraordinary. In other cases, TVA may implement mitigation measures
                that address the circumstances and ensure that no significant impacts
                from the action would occur. Often, the mitigation measures are
                identified through other environmental processes (such as consultation
                under NHPA or the Endangered Species Act (ESA)).
                 Comment: TVA's proposed CEs are written so broadly that they would
                apply to almost every activity the utility undertakes and threaten
                public health, public safety and the environment. Several terms used in
                CE definitions are too subjective and lack sufficient specificity.
                 Response: TVA disagrees that the changes represent a broad
                expansion in the scope of actions that may be categorically excluded.
                The expanded list still covers only those categories of actions that
                individually or cumulatively do not have a significant impact on the
                environment. Many of the actions specifically addressed in new CEs have
                been covered under the more broadly defined CEs established by TVA in
                1980, as disclosed in the Supporting Documentation. For example, one of
                the CEs established in 1980 (CE 5.2.1, ``Routine operation,
                maintenance, and minor upgrading of existing TVA facilities'') is
                replaced by multiple new CEs. Many of the CEs established in 1980
                lacked specificity and limiting criteria so that they were subject to
                broad interpretation over time by staff. The new and revised CEs
                included in the final rule represent a more detailed list of specific
                activities that are tailored to TVA programs.
                 In its 1983 guidance on NEPA regulations, CEQ encouraged agencies
                to ``consider broadly defined criteria which characterize types of
                actions that, based on the agency's experience, do not cause
                significant environmental effects'' (48 FR 34263, July 28, 1983).
                Later, in 2010, CEQ guided agencies to clearly define eligible
                categories of actions and the factors that would constrain their use.
                With the list of CEs in the final rule, TVA has struck a balance
                between these two ends of the guidance spectrum. It has established CEs
                that are not so narrow that they would not allow TVA flexibility to
                consider project-specific issues but that are more specific so as to
                improve clarity and avoid misapplication.
                 As discussed in the Supporting Documentation prepared by TVA to
                [[Page 17439]]
                substantiate its CE revisions, TVA also uses several terms in the
                definition of its CEs as narrative descriptors of parameters
                appropriate for the CE's use. For instance, terms like ``minor,''
                ``limited,'' ``small,'' ``routine,'' and ``small-scale'' are included
                as limitations in some CEs. Several such descriptors have been included
                in TVA's procedures since 1980. TVA has determined that these narrative
                parameters are effective for assessing application of the CEs and will
                continue to apply a reasonable interpretation to such terms on a
                project-specific basis.
                 TVA would continue to consider the potential intensity of a
                proposed action when interpreting such descriptors in making CE
                determinations. (In its 2010 guidance, CEQ notes that when identifying
                extraordinary circumstances, agencies commonly use factors similar to
                the intensity criteria for determining significance pursuant to 40 CFR
                1508.27(b).) The term ``minor'' is well understood by TVA staff as
                applying to actions limited in scale and scope; under the final rule,
                the term in some CEs is accompanied by a new spatial limitation. TVA
                notes that procedures of many federal agencies include similar
                narrative descriptions. As with each Federal agency, TVA must ensure
                that the CEs are appropriately used, that staff is adequately trained,
                and that environmental compliance is ensured through the implementation
                of these procedures by responsible staff and managers.
                 TVA's use of the term ``generally'' as used in spatial limits
                indicates that the limit is not a strict limit. If a project area
                slightly exceeds the spatial limit, some consideration may be made by
                staff to determine whether the CE may still apply based on
                consideration of potential impacts. TVA would not apply the CE to
                actions that substantially exceed the spatial limit. The term
                ``including, but not limited to'' introduces exemplary actions to which
                the CE applies; CEQ has encouraged agencies to identify representative
                examples of the type of activities ``especially for broad categorical
                exclusions'' in order to further clarify the types of actions covered
                (75 FR 75632, December 6, 2010).
                 For most activities that could qualify for a CE, TVA specialists
                complete a categorical exclusion checklist (CEC) to document TVA's
                review of the proposed activity. The CEC consists of 60 questions about
                potential site-specific environmental issues associated with an
                activity and is completed by an interdisciplinary team to document
                their findings. The CEC is part of an automated system that prompts TVA
                specialists to consider and document whether there are any
                extraordinary circumstances associated with a proposed activity. Often,
                specialists conduct field visits to make their determinations. Using
                the CEC, TVA specialists verify that a proposed activity falls within
                the definition of the CE and that there are no extraordinary
                circumstances associated with the activity.
                 As TVA has always done, some routine activities with no potential
                for environmental effects (training personnel, or changing a bathroom
                faucet) would not require paperwork to check for environmental effects.
                Even for categorically excluded activities, TVA must comply with other
                applicable laws and requirements, including the ESA, the Clean Water
                Act, and NHPA, further ensuring that significant environmental impacts
                would not occur.
                 Comment: TVA's justifications for expanding the list of CEs falsely
                rely on the assumption that actions that had insignificant effects in
                the past must therefore have an insignificant effect in the future.
                Past findings are not likely to hold up in these days of climate change
                where ecosystem compositions and their resiliency are threatened.
                 Response: CEQ's 2010 guidance on CEs provides direction on how to
                substantiate new or revised CEs: ``An agency's assessment of the
                environmental effects of previously implemented or ongoing actions is
                an important source of information to substantiate a categorical
                exclusion. Such assessment allows the agency's experience with
                implementation and operating procedures to be taken into account in
                developing the proposed categorical exclusion.'' (75 FR 75631, December
                6, 2010) Consistent with this guidance, TVA cited to and relied on
                almost 700 previously implemented activities to support the
                establishment or revisions of CEs. As stated above, although past
                experience serves as the basis for the list of CEs, TVA recognizes the
                importance of understanding changes in the environment, including
                climate change, and of using current high quality information and
                scientific analyses to inform its decisionmaking. The extraordinary
                circumstance provision at Sec. 1318.201 provides TVA the ability to
                consider changes in the environment that would make the use of a CE
                inappropriate.
                 Comment: TVA should require that all CEs are documented and should
                promulgate the documentation requirements in the rule.
                 Response: TVA notes that a majority of its CEs will require
                documentation in the form of a CEC. Generally, proposed actions that
                carry little probability of significant environmental impacts (e.g.,
                those that do not result in ground disturbance) do not require such
                documentation, consistent with CEQ's 2010 guidance that ``there is no
                practical need for, or benefit from, preparing additional documentation
                when applying a categorical exclusion to those activities.'' (75 FR
                75636, December 6, 2010)
                 When establishing its NEPA procedures in 1980, TVA did not specify
                in its procedures whether CEs required documentation. Rather, TVA
                provides to staff administrative guidance to establish documentation
                requirements. TVA will continue to determine documentation requirements
                through implementing internal guidance rather than including such
                requirements in the final rule. Such an approach allows TVA flexibility
                to change guidance if the need for additional documentation is
                identified or as the agency acquires experience with implementing the
                new CEs.
                 Comment: TVA should engage an expert panel to evaluate scientific
                basis for expansion of CEs and implementation of floodplain management.
                 Response: A team of environmental and legal professionals was
                involved in the development of the revised procedures. The team
                included TVA environmental professionals, including a flood plains
                management specialist, as well as external contributors with extensive
                experience in environmental compliance. In addition to these
                professionals, TVA relied on its extensive experience as well as the
                experiences of other federal agencies when defining its CEs.
                 Comment: The Commonwealth of Virginia Department of Historic
                Resources recommends that TVA include that CEs under NEPA may still
                require compliance with the NHPA and ESA.
                 Response: In response to this recommendation, TVA added a statement
                in the procedures to clarify that the use of a CE does not relieve TVA
                from compliance with other statutes or consultations. This statement
                has been inserted at Sec. 1318.200(e). TVA notes that a majority of
                actions that qualify for a categorical exclusion are also covered under
                a programmatic agreement under Section 106 of the NHPA that was
                developed through a review process involving the public, the Advisory
                Council on Historic Preservation, the State Historic Preservation
                Officers, and the tribes.
                [[Page 17440]]
                 Comment: The Eastern Band of the Cherokee Indians requested that
                TVA continues to alert the tribes when historic resources or gravesites
                are found while actions under the new proposed CEs are undertaken. In
                these instances, work should be stopped immediately and tribes should
                be consulted.
                 Response: This practice is currently observed by TVA and no changes
                to TVA's NEPA procedures affect TVA's continued commitment to comply
                with the requirements of NHPA, the Native American Graves Protection
                and Repatriation Act, or other laws relating to historic properties.
                 Comment: Using CEs leads to less thorough environmental reviews and
                less robust decisionmaking (e.g., it does not allow for considerations
                such as mitigation measures).
                 Response: A categorical exclusion is not an exemption from
                environmental review under NEPA, but is instead the result of an
                agency's evaluation of a class of actions that, in the absence of
                extraordinary circumstances, do not individually or cumulatively have
                the potential to cause significant environmental impacts. TVA's final
                rule identifies procedures that require TVA staff to conduct reviews of
                the proposed action to determine whether it would be appropriate to use
                a CE for the action and to ensure that extraordinary circumstances are
                not present. Because the vast majority of actions undertaken by federal
                agencies have no significant environmental impacts, CEs are the most
                frequently used approach for federal agencies to comply with NEPA. For
                example, between 2013 and 2018, TVA evaluated over 12,000 actions under
                CEs but less than 200 that required completion of an EA or EIS. CEQ
                considers CEs to be efficient tools for conducting a review process for
                actions which typically do not have significant effects on the human
                environment. In cases where TVA specialists identify the potential for
                adverse impacts and/or the need for mitigation to address the impacts,
                TVA would carefully consider whether it is appropriate to use the CE or
                to complete an EA or EIS.
                 Comment: TVA's proposed CEs segment activities in a manner that
                avoids NEPA review of activities that, considered together, would
                require an EA or EIS. TVA may not create CEs for activities that would
                normally tier to programmatic EAs and EISs (e.g., TVA's Natural
                Resource Plan).
                 Response: TVA addresses the potential segmenting of actions in
                Sec. 1318.200(c) of the final rule and will continue to comply with
                CEQ regulations requiring that agencies consider connected actions.
                Under TVA's final rule, larger projects may not be broken down into
                small parts such that the use of a CE for a small part commits TVA to a
                plan of action for the larger project. TVA NEPA compliance staff
                responsible for oversight of the procedures will continue to review
                proposals to verify that the action is not an interdependent part of a
                larger proposal that has no independent utility. Further, TVA has taken
                care to define each CE to ensure it covers stand-alone actions that
                have independent utility. TVA programs implement numerous activities to
                meet program goals and objectives. While such activities may be
                implemented to achieve broad goals or missions of TVA, TVA does not
                agree that the implementing actions of TVA programs or missions are,
                necessarily, interdependent, connected or even similar, as asserted by
                the commenter.
                 TVA does not agree with the assertion that all natural resource
                management actions are connected actions, nor that all transmission
                development and maintenance actions, all road development and
                management actions, and all electricity regulation actions are
                connected due to ``binding characteristics.'' Such an interpretation is
                unreasonable and inconsistent with CEQ regulations as well as TVA NEPA
                procedures and practices. Further, TVA notes that in the 2011 Natural
                Resource Plan (NRP) EIS, TVA committed to conducting an ``appropriate''
                level of NEPA review; such reviews may be completed as CEs, EAs or
                EISs, depending on the nature of the proposal, its potential impacts,
                and whether the action meets the definition of an established CE.
                 Comment: In its Supporting Documentation, TVA does not take the
                required hard look at the potential direct and indirect environmental
                effects of the individual and cumulative application of the CEs.
                 Response: CEQ's guidance to agencies on establishing CEs directs
                the preparation of documentation with sufficient information to
                substantiate the new CEs (75 FR 75628, December 6, 2010). TVA included
                in the Supporting Documentation a summary of the general types of
                impacts that would occur for such actions, based on TVA's experience
                with these actions and input from interdisciplinary experts. This
                information provides important context to TVA's findings that such
                actions do not, individually or cumulatively, result in significant
                environmental effects. The description of impacts in the Supporting
                Documentation is general in nature because CEs are established for
                categories of actions without knowledge of the specific locations of
                these actions. The assessment of site-specific impacts is more
                appropriately undertaken by TVA when applying the CEs.
                 Consistent with CEQ's 2010 guidance, the discussions of revised or
                new CEs vary. The amount of information provided by TVA to substantiate
                each revised or new category depends on the type of activities included
                in the proposed category of actions and their potential to result in
                significant environmental effects. For instance, TVA's discussion of
                CEs for administrative actions are less detailed than the discussions
                of CEs that are more likely to result in impacts to the physical
                environment. In addition, TVA's discussion of revisions to existing CEs
                are generally less detailed than the substantiating information
                provided for new CEs because the revisions to existing CEs are
                typically minor.
                 Comment: The Supporting Documentation fails to provide any analysis
                of the potential for cumulatively significant effects on any of the 50
                proposed CEs.
                 Response: TVA's Supporting Documentation provides information and
                includes a brief description of the common impacts of activities that
                would be covered under new or expanded CEs. As stated in the previous
                response, the documentation is consistent with CEQ's 2010 guidance
                regarding establishing CEs. The covered actions are minor in nature and
                would not result in individually or cumulatively significant impacts.
                TVA considered the frequency with which the categorically excluded
                actions are applied when identifying new CEs. Further, many of the CE
                actions most likely to result in ground disturbance are limited in
                scope and infrequent and would not be conducted as segments of greater
                development proposals, thereby reducing potential cumulative effects.
                 Comment: In its Supporting Documentation, TVA does not consider the
                climate-related impacts of any of the proposed CEs; certain categories
                of actions have potential to contribute to climate change and/or be
                affected by climate change.
                 Response: As noted above, TVA's Supporting Documentation for the
                CEs provides a summary of findings based on past environmental reviews.
                While the assessment of impacts in the Supporting Documentation is
                necessarily general in nature, TVA will continue to consider the
                potential environmental impacts of proposed site-specific actions,
                including their
                [[Page 17441]]
                potential to contribute to climate change, prior to applying the CEs.
                TVA notes that CEs that include in-kind replacement of turbines,
                purchase of existing combustion turbine or combined-cycle plants, or
                certain rate changes are defined to limit covered actions to those
                which result in no new emissions or in very minor generation changes,
                thereby ensuring no significant impact to the environment.
                 TVA notes that certain shoreline and floodplain impacts of climate
                change may be tempered because TVA actively manages the Tennessee River
                system to reduce flooding. The commenter also noted potential impacts
                of certain activities to bat species. Each proposed action would be
                reviewed for extraordinary circumstances, including the potential to
                impact listed or proposed threatened and endangered species. As noted
                above, TVA revised the CE procedures at Sec. 1318.200(d) to affirm
                that the use of a CE does not relieve TVA from compliance with ESA and
                other statutes.
                 Comment: The EAs and EISs cited by TVA in its Supporting
                Documentation do not support the proposed CEs. Many of TVA's cited EAs
                and EISs included mitigation measures; an agency must ensure that
                mitigation measures in cited EAs and EISs are ``integral components''
                of the actions included in a CE.
                 Response: The Supporting Documentation provided by TVA cites to
                almost 700 NEPA reviews (CEs, EAs, and EISs). TVA listed many NEPA
                records and described others in greater depth when they were
                particularly relevant to the category of actions. In addition to the
                support provided by the vast array of cited EAs and EISs in the
                documentation, the expertise acquired by TVA through the implementation
                of NEPA over four decades also substantiates the proposed CEs. TVA's
                Supporting Documentation represents a sufficient summary of the
                relevant information to substantiate its determinations that these
                categories of actions do not normally result in significant
                environmental impacts.
                 Many of the EAs and associated FONSIs cited by TVA in its
                Supporting Documentation include mitigation measures to address
                impacts; some of these mitigation measures resolve potentially
                significant impacts. The most commonly listed mitigation measures in
                TVA FONSIs include standardized best management practices implemented
                by TVA (e.g., to address storm water runoff at a construction site);
                although listed as mitigating measures, TVA considers these to be
                standard practices that are incorporated into TVA's project design. TVA
                considers all mitigation measures and best management practices that
                are incorporated into a proposed action in its decision whether to
                apply any CE to that action. This approach is supported by the CEQ
                final guidance on the ``Appropriate Use of Mitigation and Monitoring
                and Clarifying the Appropriate Use of Mitigated Findings of No
                Significant Impact'' (76 FR 3843, January 21, 2011). In its guidance,
                CEQ noted that ``[m]any Federal agencies rely on mitigation to reduce
                adverse environmental impacts as part of the planning process for a
                project, incorporating mitigation as integral components of a proposed
                project design before making a determination about the significance of
                the project's environmental impacts. Such mitigation can lead to an
                environmentally preferred outcome and in some cases reduce the
                projected impacts of agency actions to below a threshold of
                significance. An example of mitigation measures that are typically
                included as part of the proposed action are agency standardized best
                management practices such as those developed to prevent storm water
                runoff or fugitive dust emissions at a construction site'' (Id.).
                 Several mitigation measures identified in the cited EAs and FONSIs
                were developed through other environmental compliance processes (e.g.,
                through consultation with U.S. Fish and Wildlife Service regarding
                endangered species or through coordination with the U.S. Army Corps of
                Engineers to address impacts to wetland resources). TVA considers such
                measures to be integral components of the proposed action because TVA's
                action could not be implemented without compliance with these other
                environmental laws and regulations.
                 Commenters request that the mitigation measures listed in the cited
                EAs and FONSIs be included in the definition of the CE because they are
                integral components of the category of actions. Because the majority of
                mitigation measures listed in the cited EAs and FONSIs are included in
                the project design or derive from TVA's compliance with other
                environmental laws, TVA does not consider it necessary to include
                potential mitigations in a CE's definition. Rather, what is integral is
                the review by TVA of proposed actions to determine whether mitigation
                measures are needed. In addition to the limits included in the
                definitions, which are intended to eliminate the potential for
                significant impacts, TVA's consideration and review for extraordinary
                circumstances prior to use of a CE address the same or similar
                environmental concerns that are commonly addressed when applying
                mitigation to proposed actions. The review by TVA for extraordinary
                circumstances will allow TVA to determine whether mitigation measures
                are necessary and to consider whether additional environmental review
                at the EA or EIS level is necessary.
                 Based on public input, TVA again reviewed the 215 EAs and FONSIs
                cited in the Supporting Documentation and confirmed that the vast
                majority of EAs and FONSIs provide support for the proposed CEs.
                However, TVA found that it would not be appropriate to rely on some of
                the cited EAs and FONSIs to support the proposed CEs. TVA updated the
                Supporting Documentation by removing 30 EA and FONSI citations; the
                updated document is available for public review at the TVA NEPA website
                (https://www.tva.gov/nepa). TVA believes that the information provided
                in the updated Supporting Documentation complies with CEQ's 1983 and
                2010 guidance on establishing CEs and adequately supports our
                determinations regarding the proposed CEs.
                 Comments addressing the segmentation of actions addressed under
                programmatic EISs are address above. TVA notes that the most frequently
                cited EIS in its Supporting Documentation is the NRP EIS. The
                documentation notes that at the completion of the EIS, TVA determined
                that no significant adverse impacts would result from implementing the
                plan and many beneficial impacts were described. In numerous sections
                of the Supporting Documentation, TVA highlighted several EISs that were
                representative NEPA documents of the relevant analyses conducted by TVA
                that supports its findings for specific CEs and provided a summary of
                the EIS and its findings in the narrative.
                 Comment: The CEs of other agencies that TVA uses as benchmarking
                examples in the Supporting Documentation do not support the CEs as
                written.
                 Response: The inclusion in TVA's Supporting Documentation of the
                CEs of other agencies as benchmarks for the CEs in the final rule is
                appropriate. The documentation includes a short discussion of how
                comparable the agency's CE is to the TVA category and describes
                supporting information, when available, from the administrative records
                issued by the agencies when the CEs were established. TVA noted in the
                documentation the extent to which the CEs were similar and supported
                its CE, highlighting which were more relevant to the TVA CE and which
                provided less or only partial support. The
                [[Page 17442]]
                benchmarked CEs were intended to provide additional support for the TVA
                CE; TVA relied primarily on its own experience in identifying
                categories of actions that do not typically result in significant
                environmental impacts.
                 Comment: By proposing to categorically exclude electricity
                contracts (under CE 6) without limiting application to situations where
                the contract will definitively not have such impacts, TVA undermines
                the CEQ requirement that agencies consider reasonable alternatives to a
                proposed action.
                 Response: The proposed revision to the CE established by TVA in
                1980 was intended to clarify that transactions that spur expansion or
                development of facilities and/or transmission infrastructure are not
                covered under the CE. Upon further internal deliberation, however, TVA
                determined that no clarification was needed to the CE, as staff shared
                that understanding of the existing CE. In the final rule, TVA carries
                forward the existing CE without revision as CE 6.
                 Comment: Proposed CE 15, which addresses transmission line
                maintenance actions, violates and contravenes the injunction of the
                United States District Court in Sherwood v. TVA. There should be no CE
                for vegetation management due to the adverse impacts it has on the
                environment.
                 Response: TVA has withdrawn the proposed CE pertaining to right-of-
                way maintenance actions from the final rule. TVA is currently
                undertaking a programmatic environmental review of these actions.
                 Comment: The implementation of proposed CEs 15 and 19, both of
                which deal with the vegetation management decisions in TVA transmission
                corridors, have the potential to impact high natural resource land that
                contain habitation for plant and wildlife as well drinking water
                supplies.
                 Response: As noted above, TVA has not carried the proposed CE 15
                pertaining to right-of-way maintenance actions into the final rule. TVA
                notes that CE 19 pertains to ending vegetation management activities,
                as transmission lines are retired. Under CE 19, TVA would conduct a
                complete and thorough review of the proposed action using its CEC to
                determine whether extraordinary circumstances exist that would require
                TVA to conduct additional environmental review. The CEC review is
                conducted by a qualified multidisciplinary team of experts. Existing
                current resource data will be used when available, or new field data
                will be obtained when needed. The CEC review will verify that no
                extraordinary circumstances exist that would preclude the use of CE 19.
                 Comment: Proposed CE 16, which includes the construction of new
                transmission lines and substations, would allow TVA to construct new
                transmission line infrastructure in increments of ``generally'' 10
                miles, as long as they ``generally'' require no more than 125 acres of
                new rights-of-way, no more than 1 mile of new access road construction,
                and support facilities that physically disturb no more than 10 acres.
