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contains regulatory documents having general

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are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

33319 

Vol. 74, No. 132 

Monday, July 13, 2009 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 650 

RIN 0578–AA55 

Compliance With NEPA 

AGENCY: Natural Resources 

Conservation Service (NRCS), United 

States Department of Agriculture 

ACTION: Interim final rule with request 

for comment. 

SUMMARY: The Natural Resources 

Conservation Service (NRCS or the 

Agency) publishes this interim final rule 

to request comments on additional 

categorical exclusions, which are 

actions that the agency has determined 

do not individually or cumulatively 

have a significant effect on the human 

environment and, thus, should not 

require preparing an environmental 

assessment (EA) or environmental 

impact statement (EIS) under the 

National Environmental Policy Act 

(NEPA). NRCS’ categorical exclusion 

actions promote restoration and 

conservation activities related to natural 

or human induced damage, or alteration 

of floodplain easements and watershed 

areas. For projects being funded under 

the American Recovery and 

Reinvestment Act of 2009 (ARRA), the 

interim final rule will assist NRCS in 

meeting mandates set forth in ARRA 

and NEPA for undertaking actions in the 

most expeditious manner and in 

compliance with NEPA. 

DATES: Effective Date: The rule is 

effective July 13, 2009. 

Comment date: Submit comments on 

or before September 11, 2009. 

ADDRESSES: You may send comments 

(identified by Docket Number NRCS– 

0578–AA55) using any of the following 

methods: 

• Government-wide rulemaking Web 

site: http://www.regulations.gov and 

follow the instructions for sending 

comments electronically. 

• E-mail: NEPA2008@wdc.usda.gov. 

• Mail: Matt Harrington, National 

Environmental Coordinator, Ecological 

Sciences Division, Department of 

Agriculture, Natural Resources 

Conservation Service, 1400 

Independence Avenue, SW., 

Washington, DC 20250. 

• Fax: (202) 720–2646. 

• Hand Delivery: USDA South 

Building, 1400 Independence Avenue, 

SW., Room 6158, Washington, DC 

20250, between 9 a.m. and 4 p.m., 

Monday through Friday, except Federal 

Holidays. Please ask the guard at the 

entrance to the South Building to call 

(202) 720–2587 in order to be escorted 

into the building. 

This interim final rule may be 

accessed via Internet. Users can access 

the interim final rule at: http://

www.nrcs.usda.gov/programs/

Env_Assess/index.html. Persons with 

disabilities who require alternative 

means for communication (Braille, large 

print, audio tape, etc.) should contact 

the USDA TARGET Center at: (202) 

720–2600 (voice and TDD). 

FOR FURTHER INFORMATION CONTACT: Matt 

Harrington, National Environmental 

Coordinator, Ecological Sciences 

Division, Department of Agriculture, 

Natural Resources Conservation Service, 

1400 Independence Avenue, SW., 

Washington DC 20250; Phone: (202) 

720–4925; Fax: (202) 720–2646; or email NEPA2008@wdc.usda.gov, and 

identify in the subject line, ‘‘Information 

Requested.’’ 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

The Office of Management and Budget 

has determined that this interim final 

rule is a non-significant regulatory 

action under Executive Order 12866. 

Regulatory Flexibility Act 

Pursuant to 5 U.S.C. 605(c) of the 

Regulatory Flexibility Act, NRCS has 

determined that this interim final rule 

will not have a significant economic 

impact on a substantial number of small 

entities as defined by that Act. 

Therefore, a regulatory flexibility 

analysis is not required for this interim 

final rule. 

