[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Rules and Regulations]
[Pages 68648-68664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32882]
[[Page 68647]]
_______________________________________________________________________
Part VI
Department of Agriculture
_______________________________________________________________________
Rural Utilities Service
_______________________________________________________________________
7 CFR Part 1780 and 1794
Environmental Policies and Procedures; Final Rule
Federal Register / Vol. 63, No. 238 / Friday, December 11, 1998 /
Rules and Regulations
[[Page 68648]]
DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Parts 1780 and 1794
RIN 0572-AB33
Environmental Policies and Procedures
AGENCY: Rural Utilities Service, USDA.
ACTION: Final rule.
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SUMMARY: The Rural Utilities Service (RUS) hereby revises its existing
environmental regulations, Environmental Policies and Procedures, which
have served as RUS implementation of the National Environmental Policy
Act (NEPA) (42 U.S.C. 4321 et seq.) in compliance with the Council on
Environmental Quality (CEQ) Regulations for Implementing the Procedural
Provisions of the NEPA. Based on new Congressional mandates, changes in
the electric industry, and RUS experience and review of its existing
procedures, RUS has determined that several changes are necessary for
its environmental review process to operate in a smooth, efficient, and
effective manner.
The implementation of this rule has required that certain changes
be made to 7 CFR part 1780 regarding environmental compliance. The
amendments published in this document consist of those necessary to
make the provisions of Part 1780 subject to the environmental
requirements of this rule.
EFFECTIVE DATE: December 11, 1998.
FOR FURTHER INFORMATION CONTACT: Gary J. Morgan, Director, or Lawrence
R. Wolfe, Senior Environmental Protection Specialist, Engineering and
Environmental Staff; Rural Utilities Service, Stop 1571, 1400
Independence Ave., SW., Washington, DC 20250-1571. Telephone (202) 720-
1784. E-mail address [email protected] or [email protected].
This rule and the guidance bulletins described in this rule will be
available on the Internet via the RUS home page at www.usda.gov/rus/.
SUPPLEMENTARY INFORMATION:
Classification
This rule has been determined to be significant and was reviewed by
the Office of Management and Budget (OMB) under Executive Order 12866.
Civil Justice Reform
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. RUS has determined that this proposed rule meets the
applicable standards provided in sec. 3 of the Executive Order.
In accordance with the Executive Order and the rule; (1) all state
and local laws and regulations that are in conflict with this rule will
be preempted; (2) no retro-active effect will be given to the rule; and
(3) administrative proceedings are required to be exhausted prior to
initial litigation against the Department (7 U.S.C. 6912).
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), RUS certifies that this rule will not have a significant
economic impact on a substantial number of small entities. If a rule
has a significant economic impact on a substantial number of small
entities, the Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. The application for financial assistance under the
RUS Electric and Telecommunications programs and the application for
loans and grants under the RUS Water and Waste program are
discretionary; regulatory requirements will, therefore, apply only to
those entities which choose to apply for financial assistance or
funding.
Information Collection and Recordkeeping Requirements
The recordkeeping and reporting burdens contained in this rule were
approved by the Office of Management and Budget (OMB) pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35,) under control
number 0572-0117.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review to eliminate unnecessary regulations and improve
those that remain in force.
Environmental Justice
This rule is subject to the requirements of Executive Order 12898,
Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations. Implementation of these
requirements will occur at the time of actions performed hereunder.
National Environmental Policy Act Certification
The Administrator of RUS has determined that this rule will not
significantly affect the quality of the human environment as defined by
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
Therefore, this action does not require an environmental impact
statement or assessment.
Catalog of Federal Domestic Assistance
The programs described by this proposed rule are listed in the
Catalog of Federal Domestic Assistance programs under numbers 10.850,
Rural Electrification Loans and Loan Guarantees, 10.851, Rural
Telephone Loans and Loan Guarantees, 10.760, Water and Waste Disposal
System for Rural Communities, 10.764, Resource Conservation Development
Loans, and 10.765, Watershed Protection and Flood Prevention Loans.
This catalog is available on a subscription basis from the
Superintendent of Documents, the U.S. Government Printing Office,
Washington, DC 20402.
Intergovernmental Review
This rule excludes the Electric and Telecommunications Programs
from the scope of Executive Order 12372, Intergovernmental
Consultation, which may require consultation with State and local
officials. A final rule related notice entitled, ``Department Program
and Activities Excluded from Executive Order 12372,'' (50 FR 47034)
determined that RUS loans and loan guarantees, and RTB bank loans, were
not covered by Executive Order 12372. The Water and Waste Program is
subject to the provisions of Executive Order 12372. Consultation will
be completed at the time of actions performed hereunder.
Unfunded Mandates
This rule contains no Federal mandates (under the regulatory
provision of Title II of the Unfunded Mandates Reform Act) for State,
local, and tribal governments or the private sector. Thus this rule is
not subject to the requirements of section 202 and 205 of the Unfunded
Mandates Reform Act.
Background
On March 13, 1984, the Rural Electrification Administration
(predecessor of RUS) published 7 CFR Part 1794, Environmental Policies
and Procedures, as a final rule in the Federal Register (49 FR 9544)
covering the actions of the Electric and Telecommunications programs.
Based on new congressional mandates, changes in the electric industry,
and RUS experience and review of its existing procedures, RUS has
determined that several changes are necessary for its environmental
review process to operate in a smooth, efficient, and effective manner.
[[Page 68649]]
The existing 7 CFR part 1794 was designed to implement the
requirements of NEPA and the CEQ regulations for RUS Electric and
Telecommunications programs. As a result of the Federal Crop Insurance
Reform and Department of Agriculture Reorganization Act of 1994 (Pub.
L. 103-354, 108 Stat. 3178), the programs of the Rural Electrification
Administration, were combined with the Water and Waste program from the
former Farmers Home Administration (FmHA) into RUS. Most changes
proposed to 7 CFR part 1794 result from the addition of the Water and
Waste program to RUS.
For further guidance in the preparation of public notices and
environmental documents, RUS has prepared a series of guidance
bulletins. Three program specific bulletins are available which provide
guidance in preparing the Environmental Report (ER) for proposed
actions classified as categorical exclusions and proposed actions which
require an Environmental Assessment (EA). Further information on these
bulletins is provided in Sec. 1794.7.
This final rule contains a variety of substantive and procedural
changes from the provisions of the current rule. Some of these
revisions are minor (Sec. 1794.4, Trivial Violations was deleted) or
are merely intended to clarify existing RUS policies and procedures
(Sec. 1794.6, Definitions, was added). Other revisions reflect changes
in RUS implementation of the CEQ regulations as outlined below.
The relationship between RUS and its Electric and
Telecommunications applicants has changed substantially since RUS
issued the final rule in March of 1984. Changes that have occurred in
the last 4 years have been particularly dramatic. Historically, RUS
provided substantially all of its applicants' capital needs and
established a lending relationship reflecting that dominant lending
role. However, because of limited annual loan authorization levels, RUS
no longer serves such a role. Moreover, in a 1993 amendment to section
306E of the Rural Electrification Act of 1936 (RE Act), as amended (7
U.S.C. 936e), Congress required RUS to abandon its close hands-on
control of its applicants and instead follow the practices of private
market lenders. RUS has done so through the development of new forms of
loan agreements and security instruments and the publication of 7 CFR
Part 1717, subpart M, Operational Controls, which reduce or eliminate
much of the oversight and control historically exercised by RUS over
its Electric applicants.
Reflecting these changes and reforms, RUS has revised Sec. 1794.3
of the rule. Environmental reviews will continue to be required in
connection with the approval of financial assistance for applicants and
the issuance of rules, regulations, and bulletins by RUS. However, no
reviews will be required in connection with approvals provided by RUS
pursuant to its loan contracts and security instruments with applicants
such as approvals of lien accommodations or the use of general funds by
applicants. These approvals are not major Federal actions significantly
affecting the quality of the human environment.
Within subpart C of this rule, a classification system defines the
level of environmental review required for RUS and applicant proposed
actions. In Section 1794.20 RUS has clarified its position for
determining circumstances under which an applicant's participation in a
project results in a Federal action. Sections 1794.21 through 1794.25
of this subpart are further subdivided when appropriate to
differentiate between actions being proposed by RUS and actions
proposed by Electric, Telecommunications, and Water and Waste program
applicants.
A number of classification changes have been made within subpart C
of this rule. These reclassifications involve minor actions proposed by
applicants which rarely, if ever, result in significant environmental
impact or public interest. RUS believes this rule includes adequate
safeguards to identify any unusual circumstances that may require
additional agency scrutiny.
RUS has modified the thresholds for acreage (facility sites), and
capacity (generation facilities) within Sec. 1794.22(a). In addition to
modifying the thresholds for acreage and capacity, RUS has imposed
different thresholds for construction of electric generating capacity
at new sites versus existing sites within Sec. 1794.23(c). Acreage and
capacity threshold changes within Sec. 1794.24, and a capacity
threshold change within Sec. 1794.25 reflect changes that have been
made in Secs. 1794.22(a), and 1794.23(c). No changes were made to the
existing thresholds for transmission line length. Capacity thresholds
have been eliminated for hydroelectric proposals in Secs. 1794.22 and
1794.23. RUS will normally adopt the NEPA document prepared by the
Federal licensing agency of hydroelectric projects in which RUS
applicants participate.
The thresholds for proposed actions in the Water and Waste program
are classified in Secs. 1794.21(c) and 1794.22(b). Based on historical
experience and a survey of the thresholds established by the
Environmental Protection Agency which administers similar programs, RUS
has eliminated the two tiered classification for EAs that is contained
in 7 CFR Part 1940, Subpart G, the environmental regulation of the
former FmHA, and adopted the more traditional classification scheme as
outlined in 40 CFR 1508.9. Because RUS co-funds a significant portion
of its projects with other Federal and state agencies, a more
traditional classification and documentation scheme is thought to be
more conducive to minimizing duplicative environmental review efforts.
RUS has modified its procedures in subparts D through G of this
part. The EA will be the subject document of the notice of availability
requirements in Sec. 1794.42, where previously, the applicant's ER was
the subject document. By this change, the notice requirements for all
three programs will be consistent for both EA proposals and EA with
scoping proposals. This change will encourage more public involvement
by allowing public review of EA proposals prior to the issuance of a
Finding of No Significant Impact (FONSI).
RUS has also changed its notice requirements for Electric program
projects requiring scoping. The timing of RUS Federal Register notice
for public scoping meetings in Sec. 1794.52(b) has been reduced from 30
days to 14 days prior to the meeting. No appreciable benefit resulted
from an earlier notice requirement. The existing regulation allows RUS
to adopt the applicant's ER as its EA but requires RUS to prepare its
own EA from the applicant's Environmental Analysis (EVAL) where a
proposed action requires scoping. RUS has changed this requirement by
allowing the EVAL to serve as its EA (see Sec. 1794.53) consistent with
40 CFR Sec. 1506.5(b).
RUS has modified its policy regarding the use of contractor
prepared EISs. Under the existing regulation, RUS was required to use
agency funds when an independent contractor was chosen by RUS to
prepare the EIS. In accordance with the provisions of 7 CFR Part 1789,
``Use of Consultants Funded by Applicants'' and Section 759A of the
Federal Agriculture Improvement and Reform Act of 1996, the draft and
final EIS may be prepared by a consultant selected by RUS and funded by
the applicant. A new requirement, publication of a notice of
availability by RUS and the applicant for a Record of Decision is
established in Sec. 1794.63.
[[Page 68650]]
Preparation of the Rulemaking
The proposed rule (7 CFR part 1794) was published in the Federal
Register on November 24, 1997 (62 FR 62527). Public comment was invited
for a 60-day period, ending on January 23, 1998.