                The inclusion of the term ``generally'' means that the explicit 10-mile
                limitation is meaningless. TVA provides no rationale for why a 10-mile
                transmission line does not have significant environmental effects,
                while an 11-mile transmission line would. Without limiting the
                contiguous application of CE 16, TVA could simply break up a 150-mile;
                1,000-mile; or 10,000-mile stretch of new transmission infrastructure
                into 10-mile increments and categorically exclude all of its
                activities.
                 Response: CEQ regulations and guidance and TVA's final rule (Sec.
                1318.200(c)) prohibit the use of a CE on a segment or interdependent
                part of a larger proposed action. The TVA environmental compliance
                staff remains responsible for screening proposed actions and ensuring
                that larger projects are reviewed in their entirety. As noted above,
                TVA would not categorically exclude contiguous proposals as asserted by
                the commenter.
                 TVA explains that the 10-mile and 125-acre limits are established
                based on extensive TVA experience and provides a discussion of these
                limits in the CE Supporting Documentation (background discussion of CE
                16). For instance, in its 2015 and 2019 Integrated Resource Plans (IRP)
                EIS, TVA reviewed dozens of TVA projects and their impacts. For those
                EIS reviews, dozens of EAs completed since 2005 were identified that
                address new transmission line construction, including 11 EAs addressing
                new transmission construction over 10 miles. See Table 5-2 of the 2019
                Final EIS (available at https://www.tva.gov/irp).
                 As stated in the Supporting Documentation, the CE limits actions to
                no more than 10 miles in length and no more than 125 acres of new ROWs.
                This CE's acreage limit applied to actions involving new 500-kV
                transmission line construction would limit the length of such lines to
                less than 5.9 miles.
                 Comment: TVA has conceded that an EIS must be prepared for tree
                clearing and vegetation management for existing transmission lines,
                however, under CE 16 constructing new transmission infrastructure falls
                under an exemption. The commenter asserts that the category of actions
                has significant direct, indirect and cumulative effects, and TVA has
                not taken a ``hard look'' at the environmental effects of activities
                applicable to CE 16, simply citing its own NEPA analyses and ignoring
                the effects of CE 16.
                 Response: TVA did not propose CE 16 as a means to avoid tiering
                such site-specific analyses to the programmatic EIS it is currently
                preparing to address rights-of-way vegetation management. That EIS does
                not address the impacts associated with construction of new
                transmission infrastructure, but vegetation maintenance on existing
                lines.
                 TVA's experience supports the determination that construction of
                new transmission lines, when limited, would not result in significant
                environmental impacts. As noted in TVA's Supporting Documentation, CE
                16 would not cover the construction of a 500-kV transmission line up to
                10 miles, as asserted by the commenter, because 500-kV lines have a
                wider right-of-way. Rather, with the acreage limit included in the CE
                (125 acres), less than 5.9 miles of new 500-kV transmission line
                construction would be allowed.
                 In its Supporting Documentation, TVA included a summary of common
                impacts associated with such actions. TVA's review of potential impacts
                of such actions, as limited, is based on decades of experience, dozens
                of NEPA records, benchmarking to other federal agencies, and the
                professional expertise and knowledge of staff. TVA agrees that when
                considering these actions, a review must be conducted to determine the
                potential impacts to resources; TVA would complete a CEC for each
                action, allowing qualified TVA specialists to review the proposals and
                identify potential extraordinary circumstances. Use of the CE for such
                actions does not relieve TVA from compliance with other statutes,
                including ESA. If the extraordinary circumstances cannot be resolved,
                TVA would complete an EA or EIS.
                 As stated in TVA's Supporting Documentation, there are CEs of other
                agencies that provide support for TVA's findings that such actions do
                not typically result in significant environmental impacts. TVA
                acknowledges that these CEs are not identical to CE 16 and notes that
                TVA bases its spatial limits in CE 16 on its own experience.
                 Comment: In CE 16, TVA does not define what types of mitigation
                would be required for wetland impacts and
                [[Page 17443]]
                what parameters are needed for reviewing the area of impacted wetlands.
                Proposed CE 16 should be limited to construction of new transmission
                lines less than 4 miles in length that do not require offsite
                mitigation of wetland impacts.
                 Response: TVA did not find it appropriate to include the list of
                the types of mitigation measures it would implement to address wetlands
                in its NEPA procedures. TVA notes that its wetland biologists take part
                in the review process of actions that may be categorically-excluded to
                determine whether extraordinary circumstances exist. These biologists
                conduct desktop reviews and field surveys to determine whether wetlands
                may be affected by an action. If wetlands may be impacted, TVA
                coordinates with the U.S. Army Corps of Engineers and state agencies in
                compliance with Sections 401 and 404 of the Clean Water Act and
                determines whether impacted wetlands require mitigation. If avoidance
                or minimization of wetland impacts is not possible, appropriate
                mitigation generally refers to compensatory mitigation via purchase of
                credits from an offsite wetland mitigation bank to offset loss of
                wetland function. The level of NEPA review does not affect the
                determination of compensatory mitigation. Offsite mitigation is a
                common practice implemented to resolve wetland impacts. TVA's
                experience has shown that the potential for wetlands impacts, while
                real, is small and insignificant for actions that would fall under CE
                16. TVA uses assessment methods for quantifying wetland functional
                capacity and projecting loss of wetland function from proposed
                disturbances.
                 When considering the extent of a proposal's wetland impacts, TVA
                wetland biologists apply standard analytical approaches and practices
                that are based on professional judgment, scientific norms,
                administrative guidance, and regulatory compliance. TVA addresses such
                parameters in other forms of guidance and administrative policy
                documents outside of NEPA.
                 Comment: Construction actions such as those under CE 16 should not
                be exempted from NEPA due to the projects' potential to impact the
                environment and surrounding citizens negatively.
                 Response: As stated in a previous response, CEs are not exemptions
                from or waivers of NEPA review; they are a type of NEPA review. Under
                CE 16, TVA will conduct a review of the proposed action using its CEC
                to determine whether extraordinary circumstances exist and to confirm
                that the action would not have significant impacts. Should
                extraordinary circumstances or the potential for significant effects be
                identified during this review, TVA would not use a CE, but would
                prepare an EA or an EIS.
                 TVA notes that its process for siting new transmission projects is
                designed to allow public input at various stages. Typically, TVA issues
                public notifications and conducts public open house meetings for new
                transmission line proposals to ensure that members of the public that
                may be affected by the project have an opportunity to learn more about
                the proposal and provide feedback. These opportunities for public input
                often precede the NEPA process and are conducted regardless of the
                level of NEPA review.
                 As previously noted, TVA has added Sec. 1318.202 (Public Notice)
                to Subpart C of the final rule to clarify that public notice and
                involvement may be provided by TVA for CEs ``if TVA determines that the
                public may have relevant and important information relating to the
                proposal that will assist TVA in its decisionmaking.''
                 Comment: Proposed CE 17 would allow TVA to exclude the
                modification, repair, and maintenance of all existing infrastructure,
                without limitation based on the activities' geographic scope or
                environmental effects. The broad language allows TVA to exclude any and
                all changes without incorporating the NEPA process.
                 Response: As presented in the Supporting Documentation, CE 17 is
                based on TVA's experience with hundreds of similar projects,
                categorized as TVA's CE 5.2.17 under TVA's previous NEPA procedures,
                amended by this rule. The extensive records show that while the
                activities contemplated under CE 17 could have localized, minor, short-
                term adverse effects, they do not cause significant environmental
                effects. Through the development of several new CEs for transmission-
                related actions, TVA is providing more specific definitions of these
                activities to clarify for TVA staff which activities may be
                categorically excluded. The special limitations and review for
                extraordinary circumstances conducted by TVA when these actions are
                proposed ensure that these actions would not result in significant
                effects.
                 Transmission system CECs are typically prepared for small and
                isolated projects. Any system-wide effort to uprate a portion of the
                TVA transmission system would, by the requirements of this procedure,
                be assessed under a higher level of NEPA review. TVA NEPA compliance
                staff responsible for oversight of the procedures will continue to
                review proposals to verify that the action is not an interdependent
                part of a larger proposal that has no independent utility. To clarify
                the limitations of this CE, TVA revised the beginning of the definition
                of CE 17 to clarify that the category includes only ``routine''
                modifications, repairs or maintenance actions and only ``minor''
                upgrade of and addition to existing infrastructure.
                 CEQ guidance affirms that CEs are not exemptions or waivers of NEPA
                review; they are simply one type of NEPA review. Under CE 17, TVA will
                conduct a complete and thorough review of the proposed action using its
                CEC to identify extraordinary circumstances that may require the
                preparation of an EA or EIS. The CEC review is conducted by a qualified
                multidisciplinary team of experts. Existing, current resource data will
                be used when available, or new field data will be obtained when needed.
                Should the potential for significant effects be identified during this
                review, a higher level of NEPA review would be initiated.
                 TVA made two edits to the Supporting Documentation after reviewing
                the comments. In section 3.17.3.3, TVA removed the reference to
                communication-related equipment and structures because its inclusion
                was in error. In section 3.17.3.4, TVA removed the Department of
                Homeland Security CE as a benchmark CE for CE 17. An earlier draft
                version of CE 17 included actions relating to communication equipment
                that were later removed and the Supporting Documentation had not been
                properly revised to remove the information relating to communication
                equipment. TVA finds that the CEs of the Departments of Energy and
                Commerce support TVA's conclusion that actions under CE 17 do not
                result in significant environmental impacts; thus, these benchmark CEs
                were retained.
                 Comment: Proposed CEs 15, 16, and 17 do not adequately address
                cumulative impacts, which should be considered in siting.
                 Response: TVA has considered the potential cumulative impacts of
                these categories of actions. Consistent with CEQ's 2010 guidance on
                establishing CEs, TVA considered the frequency with which the
                categorically-excluded actions may be applied and the dispersed
                geographic area across which actions would occur across the seven-state
                TVA region. The CEs include spatial limitations to constrain the use of
                the CE and ensure that cumulative impacts are not significant (as noted
                above, TVA has withdrawn CE 15 from the final rule). CE 16 has a
                greater potential for cumulative impacts than
                [[Page 17444]]
                CE 17, due to the new disturbances associated with the actions. TVA
                notes that cumulative impacts associated with CE 17, which addresses
                modification, repair, maintenance, or upgrade of existing transmission
                infrastructure, would be limited, as most of this infrastructure
                already exists.
                 In the Supporting Documentation, TVA cites to numerous NEPA reviews
                that have occurred primarily since 2005. These NEPA documents likewise
                serve as a record of TVA's consideration of cumulative impacts. In
                addition, TVA relies on its integrated resource planning efforts to
                review actions needed to ensure the transmission of power through the
                TVA region and consider their regional impacts. The IRP was completed
                in 2011 and supplemented in 2015. A new IRP was completed by TVA in
                2019. The 2015 and 2019 IRP Final EISs provide important supporting
                information for the establishment of CE 16 and 17 and are referenced in
                TVA's Supporting Documentation.
                 Comment: Proposed CEs 15, 16 and 17 should be withdrawn because TVA
                is currently doing a programmatic EIS on its transmission systems.
                 Response: As noted above, TVA has withdrawn from the final rule the
                proposed CE (CE 15) pertaining to right-of-way maintenance actions. The
                programmatic EIS currently underway is focused on right-of-way
                vegetative maintenance. TVA considers actions falling under CEs 16 and
                17 to be outside the scope of that programmatic EIS.
                 Comment: Proposed CE 18 contains no limit to the length, geographic
                scope, or environmental impacts that the installation of fiber optics,
                electricity transmission control devices and supporting towers could
                have under the CE. The CE does not set forth specific criteria for and
                identification of the actions that it proposes to categorically exclude
                (40 CFR 1507.3(b)(2)).
                 Response: TVA does not consider the revision of this CE to expand
                the scope of covered actions. Rather, the revision is intended to
                clarify and add additional examples of activities, as recommended by
                CEQ in their 2010 guidance. TVA's examples are not intended to be
                exhaustive of all possible activities that fit within the subject class
                of activities. TVA anticipates that the inclusion of examples will more
                clearly define for TVA staff the activities associated with this CE.
                 TVA notes that installation of optical ground wire would have been
                covered under the previous, broadly defined version of this CE
                (established in 1980). TVA's NEPA procedure at Sec. 1318.200(c),
                specifies that TVA will ensure that a larger project is not
                impermissibly broken down into small parts such that the use of a CE
                would irreversibly and irretrievably commit TVA to a particular plan of
                action for the larger project. Further, Sec. 1318.200(d) provides that
                TVA has determined that the classes of actions qualifying for CEs do
                not individually or cumulatively have a significant effect on the human
                environment, subject to review for extraordinary circumstances. Section
                1318.201 of the final rule specifies that actions normally qualifying
                as a CE cannot be reviewed at this level if an extraordinary
                circumstance is present that cannot be mitigated. These requirements in
                TVA's NEPA regulations set the boundaries for use of all of TVA's CEs.
                 Comment: Regarding CE 19, tree clearing and vegetation management
                practices for existing transmission infrastructure have significant
                environmental indirect, direct, individual, and cumulative effects,
                thereby requiring an EIS. If the tree clearing for maintaining rights-
                of-way and existing transmission has significant environmental effects,
                surely the same is true for new transmission infrastructure. TVA has
                not shown that a 25-mile standard for rebuilding transmission lines
                will not have an insignificant impact on the environment. In its
                Supporting Documentation, TVA incorrectly states that the three
                benchmarked CEs of other federal agencies are ``comparable.''
                 Response: Categorical exclusion 19 addresses the common activities
                TVA conducts to retire transmission lines or to rebuild transmission
                lines that may require a limited right-of-way expansion. The definition
                of the CE 19 includes spatial limitations such that no action would
                exceed 25 miles in length or constitute an expansion of more than 125
                acres of an existing right of way. Expansions of larger transmission
                lines (e.g., 500kV) would be shorter in length because of the 125-acre
                limit. These spatial limitations are not arbitrary. TVA relied on a
                combination of its extensive experience to identify a proper linear
                distance limit to ensure that the category of actions would not result
                in significant environmental impacts.
                 As explained in the Supporting Documentation, the 25-mile limit for
                redevelopment along existing ROWs is supported by previous
                environmental reviews conducted by TVA that resulted in findings of no
                significant impacts; since 2002, TVA has reviewed 108 such projects by
                completing CECs and 16 projects by completing EAs. TVA considered and
                reviewed the analysis conducted in its IRP EIS to determine the average
                impacts associated with new or upgraded transmission infrastructure
                projects.
                 The spatial limit for area of disturbance (125 acres) is consistent
                with the limitation included in CE 16, which is also supported by TVA
                experience and environment reviews (as explained in the Supporting
                Documentation discussion of CE 16). Therefore, actions under CE 19, as
                circumscribed by the spatial limitation, would not result in
                significant environmental impacts. TVA again notes that specialists
                will complete a CEC for every application of CE 19 to ensure that the
                proposed CE would not be applied when there are extraordinary
                circumstances requiring additional NEPA review.
                 The summary of potential impacts in the Supporting Documentation is
                consistent with CEQ's 2010 guidance and adequately substantiates the
                creation of CE 19. TVA disagrees with the opinion of commenters
                regarding the benchmarked CEs of other agencies; the CEs of other
                agencies cited by TVA in the Supporting Documentation are comparable to
                CE 19 and address similar activities involving similar methods,
                occurring with similar frequency, timing and context.
                 Comment: Proposed CE 20 should not include surplus transmission or
                generation properties that have recreational and/or natural resource
                value.
                 Response: This CE does not apply to generation properties. It
                applies only to existing transmission-related equipment and facilities.
                Generally, any properties addressed in CE 20 are industrial in
                character and, thus, are not suitable for recreational use and have
                limited natural resources value.
                 Comment: The definition of proposed CE 20 does not set forth
                ``specific criteria for and identification of'' the actions that it
                proposes to categorically exclude, as instructed by CEQ (40 CFR
                1507.3(b)(2)). CE 20 must be rewritten to describe specific activities.
                 Response: TVA's revision to this CE does not broadly expand the
                scope of the actions covered. The primary change to this CE is that
                existing substations, switchyards, and transmission equipment would be
                included in existing properties that may be transferred or leased under
                the CE. Because covered actions are limited to existing infrastructure
                or rights-of-way, the actions are unlikely to alter the environmental
                status quo and unlikely to result in any new environmental impacts.
                TVA's experience supports its
                [[Page 17445]]
                determination that transactions or agreements to acquire or transfer
                existing infrastructure do not typically change the environmental
                status quo.
                 The replacement of the word ``sale'' with the word ``disposal'' in
                the definition of the CE clarifies that the action includes any
                transfer of ownership, rather than just monetary purchases. The word
                ``disposal'' refers to the transfer of the property, not the
                destruction or demolition of the infrastructure; this definition of
                disposal is well understood within TVA by staff and decision makers. In
                the context of the CE, where other types of real estate actions are
                addressed, this term is not unclear. The CE would not apply to
                proposals to demolish such infrastructure.
                 These actions are distinct from other actions relating to TVA's
                transmission system for which TVA may use a CE. Under the final rule,
                TVA will ensure that a larger project is not impermissibly broken down
                into small parts (Sec. 1318.200(c)).
                 Comment: Proposed CE 21 lacks the specificity required by NEPA and
                the CEQ regulations to ensure that no significant environmental impacts
                will occur as a result of application of the CE. TVA must evaluate the
                potential impacts of its action against the actual baseline conditions
                (and level of emissions), rather than the permitted levels.
                 Response: In response to this comment, TVA revised the CE to
                reflect that the planned operation by TVA of purchased or leased
                facilities should be consistent with the ``normal operating levels'' of
                the existing facilities rather than the limits identified in the
                facilities' environmental permits. This revision will further ensure
                that impacts to the environment are insignificant because the category
                of actions would effectively be limited to the continuing operation of
                an existing facility.
                 Under the final rule, TVA would consider whether an action has the
                potential to significantly impact environmental resources due to
                extraordinary circumstances before a CE can be used. Before using the
                CE, consideration would be given to potential air resource impacts and
                whether greenhouse gas emissions are significant.
                 TVA disagrees with the assertion that the generic EA completed by
                TVA and cited in its Supporting Documentation does not substantiate
                TVA's finding that the category of actions do not have significant
                impacts. The generic EA addresses the purchase or lease and operation
                of existing combustion turbine or combined-cycle combustion turbine
                plants located in or near the Tennessee Valley. TVA notes that the
                purchase or lease of an existing facility would only take place if it
                were in keeping with the IRP. The TVA IRP and the types of generation
                choices that TVA would consider would have already been assessed in the
                IRP and its EIS prior to the use of this CE.
                 Comment: TVA should withdraw proposed CE 22 because it is
                unreasonably broad and may be used to inappropriately develop its
                public lands. TVA's documentation does not support its findings. TVA
                should not categorically exclude any natural resource management
                activities.
                 Response: The definition of the CE sufficiently defines discrete
                and routine types of actions in well-defined settings. TVA staff is
                familiar with the terms included in the CE and have experience in
                applying such terms. The term ``generally'' does not negate the spatial
                limit but serves to provide TVA staff some discretion for an activity
                that may slightly exceed the limit. If a project area would slightly
                exceed the spatial limit, project staff would consult with TVA NEPA
                staff to determine whether the CE may still apply based on
                consideration of potential impacts. As noted in the supporting
                document, TVA has previously excluded such actions under several CEs.
                The new CE is more specifically defined than the previous, broadly
                defined CEs and provides clarity and transparency regarding the types
                of actions covered. The actions identified in the text of the CE are
                provided as examples to improve clarity and transparency.
                 The discussion of impacts in each section of the Supporting
                Documentation is, as noted in the document, a summary of TVA's findings
                that further demonstrate how TVA made its determination that such
                actions do not typically result in significant environmental effects.
                Prior to conducting some actions, TVA would review each proposal to
                determine if extraordinary circumstances exist. If they do, an EA or
                EIS would be prepared if the extraordinary circumstances cannot
                otherwise be resolved.
                 As noted above, TVA would not categorically exclude any segment or
                interdependent part of a larger proposed action and TVA has no
                intention of establishing thousands of dispersed recreation sites
                across hundreds of thousands of acres of public lands as suggested by
                the commenter; such development is inconsistent with TVA's objectives
                to provide quality dispersed recreation experiences and opportunities
                on undeveloped lands.
                 TVA disagrees that the eight CEs of other agencies do not support
                the new CE. The CEs of other agencies need not be identical to TVA's CE
                to provide support; these CEs are comparable, similar and relevant to
                TVA's CE because they address the same types of actions.
                 An example action listed in the proposed CE 22 was the
                ``stabilization of sites.'' TVA notes that dispersed recreation sites
                such as trails or primitive campsites are more likely to be much
                smaller in size than developed TVA recreation sites that are more
                accessible to the public (e.g., campgrounds, picnic areas, trailheads).
                Establishing and maintaining a dispersed recreation site typically
                requires less intense, smaller-scale activities. The stabilization of
                dispersed recreation sites or facilities differs from the stabilization
                of shoreline addressed in the NRP. The term ``stabilization of sites''
                in the context of dispersed recreation management may apply to minor
                actions at a discrete site or portion of a site or facility to address
                overuse or erosion or to make the site or facility more resilient to
                impacts. For instance, rock cribbing may be added along a trail to
                address erosion or wear from use. To stabilize the trail section or
                campsites, TVA would ``harden'' the site to concentrate impacts to one
                area (e.g., a tent pad) and reduce impacts to adjacent vegetation and
                soils consistent with Leave No Trace principles. Because the term
                ``hardening of sites'' is a term more often used by TVA specialists and
                outdoor recreation professionals than ``stabilization of sites,'' TVA
                has revised the CE to include both ``hardening'' and ``stabilization''
                of site. The change would be a better example of a covered action
                because it is more familiar.
                 Comment: TVA should either adjust CE 23 so that it complies with
                the requirements of NEPA, or it should withdraw it as a CE.
                 Response: TVA revised this CE to include example activities and to
                add a spatial limitation on activities. The examples improve clarity
                and transparency regarding the types of actions that fall under the CE;
                the spatial limitation is included to ensure that the CE is not used
                for projects that would result in significant environmental impacts.