Environmental Analysis 

This interim final rule amends the 

procedures for implementing NEPA at 7 

CFR part 650 and will not directly 

impact the environment. An agency’s 

NEPA procedures are guidance to assist 

that agency in its fulfillment of 

responsibilities under NEPA, but are not 

that agency’s final determination of 

what level of NEPA analysis is required 

for a particular action. The CEQ set forth 

the requirements for establishing agency 

NEPA procedures in its regulations at 40 

CFR 1505.1 and 1507.3. The CEQ 

regulations do not require agencies to 

conduct NEPA analyses or prepare 

NEPA documentation when establishing 

their NEPA procedures. The 

determination that establishing agency 

NEPA procedures does not require 

NEPA analysis and documentation has 

been upheld in Heartwood, Inc. v. U.S. 

Forest Service, 230 F.3d 947, 954–55 

(7th Cir. 2000). 

Paperwork Reduction Act 

There are no requirements for 

information collection associated with 

this interim final rule that would 

require approval under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

Unfunded Mandates Reform Act of 

1995 

NRCS assessed the effects of this 

rulemaking action on State, local, or 

Tribal governments and the public. This 

action does not compel the expenditure 

of $100 million or more in any one year 

(adjusted for inflation) by any State, 

local, or Tribal governments or anyone 

in the private sector; therefore, a 

statement under Section 202 of the 

Unfunded Mandates Reform Act of 1995 

is not required. 

Civil Justice Reform 

This interim final rule has been 

reviewed under Executive Order 12988, 

Civil Justice Reform. After adoption of 

this interim final rule: (1) All State and 

local laws and regulations that conflict 

with this rule, or that would impede full 

implementation of this rule, will be 

preempted; (2) no retroactive effect 

would be given to this interim final rule; 

and (3) before an action may be brought 

in a Federal court of competent 

jurisdiction, the administrative appeal 

rights afforded persons at 7 CFR part 

614 must be exhausted. 


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33320 Federal Register / Vol. 74, No. 132 / Monday, July 13, 2009 / Rules and Regulations 

Federalism 

NRCS has considered this interim 

final rule under the requirements of 

Executive Order 13132. NRCS has 

determined that this interim final rule 

would not impose any compliance costs 

on the States and would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, 

nor on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, NRCS 

has determined that this interim final 

rule conforms to the principles set forth 

in Executive Order 13132. 

Energy Effects 

NRCS has determined that this 

interim final rule does not constitute a 

significant energy action as defined in 

Executive Order 13211. 

Background 

NRCS finds that this amendment 

should proceed as an interim final rule. 

This interim final rule will facilitate the 

delivery of assistance under the ARRA 

for which timely delivery is of the 

essence. The actions identified have 

been subject to prior extensive 

environmental review that demonstrates 

that they do not individually or 

cumulatively have a significant effect on 

the human environment. The agency 

will evaluate each agency undertaking 

to ensure whether the undertaking 

meets the criteria of the categorical 

exclusion, or whether extraordinary 

circumstances exist which require 

additional environmental review. Given 

these safeguards, NRCS has determined 

that to proceed through a prior notice of 

proposed rulemaking would be 

impracticable, unnecessary, and 

contrary to the public interest in the 

efficient implementation of 

conservation programs. 

I. National Environmental Policy Act 

NEPA requires that Federal agencies 

consider the environmental effects or 

impacts of proposed Federal actions. 

NEPA requirements apply to any 

Federally funded or undertaken project, 

decision, or action, including grants. 

NEPA also established the Council on 

Environmental Quality (CEQ), which 

issued regulations at 50 CFR parts 1500– 

1508 implementing the procedural 

provisions of NEPA. 

The CEQ regulations require Federal 

agencies to adopt their own 

implementing procedures to 

supplement the Council’s regulations, 

and to establish and use categorical 

exclusions to define categories of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment and, therefore, 

do not require preparation of an EA or 

EIS (40 CFR 1507.3(b)(2)(ii) and 40 CFR 

1508.4). 

II. NRCS’ Environmental Review 

Process 

NRCS follows CEQ regulations for 

complying with NEPA. In addition, 

NRCS has supplemental regulations for 

NEPA compliance at 7 CFR part 650. 

