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[Federal Register Volume 90, Number 7 (Monday, January 13, 2025)]
[Notices]
[Pages 2735-2739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00485]

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

[RR83530000, 256R5065C6, RX.59389832.1009676]

National Environmental Policy Act Implementing Procedures for the 
Bureau of Reclamation (516 DM 14)

AGENCY: Office of the Secretary, Interior.

ACTION: Notice of revisions.

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SUMMARY: This notice announces the revision of seven categorical 
exclusions (CEs) listed in the Bureau of Reclamation's procedures for 
compliance with the National Environmental Policy Act of 1969 (NEPA). 
The revisions clarify existing CEs on certain financial assistance 
funding, water-related contracting, and use authorization actions to 
allow for more consistent interpretation and more efficient review of 
appropriate actions based on the Reclamation's experience implementing 
these CEs.

DATES: The revised categorical exclusions are incorporated into 
Reclamation's NEPA procedures, located at Chapter 14 of Part 516 of the 
Departmental Manual (516 DM 14), effective January 13, 2025.

ADDRESSES: The revised CEs can be found at the web address for 
Reclamation's revised NEPA procedures, 516 DM 14: https://www.doi.gov/document-library/departmental-manual/516-dm-14-managing-nepa-process-bureau-reclamation.

FOR FURTHER INFORMATION CONTACT: Shane Hunt (he/him) via phone at 916-
202-7158, or via email at [email protected]. Individuals who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

    The Bureau of Reclamation (Reclamation) was established in 1902. 
Its original mission was civil works construction to develop the water 
resources of the arid Western United States to promote the settlement 
and economic development of that region. Reclamation developed hundreds 
of projects to store and deliver water. That substantial infrastructure 
development contributed to making Reclamation the largest wholesale 
supplier of water and the second largest producer of hydropower in the 
United States.
    On June 7, 2024, the Department of the Interior (Department) 
published a Federal Register notice (89 FR 48674) proposing revisions 
to seven categorical exclusions (CEs) in Reclamation's NEPA 
implementing procedures, 516 DM 14. During the 30-day comment period, 
Reclamation received 14 comment letters and emails. A detailed summary 
of comments on the proposed revisions and Reclamation's responses are 
noted below.
    Reclamation has reviewed the comments and has taken them into 
consideration in finalizing the revised CEs. Reclamation continues to 
find it appropriate to revise the seven CEs to promote consistent 
interpretation and application by eliminating confusing or outdated 
terminology and authorities, as well as clarifying the scope of 
activities and constraints. Reclamation edited the revised CEs to 
respond to comments, as noted below, and revised the CEs in 516 DM 14, 
section 14.5, paragraph D entitled, ``Operation and Maintenance 
Activities,'' and paragraph F entitled, ``Financial Assistance, Loans, 
and Funding.''

Comments on the Proposal

    The Department solicited comments from the public on the potential 
revisions to the CEs through a 30-day public comment period, announced 
in the Federal Register on June 7, 2024 (89 FR 48674). Reclamation 
considered all comments received to date, and Reclamation has 
responded, as provided below, to all substantive issues raised in the 
public comments.
    Reclamation received 14 letters and emails from state governments, 
water and irrigation districts, water user organizations, and Tribal 
Nations. Individual comments included several that restated the 
objectives, limitations, and rationale for the proposed CE revisions, 
several that expressed general support or opposition for the proposed 
CE revisions, and several that provided more extensive detailed 
comments regarding the proposed CE revisions.
    Reclamation appreciates the interest and participation of all 
respondents. Reclamation has noted the comments that provided general 
support and general opposition. For comments providing additional 
detail, questions, and suggestions, Reclamation, where appropriate, 
grouped the common comments and responds to the comments as follows:
    Comment 1--Transparency and public input: Commenter expressed 
concern that the CE revisions would shift the analysis of project 
impacts to an internal process without public input.
    Response 1--The Council on Environmental Quality (CEQ) and 
Department's NEPA implementing regulations do not require public notice 
for an agency to use a CE. As provided in CEQ regulations and guidance, 
establishing, revising, and appropriately using CEs is consistent with 
NEPA. CEs

