[Federal Register Volume 78, Number 177 (Thursday, September 12, 2013)]
[Rules and Regulations]
[Pages 56153-56164]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22151]


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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: Final rule.

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SUMMARY: The U. S. Department of Agriculture, Forest Service, gives 
notice of revised procedures for implementing the National 
Environmental Policy Act and Council on Environmental Quality 
regulations. These final implementing procedures are being issued in 
regulations concerning National Environmental Policy Act Compliance, 
which describes categorical exclusions. Categorical exclusions (CE) are 
categories of actions that normally will not result in individual or 
cumulative significant impacts on the quality of the human environment 
and, therefore, do not require analysis or documentation in either an 
environmental assessment or an environmental impact statement.
    The revision adds three new categorical exclusions for activities 
that restore lands negatively impacted by water control structures, 
disturbance events, and roads and trails. Activities that restore lands 
occupied by National Forest System Roads and National Forest System 
Trails are excluded from this final rule. These 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 
and sediment following disturbance events; and restore lands occupied 
by roads and trails to natural conditions.
    These categorical exclusions will not apply where resource 
conditions related to the potential effect of a proposed action 
constitute an extraordinary circumstance. Activities conducted under 
these categorical exclusions must be consistent with Agency procedures 
and applicable land management plans and must comply with all 
applicable Federal and State laws for protecting the environment.
    The road and trail restoration category will be used for restoring 
lands impacted by roads and trails that are not

[[Page 56154]]

needed, not maintained, and/or where public access is prohibited. This 
category will not be used to make access decisions about which roads 
and trails are to be designated for public use.

DATES: This rule is effective September 12, 2013.

ADDRESSES: The Forest Service National Environmental Policy Act 
procedures, including its list of categorical exclusions, are set out 
in Title 36, Code of Federal Regulations, Part 220, which is available 
electronically via the World Wide Web/Internet at http://www.gpoaccess.gov/cfr/index.html. Single paper copies are available by 
contacting Peter Gaulke, Forest Service, USDA, Ecosystem Management 
Coordination Staff (Mail Stop 1104), 1400 Independence Avenue SW., 
Washington, DC 20250-1104. Additional information and analysis can be 
found at http://www/fs/fed/us/emc/nepa.

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

    In 2009, Secretary of Agriculture Thomas J. Vilsack called for 
restoring forestlands to protect water resources, the climate, and 
terrestrial and aquatic ecosystems. The Forest Service spends 
significant resources on National Environmental Policy Act (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.
    The Forest Service is responsible for managing 192 million acres in 
National Forests, National Grasslands, and other areas known 
collectively as the National Forest System (NFS). The Chief of the 
Forest Service, through an organization of Regional Foresters, Forest 
Supervisors, and District Rangers, administers and manages the NFS's 
natural resources within the principle of multiple use and sustained 
yield. 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 damage resulting from past disturbance 
events. The Forest Service has found that under normal circumstances 
the environmental effects of certain restoration activities have not 
been individually or cumulatively environmentally significant. The 
Forest Service's experience predicting and evaluating the environmental 
effects of the category of activities outlined in this rule has led the 
Agency to supplement its NEPA regulations by adding three new 
categorical exclusions for activities that achieve soil and water 
restoration objectives.
    Category 18 allows the restoration of wetlands, streams, and 
riparian areas by removing, replacing, or modifying water control 
structures such as, but not limited to, dams, levees, dikes, drainage 
tiles, ditches, culverts, pipes, valves, gates, and fencing to allow 
waters to flow into natural channels and floodplains that restore 
natural flow regimes to the extent practicable.
    Category 19 allows for the removal of debris and sediment following 
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.
    Category 20 allows for implementing restoration activities that 
restore, rehabilitate, and/or stabilize lands occupied by roads and 
trails, excluding National Forest System Roads and National Forest 
System Trails, to a more natural condition by removing, replacing, or 
modifying drainage structures and ditches, reestablishing vegetation, 
reshaping natural contours and slopes, reestablishing drainage-ways, or 
other activities that will restore site productivity and reduce 
environmental impacts.
    These three Forest Service categorically excluded actions promote 
hydrologic, aquatic, and landscape restoration activities and thereby 
sustain natural resource values through more efficient management. All 
three CEs involve activities that are intended to maintain or restore 
ecological functions and better align the Agency's regulations, 
specifically its CEs, with the Agency's current activities and 
experiences related to restoration.
    Many national forests have unmaintained roads and trails that are 
not on the National Forest Transportation System or are unauthorized. 
These routes are often found adjacent or in close proximity to NFS 
roads and NFS trails. These roads and trails are a major challenge in 
many national forests and examples of significant environmental damage 
and safety issues.
    Restoring lands occupied by roads and trails 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 believes it is appropriate to establish soil and 
water restoration CEs based on NEPA implementing regulations at 40 CFR 
1500.4(p) and 1500.5(k) that identify a CE as a means to reduce 
paperwork and delays in project implementation, and based on the 
Agency's abundant information showing that the majority of these 
identified restoration actions have no significant impacts.
    The Forest Service prepares approximately 2,500 to 3,000 CE 
decision memos and 400 environmental assessments (EAs) each year. 
Because document preparation and review for CEs takes approximately 6 
to 9 months less time than a typical EA that can be hundreds of pages 
long, cost savings are significant. By using CEs, the Forest Service 
gains efficiencies that allow the Agency to move more efficiently 
through the environmental review process while not short-cutting public 
involvement or sacrificing environmental protection.
    The Council on Environmental Quality (CEQ) regulations at 40 CFR 
1507.3 provide that agency's National Environmental Policy Act (NEPA) 
procedures, after notice and comment, may identify categories of 
actions that do not have significant impacts on the human environment 
and, consequently, do not require preparation of an environmental 
assessment (EA) or an environmental impact statement (EIS). Current 
Forest Service procedures for complying with and implementing NEPA are 
set out in 36 CFR Part 220. Title 36 CFR 220.6 of the Forest Service 
NEPA Regulations lists the categories of actions that do not require 
preparation of an EA or an EIS by the Forest Service absent 
extraordinary circumstances.
    Pursuant to CEQ's implementing regulations at 40 CFR 1507.3 and the 
November 23, 2010, CEQ guidance memorandum on ``Establishing, Applying, 
and Revising Categorical Exclusions under the National Environmental 
Policy Act,'' (www.nepa.gov) the Forest Service