                Because these are the only revisions proposed by TVA for this CE, TVA
                did not provide additional analysis in the Supporting Documentation as
                it did for new CEs. TVA has not developed and does not foresee the
                potential development of public use areas in the manner described by
                the commenter. Further,
                [[Page 17446]]
                under CEQ regulations and the final rule (Sec. 1318.200(c)), any use
                of CEs that would result in the impermissible segmentation of a larger
                project into smaller parts is prohibited.
                 Comment: Proposed CE 24 lacks specificity and should be either
                revised by TVA so that it complies with the requirements of NEPA or
                withdrawn.
                 Response: The revisions to this CE do not expand its scope. TVA has
                changed the definition to improve clarity and added an example of
                recreational use that has commonly been covered under this CE in the
                past, as discussed in TVA's Supporting Documentation. The term
                ``minor'' will remain in the CE to serve as a limit; a reasonable
                interpretation will continue to be applied to the term. Because the
                changes to the definition are minor and the scope of the category is
                not expanded, the Supporting Documentation provided only a summary of
                the changes.
                 Comment: Proposed CE 25 would allow TVA to sell, lease, or transfer
                land, as well as the accompanying mineral rights, land rights, and
                structures, as long as TVA determines that these acts are ``minor,'' a
                term that, left undefined and without appropriate context or other
                limits, provides TVA unfettered discretion. TVA should revise the CE to
                comply with NEPA or withdraw the CE.
                 Response: TVA's changes to the definition of this CE are intended
                to clarify the actions covered and to add examples of actions (e.g.,
                rights in ownership of permanent structures); CEQ encourages the
                inclusion of examples in the definitions of CEs. The definition
                includes ``lease'' to reflect that all transfers of property or rights
                would be covered; impacts of leases of properties are substantially
                similar to property transfers. The term ``minor'' remains in the
                definition of the CE as a narrative limitation. TVA will continue to
                apply a reasonable interpretation to this term and will ensure that the
                CE is not applied to major actions with significant environmental
                effects. The use of the term ``minor'' does not give TVA unfettered
                discretion to apply the CE without context or limits. The plain meaning
                of this term as well as the ``extraordinary circumstances'' provision
                would limit TVA's discretion. TVA notes that the other agency CE
                definition identified by the commenter includes stipulations to review
                proposals for impacts and extraordinary circumstances. Because TVA's
                process for determining whether it is appropriate to apply any CE to a
                proposed action requires a review of extraordinary circumstances and
                the proposed action's impacts, adding such text to this CE definition
                is unnecessary. TVA has adopted the final rule to ensure that its
                decisions are made in accordance with the policies and purposes of
                NEPA.
                 Comment: Proposed CEs 24 and 25 are too broad and could be
                misconstrued. TVA should break the CEs into multiple, separate CEs to
                improve clarity.
                 Response: Based on TVA's experience in applying CEs 24 and 25 since
                1980, the types of actions that may be covered under the CEs are not
                too broad or subject to misapplication. Actions of each category are
                reasonably similar in nature and potential impacts from actions in each
                category are generally similar. In revising its procedures, TVA weighed
                each CE to determine whether the category should be broken into
                separate CEs to improve clarity. In some cases, TVA identified a need
                to split categories but in other instances, had no reason to create new
                CEs based on past experiences. TVA determined that while some
                clarification may be found in splitting certain CEs, it must also
                consider the merit of minimizing changes to its list of CEs. Where a
                need was not evident, as in the case of these two CEs, TVA opted to not
                make additional revisions to its procedures.
                 Comment: Proposed CE 26 lacks specificity; it should be revised to
                comply with NEPA or withdrawn.
                 Response: The comments do not specifically address the addition by
                TVA of an example action covered by the CE. The only proposed change to
                this CE is the replacement of the term ``boat docks'' with ``boat docks
                and ramps.'' This is needed to clarify the types of actions addressed
                by this CE. TVA's Supporting Documentation addresses this change; TVA
                did not provide additional analysis in the documentation because no
                other changes were proposed. The term ``minor'' has been used in this
                CE since 1980 and is understood by TVA staff. CEQ and TVA procedures
                forbid segmentation of activities. For reasons stated above, TVA did
                not establish documentation requirements for its CE.
                 Comment: The Department of the Interior expressed concern over the
                potential damage to existing shoreline habitation for vegetation and
                other aquatic life resulting from new boat ramps and the installation
                of minor shoreline structures or facilities (covered under CEs 26 and
                27).
                 Response: Approvals of minor shoreline structures and facilities
                are among TVA's most commonly reviewed actions. As explained in the
                Supporting Documentation for the CEs, TVA reviews up to 2,000 approvals
                under Section 26a of the TVA Act annually. Many such actions have
                included construction by TVA or others of boat ramps. Boats ramps are
                included in the text of CEs 26 and 27 to provide clarity about their
                inclusion in actions covered under these CEs. TVA specialists complete
                an environmental review checklist (i.e., CEC) for each of these actions
                to ensure that there are no extraordinary circumstances associated with
                the proposal. The impacts to shoreline habitation for vegetation and
                other aquatic life is considered during the review. The standard permit
                conditions applied to permit holders further reduce the potential for
                adverse impacts.
                 Comment: TVA should either revise or withdraw CE 27 because it
                lacks specificity and does not comply with the requirements of NEPA.
                The CE should be revised to correct that bank stabilization is a
                management practice.
                 Response: As noted above, TVA reviews up to 2,000 actions a year
                involving installation of shoreline structures, primarily in response
                to applications by private homeowners residing along reservoir
                shorelines. This CE was added to TVA's procedures because the CE
                established for such actions in 1980 did not explicitly allow TVA to
                apply the CE for its own actions, despite the fact that the impacts of
                such TVA projects are substantially the same. Such actions, whether
                conducted by applicants or TVA, are very common, as noted in TVA's
                Supporting Documentation.
                 The spatial limitation of 0.5 mile for stabilization projects is
                intended to ensure that actions under this CE are minor in nature. To
                identify a spatial limit for the definition of this CE, TVA reviewed
                environmental records of over 800 separate actions to identify an
                appropriate limit to the distance for the length of stabilization
                projects. The Supporting Documentation notes that over two dozen EAs
                completed by TVA for shoreline or streambank stabilization and/or
                installation of riprap materials were reviewed, with an average length
                of over 1.5 mile of riprap per project. When considering past projects
                that were categorically excluded, the average length of projects was
                found to be smaller than 1.5 miles. Rather than establish a 1.5-mile
                limit based on TVA's evaluation of past EAs for shoreline or streambank
                stabilization, TVA establishes a shorter linear distance as a limit
                because most of the projects it reviews are much shorter than 1.5 miles
                in distance. TVA identified 0.5 mile as the spatial limit for the CE
                because TVA experience in
                [[Page 17447]]
                numerous projects supports at least this distance.
                 Based on the suggestion by a commenter, TVA made a minor
                grammatical revision to the definition of CE 27 in the final rule to
                improve clarity.
                 Comment: The Department of the Interior requested that TVA consider
                modifying Proposed CEs 27 and 33 due to the impact they may have on
                aquatic life along the shorelines. The proposed CEs may not encompass
                all problems that would face construction on the shorelines. For
                significant projects TVA might even be able to consult the U.S. Fish
                and Wildlife Service without the use of CEs.
                 Response: TVA acknowledges that stabilization actions under the CE
                have the potential to directly impact benthic fauna and other aquatic
                habitat. TVA reviews each proposal for potential impacts to sensitive
                resources, including federally protected species. Such reviews would
                continue under the CEs as TVA reviews for extraordinary circumstances
                (as noted above, TVA has revised its extraordinary circumstances as
                suggested by the Department of the Interior to clarify the review for
                impacts to federal special status species). TVA has revised its
                Supporting Documentation to address potential impacts to benthic fauna
                and other aquatic habitat; the draft Supporting Documentation released
                for public review should have addressed these potential impacts. Based
                on experience and extensive environmental review of past projects, TVA
                has determined that such actions would not result in significant
                environmental impacts.
                 Comment: TVA should either revise proposed CE 28 so that it
                complies with the requirements of NEPA or withdraw it.
                 Response: The scope of CE 28 is limited to minor land allocation
                modifications and would not affect broad swaths of lands. TVA has made
                several revisions to the CE in the final rule.
                 TVA revised the definition of the CE to clarify that the only
                modifications to land use plans covered by the CE are changes to land
                use allocations. In addition, the CE would only apply to such
                allocation modifications that are proposed ``outside of a normal
                planning cycle.'' This clarification is added because TVA only
                considers minor allocation changes outside of a normal planning process
                under limited circumstances. TVA's land plans and policies (e.g., NRP,
                Comprehensive Valleywide Land Plan, Land Policy, and Shoreline
                Management Policy) limit the types of revisions that can be made to
                land plans prior to development of the next plan for that reservoir.
                Outside of a normal land planning cycle, revisions to land use
                allocations in land plans can be made to correct administrative errors
                that occurred during the planning process. Further, land use allocation
                changes occurring outside of a normal planning cycle are to be made
                consistent with TVA's Land Policy. Specifically, the Land Policy
                provides, ``TVA shall consider changing a land use designation outside
                of the normal planning process only for water-access purposes for
                industrial or commercial recreation operations on privately owned
                backlying land or to implement TVA's Shoreline Management Policy.''
                Allocation changes for other purposes would occur during the normal
                land planning process. Updates to land plans within the normal land
                planning cycle, whether it be for a portion of a reservoir, an entire
                reservoir, or a group of reservoirs, involves the preparation of an EA
                or EIS. The new CE would apply to land use allocations outside of a
                normal planning cycle and would not apply to land planning efforts
                within the normal planning process.
                 Also, TVA made minor revisions to the scope of the CE. The proposed
                CE addressed four types of land use plan modifications: Changes to
                address minor administrative errors; changes to incorporate new
                information (when consistent with a previously-approved decision);
                allocation changes to a more restrictive or protective allocation; and
                minor allocation changes to implement TVA's shoreline and land
                management policies. Upon further review of the CE and after
                considering the public comments, TVA removed from the scope of the CE
                the amendments to land use allocations to a more restrictive or
                protective allocation (if consistent with other TVA plans and
                policies). Such proposals are unusual and would not generally occur
                outside of the normal planning process. In addition, TVA added a
                spatial limitation of 10 acres to the final action covered by the CE,
                thereby limiting the amount of land affected by a land use allocation
                modification that occurs outside of a TVA planning cycle. The acreage
                limit is similar to the general limitation applied to other CEs in the
                final rule.
                 TVA notes that the ``shoreline or land management policies''
                referenced in this CE are those relating to the Shoreline Management
                Policy and TVA's Land Policy. TVA has revised its discussion of this CE
                in its Supporting Documentation to provide additional explanation and
                background information on its land use planning practices and the types
                of actions and requests that may precipitate the need to consider such
                minor land use allocation changes.
                 TVA disagrees that the cited EAs and EISs and the benchmarked CEs
                of other agencies do not provide support for this CE. TVA finds that
                because those EAs, EISs and other agency CEs concern similar project
                with similar scopes, they provide additional support for TVA's
                determination that allocations changes that are minor and limited in
                scope do not result in significant environmental impacts. Other
                assertions made regarding the segmenting of actions contemplated in a
                tiered programmatic document and the need for documentation
                requirements are addressed by TVA in other responses.
                 Comment: TVA should either revise CE 29 so that it complies with
                the requirements of NEPA or withdraw it. The acreage limitation is too
                large for actions in these habitats. In addition, TVA may segment such
                activities, which is not appropriate, and does not provide sufficient
                information in its Supporting Documentation to substantiate the new CE.
                 Response: Based on extensive experience in conducting minor natural
                resource management actions, TVA has determined that certain actions
                would not result in significant environmental impacts. As noted in the
                Supporting Documentation, TVA has proposed this CE to more efficiently
                implement projects to maintain or restore the natural functions of
                these resources, consistent with objectives in its NRP and other TVA
                policies.
                 After publication of the Notice of Proposed Rule, TVA staff had
                further deliberations about the acreage figure identified in the
                definition of CE 29 that was intended as a spatial limitation for this
                category of actions. TVA had proposed that a 125-acre limitation would
                generally apply for the CE because, as discussed in the Supporting
                Documentation, the limitation would be consistent with limitations of
                other proposed CEs. Based on additional consideration, a limitation of
                10 acres is more appropriate given the sensitive nature of wetland,
                riparian and aquatic ecosystems. In addition, the 10-acre limitation
                more accurately reflects TVA's past experiences in implementing
                projects in these types of ecosystems. The definition of CE 29 was
                revised accordingly in the final rule.
                 When applying CE 29, TVA would use a CEC to determine whether
                extraordinary circumstances exist for each proposed action. Qualified
                TVA specialists will review whether the actions have the potential to
                significantly impact environmental
                [[Page 17448]]
                resources and will consider whether measures are necessary to mitigate
                impacts and resolve extraordinary circumstances. Existing current
                resource data will be used or new field data will be obtained when
                needed. The final rule provides that during this review TVA may resolve
                the potential impacts through mitigation. The CEC review ultimately
                determines whether it is appropriate to use a CE for the action or
                whether additional environmental review is needed. The use of a CE for
                an action does not relieve TVA from compliance with other statutes or
                consultations, including, for example, the ESA or NHPA.
                 CEQ regulations prohibit the practice of segmenting projects into
                smaller components in order to avoid finding a significant impact of a
                project considered as a whole. TVA complies with this regulation, as
                reflected in Sec. 1318.200, which includes direction to avoid
                segmenting larger projects into small parts when applying CEs.
                Environmental staff is responsible for screening out this type of
                activity and ensuring that larger projects are reviewed in their
                entirety. TVA staff would not use CE 29 for restoration or enhancement
                activities that are proposed across a wide area, as asserted; the CE
                would be used for discrete actions within the same area or immediate
                vicinity.
                 TVA disagrees that the Supporting Documentation is insufficient.
                The NRP EIS and other cited NEPA records provide important support that
                these restoration and enhancement actions do not typically result in
                significant environmental impacts. The NRP EIS states that TVA would
                conduct ``appropriate'' levels of review when specific implementing
                actions are proposed; it does not state that EAs or EISs would be
                necessary to review minor, implementing activities. As previously
                stated, the Supporting Documentation is intended to provide information
                to substantiate TVA's determination that certain actions do not result
                in significant impacts. CEQ's 2010 guidance affirms that agencies may
                rely on previously implemented actions and associated NEPA records to
                substantiate new CEs; TVA does not find that it is inappropriate to
                cite only to TVA EAs or EISs to support this and other CEs. TVA notes
                that the Supporting Documentation also provides supporting information
                from very similar CEs promulgated by other federal agencies, including
                agencies with land management and conservation responsibilities (e.g.,
                the Forest Service, Department of Homeland Security, Fish and Wildlife
                Service, and the Natural Resources Conservation Service).
                 Comment: TVA should either revise CE 30 so that it complies with
                the requirements of NEPA, or withdraw it.
                 Response: TVA cites to previous responses regarding the potential
                for segmentation of actions, the NEPA documents cited by TVA in its
                Supporting Documentation, and the appropriateness of using a CE for NRP
                implementing actions.
                 In addition, comments also asserted that two of the 19 CEs cited by
                TVA in benchmarking provide insufficient support for CE 30. TVA
                included several examples of actions in CE 30, as was done by the
                Bureau of Land Management for its CE C8. TVA cites to six Forest
                Service CEs and addresses the comparability in the Supporting
                Documentation, acknowledging that certain Forest Service CEs do not
                directly address certain TVA actions in CE 30. When benchmarking to
                other agencies' experiences, as described in the Supporting
                Documentation, TVA found numerous applicable and comparable CEs that
                provide additional support to TVA's determination that such actions
                qualify for a CE.
                 Comment: Proposed CE 31 lacks specificity, impacts of such actions
                are significant, and cited EAs, EISs, and benchmarked CEs do not
                support TVA's determination. TVA did not take a hard look and is
                playing a shell game by establishing a CE for actions addressed under
                programmatic NEPA, and documentation should be defined in the final
                rule. For these reasons TVA should revise or withdraw the CE.
                 Response: The comments relating to the definition of the CE (e.g.,
                use of the limiting terms and failure to specify the geographic area
                when conducting actions), the potential that such actions may result in
                significant impacts, the adequacy of the EAs and EISs cited in the
                Supporting Documentation, and the appropriateness of using CEs for
                certain natural resource program actions have been previously asserted;
                the responses above are equally applicable here.
                 Again, TVA notes that information in the Supporting Documentation
                includes a summary of relevant NEPA documents to substantiate CE 31.
                The experiences of TVA and the implemented projects cited by TVA in the
                document support TVA's determination that such activities, when
                limited, would not result in significant impacts. The CEs of other
                agencies cited in the document provide further support; TVA notes that
                the Forest Service and Bureau of Land Management CEs are similar in
                nature but acknowledges in the Supporting Documentation that there are
                differences (e.g., in spatial limitations). TVA believes, however, that
                these CEs of the other federal agencies address similar activities as
                TVA's CE 31 and provide additional support for TVA's determination.
                 Comment: TVA should either revise CE 32 so that it complies with
                the requirements of NEPA or withdraw it.
                 Response: TVA disagrees that the CE lacks sufficient specificity or
                clarity. TVA staff in NEPA, Environmental Operations and Compliance,
                and Natural Resources reviewed the definition of the CE and found that
                actions specified therein are clear and well-understood. The CE is
                defined to describe common actions conducted by TVA to manage invasive
                plants. These actions do not result in significant environmental
                impacts if conducted in adherence to the spatial limits. TVA has
                extensive experience in conducting these types of vegetation management
                actions and, as noted in the Supporting Documentation, has reviewed
                similar actions under a CE in the past. TVA has determined that for
                many natural resource management actions that would implement its NRP,
                the CE provides an appropriate level of site specific environmental
                review.
                 As previously stated, TVA would conduct a review of all actions
                falling under this CE using a CEC to determine whether extraordinary
                circumstances exist and document its findings. Qualified TVA
                specialists will review whether the actions have the potential to
                significantly impact environmental resources, including sensitive bat
                species, and will consider whether measures are necessary to mitigate
                impacts and resolve extraordinary circumstances. The CEC checklist
                review ultimately determines whether it is appropriate to use a CE for
                the action or whether additional environmental review under an EA or
                EIS is needed. TVA also disagrees with assertions relating to the
                relevance of the benchmarked CE of the Forest Service; the Forest
                Service CE includes vegetation control activities, including the
                application of herbicides.
                 Comment: TVA's procedures for project planning under proposed CEs
                29, 30, 31 and 32 are unclear. TVA stated in its NRP EIS that it would
                perform ``site and/or activity-specific environmental reviews'' for
                such activities. If the activities are covered under the CEs, what
                environmental review process will TVA use?
                 Response: TVA's determination that certain natural resource
                management actions would not result in significant environmental
                impacts is based on extensive experience in conducting
                [[Page 17449]]
                these minor actions. As noted in the Supporting Documentation, TVA has
                conducted many of these actions under CEs in the past. TVA has
                determined that for many actions addressed under its NRP, the CE
                provides an appropriate level of site-specific environmental review. As
                noted above, CEs are not exemptions or waivers of NEPA reviews and TVA
                would conduct a review of all actions falling under CEs 29, 30, 31, and
                32 using a CEC. Qualified TVA specialists review each action to
                determine whether it is appropriate to use a CE for the action or
                whether additional environmental review in an EA or EIS is needed due
                to any extraordinary circumstances. The use of a CE for an action does
                not relieve the TVA entity from compliance with other statutes or
                consultations, including, for example, the ESA or NHPA.
                 Comment: Proposed CE 35 lacks the specificity required by CEQ and
                NEPA to ensure that actions would have little potential for significant
                impacts. Commenters suggested various changes, including eliminating
                the CE entirely, removing groundwater supply wells from the category of
                actions, applying a low volume limit on covered water supply wells,
                eliminating its applicability to other types of wells (e.g., oil and
                gas), and providing clarification for determining what is ``low
                potential'' during site characterization. The water quality incident in
                Shelby County, Tennessee, reflects the need for more stringent reviews
                under NEPA and it would be inappropriate to apply a CE for water wells.
                 Response: Based on consideration of the comments received, TVA has
                revised this CE to apply a limit to the installation or modification of
                low-volume groundwater withdrawal wells. TVA had not intended the CE,
                as proposed, to be used for installing wells for high volumes of water
                withdrawal. For wells with such high volumes of withdrawal, TVA would
                complete an EA or EIS of such actions, as was done at TVA's Allen
                Fossil Plant.
                 By comparison, TVA has extensive experience installing small-scale
                groundwater monitoring and withdrawal wells, including low-volume wells
                for potable water use at facilities in remote locations (e.g.,
                campgrounds). TVA does not agree with one commenter's assertion that
                there is a substantial difference in the types of potential
                environmental impacts associated with establishing and operating
                groundwater withdrawal wells for supply and groundwater withdrawal
                wells for monitoring, based on TVA's experience in installing and
                conducting environmental reviews for low-volume groundwater withdrawal
                wells. As noted in the Supporting Documentation, the digging, drilling,
                boring and associated activities that occur when wells are installed do
                not vary greatly based on the well's purpose. The scope of work is
                similar whether the well is installed for water withdrawal or water
                monitoring.
                 Regarding comments on plugging of wells, TVA agrees that there are
                differences in the nature of plugging of groundwater wells and oil or
                gas wells at the end of their operating lives. However, the commenter's
                specific concerns about oil or gas wells relate to the potential for
                adverse effects that these wells pose if not properly plugged, rather
                than the impacts associated with TVA's actions to plug groundwater
                wells. The intent of plugging groundwater wells is to address the
                threat to public safety and water and air quality posed by the wells.
                To reduce the potential for confusion regarding what the
                ``abandonment'' of a well involves, TVA revised the text of the CE in
                the final rule by deleting ``and abandonment'' from the text and adding
                clarification that wells would be plugged at the end of their operating
                life.
                 The CE includes a statement limiting its use to circumstances when
                there is ``low potential for seismicity, subsidence, and contamination
                of freshwater aquifers.'' The inclusion of this text ensures that TVA
                reviews for the potential for such circumstances prior to determining
                whether a CE may be used for an action. Those qualified to make such
                determinations would be employed to make such determinations.
                Information provided in the Supporting Documentation provides an
                adequate summary of TVA's experience, previously implemented actions,
                and benchmarking to other agency CEs.