[[Page 2736]]

are not exemptions or waivers from NEPA. Rather, they are a type of 
NEPA review intended to accomplish the purposes of NEPA, efficiently 
and effectively. The establishment and revision of a CE is a public 
process through which the agency must demonstrate that the category of 
actions would not normally have significant effects, individually or in 
the aggregate. Having made such a demonstration, subject to public 
review and comment, the agency may then apply the CE to complete the 
NEPA environmental review process for proposals that do not require an 
environmental assessment (EA) or environmental impact statement (EIS), 
which are more resource intensive than applying a CE. Reclamation has 
and will continue to meet requirements under NEPA and other laws and 
regulations, ensuring the appropriate level of analysis and public 
engagement, consistent with regulations and policies.
    Comment 2--Scope of CE D4: Commenters recommended adding language 
to CE D4 to clearly cover Warren Act contracts, administrative 
operating agreements, and other administrative actions.
    Response 2--The scope of the revised CE language already captured 
many of the suggested additions. A Warren Act contract is a type of 
``water-related contracts'' covered under the proposed revision, as it 
is a legally binding agreement to which Reclamation is a party, 
pursuant to its authority under Federal law that allows for water to be 
stored. A commenter suggested including ``administrative operating 
agreements.'' CE D4 includes the administration of operation and 
maintenance contracts, which addresses the suggested inclusion of 
``administrative operating agreements.'' Reclamation considers the 
suggested inclusion of other ``administrative actions'' to be overly 
broad. The text of D4 does include administration of water-related 
contracts, which would include many ``administrative actions.'' For 
these reasons, Reclamation declines to adopt these suggestions.
    Comment 3--Concerns regarding Tribal resources and consultation: 
Commenters expressed concerns that CE D8 and CE E1 have the potential 
to adversely affect Tribal resources and that Reclamation may not 
adequately conduct Tribal consultation or implement National Historic 
Preservation Act Programmatic Agreements when relying on the CEs.
    Response 3--Reclamation met with both Tribes that commented on the 
proposal to better understand their concerns. Many of the concerns were 
related to compliance with laws and policies other than NEPA. The level 
of NEPA analysis, including the use of a CE, does not affect 
Reclamation's obligations under other laws, including the Native 
American Graves Protection and Repatriation Act, the National Historic 
Preservation Act, and the Archaeological Resources Protection Act, and 
related policies, or its obligation to engage in government-to-
government consultation, in cases where that obligation arises. 
Furthermore, when relying on the CEs, Reclamation will review the 
proposed action against the extraordinary circumstances listed in the 
Department's NEPA regulations at 43 CFR 46.215, which include in part, 
consideration of impacts on public health and safety; natural resources 
and unique geographic characteristics as historic or cultural 
resources; park, recreation, or refuge lands; wilderness areas; wild or 
scenic rivers; national natural landmarks, sole or principal drinking 
water aquifers; prime farmlands; wetlands; floodplains; national 
monuments; migratory birds; and other ecologically significant or 
critical areas; unresolved conflicts concerning alternative uses of 
available resources; unique or unknown environmental risks; precedent 
for future decision-making; historic properties; listed species or 
critical habitat; low income or minority populations; access by Indian 
religious practitioners to, and for ceremonial use of, Indian sacred 
sites and the physical integrity of those sites; and contribution to 
the introduction, continued existence, or spread of invasive plants or 
non-native invasive species. Reclamation will document the evaluation 
in a CE Checklist. If any extraordinary circumstance exists, 
Reclamation will conduct additional NEPA analysis. In addition, 
Reclamation must follow Departmental policy and procedures regarding 
Tribal consultation (512 DM 4, 512 DM 5), regardless of level of NEPA 
review.
    Comment 4--Concerns regarding National Historic Preservation Act 
Compliance: A commenter expressed concerns about how a change in the 
CEs might affect National Historic Preservation Act Section 106 
compliance, especially in the context of region-wide programmatic 
agreements, and the potential for Federal actions to affect historic 
properties of religious and cultural significance to Indian Tribes.
    Response 4--As noted in comment and response 3, actions reviewed 
under the revised CEs are still subject to other Federal laws, 
including the Native American Graves Protection and Repatriation Act, 
the National Historic Preservation Act and the Archaeological Resources 
Protection Act; to Departmental policies; and to the extraordinary 
circumstances review outlined in 43 CFR 46.215, which include 
consideration of Tribal and cultural resources, and Reclamation will 
document the evaluation in a CE Checklist. The level of NEPA analysis 
does not affect Reclamation's obligations under any of the cultural 
resource laws or policies.
    Comment 5--Expressed concerns with use of undefined terms like 
``minor,'' ``localized,'' ``temporary,'' ``interim,'' and ``related'' 
in the proposed CE revisions: Commenters were concerned that the terms 
``minor,'' ``localized,'' ``temporary,'' ``interim,'' and ``related'' 
in the CEs are undefined or lacked specificity. Commenters recommended 
defining, replacing or establishing a quantified threshold. One 
commenter recommended replacing the term ``minor'' with the term ``does 
not allow for or lead to a major public or private action'' for CEs D4 
and E1.
    Response 5--CEQ guidance \1\ advises agencies to ``clearly define 
the eligible category of actions, as well as any physical, temporal, or 
environmental factors that would constrain its use.'' Reclamation's 
revised CEs are intended to appropriately define and limit use to only 
those actions that normally do not have a significant effect on the 
human environment, individually or in the aggregate. Reclamation 
considered the specific language recommendations, concerns, and other 
suggestions on this topic. After careful consideration, Reclamation 
decided not to modify the identified terms because these terms as 
currently used sufficiently describe the CEs, while allowing 
Reclamation to apply the CEs in a range of appropriate contexts.
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    \1\ See CEQ's 2010 guidance on Establishing, Applying, and 
Revising Categorical Exclusions Under the National Environmental 
Policy Act, p. 5, https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf.
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    Regarding the terms ``minor'' and ``localized,'' Reclamation has 
over 40 years of successful and appropriate implementation of its 
existing CEs, several of which include these same terms. Reclamation's 
record of applying its existing CEs (including those using the terms 
``minor'' or ``localized'') for previously implemented actions is well 
documented in Reclamation's CE Checklists. In addition, Reclamation 
reviewed 71 EAs with FONSIs and summarized them in the CE 
substantiation report that was included in supporting documentation for 
the Federal Register notice announcing the proposed CE revision in June 
2024.