[[Page 56155]]

gathered information supporting establishment of these three 
categorical exclusions.
    Based on its review of all the information provided, the Forest 
Service finds that the CEs will not individually or cumulatively have 
significant effects on the human environment. The Agency's finding is 
predicated on data from implementing comparable past actions; the 
expert judgment of the responsible officials who made the findings for 
projects reviewed for this supporting statement; information from other 
professional staff, experts, and scientific analyses; a review and 
comparison of similar CEs implemented by other Federal agencies; and 
the Forest Service's experience implementing soil and water restoration 
activities and subsequent monitoring of potential associated impacts. 
This combination of reviews gives the Forest Service confidence that 
the CEs will facilitate scientifically sound, efficient, and timely 
planning and decision making for select soil and water restoration 
activities. Additional information regarding this review is available 
at http://www.fs.fed.us/emc/nepa/restorationCE.
    Actions relying on any of these CEs 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 CEs will require a project or case 
file and decision memo, including, in part, a rationale for using the 
CEs and a finding that extraordinary circumstances do not exist.
    The main clarifications to the proposed CEs in this final rule 
include:
     Clarifying that activities to remove, replace, or modify 
water control structures will not alter or cancel valid existing rights 
or special use authorizations;
     Adding text to an example in CE 18 that illustrates the 
size and scope of dam removal;
     Replacing the term ``non-system roads and trails'' with 
``excluding National Forest System Roads and National Forest System 
Trails'' in CE 20. This clarification ensures that terminology in CE 20 
conforms to corresponding terminology in Forest Service regulations and 
directives (36 CFR 212.1 and Forest Service Manual (FSM) 7705);
     Deleting an example in CE 20 that duplicates actions in 
another example;
     Removing example text that either directly or indirectly 
overlaps with existing CE activities--such as the removal of downed or 
damaged trees to restore wildlife or aquatic habitat; and
     Removing the distinction between ``natural or human'' 
caused disturbance events.
    Other clarifications are highlighted in the response to comments.
    Pursuant to regulations at 40 CFR 1505.1 and 1507.3, the Forest 
Service consulted with CEQ during the development of the CEs. Prior to 
the publication of these final CEs, CEQ provided written confirmation 
that amending Forest Service NEPA procedures by adding the new CEs was 
in conformity with NEPA and the CEQ regulations. This letter is 
available at http://www.fs.fed.us/emc/nepa/restorationCE.
    To improve clarity, the final rule received minor text adjustments 
and corrections to punctuation and grammar. These edits did not change 
the substance, meaning, or implementation of the CEs.

Comments on the Proposal

    The proposed rule was published in the Federal Register on June 13, 
2012 (77 FR 35323), for a 60-day comment period. The Forest Service 
received 9,660 responses, consisting of letters, emails, Web-based 
submissions, and facsimiles. Of those, 420 were original responses, and 
the remaining 9,240 responses were organized response campaign (form) 
letters. Comments were received from the public, local governments, and 
other State and Federal agencies. The respondents represented all 50 
States, the District of Columbia, Puerto Rico, Federated States of 
Micronesia, and several foreign countries. The States with the largest 
number of responses include California (1,708), New York (839), and 
Florida (589). The Forest Service received responses from two Federal 
agencies and 12 county government officials.
    Public comment on the proposed rule addressed a wide range of 
topics, many of which were directed at access and travel management 
issues on NFS lands. Many people supported the proposed CEs or favored 
further expansion of their categorically excluded activities, while 
many others opposed the proposal or recommended no further 
consideration of one or more of the categories. The Department 
considered all the comments and made a number of changes to the text of 
the CEs in response. A summary of comments received and the 
Department's responses follow.

Categorical Exclusion 18 Comments

    Some respondents suggested that removal of water control structures 
could have significant indirect effects by reducing flows to livestock 
watering holes and wildlife habitat. Others were concerned that the 
lack of thresholds would cause direct and indirect effects that would 
warrant documentation in an EA or EIS.
    Response: Typically, the Agency has found that these particular 
activities do not have significant effects. If the removal of a water 
control structure has potential for a ``significant'' effect, an EA or 
EIS will be prepared.
    CEs are an essential part of NEPA that provide an agency's 
determination that certain actions do not result in significant impacts 
to the environment, eliminating the need for lengthy documentation. The 
reduced documentation requirement for projects applying categorical 
exclusions does not mean that the projects avoid or escape 
environmental analysis. Rather, a thorough environmental analysis is 
conducted but paperwork is limited commensurate with an agency's 
experience conducting similar actions and with full regard to the 
potential for extraordinary circumstances that warrant preparation of 
an EA or EIS.
    These CEs will not apply where there are extraordinary 
circumstances such as adverse effects on threatened and endangered 
species or their designated critical habitat, wilderness areas, 
inventoried roadless areas, wetlands, and archeological or historic 
sites.
    One comment highlighted that dams vary in size, amount of water 
impounded and the amount of excavation, dredging, placement of fill, 
and reengineering needed. Other respondents commented that CE 18, as 
worded, lacked specific quantifiable limitations on the amount of 
acceptable ground disturbance while others suggest that the use of the 
term ``minimal'' required additional clarity.
    Response: CE 18 is limited to activities with a specific goal and 
outcome, which is restoration of lands impacted by water control 
structures. In response to the public comment for more specific 
limitations on the amount of ground disturbance, the Agency has further 
defined the category to not allow altering or canceling existing rights 
or special use authorizations; provided a specific example of a type of 
culvert to be replaced; and specific type and hazard potential of dams 
proposed for removal, replacement, or modification.
    Based on Forest Service direction in Forest Service Manual (FSM) 
7500, the text of CE 18 now includes an example that articulates the 
type and hazard potential of dams proposed for removal, replacement, or 
modification. This example provides a hazard classification that 
includes dams where failure, malfunction, or misoperation would

[[Page 56156]]

result in no probable loss of human life and minor damages limited to 
undeveloped or agricultural lands and for which significant 
improvements are not planned.
    One respondent commented that any proposal that requires a Clean 
Water Act National Pollution Discharge Elimination System (NPDS) or 
Section 401 permit should require documentation in a full EA or EIS and 
not be categorically excluded.
    Response: It is appropriate to coordinate NEPA review processes 
with other planning or environmental reviews (40 CFR 1500.2(c)). The 
mere existence of a State or Federal permit requirement is not a strong 
indicator of the degree of environmental significance of an action for 
purposes of NEPA. Also, State programs implementing NPDES requirements 
can be quite variable and would impede consistent application of NEPA 
across the National Forest System.
    Some respondents highlighted the concern that removal of water 
control structures without consideration or respect for State water 
laws, valid adjudicated water rights, and the constitutionally held 
water rights of States and individual citizens could result in a 
complete or partial taking. Similarly, several respondents stated that 
the Forest Service cannot, in contradiction to Federal policy, close 
any rights-of-way and remove access to water rights for present and 
future mineral or ranching operations.
    The Department recognizes the concern over protecting existing 
access and use of water and water-related facilities. Nothing in the 
final rule authorizes the alteration or revocation of any existing 
rights, contracts, permits, special use authorizations, or other legal 
instruments held by miners, grazing permittees, States, or other 
entities. To give further assurance that the function of this category 
deals exclusively with restoration of wetlands, streams and riparian 
areas, rather than affecting rights and privileges of use, CE 18 has 
been modified to include an express assurance and qualification that 
the category is only available where actions are consistent with valid 
existing rights and legal instruments.
    One respondent commented that any decision with respect to the 
efficacy, safety, or functioning of any small dam regulated by 
individual States is beyond the competence of any District Office or 
personnel of the Forest Service.
    Response: The Federal Guidelines for Dam Safety require periodic 
inspection and evaluation of dams to reduce the risk to human life and 
property from dam failure. In accordance with Forest Service direction 
(FSM 7504.6), Forest Supervisors are responsible for designating a 
qualified engineer to provide technical oversight of construction, 
inspection, and management of dams operated by the Forest Service.
    An operation and maintenance (O&M) plan is required for any dam 
with a significant or high hazard potential classification operated by 
the Forest Service or the holder of a special use authorization on NFS 
lands (FSM 7513). O&M plans may be prepared for dams with a low hazard 
potential classification if warranted based on their significance or 
complexity. The owner of a dam is responsible for preparing and 
maintaining an O&M plan for that dam. Coordination with the Forest 
Service and appropriate State agencies in the preparation of O&M plans 
for dams operated by the holder of a special use authorization is 
required. O&M plans for dams operated by the holder of a special use 
authorization are reviewed by a qualified engineer and approved by the 
authorized officer. Further direction regarding inspection programs is 
found in FSM 7514.

