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[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Notices]
[Pages 3908-3911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00452]

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

[MO 4500183156]

Notice of Adoption of Categorical Exclusions Under Section 109 of 
the National Environmental Policy Act

AGENCY: Office of the Secretary, Interior.

ACTION: Notice.

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SUMMARY: The Department of the Interior is notifying the public and 
documenting the adoption of two U.S. Forest Service, one National Park 
Service, and three U.S. Fish and Wildlife Service categorical 
exclusions (CXs) by the Bureau of Land Management (BLM), under section 
109 of the National Environmental Policy Act (NEPA). In accordance with 
section 109, this notice identifies the types of actions to which the 
BLM will apply the CXs, the considerations that the BLM will use in 
determining the applicability of the CXs, and the consultation between 
the agencies on the use of the CXs, including application of 
extraordinary circumstances.

DATES: The adoption is effective January 15, 2025.

FOR FURTHER INFORMATION CONTACT: Amelia Savage, Senior Planning and 
Environmental Analyst, Division of Support, Planning and NEPA, 
[email protected], telephone (480) 307-8665.

SUPPLEMENTARY INFORMATION: 

Background

Program Backgrounds

1. Visitor Use
    The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701-
1787) establishes the BLM's multiple use and sustained yield mandate. 
In managing the public lands in accordance with FLPMA, the BLM 
occasionally issues temporary closure and restriction orders under 43 
CFR 8364.1 to protect persons, property, public lands, and resources. 
The need to temporarily close or restrict the use of public land arises 
in various situations, for example where a recreation site requires 
routine maintenance or where construction or heavy visitor use is 
causing erosion or the creation of unauthorized trails, or when an 
unforeseen event warrants agency action. As resource uses and demands 
for access to public lands have increased, the need for the BLM to 
issue temporary closure and restriction orders to protect persons, 
property, and the public lands and their resources has also increased.
2. Aquatic Resources
    Riparian and wetland areas, lakes, streams, and aquifers on public 
lands managed by the BLM are among the most important, productive, and 
diverse resources in the Nation, providing sustained value to the 
American public. They provide habitat for myriad species of plants, 
fish, and wildlife; provide ecosystem services such as drinking water, 
pollination, and nutrient cycling; attenuate effects of wildfires, 
floods, and drought; and are key to the vitality of local economies and 
communities. BLM-managed lands include approximately 4,600 square miles 
of lakes and reservoirs, over 155,000 miles of streams and rivers, and 
over 20,000 square miles of wetlands and riparian areas. The BLM 
Aquatic Resources Program protects and restores water

[[Page 3909]]

resources, riparian and wetland areas, and aquatic habitats to provide 
functioning ecosystems for a combination of balanced and diverse uses, 
including fish and wildlife and the long-term needs of future 
generations. The Aquatic Resources Program restores the physical and 
ecological processes associated with healthy ecosystems to ensure that 
public land management based on multiple use and sustained yield 
principles provides healthy and productive habitat for fish and 
wildlife.
3. Land Acquisitions
    The BLM may purchase or acquire land and interests in land from a 
willing seller (including access easements, conservation easements, 
mineral or water rights) if funding is available, acquisition is 
supported in a land use plan, and there are no title defects, hazardous 
materials, or other local issues that might limit such acquisition. 
Acquiring land through purchase can enhance recreation opportunities, 
preserve open space, strengthen resource protection, and provide an 
alternative for transferring ownership to the BLM when a land exchange 
or other options are not available. The BLM may accept donations of 
land as a gift to the United States if the lands are contiguous to, and 
``block-up'' with, existing public lands.
4. Rights-of-Way
    The BLM Realty Program processes applications for rights-of-way or 
other land use authorizations for specific use of parcels of public 
land for a specified period that facilitate commercial, non-commercial, 
recreational, and conservation activities to ensure that the public 
lands are working landscapes managed for the use and enjoyment of 
current and future generations, including for communication sites, 
transmission lines, fiber optic infrastructure, and renewable energy. 
The BLM has discretion to grant rights-of-way when doing so is in the 
public interest.