[[Page 2737]]

These 71 EAs with FONSIs analyze actions that the proposed CE revisions 
are designed to cover once finalized. Furthermore, the evaluation of 
the extraordinary circumstances in the Department's NEPA regulations at 
43 CFR 46.215 helps to identify cases in which an action may have a 
significant effect and, therefore, application of the CE would not be 
appropriate.
    Moreover, terms such as ``minor'' and ``localized'' allow 
Reclamation to appropriately consider the impacts of the proposed 
action in the context of the specific action and action location. For 
example, under D4, minor and localized considerations would include 
potential effects on the aquatic system, project operations, fish and 
wildlife resources, and the magnitude of the action in relation to 
hydrologic conditions. Under D8, minor and localized considerations 
would include things such as physical size, surrounding land use, and 
extent of potential ground disturbance on previously undisturbed land. 
Lastly, under E1, minor and localized considerations would include 
physical size and surrounding land use.
    Replacing the term ``minor'' with ``does not allow for or lead to a 
major public or private action'' in CEs D4 or E1 would not lead to an 
improvement in the application of the CEs. Rather, the term minor and 
the impact-based constraints included in the D4 and E1 CEs are more 
appropriate to evaluate the types of actions covered by these CEs and 
the potential environmental impacts.
    Regarding the additional terms highlighted by the commenters, the 
terms ``temporary'' and ``interim'' used in CE D4 are defined in the 
Reclamation Manual Policy, Water-Related Contracts and Charges--General 
Principles and Requirements (PEC P05). Under that policy, temporary 
contracts are limited to one year or less and interim contracts are 
limited to 10 years or less. Similarly, the term ``related'' only 
appears in CE D4 as part of the term ``water-related contract(s),'' 
which is also defined in Reclamation policy PEC P05 as any repayment or 
water service contract and any other legally binding agreement executed 
pursuant to Reclamation law or to the Water Conservation and 
Utilization Act of 1939 that: (1) makes water available from or through 
the facilities of a Federal project that Reclamation manages, operates, 
or funds; or (2) establishes Operation and Maintenance or Operation, 
Maintenance, and Replacements responsibilities for such facilities and/
or other responsibilities related to ensuring that such facilities 
continue to serve their intended purposes; or (3) makes water available 
to the United States. Consistent with that policy, Reclamation adds the 
phrase ``limited to 1 year or less'' after the term temporary and the 
phrase ``limited to 10 years or less'' after the term interim in 
parentheses to the text of the final D4 CE.
    Comment 6--Concerns with scope of actions that might qualify for 
the CEs: A commenter expressed concern with the scope of activities 
that might qualify for the CEs and lack of definitions and 
quantifications of terminology including ``minor construction,'' 
``minor amounts of water,'' and ``localized.''
    Response 6--As described in response 5, Reclamation considers it 
appropriate to retain the terms ``minor'' and ``localized'' in the CEs 
because Reclamation has over 40 years of successful and appropriate 
implementation of its existing CEs, several of which include these 
terms. Further, Reclamation also considered whether the absolute water-
related contract water amounts, for instance, limiting application by 
acre-feet of water, should constrain the application of the D4 CE. 
Ultimately, Reclamation declines to specify water amounts because the 