Categorical Exclusion 19 Comments

    One respondent suggested that the use of riprap, rocks, and 
bioengineering techniques are directly at odds with the concept of 
restoring natural processes.
    Response: CE 19 aims to restore uplands, wetlands, or riparian 
systems, to the extent practical, through the removal of debris and 
sediment following disturbance events. In some instances, this may 
include the stabilization of sediment sources through the use of 
riprap, rocks, and other techniques. By reducing sources of 
sedimentation downslope or downstream, wetlands or riparian systems 
have an increased likelihood of successful recovery from disturbance 
events.
    Some respondents commented on the use of the term ``human caused 
events'' and expressed concern that the term is ambiguous and could be 
broadly interpreted to include ``any multiple use activity undertaken 
by the Forest Service.''
    Response: The Department agrees that the use of the term ``human-
caused disturbance events'' provided a level of confusion. Similarly, 
limiting the category of actions to only ``natural disturbance events'' 
did not provide for restorative actions that result from events that 
result from man-caused events. In both cases, the intent of the 
category is for restoration activities that remove debris and sediment 
following disturbance ``events'', not correcting chronic sources of 
debris and sediment. With this in mind, the text of CE 19 was modified 
to remove reference to ``natural and human'' caused disturbance events 
by simply using the term ``disturbance event'' together with 
parenthetically including an example list of possible events. To 
clarify the intent of the category, the word ``directly'' now precedes 
the term disturbance event that focuses the restoration activities on 
disturbances, not past management activities.
    Other respondents requested clarification on the terms ``pre-
disturbance conditions'' and ``natural processes'' and how such 
conditions will be determined.
    Response: The Department determined that in some cases restoring 
sites to a natural condition, such as those conditions within the 
natural range of variation, is not attainable without major site 
reconstruction or may not be desirable due to current management and 
use of the site. Therefore, the use of the term ``pre-disturbance 
conditions'' was included. The intent of CE 19 is to stabilize debris 
and sediment sources and restore the sites to the conditions that 
existed prior to the disturbance event. The intent is not to modify the 
existing management emphasis or current use of the site.
    One comment highlighted the importance of downed and dead tree 
removal for restoration, clean-up, and repair activities along utility 
lines and corridors after a disturbance. Other respondents suggested 
that the proposed removal of downed and damaged trees is not needed to 
improve wildlife habitat and is unrelated to the restoration of soil 
and water resources. Another respondent suggested that the Forest 
Service should ensure that any potential benefits related to downed 
trees are evaluated prior to removing such debris from rivers and 
streams following natural events.
    Response: The Department believes that in certain cases the removal 
of down and damaged trees is beneficial to the habitat of terrestrial 
or aquatic species. The intent of this example is to restore sites 
impacted by disturbance events where the amount and juxtaposition of 
downed and damaged trees is negatively impacting species habitat 
recovery or presents a health and safety risk to the public.
    Upon further review, the Department believes that the Forest 
Service already has categories of actions that allow for wildlife 
habitat improvement; the maintenance of roads, trails, or utility 
lines; and the protection of public health and safety. For example, 
safety

[[Page 56157]]

hazard trees associated with roads, trails, recreation facilities, and 
administrative sites may be removed as part of routine maintenance of 
those facilities. Therefore, this example has been removed from CE 19 
in the final rule.