                 Finally, TVA received numerous comments stating that the water
                quality incident at its Allen plant in 2017 is a result of its
                installation of wells for cooling water. Studies do not show a link
                between the TVA action and the poor water quality findings. Equally
                important, this CE is not for high-volume withdrawal wells such as
                those at the Allen plant. To ensure its application only to small,
                local groundwater withdrawal wells, the definition of the CE was
                revised to further limit the application of this CE to ``low-volume''
                withdrawal wells, ``provided that there would be no drawdown other than
                in the immediate vicinity of the pumping well and that there is no
                potential for long-term decline of the water table or degradation of
                the aquifer.''
                 Comment: CE 36 sweeps in far too much, and would exempt from NEPA
                review exactly the sort of activities that should be reviewed under
                NEPA. CE 36 should be withdrawn, or at the very least, TVA should
                promulgate requirements that would require that application of CE 36 be
                documented and be made publicly available on TVA's website.
                 Response: As previously noted, CEs are not exemptions from or
                waivers of NEPA review; they are simply one type of NEPA review. Among
                the actions falling under CE 36 are some of TVA's most common,
                routinely implemented actions to maintain operations of its facilities
                and equipment. Covered actions are very minor, with little or no new
                ground disturbance, and a minor potential for new pollutant emissions
                streams. This CE only applies to existing buildings, infrastructure
                systems, facilities and grounds, and operating equipment at TVA
                locations; actions that require new or revised permits are not covered
                by this CE.
                 As demonstrated in the Supporting Documentation, TVA has many years
                of experience with the routine operation, repair or in-kind
                replacement, and maintenance activities for existing buildings,
                infrastructure systems, facility grounds, and operating equipment. Many
                of these activities are considered so routine, and have been repeated
                so often that TVA estimates it has documented the lack of significant
                impacts of these types of actions in hundreds of CEs. Based on over 30
                years of experience with assessing the impacts of the actions covered
                in CE 36, TVA believes that in the absence of extraordinary
                circumstances, these are repetitive actions that have been shown to
                have negligible effects. Decisions about the appropriate level of NEPA
                review for TVA actions are made by qualified environmental specialists,
                staff attorneys, and informed project managers, based on project
                descriptions including maps, photographs and drawings as appropriate. A
                project screening review team facilitates this process.
                 The terms used in the definition of the CE (e.g., routine, in-kind,
                replacement, maintenance) are well understood by TVA staff. The CE
                provides clarification of how these terms are used and terms are given
                context through the examples. In the third sentence, the term
                ``substantial change'' is used when describing a limitation: The
                category does not include actions that result in a substantial change
                in the design
                [[Page 17450]]
                capacity, function, or operation of a facility, system, or equipment.
                TVA notes that this term refers to the extent to which an existing
                facility, system or equipment is changed, rather than the extent to
                which those changes would affect the environment. As stated in the
                second sentence of the CE, actions would be limited to those which do
                not alter the current condition or location of the facilities, systems
                or equipment for use for designated purposes. TVA notes that portions
                of these statements are based on the definition of the Department of
                Energy (DOE) CE (B1.3), which includes similar factors that constrain
                its use. Nevertheless, TVA has deleted the term ``substantial'' from
                this sentence to avoid potential confusion by TVA staff in the
                application of the CE. Likewise, TVA also reviewed the use of the word
                ``substantially'' under item (a) of CE 36 and has deleted it from the
                description of the example action to avoid confusion.
                 Commenters also assert that ``a category of action is only
                appropriate for a CE if those activities are incapable of causing
                significant environmental impact'' and that ``[f]or something to be
                categorically excluded, it should never have significant environmental
                effects.'' However, Federal agencies, in developing their NEPA
                procedures, are required to consider extraordinary circumstances in
                which a normally excluded action may have a significant environmental
                effect.'' See 40 CFR 1508.4. CEQ describes such extraordinary
                circumstances as ``factors or circumstances in which a normally
                excluded action may have a significant environmental effect. . . .''
                (75 FR 75629, December 6, 2010). CEQ's recognition that there are
                circumstances in which a category of actions that are categorically
                excluded may nevertheless result in significant impacts serves to
                caution agencies to use the ``extraordinary circumstances'' provision
                to cull out any particular action from a CE category that may have a
                significant effect. In TVA's Supporting Documentation, TVA described
                categories of actions that do not have significant impacts, but was
                mindful that extraordinary circumstances may exist that apply an
                exception to the rule.
                 In the June 2017 release of the document, TVA's use of the terms
                ``typically'' or ``normally'' in some CEs was apparently misinterpreted
                by some commenters. TVA's intent for each of its conclusions for each
                category of actions is to affirm that it has determined that the
                actions do not result in significant impacts, under normal
                circumstances. The use of terms like ``typically'' or ``normally''
                should not be interpreted as determinations by TVA that these
                activities have significant impacts. The Supporting Documentation has
                been revised, where appropriate, to avoid such confusion.
                 Comment: The Virginia Department of Historic Resources expressed
                concern with the wording in CE 36 that refers to structures less than
                50 years old that will receive routine maintenance. This official
                suggested that TVA include the need to consider historic properties in
                the introductory section on ``extraordinary circumstances.''
                 Response: Under the final rule, TVA has included the potential for
                an action to significantly impact cultural or historic resources as an
                extraordinary circumstance to consider prior to use of a CE (Sec.
                1318.201(a)(1)(iii)). Because actions under CEs 36 and 37 pertain to
                maintenance and potential modifications to buildings and structures,
                TVA included text to the examples listed under CEs 36 and 37 that limit
                the application of these CEs to activities at structures and buildings
                that are less than 50 years old. This limitation is intended to ensure
                proper consideration of potential impacts to cultural or historic
                resources and of the possible need to conduct consultation under
                Section 106 of NHPA. As noted above, TVA also added to the final rule a
                statement that the use of a CE for an action does not relieve TVA from
                compliance with NHPA.
                 Comment: Proposed CE 37 is inconsistent with the requirements of
                NEPA, and the actions covered by proposed CE 37 are exactly the sort
                that should be subjected to NEPA analysis. It is inappropriate to
                benchmark to the DOE's CEs. TVA should withdraw the CE.
                 Response: TVA has extensive experience in completing routine and
                minor actions to modify, upgrade, uprate and complete other activities
                at its existing facilities, grounds and equipment. The covered actions
                are necessary to maintain current facility infrastructure, grounds, and
                equipment. In addition to the spatial limitation (10 acres) applying to
                this CE, several additional limitations are included in the definition
                of actions listed under items (a) through (g).
                 Since 1980, activities under CE 37 have been categorically excluded
                under 5.2.1 of TVA's previous procedures. TVA believes that replacing
                the very broadly defined and widely used CE 5.2.1 is necessary to
                provide more specific definitions and examples to TVA staff of
                categorically excluded actions. Generally, TVA's consideration of such
                activities would not change; the level of review would be similar under
                the final rule. Under CE 37, TVA will conduct a review of the proposed
                action using its CEC. The determination of the potential for any
                significant impact due to extraordinary circumstances is made during
                the completion of the CEC review by a qualified multidisciplinary team
                of experts. Should extraordinary circumstances reflecting the potential
                for significant effects be identified during this review, TVA staff
                would complete a higher level of NEPA review.
                 TVA's statement in its Supporting Documentation that such actions
                ``under normal circumstances'' do not have a significant effect on the
                human environment articulates TVA's determination that a CE is
                appropriate for these actions, if TVA verifies that no extraordinary
                circumstances exist that may require TVA to conduct additional
                environmental review. TVA notes that the examples given by the
                commenter (such as boiler expansions that would dramatically change the
                output of a generator or the lifespan of the unit) are not covered
                under this CE because such components are major pieces of equipment
                (under item (a) of the CE). Further, the definition of the CE
                specifically limits its use under item (b) to modifications that do not
                substantially change emissions or discharges beyond current permitted
                levels. Other limitations are included in items (e), (f) and (g), which
                provide additional factors for consideration prior to use of the CE.
                TVA found that the DOE CE is similar in nature and provides additional
                support for TVA's determination that such actions, as limited, do not
                result in significant impacts.
                 Comment: The current language of proposed CE 38 is too broad and
                would allow TVA to construct new facilities anywhere without the
                completion of an EA or public input.
                 Response: The construction of new buildings and associated
                infrastructure in small areas are activities common to TVA. TVA has
                extensive experience in conducting environmental reviews of actions
                impacting less than 10 acres of land previously not disturbed by human
                activity or 25 acres of land so disturbed. TVA's extensive experience
                and environmental records support its conclusion that such actions, as
                limited in the CE, would not result in significant impacts. TVA notes
                again that CEs are not exemptions or waivers of NEPA review; rather,
                they are simply a type of environmental review. TVA will continue to
                review proposed actions to ensure that extraordinary circumstances are
                not present that would prevent the application of this CE. The
                appropriate reliance on CEs to
                [[Page 17451]]
                consider minor actions with little potential for significant effects
                provides a reasonable, proportionate, and effective analysis of the
                impacts of the action.
                 CE 38 would not apply to the siting, construction, and use of new
                power generating facilities. The CE is intended to address only
                buildings and associated infrastructure (e.g., parking areas, utility
                lines serving the building). To improve clarity, TVA added an example
                of associated infrastructure to the definition of the CE. After
                considering the comment, TVA reviewed its Supporting Documentation and
                revised the discussion to clearly express TVA's intent that the CE
                would not apply to new construction of power generation facilities.
                 Comment: TVA should change the 10-acre limit in proposed CEs 38 and
                43 to 5 acres and the 25-acre limit to 10 acres, respectively.
                 Response: The suggestion is noted. The commenter did not explain
                why the suggested limits would be more appropriate. TVA's own
                experience provides adequate justification for the use of these limits.
                 Comment: The Department of the Interior recommended adding the
                installation or replacement of small scale bridges to the listed
                actions under this CE (when such structures may facilitate improved
                fish and wildlife passage) and suggested that TVA evaluate potential
                modifications to existing roadways that intersect aquatic resources as
                to make sure a beneficial impact is occurring for aquatic resources.
                The Department also noted that TVA should evaluate how it will address
                the potential impacts from constructing or replacing culverts and
                consider modifying CE 42 concerning the issue. Finally, the Department
                noted that CE 42 allows for ground disturbance pertaining to TVA
                projects, and recommends modifying the language to encompass parameters
                when the CE can be used.
                 Response: TVA's CE for improvements to existing roads, trails, and
                parking areas includes several example actions; however, covered
                actions are not limited to the example actions listed. A reasonable
                interpretation of the CE would allow for limited improvements to
                roadways that include small-scale bridge installation, particularly if
                the bridge installation may result in fewer impacts to aquatic
                resources than culvert installation. TVA acknowledges that road
                improvement activities may result in impacts to the environment but
                limits the use of the CE only to minor expansions of existing roads,
                trails and parking areas, thereby limiting the extent of such impacts.
                TVA would complete a review using a CEC for each action under CE 42 to
                ensure extraordinary circumstances and potential impacts of the action
                are considered.
                 Comment: Several commenters expressed concern with the scope of
                actions covered under CE 45. Two commenters recommended that TVA revise
                its proposed CE 45 and delete items (c) and (d) from the list of
                covered actions, which address a small number of wind turbines and
                small-scale biomass power plants, respectively.
                 Response: Upon further consideration, TVA has removed items (c) and
                (d) from the list of covered actions of CE 45. TVA reviewed these
                actions again and concluded that it is unlikely to pursue the
                installation of wind turbines at its facilities in the foreseeable
                future. Further, lack of extensive experience assessing the impacts of
                wind turbines cautioned TVA against placing this category of actions
                under a CE. For the same reasons, TVA removed actions associated with
                small-scale biomass power plants from this CE in the final rule.
                 Comment: TVA should either adjust CE 45 so that it complies with
                the requirements of NEPA or withdraw it as a proposed CE. CE 45 is too
                broad in its current language regarding several potential renewable
                energy activities that would fall under the new CE. According to this
                commenter, the broad language does not encompass projects that should
                fall under the NEPA process.
                 Response: TVA does not consider the CE to be too broadly defined.
                TVA notes that actions may only be implemented at an existing TVA
                facility to limit its impacts and reduce the likelihood for conflicts.
                When reviewing whether an action falls within a CE, TVA must ensure
                that no extraordinary circumstances relating to the proposed action are
                present and whether the action has the potential to significantly
                impact environmental resources (see Sec. 1318.201(a)). Because the
                potential for significant impacts is considered when determining
                whether to use a CE, adding such a limit to the definition would be
                redundant. A TVA interdisciplinary team would review each proposal and
                complete a review checklist before using the CE.
                 TVA's Supporting Documentation summarizes TVA's findings and
                information that supports the establishment of the CEs. Actions covered
                under CE 45 would only take place if they are consistent with TVA's
                IRP. The TVA IRP and the types of generation choices that TVA would
                consider would have already been assessed in the IRP and its EIS. Use
                of CE 45 (through the completion of a CEC) allows TVA to verify that
                the site-specific impacts of particular generation choices comports
                with the analysis in the IRP and its EIS.
                 As described in the Supporting Documentation, this CE is
                benchmarked closely with those of other federal agencies, primarily the
                Department of Energy. TVA grouped different energy actions under one CE
                because all such actions are renewable energy actions and would only be
                permitted at existing TVA facilities. Further, CE 45 has limitations:
                it applies to projects covering less than 10 acres of land previously
                not disturbed by human activity or up to 25 acres of lands so
                disturbed, consistent with other spatial limits identified by TVA. As
                noted above, TVA revised this CE in the final rule and removed the wind
                turbine and biomass power plants from the list of renewable energy
                actions covered by the category.
                 Comment: Proposed CE 45 item (b), which addresses solar
                photovoltaic systems, should be revised to remove the reference to on-
                the-ground systems, thereby limiting the category to solar system
                mountings on existing buildings or structures.
                 Response: The comment expressing this preference is noted. TVA
                notes that covered actions would only occur at an existing TVA facility
                and a spatial limitation would apply.
                 Comment: We are opposed to any green field development.
                 Response: Comment noted.
                 Comment: Commenters expressed opposition to the proposed CE 46
                because TVA does not have experience with the construction of drop-in
                hydroelectric systems. Without this experience, these commenters stated
                that TVA could not substantiate the CE. According to these commenters,
                the installation of these hydroelectric systems would disrupt the
                native biodiversity within the Tennessee River and should not be
                categorically excluded.
                 Response: Based on public comment and additional internal
                consideration, TVA withdrew the proposed CE 46 from the final rule. TVA
                had proposed the CE to include the installation, modification,
                operation and removal of small, drop-in, run-of-the-river hydroelectric
                systems. TVA determined that such actions are not foreseeable.
                 Comment: Several commenters expressed concern with proposed CE 47,
                regarding modifications of TVA rate structure. According to two
                [[Page 17452]]
                commenters, TVA bases its claim that actions in this category would not
                have any significant impacts off previous internal reviews of four NEPA
                filings, wherein TVA stated that the proposed changes could have
                ``negligible or minor effects on environmental resources.'' While the
                scope of those prior rate structure modifications may have been minor,
                these commenters assert, TVA's intention to pursue a broad rate
                adjustment and rate change in 2018 may have impacts that are more
                dramatic.
                 Response: During the public review period for this rulemaking, TVA
                made public its intention to consider modifications to its rate
                structure in 2018. TVA received numerous comments expressing concerns
                that CE 47 would be used for the 2018 rate change. Although such
                comments relating to a specific proposal are not within the scope of
                this rulemaking, TVA notes that it did not propose the CE with any
                specific proposed modifications to the rate structure in mind. The new
                CE was proposed based solely on past experience. In the case of the
                proposed 2018 rate change, TVA completed an EA for the proposal and
                provided opportunity for public review of the analysis; the EA further
                supports TVA's conclusion that such actions would not normally result
                in significant environmental impacts.
                 Comment: CE 47 would reverse TVA's longstanding practice of
                analyzing rate changes with rigorous environmental analysis and EISs.
                The timing of proposing the CE is concerning, given TVA's plan to
                update their rate structure in 2018 to specifically address the
                proliferation of distributed energy resources and energy efficiency
                across their service territory. It is worrisome that TVA would try to
                exempt rate changes from environmental analysis just months before a
                proposed rate change that might affect how renewables and energy
                efficiency are priced.
                 Response: As noted above, TVA did not propose the CE with any
                specific future proposed modifications to rate structure in mind and
                completed an EA in 2018 to consider the 2018 rate change proposal. TVA
                NEPA staff first identified the category for consideration as a
                potential CE more than five years ago, after completing numerous
                reviews of similar proposals that TVA concluded would result in no
                significant impacts.
                 TVA's experience in reviewing prior rate changes serves to support
                the conclusion that such actions do not typically result in significant
                environmental impacts. According to CEQ, such longstanding practices
                can be used to provide supporting information for the establishment of
                a CE.
                 Based on further internal deliberation and consideration of public
                input, TVA revised CE 47 to simplify it and to omit from the CE's scope
                any modification that results in minor increases in energy generation.
                TVA had proposed to apply a reasonable interpretation of the term
                ``minor increases'' when applying the CE in the future. However, TVA
                determined that further limiting the use of the CE to only actions that
                result in no predicted increase overall TVA-system electricity
                consumption is more appropriate and ensures that no significant impacts
                would result from the action.
                 Although a proposed action may meet the definition of a CE (i.e.,
                may fall within the category of actions), TVA may determine that it
                would be more appropriate to conduct a more thorough review. According
                to the final rule, TVA staff would first review the proposal to ensure
                that it meets the definition of the CE and its limitations. Then, TVA
                would review the proposal and determine whether any of the
                extraordinary circumstances defined in Sec. 1318.201 may occur. As
                described in the Supporting Documentation, TVA interdisciplinary staff
                completes a Categorical Exclusion Checklist to verify that there are no
                extraordinary circumstances and to ensure that the action has no
                potential for significant environmental impacts. If extraordinary
                circumstances are present and cannot be resolved or the potential for
                significant impacts exist, TVA would complete a more rigorous analysis
                in an EA or EIS of the proposed action. Under the final rule, TVA may
                consider providing public notice when a CE is used if it is determined
                that the public may have relevant and important information relating to
                the proposal that will assist TVA in its decisionmaking.
                 Comment: The definition of CE 47 lacks specificity for ``minor''
                increases and the scope of extraordinary circumstances that would
                constitute the need for an EA or EIS.
                 Response: As noted above, TVA has revised the CE's definition to
                exclude proposals that may result in increases in overall energy use.
                TVA's procedures directing staff to consider whether the ``significance
                of the environmental impacts . . . is or may be highly controversial''
                are consistent with CEQ's significance criterion (40 CFR 1508.27(4)),
                which directs agencies to consider ``the degree to which the effects on
                the quality of the human environment are likely to be highly
                controversial.'' Guided by existing case law as to what constitutes
                ``highly controversial'' actions, TVA will consider controversy over
                the nature and scale of the impacts (e.g., scientific disagreement
                relating to the potential impacts), as opposed to mere opposition to a
                federal project. TVA agrees that it may not be appropriate to use a CE
                for certain rate change proposals if extraordinary circumstances are
                present, if TVA finds there to be potential for significant impacts, or
                if additional review is needed to improve the decision-making process.
                 Comment: TVA's claim in its Supporting Documentation that CE 47
                would have similar scope as the DOE CE is inaccurate because the DOE CE
                includes limitations that CE 47 does not include (referring to DOE CE
                B1.1 and DOE CE B3.4).
                 Response: The new CE established by TVA for minor rate
                modifications is based on TVA's own past experience. The DOE's
                experience provides additional support for the establishment of a CE
                for TVA rate change proposals with certain limitations applied. TVA
                acknowledges that the DOE's mission differs from its own, and the
                Bonneville Power Authority region differs from the Tennessee Valley
                region. TVA acknowledges that there are differences in the scope of the
                DOE CEs and TVA's CE 47. As addressed in the Supporting Documentation,
                DOE analysis of its CEs draws similar conclusions as TVA's analysis of
                CE 47: That impacts to the environment would occur only if the rate
                change involved changes to the operation of generation resources.
                Accordingly, TVA has limited use of this CE to actions that result in
                no predicted increases in overall energy use (including any change that
                may result in system-wide demand reduction). Because of the limitation,
                and based on its own experience, TVA has determined that such actions
                do not result in significant environmental impacts.
                D. Comments on Subpart D--Environmental Assessments
                 Comment: TVA's NEPA procedures addressing the circulation of
                findings of no significant impacts for public comment are inconsistent
                with the CEQ Regulations and guidance.
                 Response: To ensure consistency with CEQ regulations at 40 CFR
                1501.4(e)(2), TVA revised Sec. 1303(d)(1) in the final rule. As
                previously noted, TVA's procedures do not supersede the CEQ
                regulations.
                 Comment: TVA's NEPA procedures for EAs discourage early public
                involvement in projects and are contrary to the CEQ Regulations, which
                requires agencies to consider whether public
                [[Page 17453]]
                comment is ``practicable,'' not whether the public has already been
                involved. TVA procedures do not reflect CEQ requirements to provide
                public review of an EA. Where TVA decides that an action described in
                Sec. 1318.400(a) does not need an EIS, the agency must discuss the
                basis for this decision in a document that is made available to the
                public ``upon request.'' Under Sec. 1318.301(c), the EA will be
                circulated to the public for review and comment, but under Sec.
                1318.400(b), the public has to request the document containing the
                basis for the agency's decision not to prepare an EIS (normally
                provided for in an EA), and no public comment occurs. TVA should fix
                this contradiction.
                 Response: The comments address a contradiction between Sec. Sec.
                1318.301(c) and 1318.400(b). TVA has deleted the phrase ``upon
                request'' from Sec. 1318.400(b) to make clear that the EA that forms
                the basis for not preparing an EIS for actions falling within the
                categories specified in Sec. 1318.400(a) will be made available for
                public review.