Consistent with the CEQ regulations at 

40 CFR 1508.4, NRCS defines 

‘‘categorical exclusion’’ to mean ‘‘a 

category of actions that does not 

individually or cumulatively have a 

significant effect on the human 

environment * * *’’ and that has been 

found by NRCS to have no such effect. 

These supplemental regulations require 

that the Responsible Federal Official 

(RFO) must determine whether the 

proposed action fits within a categorical 

exclusion listed in the agency’s 

implementing NEPA regulations (see 7 

CFR 650.6(a)), and the proposed action 

does not involve any extraordinary 

circumstances (see 7 CFR 650.6(b)). 

Section 650.6 currently identifies five 

actions that are categorically excluded 

from detailed review under NEPA. This 

interim final rule amends § 650.6 to 

identify an additional 21 actions as 

categorically excluded from detailed 

review through an EA or an EIS. Some 

of the new categorical exclusions are 

comparable in nature and scope to 

categorical exclusions of other Federal 

agencies. NRCS determined the new 

categorical exclusions routinely do not 

individually or cumulatively have a 

significant effect on the human 

environment. The statement supporting 

the categorical exclusions is available 

for review at the following Web site: 

http://www.nrcs.usda.gov/programs/

Env_Assess/index.html or upon request 

from the NRCS National Environmental 

Coordinator. 

NRCS has not updated its list of 

categorical exclusions since 1979. 

However, NRCS has over 70 years of 

experience (since the agency’s 

establishment in 1935) with the actions 

being added to the agency’s list of 

categorical exclusions. Based upon this 

experience and other data and analyses 

described below, NRCS has determined 

these actions as appropriate for 

incorporation in 7 CFR 650.6 as 

categorical exclusions. 

As established in this interim final 

rule, NRCS will satisfy NEPA when 

using these categorical exclusions by 

determining whether a proposed agency 

action falls within the description of the 

activities and by reviewing the proposed 

agency action to determine whether 

extraordinary circumstances exist. In 

the event extraordinary circumstances 

exist, NRCS will prepare an EA or an 

EIS before proceeding with the 

proposed action (see 7 CFR 650.6(a) and 

(b)). 

As noted in the statement supporting 

the categorical exclusions, NRCS 

provides support for each action being 

added to the categorical exclusion list 

by citing: (1) Other agencies that 

currently have categorical exclusions for 

actions which are comparable in nature 

to the action(s) NRCS is adding as new 

categorical exclusions; (2) the findings 

of the NRCS interdisciplinary teams’ 

reviews, which are explained below; 

and (3) previous environmental reviews 

prepared by NRCS for these actions. By 

identifying these additional actions as 

categorical exclusions, NRCS is better 

able to meet the mandates of NRCS and 

CEQ NEPA regulations by providing for 

the efficient and timely environmental 

review of restoration and conservation 

activities. CEQ does not require agencies 

to prepare a NEPA analysis or document 

before establishing agency protocols or 

procedures that supplement the CEQ 

regulations for implementing NEPA. 

III. NRCS Restoration and Conservation 

Planning 

Since 1935, NRCS has assisted private 

individuals, conservation districts, 

Indian Tribes, units of government, and 

other organizations to apply 

conservation plans to conserve the 

Nation’s natural resources, primarily on 

private agricultural lands. This is 

accomplished in partnership with 

locally led decision-making processes 

by providing conservation assistance 

through a national network of 

technically skilled, professional 

conservationists. These conservationists 

deliver consistent, science-based, sitespecific solutions to help private 

landowners voluntarily conserve, 

maintain, and improve the Nation’s 

natural resource base. 

All NRCS actions are planned 

according to the requirements described 

in the NRCS National Planning 

Procedures Handbook. The Handbook 

prescribes that all planning be 

conducted through the use of a planning 

process, which includes the following 

nine steps: 

1. Problem Identification. 

2. Determine Objectives. 

3. Inventory Resources. 

4. Analyze Resource Data. 

5. Formulate Alternatives. 

6. Evaluate Alternatives. 

7. Make Decisions. 

8. Implement Plan. 

9. Evaluate Plan. 

NRCS conducts an Environmental 

Evaluation (EE), as required by 7 CFR 


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650.5, throughout the planning process, 

and incorporates environmental 

considerations throughout planning, 

installation, and operation of NRCSassisted actions. By conducting the EE, 

NRCS is able to identify the appropriate 

level of environmental documentation 

and analysis required for a particular 

action. 