Categorical Exclusion 20 Comments

    Several respondents expressed a concern that the intent of CE 20 
has not been clearly articulated or justified.
    Response: The impact of roads and trails to watershed health has 
been widely documented. Roads affect watershed condition because more 
sediment is contributed to streams from roads and road construction 
than any other land management activity. Roads directly alter natural 
sediment and hydrologic regimes by changing streamflow patterns and 
amounts, sediment loading, transport, deposition, channel morphology 
and stability, and water quality and riparian conditions within a 
watershed. Roads can also increase sediment routing to streams by 
creating areas prone to surface runoff, altering slope stability in 
cut-and-fill areas, removing vegetation, and altering drainage 
patterns. Road density is known to add to sediment caused by erosion 
and mass wasting in upland forested landscapes in the Pacific 
Northwest, and it is reasonable to assume that similar relationships 
exist elsewhere. Road-related mass soil movements can continue for 
decades after roads have been constructed, and long-term slope failures 
frequently occur after road construction and timber harvest.
    CE 20 focuses on the restoration of lands occupied by roads and 
trails to restore site productivity and reduce environmental impacts. 
Project decisions made using this CE will be aimed at restoration goals 
and will not be used to make access decisions. The Forest Service 
maintains this intent of CE 20 by excluding its application from 
National Forest System Roads and National Forest System Trails. This 
category's focus is on roads and trails that have been illegally 
created, or have already been removed from the Agency's designated road 
and trail system. The intent of this category is to restore lands 
occupied by roads and trails where legal access is already prohibited.
    Many respondents expressed concern that establishment of CE 20 
would make it easier for the Forest Service to reduce the number and 
mileage of trails and roads and therefore exclude many legitimate uses 
of the Forests. Another respondent commented that further restriction 
of use by hikers, bicycles, motorcycles, horses, campers, and so on 
only increases the damage to the trails/roads that remain.
    Response: The road and trail restoration CE 20 will not be used to 
make access decisions about which roads and trails are to be designated 
open for public use, or which will be closed from public use. Nothing 
in the final rule revokes any contracts, special use authorizations, 
legal instruments, or right-of-way held by any entity. CE 20 will not 
restrict or remove the legal use or access of roads or trails by the 
recreational community, law enforcement personnel, search and rescue 
organizations, or other uses where that access and use is not already 
prohibited.
    The restoration of lands occupied by roads and trails is important 
to promote hydrologic, aquatic, and watershed restoration. This CE will 
allow the Forest Service to restore roads and trails more efficiently 
where public access is not currently permitted--roads and trails that 
are already closed.
    A number of respondents commented that the Forest Service should be 
opening up more lands for use by the public instead of removing roads 
and trails from the system, and characterized CE 20 as an effort to 
slowly remove any and all motorized vehicle access to NFS lands.
    Response: The Department disagrees with this characterization of 
this rule. CE 20 will not be used to remove motorized vehicle access. 
It will be used to restore lands where access is already prohibited.
    Additionally, unless specifically restricted, all NFS lands are 
open for use by the public. Yet, not all NFS lands are intended to be 
open or accessed by roads. The Forest Service's multiple-use mission 
does not contemplate that every acre of National Forest be managed for 
every multiple use as Congress recognizes that some land will be used 
for less than all of the resources (16 U.S.C. 531). The Forest Service 
provides for a wide range of user experiences, including remote 
recreational experiences that are accessed by non-road or trail access.
    One respondent stated that it is not motorized activities, but 
rather the lack of enforcement of existing laws governing motorized 
use, that cause resource damage. Others believe that rather than 
creating new rules, we need to enforce the ones we have.
    Response: Forest Service law enforcement personnel play a critical 
role in ensuring compliance with laws and regulations, protecting 
public safety, and protecting National Forest resources. However, the 
scope of this final rule does not address enforcement of motorized use 
on NFS lands. This final rule addresses environmental analysis and 
documentation efficiencies for the restoration of lands occupied by 
roads and trails, with the exception of National Forest System Roads 
and National Forest System Trails.
    Several respondents expressed the concern that road and trail 
closures, as well as removal of water barriers and bridges, will have a 
negative impact on Americans with disabilities that rely on this access 
to recreate on NFS lands.
    Response: Under section 504 of the Rehabilitation Act of 1973, no 
person with a disability can be denied participation in a Federal 
program that is available to all other people solely because of his or 
her disability. A person with a disability must be able to achieve the 
purpose of a Federal program without modification to the program that 
fundamentally alters its nature. A fundamental alteration of the nature 
of a program occurs when a basic aspect of that program is changed. 
USDA's program and activity requirements and compliance procedures 
implementing section 504 are set forth in 7 CFR Part 15e.
    In conformance with section 504, Americans with disabilities are 
welcome on all NFS lands that are open for public access. However, 
allowing people with disabilities to use routes that are not open to 
the public would fundamentally alter the nature of the Forest Service's 
travel management program.
    Many respondents commented that the Forest Service has not 
adequately assessed the present and future needs of its road and trail 
system to provide for its multiple-use mandate, including wildfire 
suppression, search and rescue activities, forest management, and 
multiple recreational activities.
    Response: The Forest Service is continuing to implement the 2005 
Travel Management Rule. Completion of Subpart A (36 CFR 212.5(b)) will 
identify a properly sized road system for each NFS unit. The ultimate 
goal is management and sustainability of a road system that minimizes 
adverse environmental impacts by assuring roads are in locations only 
where they are necessary to meet access needs, and can be maintained 
within budget constraints.
    Apart from the goals and implementation of the 2005 Travel 
Management Rule, this final rule will be used for restoring lands 
impacted by roads and trails that are no longer needed, no longer 
maintained, and/or where access is already prohibited. This category 
will not be used to make access

[[Page 56158]]

decisions about which roads and trails are to be designated for public 
use.
    A couple of respondents expressed concerns that the environmental 
effects of road obliteration are far greater and less desirable than 
allowing a roadway to recover naturally and ultimately could result in 
unforeseen and unacceptable indirect effects though flooding to 
downstream public and private property owners.
    Response: CE 20 allows for, barring the presence of extraordinary 
circumstances, a range of activities designed to restore lands impacted 
by roads and trails, excluding National Forest System Roads and 
National Forest System Trails. This includes the mechanized 
decommissioning activities, blocking of unauthorized access and 
allowing routes to recover naturally. Project-specific decisions on the 
appropriate method to restore impacted lands are based on site-specific 
conditions and will require a project or case file and decision memo, 
including, in part, a rationale for using the CE and a finding that 
extraordinary circumstances do not exist.
    Some respondents commented on the importance of roads and trails to 
tribal communities to access sacred sites and state that further 
reduction of these access routes would impact tribal elders who rely on 
this access to reach these areas. They recommended working with Tribes 
before making such decisions. Other respondents expressed concern over 
the impacts of decommissioning on cultural and archeological resources 
and on the historical importance that some of these routes hold for 
interpreting history.
    Response: Effects on tribal sacred sites and other areas of 
historical, archeological, and cultural importance to Tribes, including 
effects of tribal access to those sites, may be possible on specific 
sites where the CEs will be used. As with the implementation of all 
CEs, Tribes will be contacted during the scoping process for projects 
with tribal implications, even if the project may be categorically 
excluded from further analysis and documentation in an EA or EIS.
    Pursuant to Executive Order 13175, the Forest Service determined 
that this promulgation of this final rule would not have tribal 
implications requiring advance consultation. Yet the Forest Service 
maintains a strong commitment to government-to-government consultation 
on agency policies that may substantially affect Federally-recognized 
Indian Tribes, and to consulting with Alaska Native Corporations. Thus, 
on May 6, 2011, a package outlining the proposed rule was transmitted 
to each Forest Service Regional Forester for distribution and use in 
consultations with all Federally recognized Indian Tribes and Alaska 
Native Corporations
    Several respondents commented that CE 20, as worded, lacked 
specific quantifiable limitations on the amount of acceptable soil 
displacement, ground disturbance, or miles of road allowable. Another 
respondent suggested the Forest Service should be overly cautious on 
implementing CE 20 and should exclude categorically excluded activities 
in floodplains, riparian areas, and areas near streams.
    Other respondents state that while projects proposed under any CEs 
may have beneficial direct, indirect, and cumulative impacts that could 
be good; they also suggest numerical limits be placed on the size and 
scope of projects to ensure the benefits. Still other respondents 
contend that the proposed categories of actions do have significant 
effects and do not qualify for a CE.
    Response: The three soil and water restoration CEs set forth in 
this final rule are intended to implement restorative activities that 
benefit wetlands, floodplains, riparian areas, stream courses, and 
those sites that are negatively impacting watershed and riparian 
health. Excluding their use from floodplains, riparian areas, or areas 
adjacent to streams would substantially diminish their ability to 
benefit watershed, riparian and upland health, and the Agency's ability 
to expedite restoration activities that fall under these three 
categories of actions.
    CE 20 is for activities that restore, rehabilitate, or stabilize 
lands and to restore site productivity and reduce environmental impacts 
from existing site conditions. If there are extraordinary circumstances 
related to the proposed action, an EA or EIS will need to be prepared.
    Any activity performed using one of the three new CEs must meet all 
applicable Federal, State, and local laws, as well as land and resource 
management plan standards and guidelines. Under the three new 
categories, the responsible official must conduct appropriate 
consultations with Federal and State regulatory agencies such as those 
required by the Endangered Species Act and the National Historic 
Preservation Act. For decades, the Forest Service has implemented 
terrestrial and aquatic restoration projects. The Agency's careful 
analysis during this rulemaking and long experience in dealing with 
soil and water restoration treatments leads the Agency to conclude that 
implementation of the three new categories will not result in 
significant impacts on the environment.
    Several respondents argued that if a prior access decision was 
necessary to use CE 20, then little to no efficiency would be gained in 
the NEPA process.
    Response: CE 20 applies to roads and trails. The deliberate removal 
of a forest road or trail from the unit's travel management atlas would 
generally be accomplished through a unit's identification of the 
minimum road system needed for safe and efficient access, and the 
administration, use and protection of NFS lands. Such reviews are 
science based and include to the degree practical a broad spectrum of 
interested and affected citizens and other groups. Proposals based on 
the reviews are evaluated in compliance with NEPA. In cases where 
access decisions and road and trail decommissioning decisions are made 
at the same time, CE 20 will not be necessary. However, not all access 
decisions include specific proposals for decommissioning and CE 20 will 
be available in these situations.
    Several respondents expressed support and highlighted the 
importance of protecting and accelerating restoration on National 
Forests, including the water produced within its watersheds.
    Response: These comments were in support of the proposal and need 
no specific response.
    Several respondents suggested that it would be less expensive to 
maintain roads and trails than to decommission them. Others suggest 
that much of the resource damage on roads and tails is not from use by 
the public, but by the inability of the Forest Service to maintain 
them. In addition, several respondents addressed funding issues, such 
as how the Agency pays for restoration if it cannot pay for road 
maintenance.
    Response: CE 20 applies to restoring lands occupied by roads and 
trails excluding National Forest System Roads and National Forest 
System Trails. The Agency expends appropriated funds to maintain 
National Forest System Roads and National Forest System Trails for 
motor vehicle use.
    The Forest Service maintains forest roads and trails in accordance 
with their management objectives and availability of funding. 
Unfortunately, resources are limited, and the Forest Service has a 
substantial backlog of maintenance needs. The Agency's road maintenance 
funding has steadily decreased over the past decade, while trail 
maintenance funding has remained flat. These funding trends are 
anticipated to continue. Over time, all roads and trails

