[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Proposed Rules]
[Pages 35323-35326]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14284]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 220
RIN 0596-AD01
National Environmental Policy Act: Categorical Exclusions for
Soil and Water Restoration Activities
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed rule; request for public comment.
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[[Page 35324]]
SUMMARY: The United States Department of Agriculture, Forest Service,
is proposing to supplement its National Environmental Policy Act (NEPA)
regulations (36 CFR Part 220) with three new categorical exclusions for
activities that restore lands negatively impacted by water control
structures, natural and human caused events, and roads and trails.
These categorical exclusions will allow the Forest Service to more
efficiently analyze and document the potential environmental effects of
soil and water restoration projects that are intended to restore the
flow of waters into natural channels and floodplains by removing water
control structures, such as dikes, ditches, culverts and pipes; restore
lands and habitat to pre-disturbance conditions, to the extent
practicable, by removing debris, sediment, and hazardous conditions
following natural or human-caused events; and restore lands occupied by
roads and trails to natural conditions.
The proposed road and trail restoration category would be used for
restoring lands impacted by non-system roads and trails that are no
longer needed and no longer maintained. This category would not be used
to make access decisions about which roads and trails are to be
designated for public use.
DATES: Comments must be received in writing on or before August 13,
2012.
ADDRESSES: Submit comments online at http://www.regulations.gov. Submit
written comments by addressing them to Restoration CE Comments, P.O.
Box 4208, Logan, UT 84323, or by facsimile to (801) 397-1605. Please
identify your written comments by including ``Categorical Exclusions''
on the cover sheet or the first page. Electronic comments are
preferred. For comments sent via U.S. Postal Service, please do not
submit duplicate electronic or facsimile comments. Please confine
comments to the proposed rule on Categorical Exclusion for Restoration
Activities.
All comments, including names and addresses, when provided, will be
placed in the record and will be available for public inspection and
copying.
FOR FURTHER INFORMATION CONTACT: Peter Gaulke, Ecosystem Management
Coordination Staff, (202) 205-1521. Individuals who use
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at (800) 877-8339 between 8:00 a.m.
and 8:00 p.m. eastern standard time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background and Need for the Proposed Rule
In 2009, Secretary of Agriculture Tom Vilsack called for restoring
forestlands to protect water resources, the climate, and terrestrial
and aquatic ecosystems. The Forest Service spends significant resources
on NEPA analyses and documentation for a variety of land management
projects. The Agency believes that it is possible to improve the
efficiency of the NEPA process to speed the pace of forest and
watershed restoration, while not sacrificing sound environmental
analysis.
For decades, the Forest Service has implemented terrestrial and
aquatic restoration projects. Some of these projects encompassed
actions that promoted restoration activities related to floodplains,
wetlands and watersheds, or past natural or human-caused damage. The
Forest Service has found that under normal circumstances the
environmental effects of some restoration activities have not been
individually or cumulatively significant. The Forest Service's
experience predicting and evaluating the environmental effects of the
category of activities outlined in this proposed rule has led the
Agency to propose supplementing its NEPA regulations by adding three
new categorical exclusions for activities that achieve soil and water
restoration objectives.
The Forest Service's proposed categorically excluded actions
promote hydrologic, aquatic, and landscape restoration activities. All
three categorical exclusions involve activities that are intended to
maintain or restore ecological functions and better align the Agency's
regulations, specifically its categorical exclusions, with the Agency's
current activities and experiences related to restoration.
The restoration of lands occupied by unmaintained non-system roads
and trails (National Forest System Roads and Trails are defined at 36
CFR 212.1) is important to promote hydrologic, aquatic, and watershed
restoration. Activities that restore lands occupied by a road or trail
may include reestablishing former drainage patterns, stabilizing
slopes, restoring vegetation, blocking the entrance to the road,
installing waterbars, removing culverts, removing unstable fills,
pulling back road shoulders, and completely eliminating the road bed by
restoring natural contours and slopes. The Forest Service experience is
that the majority of issues associated with road and trail
decommissioning arise from the initial decision whether to close a road
or trail to public use rather than from implementing individual
restoration projects.
The Forest Service believes it is appropriate to establish soil and
water restoration categorical exclusions based on NEPA implementing
regulations at 40 CFR Sec. 1500.4(p) and 1500.5(k), which identify a
categorical exclusion as a means to reduce paperwork and delays in
project implementation, and the Agency's abundance of information
showing that the majority of these identified restoration actions have
no significant impacts.
Pursuant to CEQ's implementing regulations at 40 CFR Sec. 1507.3
and the November 23, 2010, CEQ guidance memorandum on ``Establishing,
Applying, and Revising Categorical Exclusions under the National
Environmental Policy Act,'' the Forest Service gathered information
supporting establishment of these three categorical exclusions using
the following four methods:
(1) The Forest Service reviewed EAs that implemented actions that
were entirely or partially covered under one of the proposed
categorical exclusions. This review showed that these projects did not
individually or cumulatively result in a significant effect on the
human environment.