National Environmental Policy Act and Categorical Exclusions

    NEPA as amended, at 42 U.S.C. 4321-4347, requires all Federal 
agencies to consider the environmental impact of their proposed actions 
before deciding whether and how to proceed. 42 U.S.C. 4321, 4332. 
NEPA's aims are to ensure agencies consider the environmental effects 
of their proposed actions in their decision-making processes and inform 
and involve the public in that process. 42 U.S.C. 4331. NEPA created 
the Council on Environmental Quality (CEQ), which promulgated NEPA 
implementing regulations, 40 CFR parts 1500 through 1508 (CEQ 
regulations).
    Under NEPA and the CEQ's NEPA implementing regulations, a Federal 
agency establishes categorical exclusions (CX)s--categories of actions 
that normally do not have a significant effect on the human 
environment, individually or in the aggregate, and therefore do not 
require preparation of an environmental assessment (EA) or an 
environmental impact statement (EIS)--in their agency NEPA procedures. 
42 U.S.C. 4336e(1); 40 CFR 1501.4, 1507.3, 1508.1(e). If an agency 
determines that a CX covers a proposed action, it then evaluates the 
proposed action for extraordinary circumstances in which a normally 
excluded action may have a significant effect. 40 CFR 1501.4(b); 43 CFR 
46.205(c). If no extraordinary circumstances are present or if further 
analysis determines that the extraordinary circumstances do not involve 
the potential for significant environmental impacts, the agency may 
apply the CX to the proposed action without preparing an EA or EIS. 42 
U.S.C. 4336(a)(2), 40 CFR 1501.4.
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to adopt another agency's CX for a 
category of proposed agency actions. 42 U.S.C. 4336c. To rely on 
another agency's CX under Section 109, the adopting agency must 
identify the relevant CX listed in another agency's (``establishing 
agency'') NEPA procedures that cover the adopting agency's category of 
proposed actions or related actions; consult with the establishing 
agency to ensure that the proposed adoption of the CX for a category of 
actions is appropriate; identify to the public the CX that the adopting 
agency plans to use for its proposed actions; and document adoption of 
the CX. 42 U.S.C. 4336c. The BLM has prepared this notice to describe 
how it has met applicable statutory requirements for the adoption of 
six CXs, 36 CFR 220.6(e)(7), 36 CFR 220.6(e)(18), 516 DM 8.5 (A)4, 516 
DM 8.5 (B)3, 516 DM 8.5 (C)4 and 516 DM 12.5 (D)2, and to notify the 
public.
    The Department of the Interior (Department)'s NEPA procedures are 
codified at 43 CFR part 46. These procedures address compliance with 
NEPA. The Department's protocol for application of CXs is at 43 CFR 
46.205. The Department's CXs available to all bureaus within the 
Department are listed in 43 CFR 46.210. Additional Department-wide NEPA 
policy is found in the Department's Departmental Manual (DM), in 
chapters 1 through 4 of part 516. Supplementary NEPA procedures for the 
Department's bureaus are published in additional chapters in part 516 
of the DM. Chapter 11 of the 516 DM covers the BLM's NEPA procedures 
and the BLM CXs are listed in 516 DM 11.9.