Eighty-nine written comments were received representing 32 specific
organizations and individuals. These included two Federal agencies,
eight Federal agency state offices, one regional commission, two
electric cooperative associations, and seventeen rural electric
cooperatives. All comments were fully considered when revising the
proposed rule for publication as a final rulemaking.
Every effort has been made to respond in detail in the preamble to
every question raised or suggestion offered. Where commenters pointed
out errors in spelling, syntax, and minor technical errors these errors
were corrected and not mentioned further in the preamble. In addition,
many commenters made similar suggestions or raised similar issues. In
the interest of clarity, comments that were similar in nature were
grouped and discussed in the most relevant section in the preamble.
Some comments pointed out vague and unclear language. Clarifying and
explanatory language was added to the rule and preamble as appropriate.
The discussion under General Comments responds to general comments and
clarification of misunderstandings as to RUS's intent. The statements
under Comments on Specific Sections address the more significant
comments received on particular provisions and how RUS responded to
them.
General Comments
Several comments focused on the background discussion of the
preamble to the proposed rule regarding the proposed renumbered
Sec. 1794.3, entitled ``Actions requiring environmental review.'' The
background discussion explained that, because of changes in law and
reforms in the Electric and Telecommunications industry, RUS proposed
to revise that section to reflect that RUS would no longer treat as
Federal actions subject to environmental reviews, approvals provided by
RUS pursuant to its loan contracts and security instruments. The
preamble explained that these approvals are ``ministerial'' and not
major Federal actions for the purposes of NEPA. The commenters, who
uniformly supported the proposed revision, asked that RUS identify all
approvals that would no longer be subject to environmental review or
clarify that only the approval of loans and loan guarantees will
require an environmental review.
Agency Response: The proposed revision to Sec. 1794.3 deletes
reference to ``lien accommodations, and approvals provided pursuant to
loan contracts and security instruments (e.g., approvals of the use of
general funds).'' In pertinent part, the revised section identifies as
actions requiring environmental review, ``the approval of financial
assistance pursuant to the Electric, Telecommunications, and Water and
Waste Programs.'' In response to the comments, RUS has added a
clarifying sentence to Sec. 1794.3 stating that, ``Approvals provided
by RUS pursuant to loan contracts and security instruments, including
approvals of lien accommodations, are not actions for the purpose of
this part and the provisions of this part shall not apply to the
exercise of such approvals.'' RUS believes that, while it is
principally the approvals of loans and loan guarantees to which
environmental reviews attach, it is possible that other types of
discretionary financial assistance could be available under the RUS
program, which would trigger environmental reviews. Examples include
lien subordinations under Sec. 306 of the RE Act (7 U.S.C. 936). The
regulatory text should not limit those actions requiring environmental
review to the approval of loans and loan guarantees. Consequently, no
other change has been made in response to the comments.
Ten commenters expressed concern about the two-tier classification
that was created for ``categorically excluded'' proposals in
Secs. 1794.21 and 1794.22, which they believe is overly burdensome and
confusing. They further believe that many of the size, voltage,
distance, and acreage thresholds have been arbitrarily determined and
need to be reevaluated.
Agency Response: RUS established the two-tier classification system
for categorically excluded proposals specifically to reduce the burden
on applicants without compromising the requirements of NEPA and the CEQ
regulations. Categorically excluded proposals listed in Sec. 1794.21
normally do not significantly impact the quality of the human
environment. Therefore the submittal of an ER is not required. An ER is
required for categorically excluded proposals listed in Sec. 1794.22 to
provide for circumstances in which a normally excluded action may have
a significant impact (see 40 CFR 1508.4). Prior to issuing the proposed
rule, RUS reevaluated the thresholds established in the existing
regulation and determined that the revised thresholds included in the
proposed rule represent a reasonable delineation consistent with 40 CFR
1508.4.
The commenters also questioned why an environmental report should
be required for a proposal that is normally categorically excluded and
recommend that where appropriate, proposals listed in Sec. 1794.22 be
incorporated into Sec. 1794.21.
Agency Response: The changes proposed by these comments are not
consistent with the definition of categorical exclusion in 40 CFR
1508.4. In order to ensure that a proposed action does not
significantly affect the quality of the human environment, RUS must
conduct an environmental review. The two-tiered classification system
for Categorical Exclusions establishes the level of information that
must be provided by the applicant for proposals listed in each tier.
This information is necessary so RUS can identify extraordinary
circumstances in which a normally excluded action may have significant
environmental effects.
One commenter recommended incorporating language into Sec. 1794.21
by which RUS could increase the level of environmental review for any
categorically excluded project, which had a significant environmental
effect. Other commenters point out that proposals in these two
categories already must meet the requirements of Sec. 1794.31.
Therefore a safeguard already exists whereby RUS can evaluate each
project and determine if further environmental review is appropriate.
Agency Response: This rule includes a requirement in
Sec. 1794.22(a) by which RUS reserves the right to request
environmental documentation for proposals listed in Sec. 1794.21(b) and
(c) if significant environmental effects result from the implementation
of the proposal. RUS believes that determining whether an ER should be
prepared for all categorically excluded proposals on a case-by-case
basis would be inconsistent with the CEQ regulations (40 CFR 1508.4)
and would extend the RUS environmental review process.
Three commenters assert that the thresholds established to
differentiate between projects that require an environmental assessment
(EA) with and without scoping (Secs. 1794.23 and 1794.24) were also
arbitrarily determined and point out that a 1 MW increase in capacity
can increase the level of review. The commenters recommend that all
Sec. 1794.24 proposals which normally require scoping be incorporated
into Sec. 1794.23 and that RUS adopt language allowing the agency to
require scoping for projects which are expected to have significant
impacts.
[[Page 68651]]
Agency Response: RUS has reevaluated the thresholds that were
established in the existing regulation for proposed actions listed in
Secs. 1794.23 and 1794.24. The thresholds accurately delineate the
difference between proposed actions which can be adequately reviewed
with an EA and those actions which have a higher potential for needing
an EIS. The latter required the preparation of an EVAL by the
applicant. The EVAL will serve as the RUS EA, (40 CFR 1506.5(b)).
Instead of establishing a single classification system for actions
normally requiring an EA and determining the need for scoping on an
individual basis, RUS agrees some flexibility is needed and has
included a provision to modify or waive scoping requirements in
Sec. 1794.52 for actions that normally require an EA with scoping.
Two commenters expressed concern with the provisions of the
proposed rule that allow the applicant or its consultant to prepare the
environmental report (ER) which normally serves as RUS'' EA for Water
and Waste proposals. These commenters assert that there may be an
appearance of a conflict of interest.
Agency Response: Agency responsibility is addressed in 40 CFR
1506.5. The CEQ regulations allow an agency to require an applicant to
submit environmental information for possible use by that agency (40
CFR 1506.5(a)). The agency should assist the applicant by outlining the
types of information required. The agency shall independently evaluate
the information provided by the applicant and accept responsible for
its accuracy. RUS has developed guidance Bulletin 1794A-602 for that
purpose. An agency can permit an applicant to prepare an EA provided
the agency makes its own evaluation of the environmental issues and
takes responsibility for the scope and content of the EA (40 CFR
1506.5(b)).
One commenter recommends that the procedures defined in 7 CFR 1940-
G under which RUS reviews information submitted by the applicant and
completes the assessment should be used for Water and Waste proposals.
Agency Response: This rule provides for an agency-prepared EA.
Section 1794.41 states that the ER will normally serve as the RUS EA.
The decision of whether RUS uses the applicant's ER as its EA or
prepares the EA from information provided in the ER will be made by the
State Environmental Coordinator (SEC).
Another commenter noted that by not allowing RUS employees to
complete EAs, the agency is limiting the ability of its employees to
provide technical assistance to rural areas.
Agency Response: RUS does not agree with this statement. By
improving the efficiency of document preparation, Rural Development
staff will have more time to provide meaningful guidance and technical
assistance to applicants.
Comments on Specific Sections
Background: One commenter requested clarification of paragraph 9 of
the proposed rules Background section that discusses exempting from
review approvals provided by RUS pursuant to its loan contracts and
security instruments.
Agency Response: This comment is addressed in the response to the
first general comment.
Section 1794.2: One commenter questioned whether the item (d) in
this section correctly characterized the roles RUS and the applicant
play under NEPA and the CEQ regulations. He asserts that the applicant
should be responsible for the accuracy of the information contained in
environmental documents and the agency should be responsible for
compliance with appropriate regulations.
Agency Response: RUS agrees. The text of item (d) has been changed
to clarify the role of the applicant. RUS is responsible for compliance
with NEPA, including verifying the accuracy of the information it uses
in its environmental review (40 CFR 1506.5). The applicant is
responsible for compliance with all applicable RUS requirements.
Section 1794.3: Six commenters recommended that this section
clearly state that the rule applies only to direct loans and loan
guarantee approvals.
Agency Response: This comment is addressed in the response to the
first general comment.
Section 1794.5 (now Sec. 1794.4): Two commenters support the
proposed format of placing metric units in parentheses following the
non-metric equivalents which is the reverse of the current format.
Another commenter questioned whether the change in metric system format
would be contrary to the national effort to convert to the metric
system and not in compliance with Executive Order 12770.
Agency Response: It has been RUS experience that the current format
in which metric units are followed by the non-metric equivalents in
parentheses has been impractical and has confused readers. This rule's
provisions for the use of metric units comply with Executive Order
12770.
Section 1794.7 (now Sec. 1794.6): One commenter suggested adding
``the environment'' to the definition of Emergency Situation to account
for threats to the environment and including a definition of
``multiplexing sites.''
Agency Response: The words ``or to the human environment'' have
been added to the end of the definition of Emergency Situation and a
definition has been included in this section for multiplexing sites.
Another commenter suggested deleting the words ``document and''
from the definition of ER.
Agency Response: RUS recognizes that the amount of documentation
that can be included in an ER can vary for the types of proposals
listed in Secs. 1794.22 and 1794.23 from a few pages to 100 pages or
more. Since the word ``document'' does not add any significance to the
definition of ER, the word has been deleted.
A third commenter thought that the terms ER, EA and Environmental
Impact Assessment were confusing and needed further explanation.
Agency Response: RUS agrees and has reverted to the terminology
used in the existing rule. RUS has in the past and proposes to continue
to differentiate between the documentation submitted by the applicant
for proposals that normally require an EA (Sec. 1794.23) and proposals
that normally require an EA with scoping (Sec. 1794. 24) by titling the
former an ER and the later an EVAL. The agency prepared document for
proposals listed in Secs. 1794.23 and 1794.24 is still titled an EA (40
CFR 1508.9).
One commenter requested that this section be modified so the ER and
EA can be stand-alone documents and not a mandatory part of the
Preliminary Engineering Report (PER) for Water and Waste proposals.
This commenter asserts that such a restriction precludes the use of
other resources to complete the preparation of the environmental
documentation.
Agency Response: Although RUS intends for the ER to be submitted
with the PER for Water and Waste proposals, there is no requirement
that the ER be prepared exclusively by the engineering consultant that
prepares the PER. The key issue is that environmental concerns be
considered at the earliest planning stage of a proposal to ensure that
environmental values are given appropriate consideration. The earliest
planning stage of a proposal is the PER.
Section 1794.8 (now Sec. 1794.7): Two commenters noted that RUS
Bulletin 1780-26 already has been designated for guidance for another
purpose.
Agency Response: The designations for the guidance documents
referenced in this section have been corrected.
[[Page 68652]]
One commenter recommended that a standard format be developed for
applicants to follow in the preparation of an ER or EA.
Agency Response: The appropriate bulletins referenced in this
section will contain a standard format for preparing an ER; the
applicant does not prepare an EA.
The same commenter further recommended that State Directors be able
to issue supplements with less than approval by the Administrator.
Agency Response: State Directors have the ability to issue
supplements. However, to ensure compliance with environmental laws and
regulations and maintain uniformity with neighboring states and within
a region, requires Administrator review and approval of supplements.