[[Page 56159]]

require some level of maintenance. In some cases, an extended lack of 
maintenance can lead to so much deterioration of a road or trail that 
it must be closed to administrative and public use or ecologically 
restored to address user safety or prevent severe environmental damage.
    Restoring lands occupied by roads and trails requires a one-time 
expense vs. long-term reoccurring road and trail maintenance funding.
    A number of respondents encouraged broadening the scope of CE 20 to 
include restoration of forest roads that are currently closed to 
motorized use while others encouraged the Forest Service to allow for 
NFS and unauthorized roads to be converted to NFS trails. Similarly, 
one respondent suggested that although some Forest roads are not 
designated for motor vehicle use, they could remain open to non-
motorized uses, such as mountain bicycling and horseback riding and 
should not be decommissioned.
    Response: Designation of routes for motor vehicle use is beyond the 
scope of this rulemaking. Designation of routes is occurring consistent 
with the Forest Service's travel management rule at the local level. 
Decisions regarding whether to authorize non-motorized uses on roads 
and trails not designated for motor vehicle use are also beyond the 
scope of this rulemaking. Decisions to authorize non-motorized uses on 
such routes are made at the local level, consistent with the applicable 
land management plan and road and trail management objectives and the 
long-term economic, social, and environmental sustainability of the 
unit's road and trail system.
    At this time the Department has chosen to move forward with 
establishing a road and trail restoration CE that excludes National 
Forest System Roads and National Forest System Trails. The Department 
agrees that proposals to convert certain NFS roads to NFS trails may be 
appropriate, and the Agency will continue to propose these conversions 
and document the appropriate environmental analysis and decision-making 
through existing CEs, an EA or, if necessary, in an EIS. The Department 
believes that the establishment of a CE for decisions that remove 
public and administrative use of forest transportation system roads and 
trails at this time is unnecessary and would divert public and agency 
focus from the Agency's continued implementation of the 2005 Travel 
Management Rule.
    The Department also believes that the evaluation of roads for 
conversion to other uses, including motorized and non-motorized trail 
designation, is best handled at the local level by officials with 
first-hand knowledge of the particular circumstances, uses and 
environmental impacts involved, working closely with local governments, 
users and other members of the public. The long-term economic, social, 
and environmental sustainability of the unit's road and trail system 
will also factor into this evaluation.
    One respondent suggested the Forest Service prioritize the use of 
CE 20 to those roads and trails that are negatively impacting aquatic, 
hydrologic, or watershed resources.
    Response: Roads and trails proposed for restoration are prioritized 
through a variety of criteria, including resource degradation, 
available funding, and public and private partnerships. Restoration 
activities, such as road and trail decommissioning, are also 
prioritized through the Watershed Condition Framework (WCF) (http://www.fs.fed.us/publications/watershed/), a comprehensive approach for 
proactively implementing integrated restoration on priority watersheds 
on National Forests and Grasslands. The WCF improves the way Forest 
Service approaches watershed restoration by targeting the 
implementation of integrated suites of activities in those watersheds 
that have been identified as priorities for restoration. The WCF 
prioritizes watersheds for restoration and develops watershed action 
plans that may include road and trail restoration proposals. 
Implementing CE 20 will allow the Agency to more efficiently improve 
watershed conditions by restoring lands occupied by unauthorized roads 
and trails that have been identified as sources of ecological 
degradation.
    Several comments highlighted the concern that decommissioning roads 
that have valid existing rights-of-ways may have significant impacts to 
local economies if roads that access water, grazing allotments, mineral 
entries, or other inholdings were eliminated under these proposed CE. 
Others expressed concerns over the social, cultural, and economic 
impacts, and unintended consequences that communities would encounter 
from road closures.
    Response: Most national forest visitors use authorized routes to 
access the national forests, whether for recreational sightseeing; 
camping and hiking; hunting and fishing; commercial purposes such as 
logging, mining, and grazing; administration of utilities and other 
land uses; outfitting and guiding; or many other multiple uses of NFS 
lands. Any access associated with the exercise of valid existing rights 
or other permitted authorized uses of the NFS will be on authorized 
private, NFS, or State, county, or local routes. Restoring roads and 
trails using CE 20 will not affect access via authorized routes.
    One respondent suggested that the proposed rule did not take a hard 
look at the environmental justice impacts under Executive Order 12898.
    Response: The Department takes its environmental justice 
responsibilities very seriously and principles of environmental justice 
are considered throughout decisionmaking. This final rule establishing 
these CEs does not itself compel or authorize any particular action and 
the Department sees no indication the establishment will cause 
disproportionately high and adverse effects on the environment and 
human health of minority and/or low-income populations. Further, the 
Forest Service applies strategies and techniques during its NEPA 
compliance efforts to ensure compliance with E.O. 12898 so that 
meaningful environmental justice considerations can be appropriately 
assessed at the project level.
    One respondent expressed concern that the proposed rule seeks to 
obliterate unauthorized routes, and the Forest Service cannot then 
fulfill its promise under 36 CFR 212.50 that such routes may be added 
to the forest transportation system.
    Response: The Department recognizes that the Forest Service's road 
and trail systems will continue to meet changing administrative and 
social needs and are based on the consideration of ecological, social, 
and economic sustainability. Designations of NFS roads, NFS trails, and 
areas on NFS lands pursuant to 36 CFR 212.51 may be revised as needed 
to meet changing conditions. Revisions of designations are made in 
accordance with the requirements for public involvement and the 
requirements for coordination with governments and Tribes. Public 
involvement is also required when restoration activities are proposed 
to be categorically excluded from documentation in an EA or EIS using 
CE 20.
    One respondent commented that all roads not identified on a 
national forest's motor vehicle use map under the travel management 
rule and process are considered ``unauthorized'' and could be 
decommissioned without further public comment.
    Response: Unauthorized roads defined in the travel management rule 
are not roads excluded from the Forest Service unit's motor vehicle use 
map. Any proposals to decommission roads (unauthorized or not), will go 
through the NEPA process, including ``scoping'' under Forest Service 
NEPA procedures.