                 Further, Sec. 1318.301(a) of the proposed rule has been revised to
                include text from TVA's previous procedures, established in 1980,
                regarding public involvement in the preparation of an EA that TVA had
                proposed to remove from this section. After considering public input on
                Sec. 1318.301(a), TVA decided to include the text (with minor edits)
                because it provides general guidance for determining the appropriate
                level of public involvement in the EA process. In the final rule, TVA
                also retains the sentence providing that the public's prior involvement
                may be also considered because often, a TVA EA process occurs
                concurrently with another regulatory process or environmental review by
                another agency. During other regulatory processes, the public is often
                provided a meaningful opportunity to comment on the environmental
                impacts of a proposal. When this occurs, TVA will integrate the public
                review opportunity provided by the other regulatory process into its
                NEPA review. Consideration of this is consistent with CEQ's regulations
                requiring an agency to involve environmental agencies, applicants and
                the public to the extent practicable (40 CFR 1501.4(b)), to reduce
                delays in the NEPA process (40 CFR 1500.5), and to integrate the
                requirements of NEPA with other planning and environmental review
                procedures (40 CFR 1500.2).
                 Comment: TVA's procedures for supplementing EAs are inconsistent
                with NEPA and the CEQ regulations.
                 Response: TVA revised Sec. 1318.304(a) in the final rule to
                clarify that TVA would consider supplementing an EA when there are
                ``important components of the proposed action that remain to be
                implemented.'' This text was also added under Sec. 1318.406 addressing
                supplementing EISs. TVA will continue to comply with CEQ regulations
                addressing the supplementation of NEPA documents, including those
                relating to circulating supplemental documents for public review.
                 Comment: TVA's procedures are flawed because TVA arbitrarily and
                inaccurately paraphrases the scope of analysis required in EAs and
                EISs.
                 Response: TVA's NEPA implementing procedures supplement but do not
                supersede CEQ's NEPA regulations. Under Sec. 1318.302(b) of the
                procedures, TVA elaborates on the requirements for EAs and addresses
                each of the CEQ requirements. TVA's use of the term ``reasonable
                alternatives'' is consistent with CEQ guidance on the consideration of
                alternatives (see CEQ's Forty Most Asked Questions (questions 1 and 2)
                and Attachment A of its 2016 guidance regarding ``Emergencies and the
                National Environmental Policy Act'').
                 CEQ regulations describe EAs as ``concise'' documents that offer
                brief discussions of environmental impacts, sufficient to determine
                whether preparation of an EIS is required and to aid in compliance with
                NEPA when no EIS is necessary. TVA agrees that determining whether
                significant impacts may occur from an action is the proper scope of the
                EA. In the final rule, TVA revised the statement of the proposed rule
                that EAs should address ``important environmental issues'' (Sec.
                1318.300(a)) to state that EAs should address ``issues that are
                potentially significant.'' TVA will continue to conduct reviews that
                avoid discussions of trivial or irrelevant matters, consistent with CEQ
                regulations and guidance.
                 The final rule does not substantively revise procedures relating to
                the scope of EISs. TVA notes that Sec. 1318.400(d) cites to CEQ
                regulations addressing the scope and detail of the EIS (40 CFR 1502.10-
                1502.18).
                E. Comments on Subpart E--Environmental Impact Statements
                 Comment: Contrary to the requirements of NEPA and the CEQ
                regulations, TVA proposes to prepare EISs only for a very narrow
                category of major Federal actions.
                 Response: When determining the scope of its revision to these
                procedures, TVA considered whether additional categories of actions
                should be added to the list of actions normally requiring an EIS. Some
                revisions were proposed and included in the final rule under Sec.
                1318.400(a). After further consideration and review of public comments,
                TVA includes two new actions that will normally require an EIS in the
                final rule: the development of integrated resource plans for power
                generation and system-wide reservoir operations plans.
                 TVA notes that the first two actions listed under Sec. 1318.400(a)
                include a variety of types of projects. TVA also notes that examples
                provided by the commenter of categories of projects addressed by TVA in
                recent NEPA reviews include several that TVA found would result in no
                significant impacts to the environment.
                 Comment: Wind turbine projects are actions that should normally
                require an EIS.
                 Response: Comment noted. The appropriate level of NEPA review would
                be determined by TVA in accordance with Sec. Sec. 1318.101 and
                1318.400. The size and location of proposed generating facilities would
                be considered prior to determining whether an EIS would be required.
                 Comment: The procedures addressing the adoption of environmental
                reviews of other agencies are inconsistent with NEPA and the CEQ
                regulations. TVA applies under Sec. 1318.407(b), the wrong factors in
                determining whether an EIS may be adopted, and TVA's procedure relating
                to what it must do if it is determined that the EIS may not be adopted
                is inconsistent with CEQ regulations. TVA's procedure under Sec.
                1318.407(c), when serving as a cooperating agency, conflicts with CEQ
                regulations (40 CFR 1506.3(c)).
                 Response: Based on this comment as well as further deliberation,
                TVA has revised Sec. 1318.407 in the final rule to ensure that the
                procedures conform to CEQ regulations. TVA agrees with the commenter
                that the last sentence of the proposed procedure under Sec.
                1318.407(b), which addressed what action TVA would take if it
                determines that it is not appropriate to adopt an agency's EIS,
                conflicted with CEQ requirements. TVA revised this statement in the
                final rule to conform to CEQ requirements. Regarding the comment
                relating to Sec. 1318.407(c) of the proposed rule, TVA does not find
                it necessary to restate the CEQ regulation in this case. When TVA
                concludes that another agency's EIS adequately addresses TVA's proposed
                action, it is implicit that TVA has determined that the agency
                addressed TVA's input in a satisfactory manner. Because of revisions,
                Sec. 1318.407(c) of the proposed rule is now Sec. 1318.407(d) in the
                final rule.
                [[Page 17454]]
                 Comment: The procedures addressing records of decision is
                inconsistent with NEPA and the CEQ regulations.
                 Response: TVA made the requested edit in the final rule, omitting
                the word ``normally'' in Sec. 1318.405(d). TVA notes that Sec.
                1318.405(d) and CEQ regulations allow certain preliminary activities
                that do not result in adverse impacts or limit the choice of reasonable
                alternatives to occur prior to the issuance of the Record of Decision
                (40 CFR 1506.1(a)).
                 Comment: The procedures for developing EISs inappropriately give
                TVA unfettered discretion and deprive the public of input into key
                portions of the NEPA process, including scoping, alternatives analysis,
                and RODs.
                 Response: Except for minor edits to reflect current TVA
                organization names, TVA proposed no substantive changes to Sec.
                1318.402(a). TVA notes that its procedures clearly state that the
                initial descriptions of alternatives, environmental issues, and
                schedules for environmental review are ``tentative.'' Such early
                descriptions provided by TVA are essential to initial project planning
                (including identifying needed resources of funds or staff to conduct
                the review) and represent good governance; they are critical as well in
                verifying whether an EIS is appropriate.
                 Based on TVA's experience, it is usually ineffective to initiate
                scoping for public input without providing the public with basic
                information about a project or how TVA intends to review the proposal.
                TVA and other federal agencies find that providing such information
                during scoping improves the public scoping process and, ultimately, the
                decision-making process. When conducting scoping, TVA will continue to
                communicate to the public that its determinations about the proposal
                are preliminary and that scoping is intended to inform and engage the
                public in order to receive input. In addition, TVA will continue to
                comply with CEQ regulations by determining when it is appropriate to
                hold scoping meetings.
                 Comment: The procedures addressing the supplementation of EISs are
                not consistent with NEPA or CEQ's regulations.
                 Response: In response to this comment, TVA revised the first
                sentence under Sec. 1318.406. The phrase ``and important decisions
                related to the proposed action remain to be made'' has been changed to
                ``and important components of the proposed action remain to be
                implemented . . . .'' As noted above, TVA made a similar change to
                Sec. 1318.304(a) for consistency. TVA will continue to comply with CEQ
                regulations addressing the supplementation of NEPA documents, including
                those relating to circulating supplemental documents for public review.
                 Comment: TVA arbitrarily and inaccurately paraphrases the
                alternatives analysis required in EAs and EISs. Limiting alternative
                analysis to merely address ``key action alternatives'' is inconsistent
                with CEQ regulations.
                 Response: TVA notes that the term ``key action alternative'' was
                included in TVA procedures promulgated in 1980 and was not used to
                limit alternative analysis. In the final rule, TVA changed the term
                ``key action alternatives'' to ``reasonable action alternatives''
                (Sec. 1318.402(g)) to ensure consistency with CEQ regulations. TVA
                will continue to comply with CEQ regulations and guidance addressing
                the need to consider reasonable alternatives. The comment also
                addresses the inclusion of a definition of ``practicable'' in the final
                rule. TVA notes that its minor revision to this definition is intended
                to clarify its use in Subpart G of the final rule.
                F. Comments on Subpart F--Miscellaneous Procedures
                 Comment: Procedures addressing mitigation are inconsistent with
                NEPA and the CEQ regulations.
                 Response: TVA's revision to this section of the procedures was
                limited to minor changes to clarify roles and responsibilities and to
                clarify considerations taken into account when determining whether to
                modify or delete previously-made mitigation commitments. TVA will
                continue to comply with CEQ requirements and guidance relating to
                mitigation. Paragraphs (a), (b), (c) and (d) of Sec. 1318.501 reflect
                the obligation to identify, disclose, implement and monitor these
                mitigation commitments. Occasionally, circumstances have arisen that
                require reconsideration of mitigation commitments (in fact, CEQ
                addresses some of these circumstances in its 2011 guidance relating to
                mitigation). In those cases, as stated in the final rule, TVA would
                consider the environmental significance of changes to commitments
                before modifying or deleting the mitigation commitments (Sec.
                1318.501(e)). This would ensure that TVA considers whether additional
                NEPA review is needed, including supplementing a NEPA document. prior
                to modifying the commitment.
                 TVA notes that Sec. 1318.501 also addresses the identification of
                mitigation measures in FONSIs and, under Sec. 1318.501(a), all
                measures that mitigate expected significant adverse impacts must be
                identified in the EA and FONSI. The section also addresses the roles
                and responsibilities associated with tracking and monitoring the
                progress of implementing the commitments. If TVA makes changes to
                mitigation measures that serve as a basis of a FONSI, TVA would
                reevaluate the FONSI and post the revised FONSI for public review.
                 Comment: The procedures addressing programmatic NEPA reviews are
                inconsistent with NEPA and the CEQ regulations because they would allow
                TVA to implement actions prior to completion of the NEPA review and
                they do not address CEQ guidance relating public involvement and
                transparency while conducting environmental reviews.
                 Response: It is not the intent of the final rule to allow interim
                actions under consideration to be implemented prior to the conclusion
                of a NEPA review. Section 1318.503(c) addresses implementing actions
                that have been previously planned and approved by TVA under NEPA. Based
                on the comment, TVA has revised Sec. 1318.503(c) to make its intent
                clearer and to reflect that the criteria at 40 CFR 1506.1(c) must be
                met.
                 Comments related to the need to incorporate CEQ guidance relating
                to public involvement and transparency are noted. TVA will continue to
                complete programmatic NEPA reviews for policies, plans, programs or
                suite of projects in a manner consistent with CEQ regulations and
                guidance. TVA finds these reviews to be particularly valuable when
                establishing program priorities and plans, determining how policies may
                best be implemented, and planning proposals that may have broad
                geographic influence. Public involvement in these reviews would comply
                with CEQ requirements as well as the applicable TVA procedures. When
                minor actions are proposed that may implement TVA programs, such
                activities would properly be reviewed to determine an appropriate level
                of NEPA review. In some cases, actions may fall within a category of
                actions and a CE may be used. In others, an EA or EIS may be prepared.
                 The commenter also suggested adding numerous provisions to the
                final rule to incorporate the CEQ guidance. These comments are noted.
                TVA will continue to consider the CEQ's guidance to ensure good NEPA
                practices are employed during programmatic reviews.
                 Comment: Procedures in Subpart F regarding emergency actions and
                ``unforeseen situations'' are inconsistent with NEPA and the CEQ
                regulations.
                [[Page 17455]]
                 Response: In response to the comment, TVA has revised Sec.
                1318.510 to make clear that these procedures apply only to emergencies.
                The term ``unforeseen situations'' was removed. TVA also made
                additional minor revisions to this section to ensure consistency with
                CEQ regulations addressing emergency circumstances.
                G. Comments on Subpart G--Floodplains and Wetlands
                 Comment: TVA's proposed rule improperly sidelines the public in
                TVA's decisionmaking regarding floodplains and wetlands because it
                states that ``[p]ublic notice of actions affecting floodplains or
                wetlands is not required if the action is categorically excluded under
                Section 1318.200.''
                 Response: Although TVA did not propose any revisions to the
                sentence addressed in this comment, TVA considered the comment and,
                after further deliberation, revised the first paragraph of Sec.
                1318.603 to state that public notice will be provided for proposed
                actions affecting floodplains or wetlands that are subject to the
                applicable E.O.s, including categorically excluded actions.
                 Comment: TVA must implement directives in E.O. 11988 for the
                Management of Flood Risk in Federal Infrastructure.
                 Response: TVA's Class Review of Certain Repetitive Actions in the
                100-Year Floodplain (46 FR 22845-46, April 21, 1981) includes a
                provision that ``[a]ll activities will adhere to the minimum standards
                of the National Flood Insurance Program published at 44 CFR 60.1-60.8,
                and any future amendments thereto, and comply with local floodplain
                regulations.'' TVA applies the process provided in the Class Review to
                every proposed action subject to NEPA. The current TVA NEPA procedures
                pertaining to the disposition of real property were brought forward
                without change to Sec. 1318.604(a) and (b) and address property in the
                floodplain conveyed by TVA. Additionally, TVA requires flood-damageable
                structures and facilities along TVA reservoirs to be located at or
                above the 0.2-annual-chance (500-year) flood elevation.
                 Comment: TVA should use an informed, science-based approach to
                evaluate the impacts of its actions on all floodplains and wetlands.
                 Response: Science-based methods and tools for wetland
                identification, delineations, and assessment are integral for an
                accurate analysis to meet NEPA standards. For all proposed projects,
                TVA specialists conduct an initial wetland review. This initial wetland
                assessment is conducted using National Wetland Inventory mapping,
                current aerial imagery depicting land use/land cover, and soils maps.
                Where deemed necessary, TVA conducts field surveys of wetlands to map
                wetland boundaries and collect additional information for NEPA effects
                determinations. Wetland determinations are performed according to U.S.
                Army Corps of Engineers standards, which require documentation of
                hydrophytic (wet-site) vegetation, hydric soil, and wetland hydrology.
                Wetland condition is assessed using a regional wetland assessment
                method, the TVA Rapid Assessment Method, which was developed using the
                same ecological metrics as the Ohio Rapid Assessment Method and
                calibrated to reflect regional wetland differences specific to the TVA
                region.
                 Environmental effects of proposed actions upon wetlands are
                assessed for site-specific wetland conditions and include an analysis
                of cumulative impacts to wetlands within a watershed and ecoregion
                context. Regional wetland status and trends data is obtained through
                land use/land cover analysis. These wetland evaluation methods utilize
                current best practices and are fundamentally based on botany,
                hydrology, pedology, ecology, and geomorphology. These methods are also
                tied to regulatory-standards for wetland identification and
                delineation; these standards are developed by multiple national
                advisory teams and undergo periodic evaluation and updates based on
                changes in wetland science.
                 Comment: TVA should update its flood frequency analysis, while
                continuing to analyze hydrology for the TVA region. TVA should continue
                to utilize its approach on flood risk management and its proposed
                determination chart.
                 Response: Comment noted. TVA recognizes the need to review and
                update, as appropriate, its flood frequency analyses and resultant
                flood elevations based on newer modeling techniques, improved
                hydrologic methods, additional years of observed data, and newly
                available climate tools. TVA has created an industry-leading
                probabilistic flood hazard analysis (PFHA) platform. This platform
                handles a wide range of factors probabilistically to better understand
                our flood risk up to extreme flooding levels. This PFHA system gives
                TVA a robust understanding of the probabilities for flood elevations
                due to a wide range of factors. Updates to TVA flood frequency analyses
                would incorporate the PFHA platform.
                 Comment: When TVA published its proposed rule, it provided its
                document addressing ``Determination of Project Specific Federal Flood
                Risk Management Standard (FFRMS) Elevations and Their Applicability.''
                This document is unclear concerning climate change and the effects of
                weather.
                 Response: During the public review of the proposed rule, TVA
                received comments on a document relating to how TVA would determine
                FFRMS elevations available to the public as supporting information
                relating to its proposed procedures on flood risk. TVA notes that the
                comments do not relate to the TVA rule itself. As previously stated,
                E.O. 13807 revoked E.O. 13690 relating to the FFRMS. Although the FFRMS
                is no longer is effect, TVA requires flood-damageable structures and
                facilities along TVA reservoirs to be located at or above the 0.2-
                annual-chance (500 year) flood elevation.
                 TVA has sponsored and followed research that has shown very little
                climate change projected for the TVA region. In order to better
                understand our full risk (out to extreme flooding levels), TVA has
                created an industry-leading PFHA platform that includes a wide range of
                factors probabilistically. These factors include: Storm type,
                precipitation frequency per storm type, storm seasonality per storm
                type, storm placement in space and time, rainfall-runoff relations,
                river routing per the TVA operating policy, and starting states sampled
                from the historic record re-sampled out to 1,000 years.
                 This PFHA system gives TVA a robust understanding of the
                probabilities for flood elevations due to a wide range of factors. The
                science on how climate change might affect extreme storms is evolving.
                If a method to incorporate climate projections into our PFHA system
                becomes available, TVA would consider incorporating it. TVA agrees with
                the commenter that the public health and safety of the people of the
                Tennessee Valley are best served when the data used to develop
                estimates of rainfall and subsequent runoff are accurate, up-to-date,
                and account for potential extreme weather events.
                III. Description of Changes Made
                 As indicated in many of the responses to public comments, TVA made
                changes to the procedures after considering the public comments,
                additional internal review, and further consultation with CEQ on the
                final rule. The following paragraphs contain a summary of key changes
                under each subpart from those published in the Notice of Proposed Rule.
                 TVA does not repeat discussion of procedures in this final rule
                that were
                [[Page 17456]]
                not changed relative to what was described in the Notice of Proposed
                Rule. Thus, the Notice of Proposed Rule may be consulted for further
                explanation regarding changes in the rule.
                Subpart A--General Information
                 Sec. 1318.20 Policy. In the final rule, TVA made minor revisions
                to paragraph (c) to improve clarity.
                 Sec. 1318.40 Definitions. In the final rule, TVA made changes to
                this section because E.O. 13690 was revoked by executive action in
                August 2017. TVA removed the definition of ``Federally funded
                projects'' and deleted a sentence under ``Floodplain'' because these
                were proposed by TVA to address the Federal Flood Risk Management
                Standard in E.O. 13690. TVA also moved the definition of ``Official
                responsible for NEPA compliance'' from Subpart F of the proposed rule
                to this section.
                Subpart B--Initiating the NEPA Process
                 Sec. 1318.101 NEPA determination. In the final rule, TVA revised
                paragraph (d) to provide additional information about how the
                determination that an action is already covered by an existing NEPA
                review will be made and documented.
                Subpart C--Categorical Exclusions
                 In the final rule, TVA made revisions to each section of the
                procedures relating to CEs, including the list of CEs found in Appendix
                A to Subpart C, primarily because of public input, as addressed above.
                One section was added to the Subpart.
                 Sec. 1318.200 Purpose and scope. At the request of an interagency
                partner, TVA added a statement affirming that the use of a CE does not
                relieve TVA from compliance with other statutes and consultations,
                including the ESA and NHPA.
                 Sec. 1318.201 Extraordinary circumstances. At the request of an
                interagency partner, TVA revised the definition of one of the
                extraordinary circumstances to clarify the consideration given to
                species listed or proposed to be listed under the ESA and their
                designated critical habitat.
                 Sec. 1318.202 Public notice. To address public concerns and
                consistent with CEQ guidance, TVA added a new section to the Subpart to
                address when to seek public engagement and disclosure when using a CE.
                 Appendix A--Categorical exclusions. In the final rule, the list of
                CEs was revised based on public input on the proposed rule and
                additional internal deliberation. TVA removed two CEs and two portions
                of a third CE that were included in the proposed rule. As noted under
                Section II above, proposed CE 15 was removed because TVA's vegetation
                management activities along existing rights-of-way are under review,
                and CE 46 and two items listed under CE 45 were removed because the
                likelihood of TVA conducting such actions is not foreseeable. In total,
                TVA made changes in the final rule affecting 19 CEs, as follows:
                 In the final rule, TVA carries forward the existing CE
                5.2.6 as CE 6 and will not revise the CE as proposed in the proposed
                rule.
                 In the list of example actions of CE 13, TVA revised
                ``soil borings'' to ``geotechnical borings'' to be consistent with the
                terminology used in other CEs.
                 For CE 17, TVA added the adjective ``routine'' to the CE's
                definition, clarified that upgrades of existing transmission
                infrastructure would be minor, and revised the scope of the CE to
                exclude routine actions at existing substations and switching stations
                because those actions would be covered under CE 36 or CE 37.
                 For CE 21, based on public input, TVA clarified that the
                CE may be used if future operations by TVA of existing combustion
                turbine or combined-cycle plants are ``within the normal operating
                levels of the purchased or leased facility,'' rather than ``within
                existing environmental permit'' levels.
                 In the list of example actions of CE 22, TVA replaced
                ``stabilization of sites'' with ``hardening and stabilization of
                sites'' to include a term more familiar to TVA recreation specialists.
                 TVA revised CE 25 to clarify that the CE applies only to
                the transfer, lease or disposal of minor property or rights.
                 TVA revised CE 27 to correct a grammatical error.
                 TVA decreased the general acreage limitation of CE 29 from
                125 acres to 10 acres after additional consideration by TVA staff.
                 As a result of public comment, TVA revised CE 34 to limit
                the scope of covered actions.
                 TVA revised CE 35 based on public input to make it clear
                that the category of actions includes only low-volume water supply
                wells that would not impact important aquifers.
                 TVA removed the terms ``substantial'' and
                ``substantially'' from the definition of CE 36, added an example action
                (b), and made minor revisions to example actions (d) and (e) for
                clarity.
                 TVA revised the example action (d) of CE 37 to reflect
                that the CE only applies to ``large'' heating and air systems.
                 TVA added an example of the type of infrastructure that
                may be included under CE 38.
                 TVA made minor revisions to CEs 38, 43, 45, 46, and 49 to
                clarify the spatial limitations that would apply.
                 TVA made a minor revision to CE 42 to clarify that
                examples in the CE are considered to be ``minor.''
                 TVA removed ``improvements'' to access roads and parking
                areas from the scope of CE 43 because CE 42 would apply to such
                improvements.