Six commenters urged RUS to consult with interested parties
regarding the referenced electric and telecommunications guidance
documents prior to taking final action on this rule.
Agency Response: RUS has considered all comments received on the
current versions of Bulletins 1794A-600 and 1794A-601 in preparing the
revisions to these two Bulletins. Both Bulletins will be made available
to applicants via the Internet prior to the effective date of this
final rule.
Two commenters believe that the referenced Water and Waste bulletin
(RUS Bulletin 1794A-602) should be published for comment and one
commenter requested a 60-day extension to the comment period on the
proposed rule following the release of that draft bulletin.
Agency Response: RUS Bulletin 1794A-602 was reviewed by Rural
Development staff prior to the effective date of this final rule. RUS
does not agree that the comment period on the proposed rule should be
extended subject to the release of the draft bulletin.
Section 1794.10: One commenter recommended replacing ``under RUS
direct guidance and supervision'' with ``with advise from RUS''
instead.
Agency Response: The referenced language has been revised. RUS will
assist applicants by outlining the types of information required and
provide guidance and oversight in the development of the documentation
(40 CFR 1506.5).
This commenter also recommended that the language in Secs. 1794.10
and 1794.31(b) be consistent and refer to the SEC or neither.
Agency Response: The language in Sec. 1794.10 applies to all three
RUS programs. Therefore, a specific agency official is only identified
in Sec. 1794.31(b), which is specific to the Water and Waste program.
Section 1794.13: One commenter recommended that in (a)(3) all
comments on Water and Waste proposals be sent directly to the RUS State
Office instead of through the applicant.
Agency Response: Applicant notices must state that comments should
be sent to the RUS appropriate office for Water and Waste proposals and
to the Washington, DC, office for Electric and Telecommunications
proposals. However, RUS recognizes that both verbal and written
comments on a proposal are sometimes directed to the applicant. This
subsection accounts for this possibility by requiring the applicant to
submit comments to RUS.
Seven commenters were concerned that the requirement in
Sec. 1794.13(a)(4) making all environmental documents and documentation
related to the proposed action available in specific locations was too
broad and created an overly burdensome and onerous responsibility for
the applicant. They recommended that RUS narrow the scope of
information that the applicant is required to make available in a
public setting and require the applicant to designate a contact person
to respond to requests for additional and supporting information.
Agency Response: RUS agrees that the requirement making all
environmental documents and documentation available in specific
locations creates an overly burdensome and onerous responsibility for
the applicant and does not enhance public participation in the
environmental process. The language in Sec. 1794.13(a)(4) has been
revised. RUS will determine which project related environmental
documents will be made available for review at locations convenient for
the public. To ensure full public disclosure, a list of all documents
not provided for public review will be included. Documents not provided
will be available for inspection through a designated RUS or applicant
contact person.
Two commenters requested that Sec. 1794.13(a)(5) be expanded to
note that public hearings are to be confined to the environmental
aspects of a proposed action.
Agency Response: RUS believes that the purpose of the public
hearings or meetings has been adequately identified in this section.
One commenter requested that RUS coordinate its meetings with
meetings, hearings, and environmental reviews, which may be held and/or
required by others.
Agency Response: RUS agrees with this comment and has revised
Sec. 1794.13(a)(5) to include coordination of its meetings with the
requirements of other interested agencies and groups.
Six commenters questioned why RUS has established differing
thresholds for publication of notices in the Federal Register with
respect to the Electric and Telecommunications programs in
Sec. 1794.13(b) and the Water and Waste program in Sec. 1794.13(c).
They recommended that the language in Sec. 1794.13(c) be consistent for
all three programs.
Agency Response: RUS agrees and has decided to revise the language
in Secs. 1794.13(b) and 1794.42(b) thereby making the thresholds for
publication of notices consistent for all three programs. RUS will
provide interested agencies with notification of its FONSI
determinations through direct mailings or, at its option, the Federal
Register, when appropriate.
Section 1794.14: One commenter endorsed the flexibility provided in
this section and recommended that this flexibility be more clearly
stated. The commenter also suggested that the duties of a cooperating
agency are unclear and a brief list should be included.
Agency Response: The duties of a cooperating agency are described
in 40 CFR 1501.6 and are incorporated by reference.
Section 1794.17: One commenter questioned whether the mitigative
measures would be discussed in the FONSI memo to the file in addition
to the FONSI public notice. Two commenters noted that the provisions of
(b)(3) appear to expand the responsibilities of field staff beyond that
of development specialists. One commenter suggested that a better role
for the agency would be to notify the appropriate regulatory agency to
enforce the mitigative measures.
Agency Response: Mitigation measures shall be discussed in both the
FONSI memo and public notice. The responsibilities of field staff have
not been expanded. In the routine process of checking on-site
conditions for compliance with relevant loan or grant provisions, it is
appropriate for staff to document the applicant's compliance status
with regard to mitigation measures that were agreed upon as part of the
conditions for the loan/grant. If discrepancies are noted, the agency
may need to notify the appropriate regulatory agency for action.
Section 1794.21(a): Six commenters recommended that in addition to
defining ``emergency situation'' this
[[Page 68653]]
section be expanded to account for such situations.
Agency Response: RUS has added action (4) to account for emergency
situations.
Section 1794.21(b): One commenter questioned why a ``detailed
description'' was required for 12 actions in this category when all
actions in this category had to be sufficiently described. That
commenter recommended this requirement be deleted.
Agency Response: RUS has determined through experience that the
types of proposals contained in this section normally do not
significantly affect the quality of the human environment. Thus the
submission of an ER is not normally required. However, in order to
waive the ER requirement for the 12 actions in this category so
designated, the RUS reviewer must have a complete description of what
is being proposed, how it will be constructed, and the setting in which
the proposed project will be located. Evaluating these 12 actions on a
case-by-case basis is more effective than uniformly requiring the
mandatory submittal of an ER.
Another commenter was concerned that the submittal of an
environmental document was not required for proposed actions described
in Sec. 1794.21(b) (4), (8), (14), (15) and (16), which could under
certain circumstances provide a hazard to birds.
Agency Response: RUS agrees that under certain circumstances
actions described in Sec. 1794.21(b) (4), (8), (14), (15), and (16)
could result in significant effects to the human environment, such as
presenting a hazard to birds. The description of the facilities to be
constructed that must be provided for these actions and others so noted
in Sec. 1794.21(b) is used by RUS to determine whether the current
level of review is adequate or a higher level of review is warranted.
One commenter expressed concern over the provision in action
Sec. 1794.21(b)(18) which require the applicant obtain certification
from the utility owner that the facilities to be purchased are in
compliance with applicable environmental laws and regulations. This
commenter believes that the normal environmental review process should
be sufficient to identify and resolve issues that may be encountered.
Agency Response: RUS agrees that obtaining a certification of
compliance for the purchase of existing facilities is not the
appropriate form of documentation. Upon further review, RUS has
determined that establishing two separate levels of review for the
purchase of existing facilities, specifically action (18) in
Sec. 1794.21(b) and action (7) in Sec. 1794.23(b), is not warranted.
Both references to these actions have been deleted from the final rule
and replaced by new action (11) in Sec. 1794.22(a). Under the new
requirement applicants will have the option of submitting an ER or the
results of a facility environmental audit. A higher level of review may
be required before RUS approves an applicant's purchase of facilities
that are determined to be in violation of Federal, state, or local
environmental laws or regulations.
One commenter recommended that the threshold for action described
in Sec. 1794.21(b)(21), standby diesel generators, be increased from 1
megawatt (MW) to 2 MW and also be utilized for load management purposes
in addition to emergency power.
Agency Response: RUS does not agree. The purpose of this category
is to exclude standby diesel generators that would be subject to
limited use (i.e. emergency outages). Utilizing such facilities for
load management purposes increases the hours of usage and thus increase
potential effects to the quality of the human environment.
A commenter asserts that the action described in
Sec. 1794.21(b)(24) could create a major change in local air quality.
Agency Response: RUS agrees that wording describing action (24)
could be misinterpreted and has added the following statement:
``Repowering or uprating that results in an increased fuel consumption
or the substitution of one fuel combustion technology with another is
excluded from this classification.'' Because this action does not
include an increase in fuel consumption, no change in local air quality
is anticipated.
This commenter further recommended that the type of customer
facilities covered in Sec. 1794.21(b)(24) include commercial and
agricultural.
Agency Response: RUS agrees to add commercial and agriculture
facilities to item (24).
Section 1794.22: Three commenters noted that proposals identified
in Sec. 1794.22(a)(11) and Sec. 1794.21(b)(20) which discuss facilities
that will reduce the amount of pollutants released into the environment
are redundant and the reference in Sec. 1794.22 should be deleted.
Agency Response: RUS agrees that the requirements of
Sec. 1794.22(a)(11) and Sec. 1794.21(b)(20) are redundant. Accordingly,
action #11 in Sec. 1794.22(a) of the proposed rule has been deleted.
One commenter asserted that proposals listed in Sec. 1794.22(b)(3)
and (4) have the potential to impact important resources but will be
excluded from environmental review.
Agency Response: Applicants are required to prepare and submit an
ER for all proposed actions listed in Sec. 1794.22(b). RUS will review
the ER to determine whether a normally categorically excluded action
may have a significant environmental effect (40 CFR 1508.4).
One commenter suggested that Sec. 1794.22(c) belongs in
Sec. 1794.23 which describes EA proposals.
Agency Response: Proposals listed in Sec. 1794.22(c) were so
designated to parallel the level of documentation required by the EPA
in 40 CFR 6.505(c) for similar proposals. Agencies with similar
programs are encouraged by CEQ to consult with each other to coordinate
their procedures, especially for programs requesting similar
information from applicants (40 CFR 1507.3(a)). RUS believes that these
actions are correctly described in Sec. 1794.22(c).
One commenter noted that Sec. 1794.22(c)(1) and (2) only apply to
discharges and need to be expanded to include water withdrawals.
Agency Response: RUS agrees and has expanded the discussion in
Sec. 1794.22(c) to clarify this issue.
Two commenters requested that ``substantial increases'' in
Sec. 1794.22 (c)(2) be defined and one commenter also questioned how
this term applied to a new facility.
Agency Response: The term ``substantial increases'' has not been
defined because its interpretation depends on local conditions and
regulatory requirements. RUS agrees that this action should not include
new facilities and has revised the language accordingly.
One commenter noted that Sec. 1794.22 (c)(3) stipulates no greater
than a 30 percent growth factor whereas Sec. 1794.22 (b)(3) stipulates
a modest growth potential and requests consistency within the rule.
Agency Response: The 30 percent growth factor is an established
threshold, whereas the term ``modest growth'' applies to local
conditions and regulatory requirements.
Another commenter asserts that the thresholds in Sec. 1794.22(c)(3)
need to be changed because it appears that a small system (20-30 EDU's)
could be expanded up to 500 EDU's and still be a categorically excluded
proposal.
Agency Response: RUS believes the capacity criteria as stated is
sufficient for the purposes of classifying an action
[[Page 68654]]
as a categorical exclusion. Two other provisions may be applicable to
the commenter's point. First, the ER would provide sufficient
information to determine if there are any extraordinary circumstances
in which a normally categorically excluded action may have a
significant environmental effect (see 40 CFR 1508.4). Second, under
Sec. 1794.22(b)(2), RUS could determine that the facility improvements
are not modest in use, size, capacity, purpose, or location and would
require an EA.
Section 1794.23: One commenter recommended that for consistency,
this section be titled ``Proposals normally requiring an EA without
scoping.''
Agency Response: RUS disagrees. Early public involvement may be
appropriate for any level of environmental review and should not be
explicitly dismissed by excluding scoping for certain thresholds.