Conservation practices are required to 

meet sustainable levels of quality 

criteria established in Section III of the 

Field Office Technical Guide (FOTG), 

for soil, water, air, plant, animal, and 

human resources. See http:// 

www.nrcs.usda.gov/technical/efotg/. 

Additionally, all conservation practice 

implementation is governed by 

established conservation practice 

standards contained in Section IV of the 

FOTG. 

The design and implementation of 

conservation practices must also meet 

technical and environmental criteria in 

NRCS manuals, handbooks, and 

publications, which in turn are 

developed through a peer and public 

review process. 

NRCS obtains input about 

conservation practices from the State 

Technical Committees established 

pursuant to 16 U.S.C. 3861. NRCS also 

obtains public input about conservation 

practices by publishing in the Federal 

Register notice of any new conservation 

practice standard to be incorporated 

into the FOTG. In addition to State 

Technical Committee and Federal 

Register reviews, public participation is 

further accomplished through 

coordinating the implementation of 

NRCS activities with local Soil and 

Water Conservation Districts (SWCD). 

SWCD board members are comprised of 

local landowners, elected by the public, 

to represent community interests, 

advocate conservation, assist NRCS in 

setting local resource priorities, and 

approving conservation plans. All 

technical and financial assistance 

provided by NRCS is voluntary and is 

provided in partnership with the local 

SWCD at the request of an individual, 

unit of government, Indian Tribe, or 

sponsoring organization. 

IV. Process Used To Identify the 

Categorical Exclusions 

For all the actions added to 7 CFR 

650.6 as categorical exclusions and 

described below, NRCS convened a 

group of interdisciplinary experts to 

review agency actions and determine 

whether the actions should be 

considered as a new categorical 

exclusion based upon their experience, 

expertise, and environmental review. 

The interdisciplinary team also 

considered comparable categorical 

exclusions from other agencies 

throughout the Federal Government that 

conduct similar activities under similar 

circumstances. In addition to the 

interdisciplinary team, NRCS also 

collected environmental review 

information from a sample of its State 

and field offices that have undertaken 

these actions over the past 70 years. The 

State and field offices providing 

information were: California, Colorado, 

Georgia, Iowa, Kentucky, Louisiana, 

Massachusetts, Missouri, Nebraska, New 

Hampshire, Oklahoma, Oregon, Rhode 

Island, and Texas. Overall, the 

environmental documentation 

information reported by these States 

showed that implementation of these 

categorical exclusions has not resulted 

in individually or cumulatively 

significant environmental effects. 

These 14 States provided a random 

sample of conservation activities, and 

coincidentally these random samples 

encompassed agency actions within 11 

of the 12 major river basins in the 

continental United States. Concurrent 

with the public comment period, NRCS 

is requesting information to be 

submitted from State and field offices 

within the remaining 12th river basin 

[Great Lakes River Basin] which 

includes: Illinois, Indiana, Michigan, 

Minnesota, New York, Ohio, 

Pennsylvania, and Wisconsin, and will 

incorporate any additional information 

gained from this input and public 

comment in the development of the 

final rule. The information provided in 

the statement supporting the categorical 

exclusions includes Damage Survey 

Reports containing an EE, EA, and EIS 

prepared over a 9-year period (2000– 

2009) for the actions to be categorically 

excluded. 