                 Items (c) and (d) were removed from CE 45's list of
                covered actions in response to public comment and TVA's determination
                that such actions are not foreseeable.
                 TVA moved item (e) from the list of actions under CE 45
                and added it to the list of CEs as CE 46 (replacing the proposed CE 46
                that was removed); TVA revised the scope of the new CE 46 to reflect
                that TVA's action is the purchase of power at such facilities. TVA also
                removed from the CE the limitation that actions could only occur ``on
                or contiguous to an existing landfill or wastewater treatment plant''
                because it is unnecessary; the CE definition already restricts actions
                to areas previously developed or disturbed by human activity.
                 As a result of public comment and further internal
                deliberation, TVA revised CE 47 to simplify the definition and to limit
                the scope of covered actions.
                 Incorporating all of these changes has resulted in changes to the
                list of 28 CEs established by TVA in 1980 and 1983. In the final rule,
                9 of these CEs are eliminated, the definition of 14 CEs are revised,
                and 5 are carried forward unchanged. The final rule establishes 31 new
                CEs. Incorporating these changes, TVA has 50 CEs in the final rule. TVA
                updated its Supporting Documentation to reflect the CEs in the final
                rule and posted it to TVA's website (www.tva.gov/nepa).
                Subpart D--Environmental Assessments
                 Sec. 1318.300 Purpose and scope. In response to public comment,
                TVA modified text in paragraph (b) addressing what issues would be the
                subject of EAs. The phrase ``important environmental issues'' is
                replaced by ``issues that are potentially significant.'' TVA also made
                minor grammatical edits to paragraph (a).
                 Sec. 1318.301 Public and stakeholder participation in the EA
                process. As noted above, TVA received a comment questioning whether its
                proposed procedure relating to the consideration given to public
                involvement in the preparation of an EA was consistent
                [[Page 17457]]
                with CEQ regulations. After further deliberations, TVA decided to
                retain the procedures established in 1980 (with minor edits) and to
                retain the proposed text (with minor edits for grammar). TVA determined
                that the previous procedures provide general guidance as well as
                additional context for the sentence included in the proposed rule. TVA
                also made other minor edits to paragraphs (b) and (c) for grammar and
                clarification.
                 Sec. 1318.302 EA preparation. In the final rule, TVA revised this
                section. Notably, in paragraph (a), TVA replaced the word ``practical''
                with ``practicable'' and ``should'' with ``shall.'' Paragraph (g) was
                revised to clarify that at the conclusion of an EA process, NEPA
                compliance staff may conclude that additional analysis is needed to
                supplement the EA.
                 Sec. 1318.303 Finding of No Significant Impact. In the final rule,
                paragraph (a) is revised to clarify the roles and responsibilities
                associated with preparation and approval of a FONSI. Paragraph (d) was
                revised based on public comment to clarify when a draft FONSI would be
                made available for public review and comment.
                 Sec. 1318.304 Supplements and adoptions. TVA revised paragraph (a)
                to state that TVA will consider supplementing EAs when there are
                ``important components of the proposed action that remain to be
                implemented'' rather than when there are ``important decisions
                remaining to be made.'' Minor grammatical edits to paragraph (b) are
                included in the final rule.
                Subpart E--Environmental Impacts Statements
                 Sec. 1318.400 Purpose and scope. After additional internal review
                and in response to public comment, TVA added two types of actions that
                normally will require an EIS. TVA also revised two actions to clarify
                that the scope of the actions includes not only construction activities
                but operation of the facilities. TVA removed the words ``upon request''
                from paragraph (b) of Sec. 1318.400 to be consistent with Sec.
                1318.301(c) in the final rule. Minor revisions were made for clarity to
                paragraphs (b), (c), and (d), including replacing the word ``should''
                for ``shall in two places.
                 Sec. 1318.401 Lead and cooperating agency determinations. Minor
                edits were made to paragraph (a) for clarity. TVA replaced
                ``practical'' with ``practicable'' and ``should'' with ``shall'' based
                on further internal review. TVA also added ``purpose and need for the
                proposed action'' to the list of EIS components and revised ``key
                action alternatives'' with ``reasonable action alternatives.''
                 Sec. 1318.402 Scoping process. In the final rule, numerous
                grammatical edits were made to the section to improve clarity.
                Paragraph (e) was revised to clarify that 30 days will be the minimum
                public comment period during scoping. In response to public and CEQ
                comments, TVA revised paragraph (g) to improve consistency with CEQ
                regulations and the recommended format for an EIS.
                 Sec. 1318.403 DEIS preparation, transmittal and review. In the
                final rule, TVA revised paragraph (b) to clarify that cooperating
                agencies will have the opportunity to take part in the preparation of
                the DEIS and not simply review it once it has been completed. Paragraph
                (c) was revised to reflect the roles and responsibilities associated
                with approval and publication of the DEIS. TVA made additional minor
                edits to the section for grammar.
                 Sec. 1318.403 FEIS preparation and transmittal. In the final rule,
                TVA incorporated input from CEQ and made numerous grammatical edits to
                the section. Paragraph (b) was revised to clarify which documents will
                be circulated if changes needed to the DEIS to complete an FEIS are
                minor. In addition, paragraph (d) was revised to reflect the roles and
                responsibilities associated with approval and publication of the FEIS.
                 Sec. 1318.405 Agency decision. In the final rule, TVA revised
                paragraph (a) to remove the reference to emergency circumstances, which
                are addressed in Subpart F. Based on public input, TVA deleted the word
                ``normally'' from paragraph (d) of this section to make the procedure
                consistent with CEQ guidance and regulations.
                 Sec. 1318.406 Supplements. In response to public comment, TVA
                revised this section to clarify that TVA will consider supplementing
                EISs when there are ``important components of the proposed action that
                remain to be implemented'' rather than when there are important
                decisions related to the proposed action that remain to be made.
                 Sec. 1318.407 EIS adoption. In response to public and CEQ input,
                TVA revised each paragraph of the section to ensure consistency with
                CEQ regulations at 40 CFR 1506.3. In the final rule, the revised
                paragraphs (a), (b), and (c) address corresponding sections of the CEQ
                regulations. Paragraphs (d) and (e) were revised in order to clarify
                when TVA may make a decision about its proposed action.
                Subpart F--Miscellaneous Procedures
                 Sec. 1318.500 Public participation. In the final rule, TVA revised
                this section by eliminating paragraph (c) of the proposed rule, which
                related to the open meetings of the Board of Directors; TVA determined
                that the paragraph was not a regulatory provision and did not address
                the implementation of NEPA. TVA revised the paragraph addressing
                privacy provisions for public comments in paragraph (d) of the final
                rule to clarify that the public will be notified how their comments and
                information will become part of the public record.
                 Sec. 1318.501 Mitigation commitment identification, auditing, and
                reporting. Numerous grammatical edits were made to this section in the
                final rule to improve clarity.
                 Sec. 1318.503 Programmatic and generic NEPA documents. After
                considering comments from the public regarding paragraph (c), TVA
                revised the paragraph to make clear that TVA would be consistent with
                criteria established in CEQ regulations at 40 CFR 1506.1(c) addressing
                limitations on actions during the NEPA process.
                 Sec. 1318.509 Substantial compliance. After further review and in
                consideration of CEQ input, TVA eliminated paragraph (a) of this
                section as presented in the proposed rule, which addressed flexibility
                in implementing the procedures and reviewing proposed actions. TVA also
                revised paragraph (b) to address minor deviations with the procedures,
                who would approve such deviations, and whether they give rise to an
                independent cause of action.
                 Sec. 1318.510 Emergency actions. Based on public input and to
                clarify that the section addresses emergency situations only, TVA
                removed from paragraph (a) of this section the statement that
                procedures may be consolidated, modified or omitted because of
                ``unforeseen situations.'' In addition, based on public and CEQ input,
                paragraphs (a) and (b) were revised to improve clarity and ensure
                consistency with CEQ regulations at 40 CFR 1506.11.
                 Sec. 1318.512 Status reports. In the final rule, TVA revised the
                section to clarify that status reports pertaining only to EISs and EAs
                under development would be published on TVA's website.
                 Sec. 1318.513 Official response for NEPA compliance efforts. In
                the final rule, this section was removed from Subpart F and inserted as
                a definition under Sec. 1318.40.
                [[Page 17458]]
                Subpart G--Floodplains and Wetlands
                 As noted above, in its proposed rule, TVA had incorporated guidance
                pertaining to E.O. 13690. The E.O. was revoked by executive action on
                August 15, 2017, during the public review of the proposed rule.
                 Sec. 1318.600 Purpose and scope. Because E.O. 13690 was revoked by
                executive action (E.O. 13807, Establishing Discipline and
                Accountability in the Environmental Review and Permitting Process for
                Infrastructure), TVA revised paragraph (a) to remove the reference to
                E.O. 13690; some minor grammatical edits were also made to improve
                clarity. Paragraph (b) was revised to delete the reference to the FFRMS
                (addressed in E.O. 13690), and a new, more general reference was added
                to ensure consideration of any applicable Federal flood risk management
                standard that may be in force at the commencement of an environmental
                review. TVA also revised paragraph (c) by adding ``allocation to
                private parties'' to the text to make TVA's procedure more consistent
                with E.O. 11990, regarding when the order applies to actions on non-
                Federal property.
                 Sec. 1318.603 Public notice. TVA removed from paragraph (a) the
                statement that proposed actions that may be categorically excluded will
                not be subject to public notice requirements. Text was added to clarify
                that TVA will provide public notice for proposed actions affecting
                floodplains or wetlands that are subject to E.O.s 11988 and 11990 and
                that have not been previously excluded by a class review for repetitive
                actions conducted by TVA. TVA also revised paragraph (b)(4) to reflect
                the revocation of E.O. 13690 and to generalize the language to
                incorporate any Federal floodplain protection standards.
                IV. Administrative Requirements
                A. Unfunded Mandates Reform Act and Various Executive Orders Including
                E.O. 12866, Regulatory Planning and Review; E.O. 12898, Federal Actions
                To Address Environmental Justice in Minority Populations and Low-Income
                Populations; E.O. 12988, Civil Justice Reform Act; E.O. 13045,
                Protection of Children From Environmental Health Risks; E.O. 13132,
                Federalism; E.O. 13175, Consultation and Coordination With Indian
                Tribal Governments; E.O. 13211, Actions Concerning Regulations That
                Significantly Affect Energy Supply, Distribution, and Use; and E.O.
                13771, Reducing Regulation and Controlling Regulatory Costs
                 This rule amends TVA's procedures for the implementation of NEPA
                and is not subject to review by the Office of Management and Budget
                (OMB) under E.O. 12866. The rule contains no Federal mandates for
                State, local, or tribal government or for the private sector. TVA has
                determined that these amendments will not have a significant annual
                effect of $100 million or more or result in expenditures of $100
                million in any one year by State, local, or tribal governments or by
                the private sector. Nor will the amendments have concerns for
                environmental health or safety risks that may disproportionately affect
                children, have significant effect on the supply, distribution, or use
                of energy, or disproportionally impact low-income or minority
                populations. Accordingly, the rule has no implications for any of the
                aforementioned authorities.
                B. Regulatory Flexibility Act
                 Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., TVA is
                required to prepare a regulatory flexibility analysis unless the head
                of the agency certifies that the proposal will not have a significant
                economic impact on a substantial number of small entities. TVA's Chief
                Executive Officer has certified that the final rule will not have a
                significant economic impact on a substantial number of small entities
                within the meaning of the Regulatory Flexibility Act. This
                determination is based on the finding that the final rule amends
                existing TVA procedures and do not compel any other party to take any
                action or interfere with an action taken by any other party. The
                amendments do not change the substantive requirements of TVA programs
                that are most likely to affect small entities (e.g., TVA permitting,
                economic assistance and development programs).
                C. Paperwork Reduction Act
                 This final rule does not contain information collection
                requirements that require approval by OMB under the Paperwork Reduction
                Act, 44 U.S.C. 3501 et seq.
                D. National Environmental Policy Act
                 The CEQ does not direct agencies to prepare a NEPA analysis before
                establishing agency procedures that supplement the CEQ regulations for
                implementing NEPA. TVA's NEPA procedures assist in the fulfillment of
                its responsibilities under NEPA, but are not the agency's final
                determination of what level of NEPA analysis is required for a
                particular agency action. The requirements for establishing agency NEPA
                procedures are set forth at 40 CFR 1505.1 and 1507.3. 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, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd, 230 F.3d
                947, 954-55 (7th Cir. 2000).
                List of Subjects in 18 CFR Part 1318
                 Administrative practice and procedure, Environmental impact
                statements, Environmental protection, Floodplains, Floods, Wetlands.
                0
                 For the reasons stated in the preamble, TVA adds part 1318 to chapter
                XIII of title 18 of the Code of Federal Regulations to read as follows:
                PART 1318--IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT
                OF 1969
                Subpart A--General Information
                Sec.
                1318.10 Purpose.
                1318.20 Policy.
                1318.30 Abbreviations.
                1318.40 Definitions.
                Subpart B--Initiating the NEPA Process
                1318.100 Action formulation.
                1318.101 NEPA determination.
                Subpart C--Categorical Exclusions
                1318.200 Purpose and scope.
                1318.201 Extraordinary circumstances.
                1318.202 Public notice.
                Appendix A to Subpart C of Part 1318--Categorical Exclusions
                Subpart D--Environmental Assessments
                1318.300 Purpose and scope.
                1318.301 Public and stakeholder participation in the EA process.
                1318.302 EA preparation.
                1318.303 Finding of No Significant Impact.
                1318.304 Supplements and adoptions.
                Subpart E--Environmental Impact Statements
                1318.400 Purpose and scope.
                [[Page 17459]]
                1318.401 Lead and cooperating agency determinations.
                1318.402 Scoping process.
                1318.403 DEIS preparation, transmittal, and review.
                1318.404 FEIS preparation and transmittal.
                1318.405 Agency decision.
                1318.406 Supplements.
                1318.407 EIS adoption.
                Subpart F--Miscellaneous Procedures
                1318.500 Public participation.
                1318.501 Mitigation commitment identification, auditing, and
                reporting.
                1318.502 Tiering.
                1318.503 Programmatic and generic NEPA documents.
                1318.504 Private applicants.
                1318.505 Non-TVA EISs.
                1318.506 Documents.
                1318.507 Reducing paperwork and delay.
                1318.508 Supplemental guidance.
                1318.509 Substantial compliance.
                1318.510 Emergency actions.
                1318.511 Modification of assignments.
                1318.512 Status reports.
                Subpart G--Floodplains and Wetlands
                1318.600 Purpose and scope.
                1318.601 Area of impact.
                1318.602 Actions that will affect floodplains or wetlands.
                1318.603 Public notice.
                1318.604 Disposition of real property.
                1318.605 General and class reviews.
                 Authority: 42 U.S.C. 4321 et seq.
                Subpart A--General Information
                Sec. 1318.10 Purpose.
                 This part establishes procedures for Tennessee Valley Authority
                (TVA) to use for compliance with:
                 (a) The National Environmental Policy Act (NEPA) of 1969, as
                amended (42 U.S.C. 4321 et seq.);
                 (b) Other applicable guidelines, regulations and Executive orders
                implementing NEPA; and
                 (c) The Council on Environmental Quality (CEQ) regulations for
                implementing the procedural provisions of NEPA (40 CFR parts 1500-
                1508).
                Sec. 1318.20 Policy.
                 It is the policy of TVA that:
                 (a) TVA incorporates environmental considerations into its
                decision-making processes to the fullest extent possible. These
                procedures ensure that actions are viewed in a manner to encourage
                productive and enjoyable harmony between man and the environment.
                 (b) Commencing at the earliest possible point and continuing
                through implementation, appropriate and careful consideration of the
                environmental aspects of proposed actions is built into the decision-
                making process in order that adverse environmental effects may be
                avoided or minimized, consistent with the requirements of NEPA.
                 (c) Environmental reviews under NEPA will assist decision makers in
                making better, more knowledgeable decisions that consider those
                reasonable alternatives to the proposed action that fulfill the purpose
                and need for the action, concisely present the environmental impacts
                and other information regarding the proposed action and its
                alternatives, are consistent with the environmental importance of the
                action, concentrate on truly significant environmental issues, and are
                practicable.
                Sec. 1318.30 Abbreviations.
                (a) CE--Categorical Exclusion
                (b) CEQ--Council on Environmental Quality
                (c) DEIS--Draft Environmental Impact Statement
                (d) EA--Environmental Assessment
                (e) EIS--Environmental Impact Statement
                (f) EPA--Environmental Protection Agency
                (g) FEIS--Final Environmental Impact Statement
                (h) FONSI--Finding of No Significant Impact
                (i) NEPA--National Environmental Policy Act
                (j) ROD--Record of Decision
                (k) TVA--Tennessee Valley Authority
                Sec. 1318.40 Definitions.
                 The following definitions apply throughout this part. All other
                applicable terms should be given the same meaning as set forth in CEQ's
                currently effective regulations (40 CFR part 1508) unless such a
                reading would make the terms inconsistent with the context in which
                they appear.
                 Controversial refers to scientifically supported commentary that
                casts substantial doubt on the agency's methodology or data, but does
                not mean commentary expressing mere opposition.
                 Floodplain refers to the lowland and relatively flat areas
                adjoining flowing inland waters and reservoirs. Floodplain generally
                refers to the base floodplain, i.e., that area subject to a 1 percent
                or greater chance of flooding in any given year.
                 Important farmland includes prime farmland, unique farmland, and
                farmland of statewide importance as defined in 7 CFR part 657.
                 Natural and beneficial floodplain and wetland values refer to such
                attributes as the capability of floodplains and wetlands to provide
                natural moderation of floodwaters, water quality maintenance, fish and
                wildlife habitat, plant habitat, open space, natural beauty, scientific
                and educational study areas, and recreation.
                 Official responsible for NEPA compliance refers to the TVA official
                who manages the NEPA compliance staff and is responsible for overall
                review of TVA NEPA compliance.
                 Practicable, as used in subpart G of this part, refers to the
                capability of an action being performed within existing constraints.
                The test of what is practicable depends on the situation and includes
                an evaluation of all pertinent factors, such as environmental impact,
                economic costs, statutory authority, legality, technological
                achievability, and engineering constraints.
                 Wetland refers to an area inundated by surface or ground water with
                a frequency sufficient to support, and that under normal circumstances
                does or would support, a prevalence of vegetation or aquatic life that
                requires saturated or seasonally saturated soil conditions for growth
                and reproduction. Wetlands do not include temporary human-made ponds
                associated with active construction projects.
                Subpart B--Initiating the NEPA Process
                Sec. 1318.100 Action formulation.
                 (a) Each office, group, or department (``entity'') within TVA is
                responsible for integrating environmental considerations into its
                planning and decision-making processes at the earliest possible time,
                to appropriately consider potential environmental effects, reduce the
                risk of delays, and minimize potential conflicts.
                 (b) Environmental analyses should be included in or circulated with
                and reviewed at the same time as other planning documents. This
                responsibility is to be carried out in accordance with the
                environmental review procedures contained herein.
                 (c) TVA's Chief Executive Officer and Board of Directors are the
                agency's primary decision makers for programs and actions that are
                likely to be the most consequential from an environmental, financial,
                and policy standpoint. Other TVA officials and managers are responsible
                for and make decisions about other TVA actions.
                Sec. 1318.101 NEPA determination.
                 (a) NEPA applies to proposed actions with potential impacts on the
                human environment that would result in a non-trivial change to the
                environmental status quo.
                 (b) At the earliest possible time, the TVA entity proposing an
                action shall consult with the staff responsible for NEPA compliance and
                TVA legal counsel, as appropriate, to determine
                [[Page 17460]]
                whether the action requires an environmental review under NEPA and, if
                so, the level of environmental review.
                 (c) The level of review will be in one of the following categories:
                Categorical Exclusions, Environmental Assessments, and Environmental
                Impact Statements.
                 (d) The NEPA compliance staff shall determine whether the action is
                already covered under an existing NEPA review, including a programmatic
                or generic review. Before such an action proceeds, the NEPA compliance
                staff shall evaluate and adequately document whether the new action is
                essentially similar to the previously analyzed action, the alternatives
                previously analyzed are adequate for the new action, there are
                significant new circumstances or information relevant to environmental
                concerns that would substantially change the analysis in the existing
                NEPA review, and there are effects that would result from the new
                action that were not addressed in the previous analysis
                 (e) NEPA and its implementing regulations (both CEQ's and TVA's)
                provide an established, well-recognized process for appropriately
                analyzing environmental issues and involving the public.
                 (f) TVA may choose to conduct an environmental review when NEPA
                does not apply.
                Subpart C--Categorical Exclusions
                Sec. 1318.200 Purpose and scope.
                 (a) Categories of actions addressed in this section are those that
                do not normally have, either individually or cumulatively, a
                significant impact on the human environment and therefore do not
                require the preparation of an EA or an EIS.
                 (b) The TVA entity proposing to initiate an action must determine,
                in consultation with the NEPA compliance staff, whether the proposed
                action is categorically excluded.
                 (c) In order to find that a proposal can be categorically excluded,
                TVA will ensure that a larger project is not impermissibly broken down
                into small parts such that the use of a categorical exclusion for any
                such small part would irreversibly and irretrievably commit TVA to a
                particular plan of action for the larger project.
                 (d) The actions listed in appendix A of this part are classes of
                actions that TVA has determined do not individually or cumulatively
                have a significant effect on the human environment (categorical
                exclusions), subject to review for extraordinary circumstances.
                 (e) The use of a categorical exclusion for an action does not
                relieve TVA from compliance with other statutes or consultations,
                including, for example, the Endangered Species Act or the National
                Historic Preservation Act.
                Sec. 1318.201 Extraordinary circumstances.
                 (a) An action that would normally qualify as a categorical
                exclusion must not be so classified if an extraordinary circumstance is
                present and cannot be mitigated, including through the application of
                other environmental regulatory processes. In order to determine whether
                extraordinary circumstances exist, TVA shall consider whether:
                 (1) The action has the potential to significantly impact
                environmental resources, including the following resources:
                 (i) Species listed or proposed to be listed under the Endangered
                Species Act, or the proposed or designated Critical Habitat for these
                species,
                 (ii) Wetlands or floodplains,
                 (iii) Cultural or historical resources,
                 (iv) Areas having special designation or recognition such as wild
                and scenic rivers, parklands, or wilderness areas, and
                 (v) Important farmland; and
                 (2) The significance of the environmental impacts associated with
                the proposed action is or may be highly controversial.