Categorical Exclusions That Are Adopted

    The BLM has identified the U.S. Forest Service (USFS) CX, found at 
36 CFR 220.6(e)(7) regarding modification or maintenance of stream or 
lake aquatic habitat improvement structures using native materials or 
normal practices for adoption. The BLM will rely on this CX to approve 
projects that modify or maintain existing habitat improvement 
structures to restore streams or lake aquatic habitat. Examples of 
BLM's intended uses include those described in the USFS CX, and are 
also inclusive of, but are not limited to, modifying or maintaining 
existing habitat improvement structures that mimic or promote natural 
processes using natural materials, and modifying or maintaining fish 
screens. Consistent with the terms of the CX, the BLM will not rely on 
this CX to support approval of projects that include installation of 
new structures or improvements where no structure or improvement has 
been installed before.
    The BLM has identified the USFS CX, found at 36 CFR 220.6(e)(18), 
regarding restoring wetlands, streams, riparian areas or other water 
bodies, for adoption. The BLM intends to rely on this CX for projects 
that remove, replace, or modify existing water control structures to 
restore streams or other water bodies; wetlands, including wet meadows; 
and riparian areas to improve water quality, habitat for native 
species, and overall ecosystem function, and to remove barriers to 
habitat connectivity. Examples of BLM's intended uses include those 
described in the USFS CX, and are also inclusive of, but not limited 
to, removing, replacing, repairing, or modifying existing structures--
such as fish screens, legacy rip-rap, and protective enclosures--with 
wildlife-friendly fencing. Consistent with the terms of the CX, the BLM 
will not rely on this CX to support approval of projects that include 
installation of new structures or improvements where no structure or 
improvement has been installed before.
    Per 36 CFR 220.6(e), the USFS, when relying on these CXs, develops 
a supporting record and a decision memo. Under CEQ NEPA regulations, at 
40 CFR 1501.4(e)(5), agencies publish documentation of the application 
of an adopted CX. Therefore, the documentation the BLM develops for 
each reliance on this adopted CX will be similar to USFS documentation, 
and the

[[Page 3910]]

BLM will publish the documentation on its publicly available National 
NEPA Register (https://eplanning.blm.gov/eplanning-ui/home).
    The BLM has identified the U.S. Fish and Wildlife Service (FWS) CX, 
found at 516 DM 8.5 (A)4, regarding acquisition of real property 
obtained either through discretionary acts or when acquired by law, 
whether by way of condemnation, donation, escheat, right-of-entry, 
escrow, exchange, lapses, purchase, or transfer, that will be under the 
jurisdiction or control of the United States, for adoption. Examples of 
how the BLM would rely on this CX include, but are not limited to, 
acquisition of lands from a willing seller through exchange, sale, 
escheat, right-of-entry, escrow, lapses, donation of access easements, 
conservation easements, mineral or water rights under the exchange 
provisions of Section 206 of the FLPMA, or through acquisition under 
FLPMA Section 205 as allowable under a land use plan. This includes 
acquisitions consistent with the Uniform Relocation Act, the Land and 
Water Conservation Fund Act, and the Federal Land Transaction 
Facilitation Act. The CX language requires that acquisitions be in 
accordance with 602 DM 2 and the Service's procedures. As the BLM and 
FWS are bureaus within the Department, both are required to follow the 
process set forth in Departmental policy at 602 DM 2, Real Property 
Pre-Acquisition Environmental Sites Assessments. FWS-specific policy 
and procedures are found in the FWS Manual (www.fws.gov/policy-library/manuals). The BLM evaluated FWS's real property management and land 
acquisition procedures found in parts 340 through 343 and compared them 
to BLM Acquisition Handbook (H-2100-1). These policies outline how each 
agency is required to complete the acquisition processes, including, 
appraisals, survey property boundaries, and title curative and 
conveyance actions. While the FWS's land acquisition procedures 
incorporate FWS-specific land acquisition authorities, the policies and 
procedures are similar to those of the BLM.
    The BLM has identified FWS CX, found at 516 DM 8.5(B)3, regarding 
the construction of new, or the addition of, small structures or 
improvements, including structures and improvements for the restoration 
of wetland, riparian, instream, or native habitats, for adoption. The 
BLM intends to rely on this CX to approve projects that construct new, 
or add to, small structures or improvements to restore streams or other 
water bodies, wetlands, including wet meadows, riparian areas, and 
native habitats. Examples of the BLM's intended uses include those 
examples described in the FWS CX, and are also inclusive of, but are 
not limited to, installation of small permeable structures that mimic, 
promote, and sustain natural processes; installation of wildlife 
friendly fences, including drift fences and protective enclosures; 
development of limited access for routine maintenance of habitat 
structures and improvements; and habitat restoration for both 
terrestrial and aquatic habitats.
    The BLM has identified FWS CX, found at 516 DM 8.5(C)4, regarding 
the issuance or reissuance of permits for limited additional use of an 
existing right-of-way for underground or above ground power, telephone, 
or pipelines, for adoption. The BLM intends to use this CX for the 
realty program, primarily to support ``permitting a new right-of-way, 
where no or negligible environmental disturbances are anticipated.'' 
Examples include, but are not limited to, installation of single power 
poles, authorizing a right-of-way for existing roads without existing 
rights-of-way, installation of fiber optic cable on existing 
structures, and authorizing development of a domestic water source with 
negligible environmental disturbances.
    The BLM has identified the National Park Service (NPS) CX, found at 
516 DM 12.5(D)2, regarding minor changes in amounts or types of visitor 
use for the purpose of ensuring visitor safety or resource protection, 
for adoption. The BLM intends to use this CX to support approval of 
temporary closures or restrictions on the use of designated public 
lands, including roads, trails, waterways or specific areas; to protect 
persons, property, public lands, or resources; and avoid conflict among 
public land users.