V. Categorical Exclusions for 

Restoration and Conservation Actions 

All the actions identified as a 

categorical exclusion below require 

documentation in accordance with 7 

CFR 650.6 that address whether 

extraordinary circumstances are 

determined to exist. Furthermore, the 

following categorical exclusions only 

apply to proposed actions that: (1) 

Include provisions to mitigate soil 

erosion, sedimentation, and 

downstream flooding; (2) require 

disturbed areas to be vegetated with 

adapted species; (3) are based on the 

principles of natural stream dynamics 

and processes presented in the Federal 

Interagency Stream Corridor Restoration 

Working Group document (http://

www.nrcs.usda.gov/technical/stream_

restoration/), ‘‘Stream Corridor 

Restoration, Principles, Processes, and 

Practices;’’ (4) incorporate the 

applicable NRCS conservation practice 

standards as found in the FOTG 

[http://www.nrcs.usda.gov/technical/ 

efotg/]; (5) do not require substantial 

dredging, excavation, or placement of 

fill; and (6) do not involve a significant 

risk of exposure to toxic or hazardous 

substances. 

The identification of these actions as 

categorical exclusions under NEPA does 

not relinquish the responsibility of 

NRCS to comply with the mandatory 

consultation requirements under the 

National Historic Preservation Act and 

implementing regulations, the 

Endangered Species Act and 

implementing regulations, and any 

other legal requirements. 

The following actions are being added 

to 7 CFR 650.6 as categorical exclusions: 

1. Planting appropriate herbaceous 

and/or woody vegetation on disturbed 

sites to restore and/or maintain the site’s 

pre-disturbance vegetative community 

or similar adaptive naturalized 

vegetative community that provides 

analogous ecological functions and 

services; 

2. Removing dikes and associated 

appurtenances (such as culverts, pipes, 

valves, gates, and fencing) to allow 

waters to access floodplains to the 

extent that had existed prior to the 

installation of such dikes and associated 

appurtenances; 

3. Plugging and filling excavated 

drainage ditches to allow hydrologic 

conditions to return to pre-drainage 

conditions to the extent practicable; 

4. Replacing and repairing existing 

culverts, grade stabilization, and water 

control structures and other small 

structures that were damaged by natural 

disasters where there is no new depth 

required and only minimal dredging, 

excavation, or placement of fill is 

required; 

5. Restoring the natural topographic 

features of agricultural fields that were 

altered by farming and ranching 

activities for the purpose of restoring 

ecological processes; 

6. Removing or relocating residential, 

commercial, and other public and 

private buildings and associated 

structures constructed in the 100-year 

floodplain or within the breach 

inundation area of an existing dam or 

other flood control structure in order to 

restore natural hydrologic conditions of 

inundation or saturation, vegetation, or 

reduce hazards posed to public safety; 

7. Removing storm debris and 

sediment following a natural disaster 

where there is a continuing and eminent 

threat to public health or safety, 

property, and/or natural and cultural 

resources and removal is necessary to 

restore lands to pre-disaster conditions 


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to the extent practicable. Excavation 

shall not exceed the pre-disaster 

condition; 

8. Stabilizing stream banks and 

associated structures to reduce erosion 

through bioengineering techniques 

following a natural disaster to restore 

pre-disaster conditions to the extent 

practicable (e.g., utilization of living and 

nonliving plant materials in 

combination with natural and synthetic 

support materials, such as rocks, riprap, and geo-textiles, for slope 

stabilization, erosion reduction, and 

vegetative establishment) and 

establishment of appropriate plant 

communities (bank shaping and 

planting, brush mattresses, log, root 

wad, and boulder stabilization 

methods); 

9. Repairing or maintenance of 

existing small structures or 

improvements (including structures and 

improvements utilized to restore 

disturbed or altered wetland, riparian, 

in stream, or native habitat conditions). 