[[Page 56160]]

Scoping is required for Forest Service categorical exclusions.
    Several respondents commented that the public involvement process 
on initial access decisions does not dampen the issues associated with 
road closures, and broad public involvement is warranted for projects 
subject to proposed CE 20. Others expressed concern that proposed CE 20 
would shortcut the public involvement process required by an EA or EIS 
conducted as part of the travel management process.
    Response: Public involvement associated with decommissioning forest 
roads as part of transportation planning is required by 36 CFR 
212.5(b). Public involvement associated with designation or revision of 
the motor vehicle use map maintained as part of the travel management 
rule is governed by 36 CFR 212.52. The Forest Service's experience is 
that the majority of issues associated with road and trail restoration 
activities are related to access and travel management policies, rather 
than from implementing restoration projects. CE 20 applies to 
restoration work on lands occupied by unneeded and unauthorized roads 
and trails and does not include National Forest System Roads and 
National Forest System Trails. When applying CE 20, Forest Service 
officials will conduct appropriate scoping and public involvement 
assuring that citizen views are taken into account in an appropriate 
manner given the context of the decisions being made.

Comments Applicable to All Three Categories

    One respondent expressed concern that the proposed CEs would allow 
the Forest Service to conduct work outside of NFS boundaries and as 
such could not be supported.
    Response: Establishing these CEs in the Agency's NEPA regulations 
does not expand the scope of the Forest Service's authority to fund, 
authorize or carry out restoration activities. Additionally, this rule 
does not authorize any on-the-ground actions, whether inside or outside 
the administrative boundary of the NFS. All Forest Service actions, 
whether on or off NFS lands, must be independently supported by valid 
statutory authority.
    One respondent questioned that Forest Service Chief Thomas L. 
Tidwell did not have delegated authority to promulgate rules and 
regulations, such as these proposed CEs.
    Response: The Chief of the Forest Service has been delegated 
authority to issue proposed rules relating to Forest Service programs 
(7 CFR 2.60(a)(37)). The authority to issue final rules and regulations 
relating to administration of Forest Service programs is reserved to 
the Secretary or Under Secretary for Natural Resources and Environment, 
except as otherwise provided (7 CFR 2.60(b)(1)).
    Several respondents expressed concern that the proposed rule is an 
attempt to circumvent the NEPA and the CEs given the Forest Service 
latitude to implement a wide and abusive range of activities when the 
language ``examples include but are not limited to'' is included.
    Response: When using these three CEs, the responsible officials 
will consider, on a project-by-project basis, whether or not any of the 
Forest Service identified extraordinary circumstances apply. The 
responsible official will prepare a project file and decision memo that 
will be available for public review (36 CFR 220.6(f)). The decision 
memo contains the responsible official's rationale for categorically 
excluding an action and selecting that particular category, and 
includes a determination that no extraordinary circumstances exist.
    CEs are an integral part of NEPA compliance and use of CEs in no 
way evades compliance with NEPA. Additionally, CEs are a legitimate 
tool for reducing excessive paperwork and avoiding allocating resources 
where they are not needed, thereby allowing the Agency to devote more 
resources to environmental analysis and subsequent decision-making. The 
CEQ regulations for implementing the procedural provisions of NEPA 
direct Federal agencies to identify those typical classes of actions 
that normally do not require either an EIS or EA (40 CFR 1507.3). CEQ 
defines such classes of actions as CEs. ``Categorical exclusion'' means 
a category of actions that do not individually or cumulatively have a 
significant effect on the human environment and that have been found to 
have no such effect in procedures adopted by a Federal agency in 
implementation of these regulations (Sec.  1507.3) and for which, 
therefore, neither an EA nor an EIS is required (40 CFR 1508.4).
    In subsequent guidance regarding NEPA regulations, CEQ explained 
that the use of CEs avoids unnecessary documentation of minor 
environmental effects in EAs and allows agencies to focus their 
environmental review efforts on the major actions that will have a 
significant effect on the environment (48 FR 34263), also see 40 CFR 
1500.4(p)). CEQ also encourages agencies to identify CEs using broadly 
defined criteria that characterize types of actions that normally do 
not have significant environmental effects, including cumulative 
effects (48 FR 34263).
    Concerns over the misuse of these CEs to allow soil and water 
restoration activities can be addressed through agency oversight on the 
application of the categories.
    Several comments supported the proposed CEs and NEPA efficiencies 
for projects that are intended to benefit the environment, and are 
likely to have little if any negative environmental effects. Others 
believe the Forest Service can continue to implement restoration 
projects effectively without these proposed CEs.
    Response: CEs are to be used for routine actions that have been 
found by the Forest Service through experience and environmental review 
to have no significant environmental effects either individually or 
cumulatively (40 CFR 1508.4). Forest Service NEPA procedures require 
that all proposed actions to be categorically excluded from 
documentation in an EA or EIS must be reviewed for extraordinary 
circumstances and may include appropriate surveys and analyses, taking 
into account best available science, and appropriate consultation with 
Tribes and regulatory agencies, as required by the Endangered Species 
Act, the National Historic Preservation Act, Clean Water Act, and Clear 
Air Act. Accordingly, these CEs do not apply where there are 
extraordinary circumstances (36 CFR 220.6(b)).
    Some respondents commented that the proposed CEs are redundant and 
suggested there are categories of actions already in place that cover 
water restoration, road maintenance and repair, riparian and habitat 
protection, or that a simple EA could suffice in other situations.
    Response: The Department has carefully reviewed the proposed rule 
against existing agency CEs and determined that the restoration 
activities promulgated in this final rule are not redundant with 
existing agency categories. The review of the proposed rule led to the 
elimination of CE 19, example 3, which was determined to be 
redundant with activities included under an existing category.
    Some respondents suggested the Forest Service should not rely 
solely on the judgment of the responsible official to decide whether an 
impact displays the necessary relationships and potential for effects 
and the subsequent need for an EA or EIS. They recommend numeric 
thresholds to determine when proposals no longer fit under CEs to 
prevent line officers from abusing their authority.