effects to a water system resulting from a water-related contract's 
specified changes in water quantity are relative; effects depend on the 
size and unique characteristics of the water system. For example, an 
amount of contract water that would be minor to the Columbia River 
might be significant to the Middle Rio Grande River. Reclamation will 
assess each CE application on a case-by-case basis using impact-based 
constraints in the CE and the list of extraordinary circumstances at 43 
CFR 46.215 and will document the evaluation in a CE Checklist.
    Comment 7--Adequate definition of flexibility and clear standards: 
A commenter suggested the need for an ``adequate definition of'' the 
flexibility Reclamation intends to provide in the revised CEs to ensure 
everyone is aware of ``clear standards and when they apply.''
    Response 7--Reclamation considers the language within the CEs, 
including the impact-based constraints, coupled with a review of 
extraordinary circumstance at 43 CFR 46.215, to sufficiently define the 
standards of when Reclamation can rely on the CEs for proposed actions. 
Reclamation will continue to document this review in a CE Checklist. In 
addition, Reclamation has over 40 years of successful and appropriate 
implementation of its existing CEs that will enable Reclamation to 
successfully and appropriately apply the revised CEs.
    Comment 8--Adding grazing back to D8: A commenter recommended 
adding the word ``grazing'' back into the revised CE language of D8.
    Response 8--The language of the D8 CE is consistent with 43 CFR 
part 429 and contemporary Reclamation Manual policies. Grazing is 
included in the list of types of uses covered by 43 CFR 429.3, so it 
does not need to be specifically mentioned in the CE text. Therefore, 
Reclamation does not incorporate this suggestion into the CE text.
    Comment 9--Removing ``work is minor'' from D8: Commenters 
recommended removing the phrase ``work is minor'' from D8 since the CE 
includes reference to the project not leading to a major action and 
that limiting factor is sufficient.
    Response 9--Reclamation accepted this recommendation by removing 
the phrase ``work is minor and'' then adding the phrase ``of the 
action'' after ``impacts.'' Reclamation retains the word ``minor'' but 
moves it to the end of the sentence as described in the section below, 
``Additional Clarifying Changes.''
    Comment 10--Adding specific action or list of actions to E1: A 
commenter suggested including reference to specific types of projects 
as examples of actions to be covered by the CE within the CE itself, 
including canal lining/relining/piping, gate replacement, Supervisor 
Control and Data Acquisition (SCADA) installation, etc.
    Response 10--Reclamation does not consider it necessary to add a 
list of specific types of projects as examples of actions the E1 CE 
will cover in order for Reclamation staff to properly apply the CE. In 
addition, Reclamation believes that including a predefined list of 
example project types could lead to inadvertently limiting the scope of 
eligible projects and lead to potential misunderstandings or missed 
opportunities for potential actions that fall outside the specified 
examples. Reclamation will assess each CE application on a case-by-case 
basis using impact-based constraints in the CE and the list of 
extraordinary circumstances at 43 CFR 46.215. Therefore, Reclamation 
declines to adopt this suggestion.
    Comment 11--Adding ``removed, introduced, or conveyed'' to D4: A 
commenter recommended adding ``removed, introduced, or conveyed'' to 
the description of allowable uses of water within water-related 
contracts covered by the D4 CE as these terms were used to describe how 
water would