(2) The Forest Service consulted with professional staff and
experts who have experience leading interdisciplinary teams and
conducting environmental analysis of project proposals, implementing
restoration activities, guiding the development and execution of
restoration programs, and studying the techniques, effects, and
outcomes associated with soil and water restoration activities. The
experience of these professional staff included persons from every
Forest Service and nearly every geographic region across the United
States, including Alaska.
(3) The Forest Service also studied peer-reviewed scientific
analyses, research papers, and monitoring reports about activities
identified under these categorical exclusions.
(4) Finally, the Forest Service reviewed categorical exclusions
adopted by eight other federal agencies that cover activities that are
comparable in size and scope and that are implemented under similar
natural resource conditions with similar environmental impacts to those
covered under the categories in this proposed rule.
Based on this review, the Forest Service finds that the proposed
categorical exclusions would not individually or cumulatively have
significant effects on the human environment. The Agency's finding is
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predicated on data from implementing comparable past actions; the
expert judgment of the responsible officials who made the findings for
the projects reviewed for this supporting statement; information from
other professional staff and experts, and scientific analyses; a review
and comparison of similar categorical exclusions implemented by other
federal agencies; and the Forest Service's experience implementing soil
and water restoration activities and subsequent monitoring of potential
associated impacts. Additional information is available at http://www.fs.fed.us/emc/nepa/restorationCE.
Implementing the Proposed Categorical Exclusion
Actions relying on one of these categorical exclusions remain
subject to agency requirements to conduct scoping and require a
determination that there are not extraordinary circumstances that would
otherwise require documentation in an EA or EIS. These proposed
categorical exclusions would require a project or case file and
decision memo, including, in part, a rationale for using the
categorical exclusion and a finding that extraordinary circumstances do
not require documentation in an EA or EIS.
Regulatory Certification
Environmental Impact
The intent of the proposed rule is to increase administrative
efficiency in connection with conducting important restoration
activities on National Forest System lands while assuring that no
significant environmental effects occur. The proposed amendment of
Forest Service NEPA Regulations (36 CFR 220.6) concerns NEPA
documentation for certain types of soil and water restoration
activities. The Council on Environmental Quality does not direct
agencies to prepare a NEPA analysis or document before establishing
agency procedures that supplement the CEQ regulations for implementing
NEPA. Agencies are required to adopt NEPA procedures that establish
specific criteria for, and identification of, three classes of actions:
Those that require preparation of an EIS; those that require
preparation of an EA; and those that are categorically excluded from
further NEPA review (40 CFR 1507.3(b)). Categorical exclusions are one
part of those agency procedures, and therefore establishing categorical
exclusions does not require preparation of a NEPA analysis or document.
Agency NEPA procedures are internal procedural guidance to assist
agencies in the fulfillment of agency responsibilities under NEPA, but
are not the agency's final determination of what level of NEPA analysis
is required for a particular proposed action. The requirements for
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and
1507.3. The determination that establishing categorical exclusions 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. Ill. 1999), aff'd, 230 F. 3d 947, 954-55 (7th Cir. 2000).
Regulatory Impact
This proposed rule has been reviewed under USDA procedures and
Executive Order 12866 on regulatory planning and review. The Office of
Management and Budget has determined that this is not a significant
rule. The proposed rule would not have an annual effect of $100 million
or more on the economy, nor would it adversely affect productivity,
competition, jobs, the environment, public health or safety, or state
or local government. This proposed rule would not interfere with an
action taken or planned by another agency, nor would it raise new legal
or policy issues. Finally, this proposed rule would not alter the
budgetary impacts of entitlements, grants, user fees, or loan programs,
or the rights and obligations of recipients of such programs.
Regulatory Flexibility Act
This proposed rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). The Agency has determined that
this proposed rule would not have a significant economic impact on a
substantial number of small entities as defined by the Act because the
proposed rule would not impose recordkeeping requirements; it does not
affect their competitive position in relation to large entities; and it
would not affect their cash flow, liquidity, or ability to remain in
the market.
Federalism
The Agency has considered this proposed rule under the requirements
of Executive Order 13132, ``Federalism.'' The Agency has concluded that
the proposed rule conforms with the federalism principles set out in
this Executive Order; would not impose any compliance costs on the
states; and would not have substantial direct effects on the states or
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, the Agency has determined that no further
assessment of federalism implications is necessary.
Consultation and Coordination With Indian Tribal Governments
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' the
Agency has assessed the impact of this proposed rule on Indian Tribal
governments and has determined that it would not significantly or
uniquely affect communities of Indian Tribal governments. The proposed
rule deals with requirements for NEPA analysis and has no direct effect
on occupancy and use of National Forest System lands. The Agency has
also determined that this proposed rule would not impose substantial
direct compliance costs on Indian Tribal governments or preempt Tribal
law. Therefore, it has been determined that this proposed rule would
not have Tribal implications requiring advance consultation with Indian
Tribes.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights.'' The Agency has determined that the proposed rule
would not pose the risk of a taking of protected private property.