[[Page 56161]]

    Response: The Forest Service's NEPA procedures (36 CFR 220.6) list 
the categories of actions that the Agency has found typically will not 
have individually or cumulatively significant effects on the human 
environment. These procedures also provide for extraordinary 
circumstances in which a normally excluded action may have a 
significant environmental effect. These extraordinary circumstances 
includes a list of ``[r]esource conditions that should be considered in 
determining whether extraordinary circumstances related to the proposed 
action warrant further analysis and documentation in an EA 
[environmental assessment] or an EIS [environmental impact statement] . 
. .''

The regulations at 36 CFR 220.6(b)(2) also state,''[t]he mere presence 
of one or more of these resource conditions does not preclude use of a 
categorical exclusion. It is (1) the existence of a cause-effect 
relationship between a proposed action and the potential effect on 
these resource conditions and (2) if such a relationship exists, the 
degree of the potential effect of a proposed action on these resource 
conditions that determines whether extraordinary circumstances exist.
    The Forest Service has consistently considered current information 
when making initial determinations on the use of a CE. Pursuant to 
existing direction, the Forest Service must conduct a sufficient review 
to determine that no extraordinary circumstances preclude the use of 
CEs. This determination may include appropriate surveys, consideration 
of the best available science, consultation with Tribes, and 
coordination with agencies that have regulatory responsibilities under 
other statues, such as the Endangered Species Act, National Historic 
Preservation Act, Clean Water Act, and Clean Air Act. Responsible 
Officials consider, on a project-by-project basis, whether or not 
extraordinary circumstances exist.
    Many respondents expressed concern that the use of a CE does not 
provide for adequate public participation and disclosure, placing a 
proposal only in the Schedule of Proposed Actions is inadequate 
scoping, and that an EA or EIS is necessary for the activities proposed 
under these categories of actions.
    Response: As directed by CEQ regulations (40 CFR 1507.3), the 
Forest Service has developed agency policy for implementing the NEPA 
and CEQ's regulations. As noted in Forest Service NEPA regulations (26 
CFR 220.4(e)): ``Scoping is required for all Forest Service proposed 
actions, including those that would appear to be categorically excluded 
from further analysis and documentation in an EA [environmental 
assessment] or an EIS [environmental impact assessment].'' The FSH 
1909.15, chapter 10, section 11 further clarifies this stating: 
``Although the Council on Environmental Quality (CEQ) Regulations 
require scoping only for environmental impact statement (EIS) 
preparation, the Forest Service has broadened the concept to apply to 
all proposed actions.''
    As part of the scoping process for proposals potentially covered by 
these CEs, the responsible official must determine the extent of 
interest and invite the participation of affected Tribes, Federal 
agencies, State agencies, local agencies, and other interested parties, 
as appropriate. The Forest Service is committed to fulfilling its 
public involvement responsibilities with all parties interested in 
projects potentially qualifying for these CEs.
    Although not intended to be the sole scoping mechanism, the Forest 
Service also provides notice of upcoming proposals through the use of a 
Schedule of Proposed Actions (36 CFR 220.4(e)(3) and FSH 1909.15, Zero 
Code, sec. 06). The schedule gives early and informal notice of 
proposals to make the public aware of Forest Service activities and 
provides an opportunity for the public to indicate their interest in 
specific proposals. Schedules may be distributed in hard copy by the 
respective forest and can be found at http://www.fs.fed.us/sopa.
    Finally, it is important to note that the level of environmental 
documentation, whether in a CE, EA, or EIS is based on the potential 
for or lack of significant environmental effects.
    Many comments expressed concern that the use of a CE will reduce 
the need for public input and eliminate the notice, comment, and 
appeals procedure for these categories of actions.
    Response: On March 19, 2012, the U.S. District Court for the 
Eastern District of California found that Forest Service regulations 
exempting certain categorically excluded projects from notice, comment, 
and appeal violated the Appeals Reform Act (ARA) and enjoined the 
Forest Service, from applying 36 CFR 215.4(a) and 215.12(f) for certain 
categorical exclusions.
    The Forest Service has appealed that decision but instructed its 
Line Officers to abide and comply with the District Court's orders. At 
least for now, the three CEs are subject to the public notice, comment, 
and appeal procedures being applied for other CEs that require a 
decision memorandum (36 CFR 220.6(e)).
    One respondent stated the Forest Service has no mission to restore 
lands to pre-disturbance or pre-settlement conditions and suggested the 
type of restoration proposed in this rule does not meet NFS needs.
    Response: The authority for restoring NFS lands derives from many 
laws enacted by Congress that define the purpose of National Forests 
and Grasslands. Consistent with the Multiple-Use Sustained-Yield Act of 
1960 (16 U.S.C. 528-531) (MUSYA), the Forest Service manages the NFS to 
sustain the multiple use of its renewable resources in perpetuity while 
maintaining the long-term health and productivity of the land. 
Resources are managed through a combination of approaches and concepts 
for the benefit of human communities and natural resources. Land 
management plans guide sustainable, integrated resource management of 
the resources within the plan area in the context of the broader 
landscape, giving due consideration to the relative values of the 
various resources in particular areas.
    Thus the Forest Service has stated its mission is to ``Sustain the 
health, diversity, and productivity of the Nation's forests and 
grasslands to meet the needs of present and future generations'' (FSM 
1000, Zero Code, section 1020.21).
    FSM 2020 provides for using ecological restoration to manage NFS 
lands in a sustainable manner. This directive reaches across all 
program areas and activities applicable to managing NFS lands and 
resources so as to ensure integration and coordination at all levels 
and within all organizational units.
    One respondent commented that the information supporting the 
establishment of these CEs did not adequately address the socio-
economic effects, as well as environmental effects.
    Response: The primary economic effects of the CEs for soil and 
water restoration activities are changes in costs of conducting 
environmental analysis and documentation. Under current NEPA 
procedures, the level of analysis and documentation required for these 
activities often required agency personnel to extend processing 
timeframes and expend undue resources and funding to document 
restoration projects in an EA. The Forest Service has determined that 
this categorical exclusion will not have an annual effect of $100 
million or more on the economy or adversely affect productivity, 
competition, jobs, the environment, public health or safety, or tribal, 
State, or local governments. The economic effect from these CEs is 
expected to