Examples of such activities include the 

repair or stabilization of existing stream 

crossings for livestock or human 

passage, levees, culverts, berms, dikes, 

and associated appurtenances; 

10. Constructing small structures or 

improvements for the restoration of 

wetland, riparian, in stream, or native 

habitats. Examples of activities include: 

(1) Installation of fences, and (2) 

construction of small berms, dikes, and 

associated water control structures; 

11. Restoring an ecosystem, fish and 

wildlife habitat, biotic community, or 

population of living resources to a 

determinable pre-impact condition; 

12. Repairing or maintenance of 

existing constructed fish passageways, 

such as fish ladders or spawning areas, 

impacted by natural disasters or human 

alteration; 

13. Repairing, maintaining, or 

installing fish screens to existing 

structures; 

14. Repairing or maintaining principal 

spillways and appurtenances associated 

with existing serviceable dams, 

originally constructed to NRCS 

standards, in order to meet current 

safety standards. Work will be confined 

to the existing footprint of the dam, and 

no major change in reservoir or 

downstream operations will result; 

15. Repairing or improving 

(deepening/widening/armoring) existing 

auxiliary/emergency spillways 

associated with dams, originally 

constructed to NRCS standards, in order 

to meet current safety standards. Work 

will be confined to the dam or abutment 

areas, and no major change in reservoir 

or downstream operation will result; 

16. Repairing embankment slope 

failures on structures originally built to 

NRCS standards where the work is 

confined to the embankment or 

abutment areas; 

17. Increasing the freeboard (which is 

the height from the auxiliary 

(emergency) spillway crest to the top of 

embankment) of an existing dam or 

dike, originally built to NRCS standards 

by raising the top elevation in order to 

meet current safety and performance 

standards. The purpose of the safety 

standard and associated work is to 

ensure that during extreme rainfall 

events, flows are confined to the 

auxiliary/emergency spillway so that 

the existing structure is not overtopped 

which may result in a catastrophic 

failure. Elevating the top of the dam will 

not result in an increase to lake or 

stream levels. Work will be confined to 

the existing dam and abutment areas, 

and no major change in reservoir 

operations will result. Examples of work 

may include the addition of fill material 

such as earth or gravel, or placement of 

parapet walls; 

18. Modifying existing residential, 

commercial, and other public and 

private buildings to prevent flood 

damages, such as elevating structures or 

sealing basements to comply with 

current State safety standards and 

Federal performance standards; 

19. Undertaking minor agricultural 

practices to maintain and/or restore 

ecological conditions in floodplains 

after a natural disaster or on lands 

impacted by human alteration. 

Examples of these practices include: 

mowing, haying, grazing, fencing, offstream watering facilities, and invasive 

species control which are undertaken 

when fish and wildlife are not breeding, 

nesting, rearing young, or during other 

sensitive timeframes; 

20. Implementing soil erosion control 

measures on existing agricultural lands, 

such as grade stabilization structures 

(pipe drops), sediment basins, terraces, 

grassed waterways, filter strips, riparian 

forest buffer, and critical area planting; 

and 

21. Implementing water conservation 

activities on existing agricultural lands, 

such as minor irrigation land leveling, 

irrigation water conveyance (pipelines), 

irrigation water control structures, and 

various management practices. 

In addition to identifying these 

actions as categorical exclusions, NRCS 

is making editorial adjustments to 

§ 650.6 to clarify the process that 

applies to the programs originally 

identified as categorical exclusions 

under § 650.6(a), and the new 

categorical exclusions identified in a 

new paragraph (c). In particular, 

paragraph (b) of § 650.6 is revised to 

indicate that the procedures identified 

therein apply specifically to the 

programs identified in paragraph (a). 

The public is invited to submit 

comments on both the ‘‘The Statement 

Supporting the Proposed Categorical 

Exclusions’’ and the categorical 

exclusions listed above. See the 

ADDRESSES for instructions on 

submitting comments. ‘‘The Statement 

Supporting the Proposed Categorical 

Exclusions’’ is available at http://

www.nrcs.usda.gov/programs/

Env_Assess/index.html under ‘‘NRCS’ 

Proposed Expanded List of Categorical 

Exclusions.’’ In addition, hard copies 

may be obtained by contacting the 

NRCS National Environmental 

Coordinator, as provided above. 