Civil Justice Reform
The Agency has reviewed this proposed rule under Executive Order
12988 of February 7, 1996, ``Civil Justice Reform.'' After adoption of
this proposed rule, (1) all state and local laws and regulations that
conflict with this rule or that would impede full implementation of
this rule would be preempted; (2) no retroactive effect would be given
to this proposed rule; and (3) the proposed rule would not require the
use of administrative proceedings before parties could file suit in
court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Agency has assessed the effects of this proposed rule on
state, local, and Tribal governments and the private sector. This
proposed rule would not compel the expenditure of $100 million or more
by any state, local, or Tribal government or anyone in the private
sector. Therefore, a statement under section 202 of the act is not
required.
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Energy Effects
The Agency has reviewed this proposed rule under Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' The Agency has determined that
this proposed rule does not constitute a significant energy action as
defined in the Executive Order.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any additional record keeping
or reporting requirements or other information collection requirements
as defined in 5 CFR part 1320 that are not already required by law or
not already approved for use, and therefore, imposes no additional
paperwork burden on the public. Accordingly, the review provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects in 36 CFR Part 220
Administrative practices and procedures, Environmental impact
statements, Environmental protection, National forests, Science and
technology.
For the reasons set out in the preamble, the Forest Service
proposes to amend part 220 of title 36 of the Code of Federal
Regulations as follows:
PART 220--NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE
1. The authority citation for 36 CFR part 220 continues to read as
follows:
Authority: 42 U.S.C. 4321 et seq.: E.O. 11514; 40 CFR parts
1500-1508; 7 CFR part 1b.
2. In Sec. 220.6, add paragraphs (e)(18), (19), and (20)
categorical exclusion categories read as follows:
Sec. 220.6 Categorical exclusions.
* * * * *
(e) * * *
(18) Restoring wetlands, streams, and riparian areas by removing,
replacing, or modifying water control structures such as, but not
limited to, dams, levees, dikes, ditches, culverts, pipes, valves,
gates, and fencing, to allow waters to flow into natural channels and
floodplains and restore natural flow regimes to the extent practicable.
Examples include but are not limited to:
(i) Removing, replacing, or repairing existing water control
structures that are no longer functioning properly; only minimal
dredging, excavation, or placement of fill is required and do not
involve releasing hazardous substances;
(ii) Installing a newly designed culvert that replaces an existing
inadequate culvert to improve aquatic organism passage or prevent
resource or property damage where the road or trail maintenance level
does not change; and
(iii) Removing a culvert and installing a bridge to improve aquatic
and/or terrestrial organism passage or prevent resource or property
damage where the road or trail maintenance level does not change.
(19) Removing debris and sediment following natural or human-caused
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian
systems to pre-disturbance conditions, to the extent practicable, such
that site conditions will not impede or negatively alter natural
processes. Examples include but are not limited to:
(i) Removing deposited debris and sediment resulting from natural
or human-caused disturbance events from impacted sites using manual or
mechanized equipment where minimal excavation is required;
(ii) Clean-up and removal of infrastructure debris, such as,
benches, tables, outhouses, concrete, culverts, and asphalt following a
flood event from a stream reach and/or adjacent wetland area;
(iii) Removal of downed or damaged trees that limit or reduce
public access, result in potential risks to public safety, or where
removal is needed to restore wildlife, or protect infrastructure; and
(iv) Stabilizing stream banks and associated stabilization
structures to reduce erosion through bioengineering techniques
following a natural or human-caused event, including the 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).
(20) Activities that restore, rehabilitate, or stabilize lands
occupied by non-National Forest System roads and trails to a more
natural condition that may include removing, replacing, or modifying
drainage structures and ditches, reestablishing vegetation, reshaping
natural contours and slopes, reestablishing drainage-ways, or other
activities that would restore site productivity and reduce
environmental impacts. Examples include but are not limited to:
(i) Decommissioning of anon-system road to a more natural state by
restoring natural contours and removing construction fills,
revegetating the roadbed and removing ditches and culverts;
(ii) Restoring a non-system trail by reestablishing natural
drainage patterns, stabilizing slopes, reestablishing vegetation, and
installing water bars;
(iii) Completely eliminating the roadbed of unauthorized roads by
loosening compacted soils, removing culverts, reestablishing natural
drainage patterns, restoring natural contours, and restoring
vegetation; and
(iv) Installing boulders, logs, and berms on a non-system trail
segment to promote naturally regenerated grass, shrub, and tree growth.
Dated: May 11, 2012.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2012-14284 Filed 6-12-12; 8:45 am]
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