Section 1794.31: One commenter stated that RUS should not be
supervising or giving direct guidance to the applicant. He suggested
modifying the wording in (b) to ``with advice from RUS.''
Agency Response: This issue is addressed in the response to the
comment on Sec. 1794.10.
Another commenter noted that the SEC would be unable to devote the
time necessary to supervise all applicants.
Agency Response: High volume states have been provided additional
environmental specialist positions in anticipation of the increased
workload.
Section 1794.32: One commenter wanted clarification in (b) on the
criteria used to determine when public notice would be required if
important land resources are affected. Another commenter suggested that
in (b) reference should be made to Sec. 1794.7 or the RUS Bulletin
1794A-602.
Agency Response: RUS agrees with this suggestion and has referenced
the two bulletins that provide guidance in preparing an ER.
Section 1794.33: One commenter noted that this section allows RUS
to act on an application without any environmental review.
Agency Response: The commenter's interpretation of Sec. 1794.33 is
incorrect. RUS shall conduct an environmental review for all proposed
actions covered by this section. Proposals listed in Sec. 1794.21(b)
and (c) normally require the submittal of a project description.
Whereas, proposals listed in Sec. 1794.22(a) and (b) normally require
the submittal of an ER. RUS reserves the right to require additional
environmental information on any proposal the agency believes may have
significant effects on the quality of the human environment
(Sec. 1794.30).
Section 1794.41: One commenter noted that the typical applicant
would need assistance from their consulting engineer in preparing the
ER, resulting in a fee increase to the applicant. If the SEC retains
approval authority for the ER, another layer of review is added before
the ER is accepted.
Agency Response: RUS anticipates that the applicant's engineer will
prepare the ER at the same time that project planning is done. RUS
further anticipates that any increase in the engineering fee should be
modest since the engineer in most projects has been preparing the
applicant's environmental information for the agency. The SEC should be
the only agency approval official for the ER.
Section 1794.44: Two commenters noted that it appears RUS will take
final action on proposals covered by this section without waiting for
public input.
Agency Response: Actions listed in Sec. 1794.23 are subject to
public input when the EA is made available for review through applicant
notice. Normally there is no provision for additional public input when
RUS makes a FONSI determination for actions listed in Sec. 1794.23.
These commenters also noted that draft RUS Bulletin 1794A-602 calls
for a 15-day review period if significant comments are received on the
draft EA.
Agency Response: The reference to the 15-day review period was
inadvertently omitted from the proposed rule. Section 1794.44 has been
modified to include an opportunity for the public to review the RUS
FONSI determination if substantive comments are received on the EA.
Section 1794.51: One commenter noted that no mention is made in (a)
where the applicant's notice will be published.
Agency Response: The commenter is correct that Sec. 1794.51 does
not state where the applicant's notice will be published. That
information is provided in Sec. 1794.13(a)(1) and (2).
Section 1794.61: Two commenters asserted that the cost of an EIS
would be prohibitive for nearly all Water and Waste applicants which
could result in even high priority projects being canceled due to the
inability of the applicant to fund the EIS.
Agency Response: RUS agrees that an EIS can be an expensive
document to prepare and has identified certain methods of funding an
EIS in Sec. 1794.61(a).
Section 1794.70: One commenter recommends that this section be
expanded to allow the adoption of environmental documents prepared by
state or local agencies or other parties in accordance with the
provisions of Sec. 1794.84 of the existing regulation.
Agency Response: The CEQ regulations in 40 CFR 1506.3 only permit a
Federal agency to adopt documents prepared by or for another Federal
Agency. In 40 CFR 1506.2, Federal agencies are required to cooperate
with state and local agencies to the fullest extent possible to reduce
duplication between NEPA and state and local requirements by jointly
preparing EAs and EISs. RUS acknowledges that its policy on the
incorporation of environmental documents prepared by others was omitted
from the proposed rule. This omission has been corrected with the
addition of Sec. 1794.74.
One commenter suggested that RUS be more flexible in its adoption
procedures and not duplicate another agency's public notice and comment
period.
Agency Response: RUS believes that its decisions must be subject to
public notification regardless of who prepares the environmental
documentation. The preferred strategy to avoid duplication of effort
would be for RUS to participate with other agencies in the preparation
of the initial environmental documents as stated in Sec. 1794.14.
This commenter also recommended that RUS accept environmental
documents prepared by states under the State Revolving Fund (SRF)
programs as its own documents or at a minimum adopt the subject
documents.
Agency Response: RUS may adopt environmental documents prepared by
state agencies administering SRF programs under the Clean Water Act (32
U.S.C. 1251) and the Safe Drinking Water Act (42 U.S.C. 300). Where
appropriate, the State Director will enter into an agreement with
appropriate state agencies to establish the necessary procedures.
Any environmental document accepted or prepared by RUS prior to the
effective date of these regulations may be developed in accordance with
RUS environmental requirements in effect at the time the document was
accepted or prepared by RUS.
List of Subjects in 7 CFR Part 1780
Business and industry, Community development, Community facilities,
Grant programs--housing and community development, Reporting and
recordkeeping requirements, Rural areas, Waste treatment and disposal,
Water supply, Watersheds.
[[Page 68655]]
List of Subjects in 7 CFR Part 1794
Environmental impact statements, Reporting and recordkeeping
requirements.
Therefore RUS amends chapter XVII of title 7 of the Code of Federal
Regulations as follows:
PART 1780--WATER AND WASTE LOANS AND GRANTS
Subpart B--Loan and Grant Application Processing
1. Section 1780.31 is amended by revising paragraph (e) to read as
follows:
Sec. 1780.31 General.
* * * * *
(e) Starting with the earliest discussion with prospective
applicants, the State Environmental Coordinator shall discuss with
prospective applicants and be available for consultation during the
application process the environmental review requirements for
evaluating the potential environmental consequences of the project.
Pursuant to 7 CFR part 1794 and guidance in RUS Bulletin 1794A-602, the
environmental review requirements shall be performed by the applicant
simultaneously and concurrently with the project's engineering planning
and design. This should provide flexibility to consider reasonable
alternatives to the project and development methods to mitigate
identified adverse environmental effects. Mitigation measures necessary
to avoid or minimize any adverse environmental effects must be
integrated into project design.
2. Section 1780.33 is amended by revising paragraphs (c)(3), and
(f) to read as follows:
Sec. 1780.33 Application requirements.
* * * * *
(c) * * *
(3) The State staff engineer will consult with the applicant's
engineer as appropriate to resolve any questions concerning the PER.
Written comments will be provided by the State staff engineer to the
processing office to meet eligibility determination time lines.
* * * * *
(f) Environmental Report. For those actions listed in
Secs. 1794.22(b) and 1794.23(b), the applicant shall submit, in
accordance with RUS Bulletin 1794A-602, two copies of the completed
Environmental Report.
(1) Upon receipt of the Environmental Report, the processing office
shall forward one copy of the report with comments and recommendation
to the State Environmental Coordinator for review.
(2) The State Environmental Coordinator will consult with the
applicant as appropriate to resolve any environmental concerns. Written
comments will be provided by the State Environmental Coordinator to the
processing office to meet eligibility determination time lines.
* * * * *
3. Section 1780.39 is amended by revising paragraph (b)
introductory text and removing and revising paragraph (h).
Sec. 1780.39 Application processing.
* * * * *
(b) Professional services and contracts related to the facility.
Fees provided for in contracts or agreements shall be reasonable. The
Agency shall consider fees to be reasonable if they are not in excess
of those ordinarily charged by the profession as a whole for similar
work when RUS financing is not involved. Applicants will be responsible
for providing the services necessary to plan projects including design
of facilities, environmental review and documentation requirements,
preparation of cost and income estimates, development of proposals for
organization and financing, and overall operation and maintenance of
the facility. Applicants should negotiate for procurement of
professional services, whereby competitors' qualifications are
evaluated and the most qualified competitor is selected, subject to
negotiations of fair and reasonable compensation. Contracts or other
forms of agreement between the applicant and its professional and
technical representatives are required and are subject to RUS
concurrence.
* * * * *
4. Section 1780.41 is amended by revising paragraph (a)(8) to read
as follows:
Sec. 1780.41 Loan or grant approval.
(a) * * *
(8) Completed environmental review documents including copies of
public notices and appropriate proof of publication, if applicable; and
* * * * *
SUBPART C--PLANNING, DESIGN, BIDDING, CONTRACTING, CONSTRUCTING AND
INSPECTIONS
5. Section 1780.55 is revised to read as follows:
Sec. 1780.55 Preliminary engineering reports.
Preliminary engineering reports and Environmental Reports.
Preliminary engineering reports (PERs) must conform to customary
professional standards. PER guidelines for water, sanitary sewer, solid
waste, and storm sewer are available from the Agency. Environmental
Reports must meet the policies and intent of the National Environmental
Policy Act and RUS procedures. Guidelines for preparing Environmental
Reports are available in RUS Bulletin 1794A-602.
6. Section 1780.57 is amended by revising paragraph (a) to read as
follows:
Sec. 1780.57 Design policies.
* * * * *
(a) Environmental review. Facilities financed by the Agency must
undergo an environmental impact analysis in accordance with the
National Environmental Policy Act and RUS procedures. Facility planning
and design must not only be responsive to the owner's needs but must
consider the environmental consequences of the proposed project.
Facility design shall incorporate and integrate, where practicable,
mitigation measures that avoid or minimize adverse environmental
impacts. Environmental reviews serve as a means of assessing
environmental impacts of project proposals, rather than justifying
decisions already made. Applicants may not take any action on a project
proposal that will have an adverse environmental impact or limit the
choice of reasonable project alternatives being reviewed prior to the
completion of the Agency's environmental review.
* * * * *
7. Part 1794 is revised to read as follows:
PART 1794--ENVIRONMENTAL POLICIES AND PROCEDURES
Subpart A--General
Sec.
1794.1 Purpose.
1794.2 Authority.
1794.3 Actions requiring environmental review.
1794.4 Metric units.
1794.5 Responsible officials.
1794.6 Definitions.
1794.7 Guidance.
1794.8-1794.9 [Reserved]
Subpart B--Implementation of the National Environmental Policy Act
1794.10 Applicant responsibilities.
1794.11 Apply NEPA early in the planning process.
1794.12 Consideration of alternatives.
1794.13 Public involvement.
1794.14 Interagency involvement and coordination.
1794.15 Limitations on actions during the NEPA process.
1794.16 Tiering.
[[Page 68656]]
1794.17 Mitigation.
1794.18-1794.19 [Reserved]
Subpart C--Classification of Proposals
1794.20 Control.
1794.21 Categorically excluded proposals without an ER.
1794.22 Categorically excluded proposals requiring an ER.
1794.23 Proposals normally requiring an EA.
1794.24 Proposals normally requiring an EA with scoping.
1794.25 Proposals normally requiring an EIS.
1794.26-1794.29 [Reserved]
Subpart D--Procedure for Categorical Exclusions
1794.30 General.
1794.31 Classification.
1794.32 Environmental report.
1794.33 Agency action.
1794.34-1794.39 [Reserved]
Subpart E--Procedure for Environmental Assessments
1794.40 General.
1794.41 Document requirements.
1794.42 Notice of availability.
1794.43 Agency finding.
1794.44 Timing of agency action.
1794.45-1794.49 [Reserved]
Subpart F--Procedure for Environmental Assessments With Scoping
1794.50 Normal sequence.
1794.51 Preparation for scoping.
1794.52 Scoping meetings.
1794.53 Environmental analysis.
1794.54 Agency determination.
1794.55-1794.59 [Reserved]
Subpart G--Procedure for Environmental Impact Statements
1794.60 Normal sequence.
1794.61 Environmental impact statement.
1794.62 Supplemental EIS.
1794.63 Record of decision.
1794.64 Timing of agency action.
1794.65-1794.69 [Reserved]
Subpart H--Adoption of Environmental Documents
1794.70 General.
1794.71 Adoption of an EA.
1794.72 Adoption of an EIS.
1794.73 Timing of agency action.
1794.74 Incorporation of environmental materials.
1794.75-1794.79 [Reserved]
Authority: 7 U.S.C. 6941 et seq., 42 U.S.C. 4321 et seq.; 40 CFR
Parts 1500-1508.