[[Page 2738]]

be used for projects evaluated within the EAs summarized in the 
substantiation report for the CE revisions.
    Response 11--Reclamation agrees with the commenter's rationale and 
suggested language for D4 and adds the language to the final CE to 
further clarify the range of actions the CE is intended to describe.
    Comment 12--Concerns with notification process for proposed CE 
revisions: One commenter expressed concerns with the notification 
process for the proposed CE revisions and requested additional 
coordination.
    Response 12--Reclamation issued a news release on June 5, 2024, 
requesting public review and comment on the proposed CE revisions. On 
June 7, 2024, the Department published a notice in the Federal Register 
(89 FR 48674) seeking public review and comment on Reclamation's 
proposed CE revisions. See 40 CFR 1507.3(c)(8)(ii). Reclamation 
coordinated with the commenter to discuss the proposed CE revisions and 
their concerns.
    Comment 13--Comments outside the scope of the proposed CE 
revisions: Commenters recommended that Reclamation consider revising 
additional existing CEs, adoption of CEs from other agencies, 
development of additional CEs, training for Reclamation staff and non-
federal partners, and other ideas related to Reclamation's 
implementation of NEPA.
    Response 13--Reclamation appreciates the suggestions and 
recommendations that were submitted; however, Reclamation notes that 
these comments are outside the scope of the proposed CE revisions. 
Reclamation will take the suggestions and recommendations under 
advisement in the future.

Additional Clarifying Changes

    While considering the comments and recommendations Reclamation 
received during the public comment period on the proposed CE revisions, 
Reclamation incorporated several changes as described above. In 
addition, Reclamation has made a few additional changes from the CE 
text proposed in June 2024. These additional changes and the rationale 
for them are described below.
    For the D4 CE, Reclamation reinstates the qualifying statement that 
the ``action does not lead to long-term changes'' in the CE language 
related to its application for water-related contracts involving minor 
amounts of long-term water use. This qualifying language was originally 
included as a condition for all actions under the CE. The text of 
proposed CE revision could have been interpreted as omitting this 
essential condition for long-term water-related contracts. To clarify 
that this condition remains applicable to all actions covered by the 
CE, Reclamation is reintroducing this qualifying language for long-term 
water-related contracting actions, consistent with the original CE 
text. Reclamation also adds ``minor and'' before both instances of the 
word ``localized'' in the CE language. Reclamation makes this change to 
emphasize the use of impact-based constraints to guide the application 
of the CE. For the D8 CE, Reclamation changes ``provide right of use of 
Reclamation land'' to ``authorize use of Reclamation land'' to align 
the terminology in the CE with the terminology in 43 CFR part 429 on 
the use of Reclamation land, facilities, and waterbodies. Reclamation 
changes the beginning of (a) from ``work is minor and impacts are 
expected to be localized'' to ``impacts of the action are expected to 
be minor and localized.'' Reclamation makes this change to emphasize 
the use of impact-based constraints to guide the application of the CE 
in combination with the addition of language clarifying the terms 
``minor'' and ``localized'' for the CE in response to public comments.
    For the E1 CE, Reclamation moves ``(a)'' to before the phrase ``the 
underlying action being funded'' and revised ``actions'' to ``action'' 
in the same phrase to improve readability. Reclamation revises the 
introduction to (b) from ``where the work to be done is confined'' to 
``the action is confined'' to improve consistency within the CE 
language. Reclamation removes the phrase ``work is considered minor'' 
and the word ``where'' after ``and'' from (b). Then Reclamation adds 
``minor and'' before the word ``localized'' in the CE language. 
Reclamation makes these changes to emphasize the use of impact-based 
constraints to guide the application of the CE.