                 (b) The mere presence of one or more of the resources under
                paragraph (a)(1) of this section does not by itself preclude use of a
                categorical exclusion. Rather, the determination that extraordinary
                circumstances are present depends upon the finding of a causal
                relationship between a proposed action and the potential effect on
                these resource conditions, and, if such a relationship exists, the
                degree of the potential effect of a proposed action on these resource
                conditions.
                Sec. 1318.202 Public notice.
                 TVA may consider providing public notice before a categorical
                exclusion is used if TVA determines that the public may have relevant
                and important information relating to the proposal that will assist TVA
                in its decisionmaking.
                Appendix A to Subpart C of Part 1318--Categorical Exclusions
                 The TVA has established the following classes of actions as
                categorical exclusions. Individual actions must be reviewed to
                determine whether any of the extraordinary circumstances listed in
                Sec. 1318.202 is present. If an extraordinary circumstance cannot
                be mitigated sufficiently to render the action's impacts not
                significant, an EA or an EIS must be prepared.
                 1. Educational or informational activities undertaken by TVA
                alone or in conjunction with other agencies, public and private
                entities, or the general public.
                 2. Technical and planning assistance provided to State, local
                and private organizations and entities.
                 3. Personnel actions.
                 4. Procurement actions.
                 5. Accounting, auditing, financial reports and disbursement of
                funds.
                 6. Contracts or agreements for the sale, purchase, or
                interchange of electricity.
                 7. Administrative actions consisting solely of paperwork.
                 8. Communication, transportation, computer service and office
                services.
                 9. Property protection activities that do not physically alter
                facilities or grounds, law enforcement and other legal activities.
                 10. Emergency preparedness actions not involving the
                modification of existing facilities or grounds.
                 11. Minor actions to address threats to public health and
                safety, including, but not limited to, temporary prohibition of
                existing uses of TVA land or property, short-term closures of sites,
                and selective removal of trees that pose a hazard.
                 12. Site characterization, data collection, inventory
                preparation, planning, monitoring, and other similar activities that
                have little to no physical impact.
                 13. Engineering and environmental studies that involve minor
                physical impacts, including but not limited to, geotechnical
                borings, dye-testing, installation of monitoring stations and
                groundwater test wells, and minor actions to facilitate access to a
                site.
                 14. Conducting or funding minor research, development and
                demonstration projects and programs.
                 15. Reserved.
                 16. Construction of new transmission line infrastructure,
                including electric transmission lines generally no more than 10
                miles in length and that require no more than 125 acres of new
                developed rights-of-way and no more than 1 mile of new access road
                construction outside the right-of-way; and/or construction of
                electric power substations or interconnection facilities, including
                switching stations, phase or voltage conversions, and support
                facilities that generally require the physical disturbance of no
                more than 10 acres.
                 17. Routine modification, repair, and maintenance of, and minor
                upgrade of and addition to, existing transmission infrastructure,
                including the addition, retirement, and/or replacement of breakers,
                transformers, bushings, and relays; transmission line uprate,
                modification, reconductoring, and clearance resolution; and limited
                pole replacement. This exclusion also applies to improvements of
                existing access roads and construction of new access roads outside
                of the right-of-way that are generally no more than 1 mile in
                length.
                 18. Construction, modification and operation of communication
                facilities and/or equipment, including power line carriers,
                insulated overhead ground wires/fiber optic cables, devices for
                electricity transmission control and monitoring, VHF radios, and
                microwaves and support towers.
                [[Page 17461]]
                 19. Removal of conductors and structures, and/or the cessation
                of right-of-way vegetation management, when existing transmissions
                lines are retired; or the rebuilding of transmission lines within or
                contiguous to existing rights-of-way involving generally no more
                than 25 miles in length and no more than 125 acres of expansion of
                the existing right-of-way.
                 20. Purchase, conveyance, exchange, lease, license, and/or
                disposal of existing substations, substation equipment, switchyards,
                and/or transmission lines and rights-of-way and associated equipment
                between TVA and other utilities and/or customers.
                 21. Purchase or lease and subsequent operation of existing
                combustion turbine or combined-cycle plants for which there is
                existing adequate transmission and interconnection to the TVA
                transmission system and whose planned operation by TVA is within the
                normal operating levels of the purchased or leased facility.
                 22. Development of dispersed recreation sites (generally not to
                exceed 10 acres in size) to support activities such as hunting,
                fishing, primitive camping, wildlife observation, hiking, and
                mountain biking. Actions include, but are not limited to,
                installation of guardrails, gates and signage, hardening and
                stabilization of sites, trail construction, and access improvements/
                controls.
                 23. Development of public use areas that generally result in the
                physical disturbance of no more than 10 acres, including, but not
                limited to, construction of parking areas, campgrounds, stream
                access points, and day use areas.
                 24. Minor actions conducted by non-TVA entities on TVA property
                to be authorized under contract, license, permit, or covenant
                agreements, including those for utility crossings, agricultural
                uses, recreational uses, rental of structures, and sales of
                miscellaneous structures and materials from TVA land.
                 25. Transfer, lease, or disposal (sale, abandonment or exchange)
                of (a) minor tracts of land, mineral rights, and landrights, and (b)
                minor rights in ownership of permanent structures.
                 26. Approvals under Section 26a of the TVA Act of minor
                structures, boat docks and ramps, and shoreline facilities.
                 27. Installation of minor shoreline structures or facilities,
                boat docks and ramps, and actions to stabilize shoreline (generally
                up to \1/2\ mile in length) by TVA.
                 28. Minor modifications to land use allocations outside of a
                normal land planning cycle to: Rectify administrative errors;
                incorporate new information that is consistent with a previously
                approved decision included in the land use plan; or implement TVA's
                shoreline or land management policies affecting no more than 10
                acres.
                 29. Actions to restore and enhance wetlands, riparian, and
                aquatic ecosystems that generally involve physical disturbance of no
                more than 10 acres, including, but not limited to, construction of
                small water control structures; revegetation actions using native
                materials; construction of small berms, dikes, and fish attractors;
                removal of debris and sediment following natural or human-caused
                disturbance events; installation of silt fences; construction of
                limited access routes for purposes of routine maintenance and
                management; and reintroduction or supplementation of native,
                formerly native, or established species into suitable habitat within
                their historic or established range.
                 30. Actions to maintain, restore, or enhance terrestrial
                ecosystems that generally involve physical disturbance of no more
                than 125 acres, including, but not limited to, establishment and
                maintenance of non-invasive vegetation; bush hogging; prescribed
                fires; installation of nesting and roosting structures, fencing, and
                cave gates; and reintroduction or supplementation of native,
                formerly native, or established species into suitable habitat within
                their historic or established range.
                 31. The following forest management activities:
                 a. Actions to manipulate species composition and age class,
                including, but not limited to, harvesting or thinning of live trees
                and other timber stand improvement actions (e.g., prescribed burns,
                non-commercial removal, chemical control), generally covering up to
                125 acres and requiring no more than 1 mile of temporary or seasonal
                permanent road construction;
                 b. Actions to salvage dead and/or dying trees including, but not
                limited to, harvesting of trees to control insects or disease or
                address storm damage (including removal of affected trees and
                adjacent live, unaffected trees as determined necessary to control
                the spread of insects or disease), generally covering up to 250
                acres and requiring no more than 1 mile of temporary or seasonal
                permanent road construction; and
                 c. Actions to regenerate forest stands, including, but not
                limited to, planting of native tree species upon site preparation,
                generally covering up to 125 acres and requiring no more than 1 mile
                of temporary or seasonal permanent road construction.
                 32. Actions to manage invasive plants including, but not limited
                to, chemical applications, mechanical removal, and manual treatments
                that generally do not physically disturb more than 125 acres of
                land.
                 33. Actions to protect cultural resources including, but not
                limited to, fencing, gating, signing, and bank stabilization
                (generally up to \1/2\ mile in length when along stream banks or
                reservoir shoreline).
                 34. Reburial of human remains and funerary objects under the
                Native American Graves Protection and Repatriation Act that are
                inadvertently discovered or intentionally excavated on TVA land.
                 35. Installation or modification (but not expansion) of low-
                volume groundwater withdrawal wells (provided that there would be no
                drawdown other than in the immediate vicinity of the pumping well
                and that there is no potential for long-term decline of the water
                table or degradation of the aquifer), or plugging of groundwater or
                other wells at the end of their operating life. Site
                characterization must verify a low potential for seismicity,
                subsidence, and contamination of freshwater aquifers.
                 36. Routine operation, repair or in-kind replacement, and
                maintenance actions for existing buildings, infrastructure systems,
                facility grounds, public use areas, recreation sites, and operating
                equipment at or within the immediate vicinity of TVA's generation
                and other facilities. Covered actions are those that are required to
                maintain and preserve assets in their current location and in a
                condition suitable for use for its designated purpose. Such actions
                will not result in a change in the design capacity, function, or
                operation. (Routine actions that include replacement or changes to
                major components of buildings, facilities, infrastructure systems,
                or facility grounds, and actions requiring new permits or changes to
                an existing permit(s) are addressed in CE 37). Such actions may
                include, but are not limited to, the following:
                 a. Regular servicing of in-plant and on-site equipment
                (including during routine outages) such as gear boxes, generators,
                turbines and bearings, duct work, conveyers, and air preheaters;
                fuel supply systems; unloading and handling equipment for fuel;
                handling equipment for ash, gypsum or other by-products or waste;
                hydropower, navigation and flood control equipment; water quality
                and air emissions control or reduction equipment; and other
                operating system or ancillary components that do not increase
                emissions or discharges beyond current permitted levels;
                 b. Regular servicing of power equipment and structures within
                existing transmission substations and switching stations;
                 c. Routine testing and calibration of facility components,
                subsystems, or portable equipment (such as control valves, in-core
                monitoring devices, transformers, capacitors, monitoring wells,
                weather stations, and flumes);
                 d. Routine cleaning and decontamination, including to surfaces
                of equipment, rooms, and building systems (including HVAC, septic
                systems, and tanks);
                 e. Repair or replacement of plumbing, electrical equipment,
                small HVAC systems, sewerage, pipes, and telephone and other
                communication service;
                 f. Repair or replacement of doors, windows, walls, ceilings,
                roofs, floors and lighting fixtures in structures less than 50 years
                old;
                 g. Painting and paint removal at structures less than 50 years
                old, including actions taken to contain, remove, or dispose of lead-
                based paint when in accordance with applicable requirements;
                 h. Recycling and/or removal of materials, debris, and solid
                waste from facilities, in accordance with applicable requirements;
                 i. Groundskeeping actions, including mowing and landscaping,
                snow and ice removal, application of fertilizer, erosion control and
                soil stabilization measures (such as reseeding and revegetation),
                removal of dead or undesirable vegetation with a diameter of less
                than 3 inches (at breast height), and leaf and litter collection and
                removal;
                 j. Repair or replacement of gates and fences;
                 k. Maintenance of hazard buoys;
                 l. Maintenance of groundwater wells, discharge structures, pipes
                and diffusers;
                 m. Maintenance and repair of process, wastewater, and stormwater
                ponds and
                [[Page 17462]]
                associated piping, pumping, and treatment systems;
                 n. Maintenance and repair of subimpoundments and associated
                piping and water control structures;
                 o. Debris removal and maintenance of intake structures and
                constructed intake channels including sediment removal to return
                them to the originally-constructed configuration; and
                 p. Clean up of minor spills as part of routine operations.
                 37. Modifications, upgrades, uprates, and other actions that
                alter existing buildings, infrastructure systems, facility grounds,
                and plant equipment, or their function, performance, and operation.
                Such actions, which generally will not physically disturb more than
                10 acres, include but are not limited to, the following:
                 a. Replacement or changes to major components of existing
                buildings, facilities, infrastructure systems, facility grounds, and
                equipment that are like-kind in nature;
                 b. Modifications, improvements, or operational changes to in-
                plant and on-site equipment that do not substantially alter
                emissions or discharges beyond current permitted limits. Examples of
                equipment include, but are not limited to: Gear boxes, generators,
                turbines and bearings, duct work, conveyers, superheaters,
                economizers, air preheaters, unloading and handling equipment for
                fuel; handling equipment for ash, gypsum or other by-products or
                waste; hydropower, navigation and flood control equipment; air and
                water quality control equipment; control, storage, and treatment
                systems (e.g. automation, alarms, fire suppression, ash ponds,
                gypsum storage, and ammonia storage and handling systems); and other
                operating system or ancillary components;
                 c. Installation of new sidewalks, fencing, and parking areas at
                an existing facility;
                 d. Installation or upgrades of large HVAC systems;
                 e. Modifications to water intake and outflow structures provided
                that intake velocities and volumes and water effluent quality and
                volumes are consistent with existing permit limits;
                 f. Repair or replacement of doors, windows, walls, ceilings,
                roofs, floors and lighting fixtures in structures greater than 50
                years old; and
                 g. Painting and paint removal at structures greater than 50
                years old, including actions taken to contain, remove and dispose of
                lead-based paint when in accordance with applicable requirements.
                 38. Siting, construction, and use of buildings and associated
                infrastructure (e.g., utility lines serving the building),
                physically disturbing generally no more than 10 acres of land not
                previously disturbed by human activity or 25 acres of land so
                disturbed.
                 39. Siting and temporary placement and operation of trailers,
                prefabricated and modular buildings, or tanks on previously
                disturbed sites at an existing TVA facility.
                 40. Demolition and disposal of structures, buildings, equipment
                and associated infrastructure and subsequent site reclamation,
                subject to applicable review for historical value, on sites
                generally less than 10 acres in size.
                 41. Actions to maintain roads, trails, and parking areas
                (including resurfacing, cleaning, asphalt repairs, and placing
                gravel) that do not involve new ground disturbance (i.e., no
                grading).
                 42. Improvements to existing roads, trails, and parking areas,
                including, but not limited to, scraping and regrading; regrading of
                embankments; installation or replacement of culverts; and other such
                minor expansions.
                 43. Actions to enhance and control access to TVA property
                including, but not limited to, construction of new access roads and
                parking areas (generally no greater than 1 mile in length and
                physically disturbing no more than 10 acres of land not previously
                disturbed by human activity or 25 acres of land so disturbed) and
                installation of control measures such as gates, fences, or post and
                cable.
                 44. Small-scale, non-emergency cleanup of solid waste or
                hazardous waste (other than high-level radioactive waste and spent
                nuclear fuel) to reduce risk to human health or the environment.
                Actions include collection and treatment (such as incineration,
                encapsulation, physical or chemical separation, and compaction),
                recovery, storage, or disposal of wastes at existing facilities
                currently handling the type of waste involved in the action.
                 45. Installation, modification, and operation of the following
                types of renewable or waste-heat recovery energy projects which
                increase generating capacity at an existing TVA facility, generally
                comprising of physical disturbance to no more than 10 acres of land
                not previously disturbed by human activity or 25 acres of land so
                disturbed:
                 a. Combined heat and power or cogeneration systems at existing
                buildings or sites; and
                 b. Solar photovoltaic systems mounted on the ground, an existing
                building or other structure (such as a rooftop, parking lot or
                facility and mounted to signage lighting, gates or fences).
                 46. Transactions (contracts or agreements) for purchase of
                electricity from new methane gas electric generating systems using
                commercially available technology and installed within an area
                previously developed or disturbed by human activity.
                 47. Modifications to the TVA rate structure (i.e., rate change)
                that result in no predicted increase in overall TVA-system
                electricity consumption.
                 48. Financial and technical assistance for programs conducted by
                non-TVA entities to promote energy efficiency or water conservation,
                including, but not limited to, assistance for installation or
                replacement of energy efficient appliances, insulation, HVAC
                systems, plumbing fixtures, and water heating systems.
                 49. Financial assistance including, but not limited to,
                approving and administering grants, loans and rebates for the
                renovation or minor upgrading of existing facilities, established or
                developing industrial parks, or existing infrastructure; the
                extension of infrastructure; geotechnical boring; and construction
                of commercial and light industrial buildings. Generally, such
                assistance supports actions that physically disturb no more than 10
                acres of land not previously disturbed by human activity or no more
                than 25 acres of land so disturbed.
                 50. Financial assistance for the following actions: Approving
                and administering grants, loans and rebates for continued operations
                or purchase of existing facilities and infrastructure for uses
                substantially the same as the current use; purchasing, installing,
                and replacing equipment or machinery at existing facilities; and
                completing engineering designs, architectural drawings, surveys, and
                site assessments (except when tree clearing, geotechnical boring, or
                other land disturbance would occur).
                Subpart D--Environmental Assessments
                Sec. 1318.300 Purpose and scope.
                 (a) TVA shall prepare an EA for any proposed action not qualifying
                as a categorical exclusion to determine whether an EIS is necessary or
                a FONSI can be prepared. An EA need not be initiated (or completed)
                when TVA determines that it will prepare an EIS.
                 (b) An EA shall concisely communicate information and analyses
                about issues that are potentially significant and reasonable
                alternatives.
                Sec. 1318.301 Public and stakeholder participation in the EA process.
                 (a) The NEPA compliance staff, in consultation with the initiating
                TVA entity and other interested offices, may request public involvement
                in the preparation of an EA or a revision to or a supplement thereof.
                The type of and format for public involvement shall be selected as
                appropriate to best facilitate timely and meaningful public input to
                the EA process. In deciding the extent of public involvement, TVA will
                consider whether the public has already been provided a meaningful
                opportunity to comment on the environmental impacts of a proposal
                through other coordinated, regulatory processes.
                 (b) TVA will also identify and involve Indian tribes and interested
                stakeholders including local, State and other Federal agencies.
                 (c) A draft EA prepared for an action listed in Sec. 1318.400(a),
                for which TVA would normally prepare an EIS, shall be circulated for
                public review and comment.
                 (d) TVA will make draft (if applicable) and final EAs and FONSIs
                available on TVA's public website and by other means upon request to
                TVA.
                Sec. 1318.302 EA preparation.
                 (a) As soon as practicable after deciding to prepare an EA, the
                initiating TVA entity, in consultation with NEPA compliance staff,
                shall convene an internal coordination team to discuss:
                 (1) Reasonable alternatives,
                [[Page 17463]]
                 (2) Permit requirements,
                 (3) Coordination with other agencies (consistent with Sec.
                1318.401),
                 (4) Environmental issues,
                 (5) Public involvement, and
                 (6) A schedule for EA preparation.
                 (b) The EA will describe the proposed action and include brief
                discussions of the purpose and need for action, reasonable
                alternatives, the no-action alternative (consistent with Sec.
                1318.400(e)), the environmental impacts of the proposed action and
                alternatives, measures (if any) to mitigate such impacts, a listing of
                the agencies and persons consulted, and a list of permits that may be
                required for the proposed action.
                 (c) As appropriate, EAs will identify alternatives that were
                considered, but not addressed in further detail in the EA.
                 (d) The EA will address comments made during any public comment
                period.
                 (e) The EA will briefly provide sufficient data and analysis for
                determining whether to prepare an EIS or a FONSI.
                 (f) The EA will be reviewed by the NEPA compliance staff and other
                interested TVA entities, including TVA legal counsel.
                 (g) After the EA is finalized and with the concurrence of TVA legal
                counsel, the NEPA compliance staff will make one of the following
                determinations:
                 (1) A Finding of No Significant Impact,
                 (2) The action requires the preparation of an EIS, or
                 (3) The EA needs to be supplemented before the significance of
                potential impacts can be determined.
                Sec. 1318.303 Finding of No Significant Impact.
                 (a) If the NEPA compliance staff concludes, based on an EA, that a
                proposed action does not require the preparation of an EIS, the NEPA
                compliance staff, in consultation with TVA legal counsel and the
                initiating TVA entity, will prepare a FONSI. The official responsible
                for NEPA compliance will sign the FONSI.
                 (b) A FONSI must concisely summarize the proposed action and the
                EA, which should be incorporated by reference, and identify any
                environmental mitigation measures to which TVA commits.
                 (c) A FONSI must be made available to the public.
                 (d) In the following circumstance, the NEPA compliance staff, in
                consultation with TVA legal counsel and the initiating TVA entity, will
                make a draft EA and draft FONSI available for public review and comment
                for 30 days before a final determination is made whether to prepare an
                EIS and before the proposed action may begin:
                 (1) The proposed action is, or is closely similar to, an action
                listed in Sec. 1318.400(a),
                 (2) TVA has issued a Notice of Intent that the proposed action
                would be the subject of an EIS, or
                 (3) The nature of the proposed action is one without precedent.
                Sec. 1318.304 Supplements and adoptions.
                 (a) If new information concerning action modifications,
                alternatives, or probable environmental effects becomes available and
                there are important components of the proposed action that remain to be
                implemented, the NEPA compliance staff and TVA legal counsel, in
                consultation with the initiating TVA entity, will consider whether an
                EA should be supplemented based on the significance of the new
                information. The NEPA compliance staff will be responsible for
                preparing supplements to EAs.
                 (b) TVA may adopt an EA prepared by another agency if it determines
                that the environmental impacts of TVA's action are adequately assessed
                in the EA. Public involvement must be provided consistent with Sec.
                1318.301. The adopted EA and the FONSI issued by TVA must be provided
                on TVA's public website.
                Subpart E--Environmental Impact Statements
                Sec. 1318.400 Purpose and scope.
                 (a) The following actions in paragraphs (a)(1) through (5) normally
                will require an EIS:
                 (1) New large water resource development and water control projects
                such as construction and operation of new dams or navigation locks.
                 (2) The construction and operation of new major power generating
                facilities at sites not previously used for industrial purposes.
                 (3) The development of integrated resource plans for power
                generation.
                 (4) The development of system-wide reservoir operations plans.
                 (5) Any major action whose environmental impacts are expected to be
                highly controversial.
                 (b) If TVA determines that an EIS will not be prepared for an
                action falling within one of these categories, the basis for the
                decision must be discussed in the environmental assessment or in a
                document that is made available to the public.
                 (c) An EIS shall describe the proposed action and reasonable
                alternatives, including no action; analyze the potential environmental
                impacts associated with the proposed action, alternatives, and identify
                any mitigation measures; and include a list of the major preparers of
                the EIS.