Subpart A--General
Sec. 1794.1 Purpose.
(a) This part contains the policies and procedures of the Rural
Utilities Service (RUS) for implementing the requirements of the
National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C.
4321-4346); the Council on Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of NEPA (40 CFR parts 1500
through 1508) and certain related Federal environmental laws, statutes,
regulations, and Executive Orders (EO) that apply to RUS programs and
administrative actions.
(b) The policies and procedures contained in this part are intended
to help RUS officials make decisions that are based on an understanding
of environmental consequences, and take actions that protect, restore,
and enhance the environment. In assessing the potential environmental
impacts of its actions, RUS will consult early with appropriate
Federal, State, and local agencies and other organizations to provide
decision-makers with information on the issues that are truly
significant to the action in question.
Sec. 1794.2 Authority.
(a) This part derives its authority from and is intended to be
compliant with NEPA, CEQ Regulations for Implementing the Procedural
Provisions of NEPA, and other RUS regulations.
(b) Where practicable, RUS will use NEPA analysis and documents and
review procedures to integrate the requirements of related
environmental statutes, regulations, and orders.
(c) This part integrates the requirements of NEPA with other
planning and environmental review procedures required by law, or by RUS
practice including but not limited to:
(1) Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(2) The National Historic Preservation Act (16 U.S.C. 470 et seq.);
(3) Farmland Protection Policy Act (7 U.S.C. 4201 et seq.);
(4) E.O. 11593, Protection and Enhancement of the Cultural
Environment (3 CFR, 1971 Comp., p. 154);
(5) E.O. 11514, Protection and Enhancement of Environmental Quality
(3 CFR, 1970 Comp., p. 104);
(6) E.O. 11988, Floodplain Management (3 CFR, 1977 Comp., p. 117);
(7) E.O. 11990, Protection of Wetlands (3 CFR, 1977 Comp., p. 121);
and
(8) E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations (3 CFR, 1994 Comp., p.
859).
(d) Applicants are responsible for ensuring that proposed actions
are in compliance with all appropriate RUS requirements. Environmental
documents submitted by the applicant shall be prepared under the
oversight and guidance of RUS. RUS will evaluate and be responsible for
the accuracy of all information contained therein.
Sec. 1794.3 Actions requiring environmental review.
The provisions of this part apply to actions by RUS including the
approval of financial assistance pursuant to the Electric,
Telecommunications, and Water and Waste Programs, the disposal of
property held by RUS pursuant to such programs, and the issuance of new
or revised rules, regulations, and bulletins. Approvals provided by RUS
pursuant to loan contracts and security instruments, including
approvals of lien accommodations, are not actions for the purposes of
this part and the provisions of this part shall not apply to the
exercise of such approvals.
Sec. 1794.4 Metric units.
RUS normally will prepare environmental documents using non-metric
equivalents with one of the following two options; metric units in
parentheses immediately following the non-metric equivalents or a
metric conversion table as an appendix. Environmental documents
prepared by or for a RUS applicant should follow the same format.
Sec. 1794.5 Responsible officials.
The Administrator of RUS has the responsibility for Agency
compliance with all environmental laws, regulations, and EOs that apply
to RUS programs and administrative actions. Responsibility for ensuring
environmental compliance for actions taken by RUS has been delegated as
follows:
(a) Electric and Telecommunications Programs. The appropriate
Assistant Administrator is responsible for ensuring compliance with
this part for the respective programs.
(b) Water and Waste Program. The Assistant Administrator for this
program is responsible for ensuring compliance with this part at the
national level. The State Director is the responsible official for
ensuring compliance with this part for actions taken at the State
Office level.
Sec. 1794.6 Definitions.
The following definitions, as well as the definitions contained in
40 CFR part 1508 of the CEQ regulations, apply to the implementation of
this part:
Applicant. The organization applying for financial assistance or
other approval from either the Electric or Telecommunications programs
or the organization applying for a loan or grant from the Water and
Waste program.
Construction Work Plan (CWP). The document required by 7 CFR part
1710.
Emergency Situation. A natural disaster or system failure that may
[[Page 68657]]
involve an immediate or imminent threat to public health, safety, or
the human environment.
Environmental Analysis (EVAL). The document submitted by the
applicant for proposed actions subject to compliance with Sec. 1794.24
and under special circumstances Sec. 1794.25.
Environmental Report (ER). The environmental documentation normally
submitted by applicants for proposed actions subject to compliance with
Secs. 1794.22 and 1794.23. An ER for the Water and Waste Program refers
to the environmental review documentation normally included as part of
the Preliminary Engineering Report.
Environmental review. Any one or all of the levels of environmental
analysis described under subpart C of this part.
Equivalent Dwelling Unit (EDU). Level of water or waste service
provided to a typical rural residential dwelling.
Important Land Resources. Defined pursuant to the U.S. Department
of Agriculture's Departmental Regulation 9500-3, Land Use Policy, as
important farmland, prime forestland, prime rangeland, wetlands, and
floodplains. Copies of this Departmental Regulation are available from
USDA, Rural Utilities Service, Washington, DC 20250.
Loan Design. Document required by 7 CFR part 1737.
Multiplexing Center. A field site where a telecommunications
provider houses a device that combines individual subscriber circuits
onto a single system for economical connection with a switching center.
The combiner, or ``multiplexer,'' may be mounted on a pole, on a
concrete pad, or in a partial or full enclosure such as a shelter, or
small building.
Natural Resource Management Guide. Inventory of natural resources,
land uses, and environmental factors specified by Federal, State, and
local authorities as deserving some degree of protection or special
consideration. The guide describes the standards or types of protection
that apply.
Preliminary Engineering Report (PER). Document required by 7 CFR
part 1780 for Water and Waste Programs. A PER is prepared by an
applicant's engineering consultant documenting a proposed action's
preliminary engineering plan and design and the applicable
environmental review activities as required in this part. Upon approval
by RUS, the PER, or a portion thereof, shall serve as the RUS
environmental document.
Supervisory Control and Data Acquisition System (SCADA). Electronic
monitoring and control equipment installed at electric substations and
switching stations.
Third party Consultant. A party selected by RUS to prepare the EIS
for proposed actions described in Sec. 1794.25 where the applicant
initiating the proposal agrees to fund preparation of the document in
accordance with the provisions of 7 CFR Part 1789, ``Use of Consultants
Funded by Borrowers'' and Section 759A of the Federal Agriculture
Improvement and Reform Act of 1996 (7 U.S.C. 2204b(b)).
Sec. 1794.7 Guidance.
(a) Electric and Telecommunications Programs. For further guidance
in the preparation of public notices and environmental documents, RUS
has prepared a series of program specific guidance bulletins. RUS
Bulletin 1794A-600 provides guidance in preparing the ER for proposed
actions classified as categorical exclusions (CEs) (Sec. 1794.22(a))
and RUS Bulletin 1794A-601 provides guidance in preparing the ER for
proposed actions which require EAs (Sec. 1794.23(b) Telecommunications
only and (c));. Copies of these bulletins are available upon request by
contacting Rural Utilities Service, Publications Office, PDRA, Stop
1522; 1400 Independence Avenue, SW; Washington, DC 20250-1522.
(b) Water and Waste Program. RUS Bulletin 1794A-602 provides
guidance in preparing the ER for proposed actions classified as CEs
(Sec. 1794.22(b)) and EAs (Sec. 1794.23(b)). A copy of this bulletin is
available upon request by contacting the appropriate State Director.
State Directors may provide supplemental guidance to meet state and
local laws and regulations and to provide for orderly application
procedures and efficient service to applicants. State Directors shall
obtain the Administrator's approval for all supplements to RUS Bulletin
1794A-602. Each State Office shall maintain an updated Natural Resource
Management Guide and provide applicants with pertinent sections or a
copy of the current edition thereof.
Secs. 1794.8-1794.9 [Reserved]
Subpart B--Implementation of the National Environmental Policy Act
Sec. 1794.10 Applicant responsibilities.
As described in subpart C of this part, applicants shall prepare
the applicable environmental documentation concurrent with a proposed
action's engineering, planning, and design activities. RUS shall assist
applicants by outlining the types of information required and shall
provide guidance and oversight in the development of the documentation.
Documentation shall not be considered complete until all public review
periods, as applicable, have expired and RUS concurrence, as set forth
in the appropriate decision document and associated public notice, has
been issued.
Sec. 1794.11 Apply NEPA early in the planning process.
The environmental review process requires early coordination with
and involvement of RUS. Applicants should consult with RUS at the
earliest stages of planning for any proposal that may require RUS
action. For proposed actions that normally require an EIS, applicants
shall consult with RUS prior to obtaining the services of an
environmental consultant.
Sec. 1794.12 Consideration of alternatives.
In determining what are reasonable alternatives, RUS considers a
number of factors. These factors may include, but are not limited to,
the proposed action's size and scope, state of the technology, economic
considerations, legal and socioeconomic concerns, availability of
resources, and the timeframe in which the identified need must be
fulfilled.
Sec. 1794.13 Public involvement.
(a) In carrying out its responsibilities under NEPA, RUS shall make
diligent efforts to involve the public in the environmental review
process through public notices and public hearings and meetings.
(1) All public notices required by this part shall describe the
nature, location, and extent of the proposed action and indicate the
availability and location of additional information. They shall be
published in newspaper(s) of general circulation within the proposed
action's area of environmental impact and the county(s) in which the
proposed action will take place or such other places as RUS determines.
(2) The number of editions in which the notices should be published
will be specified in the Bulletins referenced in Sec. 1794.7 or
established on a project-by-project basis. Alternative forms of notice
may also be necessary to ensure that residents located in the area
affected by the proposed action are notified. The applicant should not
publish notices for compliance with this part until so notified by RUS.
(3) A copy of all comments received by the applicant concerning
environmental aspects of the proposed action shall be provided to RUS
in a timely manner. RUS and applicants shall assess and consider public
comments both individually and collectively. Responses to public
comments will be appended to the applicable environmental document.
[[Page 68658]]
(4) RUS and applicants shall make available to the public those
project related environmental documents that RUS determines will
enhance public participation in the environmental process. These
materials shall be placed in locations convenient for the public as
determined by RUS in consultation with applicants. Included with the
documentation shall be a list of other project-related information that
shall be available for inspection through a designated RUS or applicant
contact person.
(5) Public hearings or meetings shall be held at reasonable times
and locations concerning environmental aspects of a proposed action in
all cases where, in the opinion of RUS, the need for hearings or
meetings is indicated in order to develop adequate information on the
environmental implications of the proposed action. Public hearings or
meetings conducted by RUS will be coordinated to the extent practicable
with other meetings, hearings, and environmental reviews which may be
held or required by other Federal, state and local agencies. Applicants
shall, as necessary, participate in all RUS conducted public hearings
or meeting.
(6) Scoping procedures, in accordance with 40 CFR 1501.7, are
required for proposed actions normally requiring an EA with scoping
(Sec. 1794.24) or an EIS (Sec. 1794.25). RUS may require scoping
procedures to be followed for other proposed actions where appropriate
to achieve the purposes of NEPA.
(b) The applicant shall have public notices described in this
section published in a newspaper(s). Applicants shall obtain proof of
publication from the newspaper(s) for inclusion into the applicable
environmental document. Where the proposed action requires an EIS RUS
shall, in addition to applicant published notices, publish notice in
the Federal Register. In all cases, RUS may publish notices in the
Federal Register as appropriate.
Sec. 1794.14 Interagency involvement and coordination.