Categorical Exclusions

    The Department and Reclamation find that the category of actions 
described in the CEs (below), do not normally have a significant effect 
on the human environment, individually or in aggregate. This finding is 
based on analysis of the Department's proposal to revise these 
Reclamation CEs, including analysis in Reclamation's Substantiation 
Report. The Substantiation Report summarizes 71 EAs that resulted in 
findings of no significant impact (FONSIs) to demonstrate the finding 
that actions under the revised CEs would not normally result in 
significant effects to the human environment. The Substantiation Report 
and EAs and FONSIs for these projects are available at www.usbr.gov/nepa.
    The Department and Reclamation consulted with CEQ on the proposed 
and final revisions to the CEs. CEQ issued a letter stating that it has 
reviewed the revised CEs and found them to be in conformity with NEPA 
and the CEQ NEPA regulations. Therefore, the Department adds the final 
revised CEs to the Department Manual at 516 DM 14.5. Reclamation 
recognizes that certain proposed actions, when reviewed on a case-by-
case basis, could result in one or more of the extraordinary 
circumstances for which it is not appropriate to utilize the CEs (43 
CFR 46.215). In such cases, the proposed action could have a 
significant environmental effect and would require additional NEPA 
analysis. Thus, prior to applying the CEs, Reclamation will continue to 
review all extraordinary circumstances listed in the Department's NEPA 
regulations. If any extraordinary circumstance exists, Reclamation will 
conduct additional NEPA analysis.

Amended Text for the Departmental Manual

    Reclamation's NEPA procedures in 516 DM 14 are modified as follows:

Part 516: National Environmental Policy Act of 1969
Chapter 14: Managing the NEPA Process--Bureau of Reclamation

14.5 Categorical Exclusions

D. Operation and Maintenance Activities

    (4) Approval, execution, administration, and implementation of 
water-related contracts and contract renewals, amendments, supplements, 
and assignments, and water transfers, exchanges, and replacements, for 
which one or more of the following apply: (a) for minor amounts of 
long-term water use, where the action does not lead to long-term 
changes and impacts are expected to be minor and localized; (b) for 
temporary (limited to 1 year or less) or interim (limited to 10 years 
or less) water use where the action does not lead to long-term changes 
and where the impacts are expected to be minor and localized; or (c) 
where the only result will be to implement an administrative or 
financial practice or change. A ``water-related'' contract is any 
legally binding agreement to which Reclamation becomes a party, 
pursuant to its authority under Federal law that (1) makes water 
available from or to the United States; (2) allows water to be

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stored, removed, introduced, conveyed, carried, or delivered in 
facilities Reclamation owns, manages, operates, or funds; or (3) 
establishes operation, maintenance, and replacement responsibilities 
for such facilities.
    (8) Issuance or renewal of use authorizations (as defined in 43 CFR 
429.2, including crossing agreements which provide rights-of-way) that 
authorize use of Reclamation land, facilities, or waterbodies where one 
or more of the following apply: (a) impacts of the action are expected 
to be minor and localized; (b) the action does not lead to a major 
public or private action; (c) the only result of the authorization will 
be to implement an administrative or financial practice or change; or 
(d) the level of use or impacts to resources is not increased.
    (10) Reserved.
    (14) Reserved.

E. Financial Assistance, Loans, and Funding

    (1) Financial assistance, cooperative agreements, grants, loans, 
contracts, or other funding, where (a) the underlying action being 
funded would be covered by another Reclamation CE if Reclamation were 
implementing the action itself, or (b) the action is confined to areas 
already impacted by farming or development activities and the impacts 
are expected to be minor and localized.
    (2) Reserved.
    (3) Reserved.

Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2025-00485 Filed 1-10-25; 8:45 am]
BILLING CODE 4332-90-P
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