[[Page 56162]]

result in a reduction in the administrative burden of preparing 
unnecessary EAs and findings of no significant impact.
    Commenters suggested that the proposed policy runs counter to the 
collaborative process established by Federal land managers and the use 
of the proposed CEs are not acceptable without first coordinating 
proposed actions with local governments and interested and affected 
public.
    Response: The Forest Service strongly believes in engaging Tribes 
and Native Corporations, other Federal agencies, State and local 
governments, individuals, and public and private organizations or 
entities, using collaborative processes where feasible and appropriate. 
CEs require scoping for public participation and the responsible 
official must determine the extent of interest and invite the 
participation of affected Federal agencies, affected Tribes, State and 
local agencies, and other interested parties, as appropriate. The 
scoping process may incorporate collaborative components in the public 
involvement process, as determined locally for a site-specific project 
based on the interested and affected public.
    One commenter questioned the validity of reviewing other agency CEs 
in supporting this proposed rule stating other agencies have missions, 
environmental and geophysical conditions, and a scope of projects that 
are different than those encountered by the Forest Service.
    Response: Pursuant to CEQ's November 23, 2010, CEQ guidance 
memorandum on ``Establishing, Applying, and Revising Categorical 
Exclusions under the National Environmental Policy Act,'' 
(www.nepa.gov) the Forest Service gathered information supporting 
establishment of these three CEs. The information gathered includes 
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 CEs implemented by other Federal agencies; and 
the Forest Service's experience implementing soil and water restoration 
activities and subsequent monitoring of potential associated impacts.
    The November 23, 2010, CEQ guidance memo also allows for the 
``benchmarking of other agency experiences,'' that is using comparable 
actions (categorically excluded actions) from other Federal agencies. 
The Forest Service has identified a set of CEs from other Federal 
agencies that have similar characteristics, similar methods of 
implementation; applicable procedures (including extraordinary 
procedures), and context and timing (including the environmental 
settings).

Conclusion

    The USDA Forest Service finds that the category of actions defined 
in the CEs presented at the end of this notice do not individually or 
cumulatively have a significant effect on the human environment. The 
Agency's finding is first predicated on the reasoned expert judgment of 
the responsible officials who made the original findings and 
determinations in the restoration projects reviewed; the professional 
staff and experts consulted on the activities in these CEs; the 
benchmarked CEs of other Federal agencies; and, finally, the Agency's 
judgment that the profile of soil and water restoration activities 
represents the Agency's past practices and is indicative of the 
Agency's future activities.
    These CEs will permit timely environmental documentation, decision-
making and implementation of select soil and water restoration 
activities. Additionally, it will conserve limited agency funds.
    The text of the final categorical exclusions is set out at the end 
of this notice.

Regulatory Certification

Environmental Impact

    The intent of the final rule is to increase administrative 
efficiency in connection with conducting important restoration 
activities while assuring that no significant environmental effects 
occur. The amendment of Forest Service NEPA Regulations (36 CFR 220.6) 
concerns NEPA documentation for certain types of soil and water 
restoration activities. The CEQ 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)). CEs are one part of those agency procedures, and therefore 
establishing CEs does not require preparation of a NEPA analysis or 
document. Agency NEPA procedures are internal procedural guidance to 
assist agencies in fulfilling 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 CEs 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 final 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 final 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 final rule would not interfere with an action 
taken or planned by another agency, nor would it raise new legal or 
policy issues. Finally, this final 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 final rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). The Agency has determined that 
this final rule would not have a significant economic impact on a 
substantial number of small entities as defined by the Act because the 
final rule would not impose record-keeping 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 final rule under the requirements of 
Executive Order 13132, ``Federalism.'' The Agency has concluded that 
the final 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.

[[Page 56163]]

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 final rule on Indian Tribes and 
has determined that it would not have substantial direct effects on one 
or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, and therefore the final rule would not 
have tribal implications. The final rule deals with requirements for 
NEPA analysis and has no direct effect on occupancy and use of NFS 
lands. The Agency has also determined that this final rule would not 
impose substantial direct compliance costs on Indian tribal governments 
or preempt tribal law. Therefore, it has been determined that this 
final rule does not require advance consultation with Indian Tribes 
under Executive Order 13175.

No Takings Implications

    This final 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 final rule would not pose the risk of a 
taking of protected private property.

Civil Justice Reform

    The Agency has reviewed this final rule under Executive Order 12988 
of February 7, 1996, ``Civil Justice Reform.'' After adoption of this 
final rule, (1) all State and local laws and regulations that conflict 
with this final rule or that would impede full implementation of this 
final rule would be preempted; (2) no retroactive effect would be given 
to this final rule; and (3) the final 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 rule on State, local, 
and tribal governments and the private sector. This final 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.

Energy Effects

    The Agency has reviewed this final rule under Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' The Agency has determined that 
this final rule does not constitute a significant energy action as 
defined in the Executive Order.

Controlling Paperwork Burdens on the Public

    This final 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 amends 
part 220 of Title 36 of the Code of Federal Regulations as follows:

PART 220--NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE

0
1. The authority citation for 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.


0
2. In Sec.  220.6, add paragraphs (e)(18), (19), and (20) to read as 
follows:


Sec.  220.6  Categorical exclusions.

* * * * *
    (e) * * *
    (18) Restoring wetlands, streams, riparian areas or other water 
bodies by removing, replacing, or modifying water control structures 
such as, but not limited to, dams, levees, dikes, ditches, culverts, 
pipes, drainage tiles, valves, gates, and fencing, to allow waters to 
flow into natural channels and floodplains and restore natural flow 
regimes to the extent practicable where valid existing rights or 
special use authorizations are not unilaterally altered or canceled. 
Examples include but are not limited to:
    (i) Repairing an existing water control structure that is no longer 
functioning properly with minimal dredging, excavation, or placement of 
fill, and does not involve releasing hazardous substances;
    (ii) Installing a newly-designed structure that replaces an 
existing culvert to improve aquatic organism passage and prevent 
resource and property damage where the road or trail maintenance level 
does not change;
    (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; and
    (iv) Removing a small earthen and rock fill dam with a low hazard 
potential classification that is no longer needed.
    (19) Removing and/or relocating debris and sediment following 
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 an unstable debris jam on a river following a flood 
event and relocating it back in the floodplain and stream channel to 
restore water flow and local bank stability;
    (ii) Clean-up and removal of infrastructure flood debris, such as, 
benches, tables, outhouses, concrete, culverts, and asphalt following a 
hurricane from a stream reach and adjacent wetland area; and
    (iii) Stabilizing stream banks and associated stabilization 
structures to reduce erosion through bioengineering techniques 
following a flood event, including the use 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 roads and trails, excluding National Forest System Roads 
and National Forest System 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

[[Page 56164]]

environmental impacts. Examples include but are not limited to:
    (i) Decommissioning a road that is no longer a National Forest 
System Road to a more natural state by restoring natural contours and 
removing construction fills, loosening compacted soils, revegetating 
the roadbed and removing ditches and culverts to reestablish natural 
drainage patterns; (ii) Restoring an unauthorized trail to a natural 
state by reestablishing natural drainage patterns, stabilizing slopes, 
reestablishing vegetation, and installing water bars; and
    (ii) Installing boulders, logs, and berms on an unauthorized road 
segment to promote naturally regenerated grass, shrub, and tree growth.
* * * * *

    Dated: August 30, 2013.
Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2013-22151 Filed 9-11-13; 8:45 am]
BILLING CODE 3410-11-P