List of Subjects in 7 CFR Part 650 

Environmental impact statements, 

Flood plains. 

■ For the reasons stated in the preamble, 

NRCS amends part 650 of Title 7 of the 

Code of Federal Regulations as set forth 

below: 

PART 650—COMPLIANCE WITH NEPA 

■ 1. The authority citation for part 650 

is amended to read as follows: 

Authority: 42 U.S.C. 4321 et seq.; 

Executive Order 11514 (Rev.); 7 CFR 2.62, 

unless otherwise noted. 

■ 2. Section 650.6 is amended by 

revising paragraph (b) and adding a new 

paragraph (c) to read as follows: 

§ 650.6 Categorical Exclusions 

* * * * * 

(b) When any new action is planned 

under the programs identified in 

paragraph (a) of this section, the EE 

performed by the RFO is to identify 

extraordinary circumstances that might 

lead to significant individual or 

cumulative impacts. Actions that have 

potential for significant impacts on the 

human environment are not 

categorically excluded. 

(c) The NRCS restoration and 

conservation actions and activities 

identified in this paragraph (c) are 

eligible for categorical exclusion and 

require the RFO to document a 

determination that a categorical 

exclusion applies. Agency personnel 

will use the EE review process to 

evaluate proposed activities for 

significant impacts and extraordinary 

circumstances using the significance 

criteria provided in 40 CFR 1508.27. In 

the absence of any extraordinary 

circumstances as determined through 

NRCS’ EE review process, the activities 

will be able to proceed without 

preparation of an EA or EIS. Where 


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Federal Register / Vol. 74, No. 132 / Monday, July 13, 2009 / Rules and Regulations 33323 

either significant impacts or 

extraordinary circumstances are 

determined to exist, the categorical 

exclusion will not apply and the 

appropriate documentation for 

compliance with NEPA will be 

prepared. The following actions are 

eligible for categorical exclusion: 

(1) Planting appropriate herbaceous 

and/or woody vegetation on disturbed 

sites to restore and/or maintain the site’s 

pre-disturbance vegetative community 

or similar adaptive naturalized 

vegetative community that provides 

analogous ecological functions and 

services; 

(2) Removing dikes and associated 

appurtenances (such as culverts, pipes, 

valves, gates, and fencing) to allow 

waters to access floodplains to the 

extent that had existed prior to the 

installation of such dikes and associated 

appurtenances; 

(3) Plugging and filling excavated 

drainage ditches to allow hydrologic 

conditions to return to pre-drainage 

conditions to the extent practicable; 

(4) Replacing and repairing existing 

culverts, grade stabilization, and water 

control structures and other small 

structures that were damaged by natural 

disasters where there is no new depth 

required and only minimal dredging, 

excavation, or placement of fill is 

required; 

(5) Restoring the natural topographic 

features of agricultural fields that were 

altered by farming and ranching 

activities for the purpose of restoring 

ecological processes; 

(6) Removing or relocating residential, 

commercial, and other public and 

private buildings and associated 

structures constructed in the 100-year 

floodplain or within the breach 

inundation area of an existing dam or 

other flood control structure in order to 

restore natural hydrologic conditions of 

inundation or saturation, vegetation, or 

reduce hazards posed to public safety; 

(7) Removing storm debris and 

sediment following a natural disaster 

where there is a continuing and eminent 

threat to public health or safety, 

property, and/or natural and cultural 

resources and removal is necessary to 

restore lands to pre-disaster conditions 

to the extent practicable. Excavation 

shall not exceed the pre-disaster 

condition; 

(8) Stabilizing stream banks and 

associated structures to reduce erosion 

through bioengineering techniques 

following a natural disaster to restore 

pre-disaster conditions to the extent 

practicable, e.g., utilization of living and 

nonliving plant materials in 

combination with natural and synthetic 

support materials, such as rocks, riprap, geo-textiles, for slope stabilization, 

erosion reduction, and vegetative 

establishment) and establishment of 

appropriate plant communities (bank 

shaping and planting, brush mattresses, 

log, root wad, and boulder stabilization 

methods); 

(9) Repairing or maintenance of 

existing small structures or 

improvements (including structures and 

improvements utilized to restore 

disturbed or altered wetland, riparian, 

in stream, or native habitat conditions). 