Consultation With USFS, FWS, and NPS and Determination of 
Appropriateness

    The BLM consulted with USFS, FWS, and NPS on the appropriateness of 
the adoption of these CXs for BLM's use in April 2024, October 2024, 
and October 2024, respectively. The consultation included a review of 
USFS, FWS, and NPS experience developing and applying the CXs, as well 
as the types of actions for which the BLM plans to utilize the CXs. The 
BLM actions are similar in type and scope to the actions that the USFS, 
FWS, and NPS conduct and therefore the effects of BLM's actions are 
expected to be similar to the effects of USFS, FWS, and NPS actions, 
which are not significant, absent the presence of extraordinary 
circumstances that could involve potentially significant effects. 
Therefore, the Department has determined that adoption of the CXs for 
the BLM's use as described in this notice is appropriate.

Consideration of Extraordinary Circumstances

    In consultation with the USFS, FWS, and NPS, the BLM evaluated the 
extraordinary circumstances to be considered when applying these CXs. 
When applying these CXs, Responsible Officials (43 CFR 46.30) within 
the BLM will evaluate proposed actions covered by the CXs to determine 
whether any extraordinary circumstances are present. The Department's 
extraordinary circumstances are listed at 43 CFR 46.215 and include, in 
part, consideration of impacts on public health and safety; natural 
resources and unique geographic characteristics; 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; other ecologically significant or critical 
areas; unresolved conflicts concerning alternative uses of available 
resources; unique or unknown environmental risks; precedent for future 
decision-making; historic properties; listed species or critical 
habitat; low income or minority populations; access by Indian religious 
practitioners to, and for ceremonial use of, Indian sacred sites and 
the physical integrity of those sites; and contribution to the 
introduction, continued existence, or spread of invasive weeds or non-
native invasive species. The Department's list of extraordinary 
circumstances addresses issues also identified by the USFS and found at 
36 CFR 220.6; therefore, Responsible Officials in the BLM intending to 
rely on these CXs will review whether the proposed action has the 
potential to result in significant effects as described in the 
Department's extraordinary circumstances. Since the BLM, FWS, and NPS 
are bureaus within the Department, the same extraordinary circumstances 
are used for all three bureaus. The Responsible Official will assess 
whether an extraordinary circumstance is present. If the Responsible 
Official cannot rely on a CX to support a decision to authorize or take 
a particular proposed action due to extraordinary circumstances, the 
proposed action must be analyzed in an EA or EIS before doing so, 
consistent with 40 CFR 1501.4(b)(2) and 43 CFR 46.205(c).

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Notice to the Public and Documentation of Adoption

    This notice identifies to the public the BLM's adoption of the 
USFS, FWS, and NPS CXs for the BLM's use. The notice identifies the 
types of actions to which the BLM would apply the CXs. The 
documentation of the adoption will also be available at http://www.blm.gov/programs/planning-and-nepa/what-informs-our-plans/nepa and 
at https://www.doi.gov/oepc/nepa/categorical-exclusions. The BLM will 
add the adopted CXs to the BLM's NEPA DM Chapter in 516 DM 11.

Authorities

    National Environmental Policy Act of 1969, as amended (42 U.S.C. 
4321 et seq.).

Stephen G. Tryon,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 2025-00452 Filed 1-14-25; 8:45 am]
BILLING CODE 4331-27-P
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