In an attempt to reduce or eliminate duplication of effort with
state or local procedures, RUS will, to the extent possible and in
accordance with 40 CFR 1506.2, actively participate with any
governmental agency to cooperatively or jointly prepare environmental
documents so that one document will comply with all applicable laws.
Where RUS has agreed to participate as a cooperating agency, in
accordance with 40 CFR 1501.6, RUS may rely upon the lead agency's
procedures for implementing NEPA procedures. In addition, RUS shall
request that:
(a) The lead agency indicates that RUS is a cooperating agency in
all NEPA-related notices published for the proposed action;
(b) The scope and content of the EA or EIS satisfies the statutory
and regulatory requirements applicable to RUS; and
(c) The applicant shall inform RUS in a timely manner of its
involvement in a proposed action where another Federal agency is
preparing an environmental document so as to permit RUS to adequately
fulfill its duties as a cooperating agency.
Sec. 1794.15 Limitations on actions during the NEPA process.
(a) General. Until RUS concludes its environmental review process,
the applicant shall take no action concerning the proposed action which
would have an adverse environmental impact or limit the choice of
reasonable alternatives being considered in the environmental review
process (40 CFR 1506.1).
(b) Electric Program. In determining which applicant activities
related to a proposed action can proceed prior to completion of the
environmental review process, RUS must determine, among other matters
that:
(1) The activity shall not have an adverse environmental impact and
shall not preclude the search for other alternatives. For example,
purchase of water rights, optioning or transfer of land title, or
continued use of land as historically employed will not have an adverse
environmental impact. However, site preparation or construction at or
near the proposed site (e.g. rail spur) or development of a related
facility (e.g. opening a captive mine) normally will have an adverse
environmental impact.
(2) Expenditures are minimal. To be minimal, the expenditure must
not exceed the amount of loss which the applicant could absorb without
jeopardizing the Government's security interest in the event the
proposed action is not approved by the Administrator, and must not
compromise the objectivity of RUS environmental review. Not
withstanding other considerations, expenditures equivalent to up to 10
percent of the proposed action's cost normally will not compromise RUS
objectivity. Expenditures for the purpose of producing documentation
required for RUS environmental review are excluded from this
limitation.
Sec. 1794.16 Tiering.
It is the policy of RUS to prepare programmatic level analysis in
order to tier an EIS and an EA where:
(a) It is practicable, and
(b) There will be a reduction of delay and paperwork, or where
better decision making will be fostered (40 CFR 1502.20).
Sec. 1794.17 Mitigation.
(a) General. In addition to complying with the requirements of 40
CFR 1502.14(f), it is RUS policy that a discussion of mitigative
measures essential to render the impacts of the proposed action not
significant will be included in or referenced in the Finding of No
Significant Impact (FONSI) and the Record of Decision (ROD).
(b) Water and Waste Program. (1) Mitigation measures which involve
protective measures for environmental resources cited in this part or
restrictions or limitations on real property located in the service
areas of the proposed action shall be negotiated with applicants and
any relevant regulatory agency so as to be enforceable. All mitigation
measures incorporating land use issues shall recognize the rights and
responsibilities of landholders in making private land use decisions
and recognize the responsibility of governments in influencing how land
may be used to meet public needs.
(2) Mitigation measures shall be included in the letter of
conditions.
(3) RUS has the responsibility for the post approval construction
or security inspections or monitoring to ensure that all mitigation
measures included in the environmental documents have been implemented
as specified in the letter of conditions.
Secs. 1794.18-1794.19 [Reserved]
Subpart C--Classification of Proposals
Sec. 1794.20 Control.
Electric and Telecommunications Programs. For environmental review
purposes, RUS has identified and established categories of proposed
actions (Secs. 1794.21 through 1794.25). An applicant may propose to
participate with other parties in the ownership of a project where the
applicant(s) does not have sufficient control to alter the development
of the project. In such a case, RUS shall determine whether the
applicant participants have sufficient control and responsibility to
alter the development of the proposed project prior to determining its
classification. Where the applicant proposes to participate with other
parties in the
[[Page 68659]]
ownership of a proposed project and all applicants cumulatively own:
(a) Five percent or less of a project is not considered a Federal
action subject to this part;
(b) Thirty-three and one-third percent or more of a project shall
be treated in its usual category;
(c) More than five percent but less than 33\1/3\ percent of a
project, RUS shall determine whether the applicant participants have
sufficient control and responsibility to alter the development of the
proposal such that RUS's action will be considered a Federal action
subject to this part. Consideration shall be given to such factors as:
(1) Whether construction would be completed regardless of RUS
financial assistance or approval;
(2) The stage of planning and construction;
(3) Total participation of the applicant;
(4) Participation percentage of each utility; and
(5) Managerial arrangements and contractual provisions.
Sec. 1794.21 Categorically excluded proposals without an ER.
(a) General. Certain types of actions taken by RUS do not normally
require an ER. Proposed actions within this classification are:
(1) The issuance of bulletins and information publications that do
not concern environmental matters or substantial facility design,
construction, or maintenance practices;
(2) Procurement activities related to the operation of RUS;
(3) Personnel and administrative actions; and
(4) Repairs made because of an emergency situation to return to
service damaged facilities of an applicant's system.
(b) Electric and Telecommunications Programs. Applications for
financial assistance for the types of proposed actions listed in this
paragraph (b) normally do not require the submission of an ER. These
types of actions are subject to the requirements of Sec. 1794.31.
Applicants shall sufficiently identify all proposed actions so their
proper classification can be determined. Detailed descriptions shall be
provided for each proposal noted in this section. RUS normally requires
additional information in addition to a description of what is being
proposed, to ensure that proposals are properly classified. In order to
provide for extraordinary circumstances, RUS may require development of
an ER for proposals listed in this section. Proposed actions within
this classification are:
(1) Purchase of land where use shall remain unchanged, or the
purchase of existing water rights where no associated construction is
involved;
(2) Additional or substitute financial assistance for proposed
actions which have previously received environmental review and
approval from RUS, provided the scope of the proposal and environmental
considerations have not changed;
(3) Rehabilitation or reconstruction of transportation facilities
within existing rights-of-way (ROW) or generating facility sites. A
description of the rehabilitation or reconstruction shall be provided
to RUS;
(4) Changes or additions to microwave sites, substations, switching
stations, telecommunications switching or multiplexing centers,
buildings, or small structures requiring new physical disturbance or
fencing of less than one acre (0.4 hectare). A description of the
additions or changes and the area to be impacted by the expansion shall
be provided to RUS;
(5) Internal modifications or equipment additions (e.g., computer
facilities, relocating interior walls) to structures or buildings;
(6) Internal or minor external changes to electric generating or
fuel processing facilities and related support structures where there
is negligible impact on the outside environment. A description of the
changes shall be provided to RUS;
(7) Ordinary maintenance or replacement of equipment or small
structures (e.g., line support structures, line transformers, microwave
facilities, telecommunications remote switching and multiplexing
sites);
(8) The construction of telecommunications facilities within the
fenced area of an existing substation, switching station, or within the
boundaries of an existing electric generating facility site. A
description of the facilities to be constructed shall be provided to
RUS;
(9) SCADA and energy management systems involving no new external
construction;
(10) Testing or monitoring work (e.g., soil or rock core sampling,
monitoring wells, air monitoring);
(11) Studies and engineering undertaken to define proposed actions
or alternatives sufficiently so that environmental effects can be
assessed;
(12) Construction of electric power lines within the fenced area of
an existing substation, switching station, or within the boundaries of
an electric generating facility site;
(13) Contracts for certain items of equipment which are part of a
proposed action for which RUS is preparing an EA or EIS, and which meet
the limitations on actions during the NEPA process as established in 40
CFR 1506.1(d) and contained in Sec. 1794.15(b)(2);
(14) Rebuilding of power lines or telecommunications cables where
road or highway reconstruction requires the applicant to relocate the
lines either within or adjacent to the new road or highway easement or
right-of-way. A description of the facilities to be constructed shall
be provided to RUS;
(15) Phase or voltage conversions, reconductoring or upgrading of
existing electric distribution lines, or telecommunication facilities.
A description of the facilities to be constructed shall be provided to
RUS;
(16) Construction of new power lines, substations, or
telecommunications facilities on industrial or commercial sites, where
the applicant has no control over the location of the new facilities.
Related off-site facilities would be treated in their normal category.
A description of the facilities to be constructed shall be provided to
RUS;
(17) Participation by an applicant(s) in any proposed action where
total applicant financial participation will be five percent or less;
(18) Construction of a battery energy storage system at an existing
generating station or substation site. A description of the facilities
to be constructed shall be provided to RUS.
(19) Additional bulk commodity storage (e.g., coal, fuel oil,
limestone) within existing generating station boundaries. A
certification attesting to the current state of compliance of the
existing facilities and a description of the facilities to be added
shall be provided to RUS;
(20) Proposals designed to reduce the amount of pollutants released
into the environment (e.g., precipitators, baghouse or scrubber
installations, and coal washing equipment) which will have no other
environmental impact outside the existing facility site. A description
of the facilities to be constructed shall be provided to RUS;
(21) Construction of standby diesel electric generators (one
megawatt or less total capacity) and associated facilities, for the
primary purpose of providing emergency power, at an existing applicant
headquarters or district office, telecommunications switching or
multiplexing site, or at an industrial, commercial or agricultural
facility served by the applicant. A description of the facilities to be
constructed shall be provided to RUS;
(22) Construction of onsite facilities designed for the transfer of
ash, scrubber wastes, and other byproducts from coal-
[[Page 68660]]
fired electric generating stations for recycling or storage at an
existing coal mine (surface or underground). A description of the
facilities to be constructed shall be provided to RUS;
(23) Changes or additions to an existing water well system,
including new water supply wells and associated pipelines within the
boundaries of an existing well field or generating station site. A
description of the changes or additions shall be provided; and
(24) Repowering or uprating of an existing unit(s) at a fossil-
fueled generating station in order to improve the efficiency or the
energy output of the facility. Repowering or uprating that results in
increased fuel consumption or the substitution of one fuel combustion
technology with another is excluded from this classification.
(c) Water and Waste Program. Applications for financial assistance
for certain proposed actions do not normally require the submission of
an ER. Applicants shall sufficiently identify all proposed actions so
their proper classification can be determined. These types of actions
are subject to the requirements of Sec. 1794.31. In order to provide
for extraordinary circumstances, RUS may require development of an ER
for proposals listed in this section. Proposed actions within this
classification are:
(1) Management actions relating to invitation for bids, award of
contracts, and the actual physical commencement of construction
activities;
(2) Proposed actions that primarily involve the purchase and
installation of office equipment or motorized vehicles;
(3) The award of financial assistance for technical assistance,
planning purposes, environmental analysis, management studies, or
feasibility studies; and
(4) Loan closing and servicing activities that do not alter the
purpose, operation, location, or design of the proposal as originally
approved, such as subordinations, amendments and revisions to approved
actions, and the provision of additional financial assistance for cost
overruns.
Sec. 1794.22 Categorically excluded proposals requiring an ER.