Examples of such activities include the 

repair or stabilization of existing stream 

crossings for livestock or human 

passage, levees, culverts, berms, dikes, 

and associated appurtenances; 

(10) Constructing small structures or 

improvements for the restoration of 

wetland, riparian, in stream, or native 

habitats. Examples of activities include: 

(i) Installation of fences, and 

(ii) Construction of small berms, 

dikes, and associated water control 

structures; 

(11) Restoring an ecosystem, fish and 

wildlife habitat, biotic community, or 

population of living resources to a 

determinable pre-impact condition; 

(12) Repairing or maintenance of 

existing constructed fish passageways, 

such as fish ladders or spawning areas 

impacted by natural disasters or human 

alteration; 

(13) Repairing, maintaining, or 

installing fish screens to existing 

structures; 

(14) Repairing or maintaining 

principal spillways and appurtenances 

associated with existing serviceable 

dams, originally constructed to NRCS 

standards, in order to meet current 

safety standards. Work will be confined 

to the existing footprint of the dam, and 

no major change in reservoir or 

downstream operations will result; 

(15) Repairing or improving 

(deepening/widening/armoring) existing 

auxiliary/emergency spillways 

associated with dams, originally 

constructed to NRCS standards, in order 

to meet current safety standards. Work 

will be confined to the dam or abutment 

areas, and no major change in reservoir 

or downstream operation will result; 

(16) Repairing embankment slope 

failures on structures originally built to 

NRCS standards where the work is 

confined to the embankment or 

abutment areas; 

(17) Increasing the freeboard (which is 

the height from the auxiliary 

(emergency) spillway crest to the top of 

embankment) of an existing dam or 

dike, originally built to NRCS standards 

by raising the top elevation in order to 

meet current safety and performance 

standards. The purpose of the safety 

standard and associated work is to 

ensure that during extreme rainfall 

events, flows are confined to the 

auxiliary/emergency spillway so that 

the existing structure is not overtopped 

which may result in a catastrophic 

failure. Elevating the top of the dam will 

not result in an increase to lake or 

stream levels. Work will be confined to 

the existing dam and abutment areas, 

and no major change in reservoir 

operations will result. Examples of work 

may include the addition of fill 

material, such as earth or gravel, or 

placement of parapet walls; 

(18) Modifying existing residential, 

commercial, and other public and 

private buildings to prevent flood 

damages, such as elevating structures or 

sealing basements to comply with 

current State safety standards and 

Federal performance standards; 

(19) Undertaking minor agricultural 

practices to maintain and/or restore 

ecological conditions in floodplains 

after a natural disaster or on lands 

impacted by human alteration. 

Examples of these practices include: 

Mowing, haying, grazing, fencing, offstream watering facilities, and invasive 

species control, which are undertaken 

when fish and wildlife are not breeding, 

nesting, rearing young, or during other 

sensitive timeframes; 

(20) Implementing soil control 

measures on existing agricultural lands, 

such as grade stabilization structures 

(pipe drops), sediment basins, terraces, 

grassed waterways, filter strips, riparian 

forest buffer, and critical area planting; 

and 

(21) Implementing water conservation 

activities on existing agricultural lands, 

such as minor irrigation land leveling, 

irrigation water conveyance (pipelines), 

irrigation water control structures, and 

various management practices. 

* * * * * 

Signed this 7th day of July, 2009, in 

Washington, DC. 

Dave White, 

Chief, Natural Resources Conservation 

Service. 

[FR Doc. E9–16400 Filed 7–10–09; 8:45 am] 

BILLING CODE 3410–16–P 


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