                 (d) The scope and detail of the EIS shall be reasonably related to
                the scope and the probable environmental impacts of the proposed action
                and alternative actions (see 40 CFR 1502.10 through 1502.18).
                 (e) The no-action alternative in an EIS (or an EA) should represent
                the environmental status quo and should be formulated to provide the
                environmental baseline from which the proposed action and other
                alternatives can be assessed even when TVA is legally required to take
                action. For proposed changes to existing programs or plans,
                continuation of the existing program or plan and associated
                environmental impacts should be considered the no-action alternative.
                Sec. 1318.401 Lead and cooperating agency determinations.
                 (a) As soon as practicable after the decision is made to prepare an
                EIS (or EA), the NEPA compliance staff, in consultation with the
                initiating TVA entity and TVA legal counsel, shall determine whether
                inviting other Federal, State, or local agencies to participate in the
                preparation of the EIS as lead, joint lead (40 CFR 1501.5), or
                cooperating agencies (40 CFR 1501.6) is necessary.
                 (b) If TVA is requested to participate in the preparation of an EIS
                (or EA) of another Federal agency, the NEPA compliance staff, in
                consultation with other interested TVA entities, will determine if TVA
                should become a cooperating agency.
                Sec. 1318.402 Scoping process.
                 (a) As soon as practicable after the decision to prepare an EIS is
                made, the NEPA compliance staff, in consultation with other TVA
                entities, will identify preliminary action alternatives, probable
                environmental issues, and necessary environmental permits, and a
                schedule for EIS preparation.
                 (b) The scoping process may include interagency scoping sessions to
                coordinate an action with and obtain inputs from other interested
                agencies (including local, State, and other Federal agencies, as well
                as Indian tribes).
                 (c) The NEPA compliance staff, in consultation with other TVA
                entities, will determine whether public scoping meetings should be held
                in addition to seeking comments by other means. Meeting types and
                formats should be selected to facilitate timely and
                [[Page 17464]]
                meaningful public input into the EIS process.
                 (d) As soon as practicable in the scoping process, the NEPA
                compliance staff, in consultation with the initiating TVA entity and
                TVA legal counsel, will prepare and publish in the Federal Register a
                notice of intent to prepare an EIS. This notice will briefly describe
                the proposed action, possible alternatives, and potentially affected
                environmental resources. In addition, the notice will identify issues
                that TVA has tentatively determined to be insignificant and which will
                not be discussed in detail in the EIS. The scoping process will be
                described and, if a scoping meeting will be held, the notice should
                state where and when the meeting is to occur if that has been
                determined. The notice will identify the person in TVA who can supply
                additional information about the action and describe how to submit
                comments.
                 (e) There will be a minimum public comment period of 30 days from
                the date of publication of the notice of intent in the Federal Register
                to allow other interested agencies and the public an opportunity to
                review and comment on the proposed scope of the EIS.
                 (f) On the basis of input received, the NEPA compliance staff, in
                consultation with other TVA entities, will determine whether to modify
                the schedule or scope of the EIS.
                 (g) At the close of the scoping process, the NEPA compliance staff,
                in consultation with the other TVA entities, will identify the
                following components in paragraphs (g)(1) through (8) for use in
                preparing the DEIS:
                 (1) Purpose and need of the proposed action.
                 (2) Reasonable action alternatives.
                 (3) Environmental issues to be addressed in detail.
                 (4) Environmental issues that should be mentioned but not addressed
                in detail.
                 (5) Lead and cooperating agency roles and responsibilities.
                 (6) Related environmental documents.
                 (7) Other environmental review and consultation requirements.
                 (8) Delegation of DEIS work assignments to TVA entities and other
                agencies.
                 (h) If a scoping report summarizing the preceding EIS components is
                prepared, it must be made available to the public.
                Sec. 1318.403 DEIS preparation, transmittal, and review.
                 (a) Based on information obtained and decisions made during the
                scoping process, the NEPA compliance staff, in cooperation with the
                initiating TVA entity and other interested TVA entities, will prepare
                the preliminary DEIS using an appropriate format (see 40 CFR 1502.10).
                 (b) During preparation of the DEIS, the NEPA compliance staff will
                involve any cooperating agencies to obtain their input. If a
                cooperating agency's analysis of an environmental issue or impact
                differs from TVA's, those differences should be resolved before the
                DEIS is released for public comment or the cooperating agency's
                position should be set forth and addressed in the DEIS.
                 (c) After approval of the DEIS by the official responsible for NEPA
                compliance, the senior manager of the initiating TVA entity, and TVA
                legal counsel, the NEPA compliance staff will make the DEIS available
                to the public; other interested Federal, State, and local agencies; and
                other entities and individuals who have expressed an interest in the
                type of action or commented on the scope of the EIS. The NEPA
                compliance staff will then file the DEIS with EPA for publication of
                its notice of availability in the Federal Register.
                 (d) TVA will make the DEIS available on its public website and
                provide it by other means upon request.
                 (e) A minimum of 45 days from the date of publication of the notice
                of availability in the Federal Register must be provided for public
                comment. TVA may extend the public comment period in its discretion.
                 (f) Materials to be made available to the public should be provided
                to the public without charge to the extent practicable.
                Sec. 1318.404 FEIS preparation and transmittal.
                 (a) At the close of the DEIS public comment period, the NEPA
                compliance staff, in consultation with the initiating TVA entity and
                other interested TVA entities, will determine what is needed for the
                preparation of an FEIS.
                 (b) If changes to the DEIS in response to comments are minor and
                confined to factual corrections or explanations of why the comments do
                not warrant additional TVA response, TVA may issue errata sheets
                instead of rewriting the DEIS. In such cases, only the comments, the
                responses (including explanations why the comments do not warrant
                changes to the DEIS), and the changes need be circulated. The entire
                document with a new cover sheet shall be filed as the FEIS (40 CFR
                1506.9). If other more extensive changes are required, the NEPA
                compliance staff, in cooperation with other interested TVA entities,
                will prepare an FEIS utilizing an appropriate format (see 40 CFR
                1502.10).
                 (c) The FEIS should address all substantive comments on the DEIS
                that TVA receives before the close of the public comment period by
                responding specifically to the comments and/or by revising the text of
                the DEIS. Comments that are substantively similar should be summarized
                and addressed together.
                 (d) After approval of the FEIS by the official responsible for NEPA
                compliance, the senior manager of the initiating TVA entity, and TVA
                legal counsel, the NEPA compliance staff will make the FEIS available
                to the public; other interested Federal, State, and local agencies; and
                other entities and individuals who have expressed an interest in the
                type of action or commented on the DEIS. The NEPA compliance staff will
                then file the FEIS with EPA for publication of its notice of
                availability in the Federal Register.
                 (e) TVA will make the FEIS available on its public website and
                provide it by other means upon request.
                Sec. 1318.405 Agency decision.
                 (a) TVA shall not make a decision regarding a proposed action for
                which an EIS has been issued until 30 days after a notice of
                availability of the FEIS has been published in the Federal Register or
                90 days after a notice of availability of the DEIS has been published
                in the Federal Register, whichever is later.
                 (b) After release of the FEIS and after TVA makes a decision about
                the proposed action, a ROD must be prepared by the NEPA compliance
                staff, in consultation with TVA legal counsel and the initiating TVA
                entity (see 40 CFR 1505.2). The ROD will normally include the items in
                the following paragraphs (b)(1) through (6):
                 (1) The decision;
                 (2) The basis for the decision and preferences among alternatives;
                 (3) The alternative(s) considered to be environmentally preferable;
                 (4) A summary of important environmental impacts;
                 (5) The monitoring, reporting, and administrative arrangements that
                have been made; and
                 (6) The measures that would mitigate or minimize adverse
                environmental impacts to which TVA commits to implement (see 40 CFR
                1505.2(c)).
                 (c) A ROD will be made available to the public.
                 (d) Until a ROD is made available to the public, no action should
                be taken to implement an alternative that would have adverse
                environmental impacts or limit the choice of reasonable alternatives.
                [[Page 17465]]
                Sec. 1318.406 Supplements.
                 If TVA makes substantial changes in the proposed action that are
                relevant to environmental concerns or there is significant new
                information relevant to environmental concerns, and important
                components of the proposed action remain to be implemented, the NEPA
                compliance staff and TVA legal counsel, in consultation with the
                initiating TVA entity, will determine how the FEIS should be
                supplemented. The NEPA compliance staff will be responsible for
                preparing a supplement to an EIS.
                Sec. 1318.407 EIS adoption.
                 (a) TVA may adopt another agency's EIS, or a portion thereof,
                provided that the NEPA compliance staff determines that the EIS or
                portion thereof meets the standards for an adequate EIS.
                 (b) If the NEPA compliance staff determines that the actions
                covered by the other agency's EIS and TVA's proposed action are
                substantially the same, TVA may adopt the other agency's EIS as TVA's
                FEIS (Sec. 1318.404). In making this determination, the NEPA
                compliance staff, in consultation with other interested TVA entities,
                will consider whether the scope and analyses in the other agency's EIS
                adequately address the TVA action. TVA will also review to ensure the
                scientific accuracy of the analysis and conclusions drawn. TVA must
                make this determination and the adopted EIS available on its public
                website.
                 (c) If the NEPA compliance staff determines that the actions
                covered by the other agency's EIS and TVA's proposed action are not
                substantially the same, TVA will supplement the other agency's EIS and
                treat it as TVA's DEIS, including circulating it for comment (Sec.
                1318.403).
                 (d) If TVA cooperated in the preparation of an EIS that TVA
                determines adequately addresses its proposed action, TVA may make a
                decision about its proposed action no sooner than 30 days after notice
                of availability of the FEIS was published in the Federal Register. A
                record of that decision should be prepared consistent with Sec.
                1318.405.
                 (e) If TVA did not cooperate in the preparation of an EIS that TVA
                determines adequately addresses its proposed action and that it
                proposes to adopt, NEPA compliance staff will transmit notice of its
                adoption to EPA for publication of a notice of availability and
                circulate the FEIS for public comment as to its assessment of impacts
                as they relate to TVA's proposed action. TVA may make a decision about
                its proposed action no sooner than 30 days after notice of availability
                of the FEIS is published in the Federal Register. A record of decision
                will be prepared consistent with Sec. 1318.405.
                 (f) TVA will provide notice of its adoption to other interested
                Federal, State, and local agencies, other entities, and individuals.
                Subpart F--Miscellaneous Procedures
                Sec. 1318.500 Public participation.
                 (a) TVA's policy is to encourage meaningful public participation in
                and awareness of its proposed actions and decisions. This policy is
                implemented through various mechanisms.
                 (b) The type of and format for public participation will be
                selected as appropriate to best facilitate timely and meaningful public
                input.
                 (c) TVA will maintain a public website at which it posts
                information about TVA activities and programs, including ongoing and
                recently completed EAs and EISs.
                 (d) When opportunities for public participation are provided, TVA
                will notify the public that comments submitted to TVA on the NEPA
                document and the names and addresses of those commenting may be made
                available for public inspection.
                Sec. 1318.501 Mitigation commitment identification, auditing, and
                reporting.
                 (a) All appropriate measures to mitigate expected significant
                adverse environmental impacts (``mitigation measures'') must be
                identified in an EA or EIS. Those mitigation measures to which TVA
                commits must be identified in the associated FONSI or ROD (or the
                documentation, if any, prepared for a categorical exclusion).
                 (b) Each mitigation commitment that is not required under
                regulations will be assigned by the NEPA compliance staff to the TVA
                entity responsible for implementing the commitment. The NEPA compliance
                staff should consult with the responsible entities to resolve
                assignment conflicts, identify supporting offices, and determine
                implementation schedules.
                 (c) The responsible entity shall report to the NEPA compliance
                staff the status of mitigation commitments periodically or whenever a
                specific request is made.
                 (d) The NEPA compliance staff must ensure that commitments are met
                and will verify commitment progress.
                 (e) Circumstances may arise that warrant modifying or cancelling
                previously made commitments. The decision to modify or cancel a
                commitment will be made by the NEPA compliance staff in consultation
                with TVA legal counsel, after considering the environmental
                significance of such a change.
                Sec. 1318.502 Tiering.
                 TVA may rely on tiering for the environmental review of proposed
                actions. Tiering involves coverage of general matters in broader EISs
                or EAs on programs, plans, and policies, and subsequent narrower
                analyses of implementing actions that incorporate by reference the
                broader analyses (see 40 CFR 1508.28).
                Sec. 1318.503 Programmatic and generic NEPA documents.
                 (a) A programmatic or generic EA or EIS may be prepared to address
                a proposed program, policy, or plan, or a proposed action that has a
                wide geographic scope.
                 (b) A programmatic EA or EIS can support high-level or broad
                decisionmaking, and can provide the foundation for the efficient review
                of specific tiered implementing actions.
                 (c) Ongoing or previously planned and approved actions that are
                within the scope of a programmatic review may continue during the
                programmatic review period, so long as the criteria at 40 CFR 1506.1(c)
                are met.
                 (d) The identification of significant impacts in a programmatic EIS
                does not preclude the review of specific implementing actions in an EA
                that tiers from the programmatic EIS if the implementing actions would
                not result in new or different significant impacts.
                Sec. 1318.504 Private applicants.
                 (a) When a private applicant, individual, or other non-Federal
                entity (``private entity'') proposes to undertake an action that will
                require TVA's approval or involvement, the contacted TVA entity will
                notify the NEPA compliance staff. That staff must determine, in
                consultation with TVA legal counsel, whether NEPA is triggered and the
                scope of the review of TVA's proposed action.
                 (b) TVA compliance staff will provide the private entity
                information on its responsibilities for assisting TVA in conducting the
                necessary NEPA review. At TVA's discretion, this can include providing
                TVA detailed information about the scope and nature of the proposed
                action, environmental analyses and studies, and copies of associated
                environmental permit applications submitted to other Federal, State, or
                local agencies.
                 (c) In identifying reasonable alternatives, TVA should consider the
                applicant's purpose and need, in addition to TVA's purpose and need.
                 (d) A private entity may be allowed to prepare draft and final EAs
                for TVA's review and approval, but TVA remains responsible for the
                adequacy of the
                [[Page 17466]]
                documents and the conduct of associated EA process.
                 (e) A private entity normally will be required to reimburse TVA for
                its costs in reviewing the private entity's proposed action.
                 (f) Participation of a private entity in a TVA NEPA review,
                including reimbursement of TVA's costs, does not commit TVA to
                favorable action on a request.
                Sec. 1318.505 Non-TVA EISs.
                 (a) The NEPA compliance staff, in consultation with other
                interested TVA entities, will coordinate the review of any EIS provided
                by another Federal agency to TVA for comment.
                 (b) The NEPA compliance staff, in consultation with TVA legal
                counsel as appropriate, will prepare comments on any such EIS and
                transmit them to the initiating agency (see 40 CFR 1503.2 and 1503.3).
                Sec. 1318.506 Documents.
                 The NEPA compliance staff must keep on file all final and approved
                environmental documents either in paper form or electronically, in
                accordance with TVA's records retention policy.
                Sec. 1318.507 Reducing paperwork and delay.
                 (a) These procedures are to be interpreted and applied with the aim
                of reducing paperwork and the delay of both the assessment and
                implementation of a proposed action.
                 (b) Data and analyses should be commensurate with the importance of
                associated impacts. Less important material should be summarized,
                consolidated, or referenced.
                 (c) An environmental document may be combined with any other
                document to reduce duplication and paperwork.
                 (d) Review of a proposed action under these procedures may be
                consolidated with other reviews where such consolidation would reduce
                duplication or increase efficiency.
                Sec. 1318.508 Supplemental guidance.
                 The NEPA compliance staff, in consultation with interested TVA
                entities and with concurrence of TVA legal counsel, may issue
                supplemental or explanatory guidance to these procedures.
                Sec. 1318.509 Substantial compliance.
                 Substantial compliance with these procedures must be achieved.
                Minor deviations approved by the official responsible for NEPA
                compliance do not give rise to any independent cause of action.
                Sec. 1318.510 Emergency actions.
                 (a) The NEPA compliance staff may consolidate, modify, or omit
                provisions of these procedures for actions necessary in an emergency.
                 (b) Where emergency circumstances make it necessary to take an
                action with significant environmental impact without observing the
                provisions of these regulations, TVA will consult with CEQ about
                alternative arrangements for those actions necessary to control the
                immediate impacts of the emergency. Other actions remain subject to
                NEPA review (see 40 CFR 1506.11).
                 (c) The NEPA compliance staff, with the concurrence of TVA legal
                counsel, must determine whether such changes would substantially comply
                with the intent of these procedures.
                 (d) The official responsible for NEPA compliance shall document the
                determination that an emergency exists and describe the responsive
                action(s) taken at the time the emergency exists. The form of that
                documentation is within the discretion of that official.
                Sec. 1318.511 Modification of assignments.
                 The assignments and responsibilities identified for TVA entities in
                these procedures can be modified by agreement of the entities involved
                or by the direction of TVA's Chief Executive Officer.
                Sec. 1318.512 Status reports.
                 Information on the status of EISs and EAs under development shall
                be published on TVA's public website.
                Subpart G--Floodplains and Wetlands
                Sec. 1318.600 Purpose and scope.
                 (a) The review of a proposed action undertaken in accordance with
                Sec. Sec. 1318.200, 1318.300, and 1318.400 that potentially affects
                floodplains or wetlands must include a floodplain or wetlands
                evaluation that is consistent with Executive Order 11988 (Floodplain
                Management) and Executive Order 11990 (Protection of Wetlands)
                pertaining to floodplains or wetlands, respectively, as required by
                this section.
                 (b) Floodplain evaluations must apply any existing Federal flood
                risk management standard to federally-funded projects.
                 (c) A wetland evaluation under Executive Order 11990 is not
                required for the issuance of permits, licenses, or allocations to
                private parties for activities involving wetlands on non-Federal lands.
                Sec. 1318.601 Area of impact.
                 (a) If a proposed action will potentially occur in or affect
                wetlands or floodplains, the initiating TVA entity, as soon as
                practicable in the planning process, will request the appropriate TVA
                staff with expertise in floodplain or wetland impact evaluations (``TVA
                staff'') to determine whether the proposed action will occur in or
                affect a wetland or floodplain and the level of impact, if any, on the
                wetland or floodplain.
                 (b) Further floodplain or wetland evaluation is unnecessary if the
                TVA staff determines that the proposed action:
                 (1) Is outside the floodplain or wetland,
                 (2) Has no identifiable impacts on a floodplain or wetland, and
                 (3) Does not directly or indirectly support floodplain development
                or wetland alteration.
                Sec. 1318.602 Actions that will affect floodplains or wetlands.
                 (a) When a proposed action can otherwise be categorically excluded
                under Sec. 1318.200, no additional floodplain or wetland evaluation is
                required if:
                 (1) The initiating TVA entity determines that there is no
                practicable alternative that will avoid affecting floodplains or
                wetlands and that all practicable measures to minimize impacts of the
                proposed action to floodplains or wetlands are incorporated and
                 (2) The TVA staff determines that impacts on the floodplain or
                wetland would be minor.
                 (b) If the action requires an EA or an EIS, the evaluation must
                consider:
                 (1) The effect of the proposed action on natural and beneficial
                floodplain and wetland values and
                 (2) Alternatives to the proposed action that would eliminate or
                minimize such effects.
                 (c) The initiating TVA entity must determine if there is no
                practicable alternative to siting in a floodplain or constructing in a
                wetland. Upon concurrence by the NEPA compliance staff in consultation
                with TVA legal counsel and TVA staff with expertise in floodplain or
                wetland impact evaluations, this determination shall be final. If a
                determination of no practicable alternative is made, all practicable
                measures to minimize impacts of the proposed action on the floodplain
                or wetland must be implemented. If at any time prior to commencement of
                the action it is determined that there is a practicable alternative
                that will avoid affecting floodplains or wetlands, the proposed action
                must not proceed.
                [[Page 17467]]
                Sec. 1318.603 Public notice.
                 (a) Once a determination of no practicable alternative is made in
                accordance with Sec. 1318.602, the initiating office must notify the
                public of a proposed action's potential impact on floodplains or
                wetlands if the proposed action is subject to executive order and not
                already covered by class review. Public notice of actions affecting
                floodplains or wetlands may be combined with any notice published by
                TVA or another Federal agency if such a notice generally meets the
                minimum requirements set forth in this section. Issuance of a draft or
                final EA or EIS for public review and comment will satisfy this notice
                requirement.
                 (b) Public notices must at a minimum:
                 (1) Briefly describe the proposed action and the potential impact
                on the floodplain or wetland;
                 (2) Briefly identify alternative actions considered and explain why
                a determination of no practicable alternative has been proposed;
                 (3) Briefly discuss measures that would be taken to minimize or
                mitigate floodplain or wetland impacts;
                 (4) State when appropriate whether the action conforms to
                applicable Federal, State or local floodplain protection standards;
                 (5) Specify a reasonable period of time within which the public can
                comment on the proposal; and
                 (6) Identify the TVA official who can provide additional
                information on the proposed action and to whom comments should be sent.
                 (c) Such notices must be issued in a manner designed to bring the
                proposed action to the attention of those members of the public likely
                to be interested in or affected by the action's potential impact on the
                floodplain or wetland.
                 (d) TVA must consider all relevant and timely comments received in
                response to a notice and reevaluate the action as appropriate to take
                such comments into consideration before the proposed action is
                implemented.
                Sec. 1318.604 Disposition of real property.
                 When TVA property in a floodplain or wetland is proposed for lease,
                easement, right-of-way, or disposal to non-federal public or private
                parties and the action will not result in disturbance of the floodplain
                or wetland, a floodplain or wetland evaluation is not required. The
                conveyance document, however, must:
                 (a) Require the other party to comply with all applicable Federal,
                State or local floodplain and wetland regulations, and
                 (b) Identify other appropriate restrictions to minimize
                destruction, loss, or degradation of floodplains and wetlands and to
                preserve and enhance their natural and beneficial values, except when
                prohibited by law or unenforceable by TVA, or otherwise, the property
                must be withheld from conveyance or use.
                Sec. 1318.605 General and class reviews.
                 In lieu of site-specific reviews, TVA may conduct general or class
                reviews of similar or repetitive activities that occur in floodplains.
                Rebecca C. Tolene,
                Vice President, Environment.
                [FR Doc. 2020-05964 Filed 3-26-20; 8:45 am]
                 BILLING CODE 8120-08-P
                

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