(a) Electric and Telecommunications Programs. Applications for
financial assistance for the types of proposed actions listed in this
section normally require the submission of an ER and are subject to the
requirements of Sec. 1794.32. Proposed actions within this
classification are:
(1) Construction of electric power lines and associated facilities
designed for or capable of operation at a nominal voltage of either:
(i) Less that 69 kilovolts (kV);
(ii) Less than 230 kV if no more than 25 miles (40.2 kilometers) of
line are involved; or
(iii) 230 kV or greater involving no more than three miles (4.8
kilometers) of line;
(2) Construction of buried and aerial telecommunications lines,
cables, and related facilities;
(3) Construction of microwave facilities, SCADA, and energy
management systems involving no more than five acres (2 hectares) of
physical disturbance at any single site;
(4) Construction of cooperative or company headquarters,
maintenance facilities, or other buildings involving no more than 10
acres (4 hectares) of physical disturbance or fenced property;
(5) Changes to existing transmission lines that involve less than
20 percent pole replacement, or the complete rebuilding of existing
distribution lines within the same ROW. Changes to existing
transmission lines that require 20 percent or greater pole replacement
will be considered the same as new construction;
(6) Changes or additions to existing substations, switching
stations, telecommunications switching or multiplexing centers, or
external changes to buildings or small structures requiring one acre
(0.4 hectare) or more but no more than five acres (2 hectares) of new
physically disturbed land or fenced property;
(7) Construction of substations, switching stations, or
telecommunications switching or multiplexing centers requiring no more
than five acres (2 hectares) of new physically disturbed land or fenced
property;
(8) Construction of diesel electric generating facilities of five
megawatts (MW) (nameplate rating) or less either at an existing
generation or substation sites. This category also applies to a diesel
electric generating facility of five MW or less that is located at or
adjacent to an existing landfill site and supplied with refuse derived
fuel. All new associated facilities and related electric power lines
shall be covered in the ER;
(9) Additions to or the replacement of existing generating units at
a hydroelectric facility or dam which result in no change in the normal
maximum surface area or normal maximum surface elevation of the
existing impoundment. All new associated facilities and related
electric power lines shall be covered in the ER;
(10) Construction of new water supply wells and associated
pipelines not located within the boundaries of an existing well field
or generating station site; and
(11) Purchase of existing facilities or a portion thereof where use
or operation will remain unchanged. The results of a facility
environmental audit can be substituted for the ER.
(b) Water and Waste Program. For certain proposed actions,
applications for financial assistance normally require the submittal of
an ER as part of the PER. These types of actions are subject to the
requirements of Sec. 1794.32. Proposed actions within this
classification are:
(1) Rehabilitation of existing facilities, functional replacement
or rehabilitation of equipment, or the construction of new ancillary
facilities adjacent or appurtenant to existing facilities, including
but not limited to, replacement of utilities such as water or sewer
lines and appurtenances for existing users with modest or moderate
growth potential, reconstruction of curbs and sidewalks, street
repaving, and building modifications, renovations, and improvements;
(2) Facility improvements to meet current needs with a modest
change in use, size, capacity, purpose or location from the original
facility. The proposed action must be designed for predominantly
residential use with other new or expanded users being small-scale,
commercial enterprises having limited secondary impacts;
(3) Construction of new facilities that are designed to serve not
more than 500 EDUs and with modest growth potential. The proposed
action must be designed for predominantly residential use with other
users being small-scale, commercial enterprises having limited
secondary impacts;
(4) The extension, enlargement or construction of interceptors,
collection, transmission or distribution lines within a one-mile (1.6-
kilometer) limit from existing service areas estimated from any
boundary listed as follows:
(i) The corporate limits of the community being served;
(ii) If there are developed areas immediately contiguous to the
corporate limits of a community, the limits of these developed areas;
or
(iii) If an unincorporated area is to be served, the limits of the
developed areas;
(5) Installation of new water supply wells or water storage
facilities that are required by a regulatory authority or standard
engineering practice as a backup to existing production well(s) or as
reserve for fire protection;
(6) Actions described in Sec. 1794.21(c)(4) which alter the
purpose,
[[Page 68661]]
operation, location, or design of the proposed action as originally
approved, and such alteration is equivalent in magnitude or type as
described in paragraphs (b)(1) through (b)(5) of this section; and
(7) The lease or disposal of real property by RUS, which may result
in a change in use of the real property in the reasonably foreseeable
future and such change, is equivalent in magnitude or type as described
in paragraphs (b)(1) through (b)(5).
(c) Specialized criteria for not granting a CE for Water and Waste
Projects. An EA must be prepared if a proposed action normally
classified as a CE meets any of the following:
(1) Will either create a new or relocate an existing discharge to
or a withdrawal from surface or ground waters;
(2) Will result in substantial increases in the volume or the
loading of pollutants from an existing discharge to receiving waters;
(3) Will cause a substantial increase in the volume of withdrawal
from surface or ground waters at an existing site; or
(4) Would provide capacity to serve more than 500 EDUs or a 30
percent increase in the existing population whichever is larger.
Sec. 1794.23 Proposals normally requiring an EA.
RUS will normally prepare an EA for all proposed actions which are
neither categorical exclusions (Secs. 1794.21 and 1794.22) nor normally
requiring an EIS (Sec. 1794.25). For certain actions within this class,
scoping and document procedures contained in Secs. 1794.50 through
1794.54 shall be followed (see Sec. 1794.24). The following are
proposed actions which normally require an EA and shall be subject to
the requirements of Secs. 1794.40 through 1794.44.
(a) General. Issuance or modification of RUS regulations concerning
environmental matters.
(b) Telecommunications and Water and Waste Programs. An EA shall be
prepared for applications for financial assistance for all proposed
actions not specifically defined as a CE or otherwise specifically
categorized by the Administrator on a case-by-case basis.
(c) Electric Program. Applications for financial assistance for
certain proposed actions normally require the preparation of an EA.
Proposed actions falling within this classification are:
(1) Construction of combustion turbine or diesel generating
facilities of 50 MW (nameplate rating) or less at a new site (no
existing generating capacity) except for items covered by
Sec. 1794.22(a)(8). All new associated facilities and related electric
power lines shall be covered in the EA;
(2) Construction of combustion turbine or diesel generating
facilities of 100 MW (nameplate rating) or less at an existing
generating site, except for items covered by Sec. 1794.22(a)(8). All
new associated facilities and related electric power lines shall be
covered in the EA;
(3) Construction of any other type of new electric generating
facilities of 10 MW (nameplate rating) or less. All new associated
facilities and related electric power lines shall be covered in the EA;
(4) Repowering or uprating of an existing unit(s) at a fossil-
fueled generating station where the existing fuel combustion technology
of the affected unit(s) is substituted for another (e.g. coal or oil-
fired boiler is converted to a fluidized bed boiler or replaced with a
combustion turbine unit);
(5) Installation of new generating units at an existing
hydroelectric facility or dam, or the replacement of existing
generating units at a hydroelectric facility or dam which will result
in a change in the normal maximum surface area or normal maximum
surface elevation of the existing impoundment. All new associated
facilities and related electric power lines shall be covered in the EA;
(6) A new drilling operation or the expansion of a mining or
drilling operation;
(7) Construction of cooperative headquarters, maintenance, and
equipment storage facilities involving more than 10 acres (4 hectares)
of physical disturbance or fenced property;
(8) The construction of electric power lines and related facilities
designed for and capable of operation at a nominal voltage of 230 kV or
more involving more than three miles (4.8 kilometers) but not more than
25 miles (40 kilometers) of line;
(9) The construction of electric power lines and related facilities
designed for or capable of operation at a nominal voltage of 69 kV or
more but less than 230 kV where more than 25 miles (40 kilometers) of
power line are involved;
(10) The construction of substations or switching stations
requiring greater than five acres (2 hectares) of new physical
disturbance at a single site; and
(11) Construction of facilities designed for the transfer and
storage of ash, scrubber wastes, and other byproducts from coal-fired
electric generating stations that will be located beyond the existing
facility site boundaries.
Sec. 1794.24 Proposals normally requiring an EA with scoping.
(a) General. Applications for financial assistance for certain
proposed actions require the use of a scoping procedure in the
development of the EA. These types of actions are subject to the
requirements of Secs. 1794.50 through 1794.54. RUS has the discretion
to modify or waive the requirements listed in Sec. 1794.52 for a
proposed action in this category.
(b) Electric Program. Proposed actions falling within this
classification are:
(1) The construction of electric power lines and related facilities
designed for and capable of operation at a nominal voltage of 230 kV or
more where more than 25 miles (40 kilometers) of power line are
involved;
(2) Construction of combustion turbines and diesel generators of
more than 50 MW at a new site or more than 100 MW at an existing site;
and the construction of any other type of electric generating facility
of more than 10 MW but not more than 50 MW (nameplate rating). All new
associated facilities and related electric power lines shall be covered
in any EA or EIS that is prepared.
(c) Telecommunications and Water and Waste Programs. There are no
actions normally falling within this classification.
Sec. 1794.25 Proposals normally requiring an EIS.
Applications for financial assistance for certain proposed actions
that may significantly affect the quality of the human environment
shall require the preparation of an EIS.
(a) Electric Program. An EIS will normally be required in
connection with proposed actions involving the following types of
facilities:
(1) New electric generating facilities of more than 50 MW
(nameplate rating) other than diesel generators or combustion turbines.
All new associated facilities and related electric power lines shall be
covered in the EIS; and
(2) A new mining operation when the applicants have effective
control (e.g., dedicated mine or purchase of a substantial portion of
the mining equipment).
(b) Proposals listed above are subject to the requirements of
Secs. 1794.60, 1794.61, 1794.63, and 1794.64. Preparation of a
supplemental draft or final EIS in accordance with 40 CFR 1502.9 shall
be subject to the requirements of Secs. 1794.62 and 1794.64.
(c) Telecommunications and Water and Waste Programs. No groups or
sets of proposed actions normally require the preparation of an EIS.
The
[[Page 68662]]
environmental review process, as described in this part, shall be used
to identify those proposed actions for which the preparation of an EIS
is necessary. If an EIS is required, RUS shall proceed directly to its
preparation. Prior completion of an EA is not mandatory.
Secs. 1794.26-1794.29 [Reserved]
Subpart D--Procedure for Categorical Exclusions
Sec. 1794.30 General.
The procedures of this subpart which apply to proposed actions
classified as CEs in Secs. 1794.21 and 1794.22 provide RUS with
information necessary to determine if the proposed action meets the
criteria for a CE. Where, because of extraordinary circumstances, a
normally categorically excluded action may have a significant effect on
the quality of the human environment, RUS may require additional
environmental documentation.
Sec. 1794.31 Classification.
(a) Electric and Telecommunications Programs. RUS will normally
determine the proper environmental classification of projects based on
its evaluation of the project description set forth in the construction
work plan or loan design which the applicant is required to submit with
its application for financial assistance. Each project must be
sufficiently described to ensure its proper classification. RUS may
require the applicant to provide additional information on a project
where appropriate.
(b) Water and Waste Program. RUS will normally determine the proper
environmental classification for projects based on its evaluation of
the preliminary planning and design information.
Sec. 1794.32 Environmental report.
(a) For proposed actions listed in Sec. 1794.21(b) and (c), the
applicant is normally not required to submit an ER.
(b) For proposed actions listed in Sec. 1794.22(a) and (b), the
applicant shall normally submit an ER. Guidance in preparing the ER for
Electric and Telecommunication proposals is contained in RUS Bulletin
1794A-600. Guidance in preparing the ER for Water and Waste proposals
is contained in RUS Bulletin 1794A-602. The applicant may be required
to publish public notices and provide evidence of such if the proposed
action is located in, impacts, or converts important land resources.
Sec. 1794.33 Agency action.
RUS may act on an application for financial assistance upon
determining, based on the review of documents as set forth in
Sec. 1794.32 and such additional information as RUS deems necessary,
that the project is categorically excluded.
Secs. 1794.34-1794.39 [Reserved]
Subpart E--Procedure for Environmental Assessments
Sec. 1794.40 General.
This subpart applies to proposed actions described in Sec. 1794.23.
Where appropriate to carry out the purposes of NEPA, RUS may impose, on
a case-by-case basis, additional requirements associated with the
preparation of an EA. If at any point in the preparation of an EA, RUS
determines that the proposed action will have a significant effect on
the quality of the human environment, the preparation of an EIS shall
be required and the procedures in subpart G of this part shall be
followed.
Sec. 1794.41 Document requirements.
Applicants will provide an ER in accordance with the appropriate
guidance documents referenced in Sec. 1794.7. After RUS has evaluated
the ER and has determined the ER adequately addresses all applicable
environmental issues, the ER will normally serve as RUS' EA. However,
RUS reserves the right to prepare its own EA from the information
provided in the ER. RUS will take responsibility for the scope and
content of an EA.
Sec. 1794.42 Notice of availability.
Prior to RUS making a finding in accordance with Sec. 1794.43 and
upon RUS authorization and guidance, the applicant shall have a notice
published which announces the availability of the EA and solicits
public comments on the EA.
Sec. 1794.43 Agency finding.
(a) General. If RUS finds, based on an EA that the proposed action
will not have a significant effect on the quality of the human
environment, RUS will prepare a FONSI. Upon authorization of RUS, the
applicant shall have a notice published which informs the public of the
RUS finding and the availability of the EA and FONSI. The notice shall
be prepared and published in accordance with RUS guidance.
(b) Electric and Telecommunications Programs. RUS shall have a
notice published in the Federal Register that announces the
availability of the EA and FONSI.
Sec. 1794.44 Timing of agency action.
RUS may take its final action on proposed actions requiring an EA
(Sec. 1794.23) at any time after publication of the RUS and applicant
notices that a FONSI has been made and any required review period has
expired. When substantive comments are received on the EA, RUS may
provide an additional period (15 days) for public review following the
publication of its FONSI determination. Final action shall not be taken
until this review period has expired.
Secs. 1794.45-1794.49 [Reserved]
Subpart F--Procedure for Environmental Assessments With Scoping
Sec. 1794.50 Normal sequence.
For proposed actions covered by Sec. 1794.24 and other actions
determined by the Administrator to require an EA with Scoping, RUS and
the applicant will follow the same procedures for scoping and the
requirements for notices and documents as for proposed actions normally
requiring an EIS through the point at which the Environmental Analysis
(EVAL) is submitted (see Sec. 1794.54). After the EVAL has been
submitted, RUS will make a judgment to utilize the EVAL as its EA and
issue a FONSI or prepare an EIS.
Sec. 1794.51 Preparation for scoping.
(a) As soon as practicable after RUS and the applicant have
developed a schedule for the environmental review process, RUS shall
have its notice of intent to prepare an EA or EIS (Sec. 1794.13)
published in the Federal Register (see 40 CFR 1508.22). The applicant
shall have published, in a timely manner, a notice similar to RUS'
notice.
(b) As part of the early planning, the applicant should consult
with appropriate Federal, state, and local agencies to inform them of
the proposed action, identify permits and approvals which must be
obtained, and administrative procedures which must be followed.
(c) Before formal scoping is initiated, RUS will require the
applicant to submit an Alternative Evaluation Study and either a Siting
Study (generation) or a Macro-Corridor Study (transmission lines).
(d) The applicant is encouraged to hold public information meetings
in the general location of the proposed action and any reasonable
alternatives when such applicant meetings will make the scoping process
more meaningful. A written summary of the comments made
[[Page 68663]]
at such meetings must be submitted to RUS as soon as practicable after
the meetings.
Sec. 1794.52 Scoping meetings.
(a) Both RUS and the applicant shall have a notice published which
announces a public scoping meeting is to be conducted, either in
conjunction with the notice of intent or as a separate notice.
(b) The RUS notice shall be published in the Federal Register at
least 14 days prior to the meeting(s). The applicant's notice shall be
published in a newspaper at least 10 days prior to the meeting(s).
Other forms of media may also be used by the applicant to notice the
meetings.
(c) Where an environmental document is the subject of the hearing
or meeting, that document will be made available to the public at least
10 days in advance of the meeting.
(d) The scoping meeting(s) will be held in the area of the proposed
action at such place(s) as RUS determines will best afford an
opportunity for public involvement. Any person or representative of an
organization, or government body desiring to make a statement at the
meeting may make such statement in writing or orally. The format of the
meeting may be one of two styles. It can either be of the traditional
style which features formal presentations followed by a comment period,
or the open house style in which attendees are able to individually
obtain information on topics or issues of interest within an
established time period. A transcript will be made of the scoping
meeting.
(e) As soon as practicable after the scoping meeting(s), RUS, as
lead agency, shall determine the significant issues to be analyzed in
depth and identify and eliminate from detailed study the issues which
are not significant or which have been covered by prior environmental
review. RUS will develop a proposed scope for further environmental
study and review. RUS shall send a copy of this proposed scope to
cooperating agencies and the applicant, and allow recipients 30 days to
comment on the scope's adequacy and emphasis. After expiration of the
30-day period, RUS shall provide written guidance to the applicant
concerning the scope of environmental study to be performed and
information to be gathered.
Sec. 1794.53 Environmental analysis.
(a) After scoping procedures have been completed, RUS shall require
the applicant to develop and submit an EVAL. The EVAL shall be prepared
under the supervision and guidance of RUS staff and RUS shall evaluate
and be responsible for the accuracy of all information contained
therein.
(b) The EVAL will normally serve as the RUS EA. The EVAL can also
serve as the basis for an EIS, and under such circumstances will be
made an appendix to the EIS. After RUS has reviewed and found the EVAL
to be satisfactory, the applicant shall provide RUS with a sufficient
number of copies of the EVAL to satisfy the RUS distribution plan.
(c) The EVAL shall include a summary of the construction and
operation monitoring and mitigation measures for the proposed action.
These measures may be revised as appropriate in response to comments
and other information. and shall be incorporated by summary or
reference into the FONSI or ROD.
Sec. 1794.54 Agency determination.
Following the scoping process and the development of a satisfactory
EA, RUS shall determine whether the proposed action is a major Federal
action significantly affecting the quality of the human environment. If
RUS determines the action is significant, RUS will continue with the
procedures in subpart G of this part. If RUS determines the action is
not significant, RUS will proceed in accordance with Secs. 1794.42
through 1794.44.
Secs. 1794.55-1794.59 [Reserved]
Subpart G--Procedure for Environmental Impact Statements
Sec. 1794.60 Normal sequence.
For proposed actions requiring an EIS (see Sec. 1794.25), the NEPA
process shall proceed in the same manner as for proposed actions
requiring an EA with scoping through the point at which the scoping
process is completed (see Sec. 1794.52).
Sec. 1794.61 Environmental impact statement.
(a) General. An EIS shall be prepared in accordance with 40 CFR
part 1502. Funding, in whole or in part, for an EIS can be obtained
from any lawful source (e.g., cooperative agreements developed in
accordance with Section 759A, Federal Agricultural Improvement and
Reform Act of 1996, Pub. L. 104-127 and 31 U.S.C. 6301). A third-party
consultant selected by RUS and funded by the applicant (7 CFR part
1789) may prepare the EIS.
(1) After a draft or final EIS has been prepared, RUS and the
applicant shall concurrently have a notice of availability for the
document published. The time period allowed for review will be a
minimum of 45 days for a draft EIS and 30 days for a final EIS. This
period is measured from the date that the U.S. Environmental Protection
Agency (EPA) publishes a notice in the Federal Register in accordance
with 40 CFR 1506.10.
(2) In addition to circulation required by 40 CFR 1502.19, the
draft and final EIS (or summaries thereof, at RUS discretion) shall be
circulated to the appropriate state, regional, and metropolitan
clearinghouses.
(3) Where a final EIS does not require substantial changes from the
draft EIS, RUS may document required changes through errata sheets,
insertion pages, and revised sections to be incorporated into the draft
EIS. In such cases, RUS shall circulate such changes together with
comments on the draft EIS, responses to comments, and other appropriate
information as its final EIS. RUS will not circulate the draft EIS
again, although RUS will provide the draft EIS if requested within 30
days of publication of notice of availability of the final EIS.
(b) Electric Program. Where the applicant or its consultant has
prepared an EVAL, RUS will develop its draft and final EIS from the
EVAL. An EVAL will not be required if a third-party consultant prepares
the draft and final EIS.
Sec. 1794.62 Supplemental EIS.
(a) A supplement to a draft or final EIS shall be prepared,
circulated, and given notice by RUS and the applicant in the same
manner (exclusive of scoping) as a draft and final EIS (see
Sec. 1794.61).
(b) Normally RUS and the applicant will have published notices of
intent to prepare a supplement to a final EIS in those cases where a
ROD has already been issued.
(c) RUS, at its discretion, may issue an information supplement to
a final EIS where RUS determines that the purposes of NEPA are
furthered by doing so even though such supplement is not required by 40
CFR 1502.9(c)(1). RUS and the applicant shall concurrently have a
notice of availability published. The notice requirements shall be the
same as for a final EIS and the information supplement shall be
circulated in the same manner as a final EIS. RUS shall take no final
action on any proposed modification discussed in the information
supplement until 30 days after the RUS notice of availability or the
applicant's notice is published, whichever occurs later.
[[Page 68664]]
Sec. 1794.63 Record of decision.
(a) Upon completion of the review period for a final EIS, RUS will
have its ROD prepared in accordance with 40 CFR 1505.2.
(b) Separate RUS and applicant notices of availability shall be
published concurrently. The notices shall summarize the RUS decision
and announce the availability of the ROD. Copies of the ROD will be
made available upon request from the point of contact identified in the
notice.
Sec. 1794.64 Timing of agency action.
(a) RUS may take its final action or execute commitments on
proposed actions requiring an EIS or Supplemental EIS at any time after
the ROD has been published.
(b) For budgetary purposes some financial assistance may be
approved conditionally with a stipulation that no funds shall be
advanced until a ROD has been prepared.
Secs. 1794.65-1794.69 [Reserved]
Subpart H--Adoption of Environmental Documents
Sec. 1794.70 General.
This subpart covers the adoption of environmental documents
prepared by other Federal agencies. Where applicants participate in
proposed actions for which an EA or EIS has been prepared by or for
another Federal agency, RUS may adopt the existing EA or EIS in
accordance with 40 CFR 1506.3.
Sec. 1794.71 Adoption of an EA.
RUS may adopt a Federal EA or EIS or a portion thereof as its EA.
RUS shall make the EA available and assure that notice is provided in
the same manner as if RUS had prepared the EA.
Sec. 1794.72 Adoption of an EIS.
(a) Where RUS determines that an existing Federal EIS requires
additional information to meet the standards for an adequate statement
for RUS proposed action, RUS may adopt all or a portion of the EIS as a
part of its draft EIS. The circulation and notice provisions for a
draft and final EIS (see Sec. 1794.61) apply.
(b) If RUS was not a cooperating agency but determines that another
Federal agency's EIS is adequate, RUS shall adopt that agency's EIS as
its final EIS. RUS and the applicant shall have separate notices
published advising of RUS adoption of the EIS and independent
determination of its adequacy.
(c) If the adopted EIS is generally available and meets RUS
standards, RUS shall have a public notice published informing the
public of its action and availability of the EIS to interested parties
upon request. If the adopted EIS is not generally available, RUS shall
have a public notice published informing the public of its action and
will circulate copies of the EIS in accordance with 40 CFR 1502.19 and
40 CFR 1506.3.
Sec. 1794.73 Timing of agency action.
Where RUS has adopted another agency's environmental documents, the
timing of the action shall be subject to the same requirements as if
RUS had prepared the required EA or EIS.
Sec. 1794.74 Incorporation of environmental materials.
RUS may incorporate into its environmental documents, environmental
documents or portions thereof prepared by state, or local agencies or
other parties for purposes other than compliance with the requirements
of NEPA. RUS will circulate the incorporated documents as a part of its
EA or draft and final EIS in the same manner as if prepared by RUS.
Sec. 1794.75-1794.79 [Reserved]
Dated: December 7, 1998.
Jill Long Thompson,
Under Secretary, Rural Development.
[FR Doc. 98-32882 Filed 12-10-98; 8:45 am]
BILLING CODE 3410-15-P