[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Proposed Rules]
[Pages 35323-35326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14284]



Forest Service

36 CFR Part 220

RIN 0596-AD01

National Environmental Policy Act: Categorical Exclusions for 
Soil and Water Restoration Activities

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rule; request for public comment.


[[Page 35324]]

SUMMARY: The United States Department of Agriculture, Forest Service, 
is proposing to supplement its National Environmental Policy Act (NEPA) 
regulations (36 CFR Part 220) with three new categorical exclusions for 
activities that restore lands negatively impacted by water control 
structures, natural and human caused events, and roads and trails. 
These categorical exclusions will allow the Forest Service to more 
efficiently analyze and document the potential environmental effects of 
soil and water restoration projects that are intended to restore the 
flow of waters into natural channels and floodplains by removing water 
control structures, such as dikes, ditches, culverts and pipes; restore 
lands and habitat to pre-disturbance conditions, to the extent 
practicable, by removing debris, sediment, and hazardous conditions 
following natural or human-caused events; and restore lands occupied by 
roads and trails to natural conditions.
    The proposed road and trail restoration category would be used for 
restoring lands impacted by non-system roads and trails that are no 
longer needed and no longer maintained. This category would not be used 
to make access decisions about which roads and trails are to be 
designated for public use.

DATES: Comments must be received in writing on or before August 13, 

ADDRESSES: Submit comments online at http://www.regulations.gov. Submit 
written comments by addressing them to Restoration CE Comments, P.O. 
Box 4208, Logan, UT 84323, or by facsimile to (801) 397-1605. Please 
identify your written comments by including ``Categorical Exclusions'' 
on the cover sheet or the first page. Electronic comments are 
preferred. For comments sent via U.S. Postal Service, please do not 
submit duplicate electronic or facsimile comments. Please confine 
comments to the proposed rule on Categorical Exclusion for Restoration 
    All comments, including names and addresses, when provided, will be 
placed in the record and will be available for public inspection and 

FOR FURTHER INFORMATION CONTACT: Peter Gaulke, Ecosystem Management 
Coordination Staff, (202) 205-1521. Individuals who use 
telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at (800) 877-8339 between 8:00 a.m. 
and 8:00 p.m. eastern standard time, Monday through Friday.


Background and Need for the Proposed Rule

    In 2009, Secretary of Agriculture Tom Vilsack called for restoring 
forestlands to protect water resources, the climate, and terrestrial 
and aquatic ecosystems. The Forest Service spends significant resources 
on NEPA analyses and documentation for a variety of land management 
projects. The Agency believes that it is possible to improve the 
efficiency of the NEPA process to speed the pace of forest and 
watershed restoration, while not sacrificing sound environmental 
    For decades, the Forest Service has implemented terrestrial and 
aquatic restoration projects. Some of these projects encompassed 
actions that promoted restoration activities related to floodplains, 
wetlands and watersheds, or past natural or human-caused damage. The 
Forest Service has found that under normal circumstances the 
environmental effects of some restoration activities have not been 
individually or cumulatively significant. The Forest Service's 
experience predicting and evaluating the environmental effects of the 
category of activities outlined in this proposed rule has led the 
Agency to propose supplementing its NEPA regulations by adding three 
new categorical exclusions for activities that achieve soil and water 
restoration objectives.
    The Forest Service's proposed categorically excluded actions 
promote hydrologic, aquatic, and landscape restoration activities. All 
three categorical exclusions involve activities that are intended to 
maintain or restore ecological functions and better align the Agency's 
regulations, specifically its categorical exclusions, with the Agency's 
current activities and experiences related to restoration.
    The restoration of lands occupied by unmaintained non-system roads 
and trails (National Forest System Roads and Trails are defined at 36 
CFR 212.1) is important to promote hydrologic, aquatic, and watershed 
restoration. Activities that restore lands occupied by a road or trail 
may include reestablishing former drainage patterns, stabilizing 
slopes, restoring vegetation, blocking the entrance to the road, 
installing waterbars, removing culverts, removing unstable fills, 
pulling back road shoulders, and completely eliminating the road bed by 
restoring natural contours and slopes. The Forest Service experience is 
that the majority of issues associated with road and trail 
decommissioning arise from the initial decision whether to close a road 
or trail to public use rather than from implementing individual 
restoration projects.
    The Forest Service believes it is appropriate to establish soil and 
water restoration categorical exclusions based on NEPA implementing 
regulations at 40 CFR Sec.  1500.4(p) and 1500.5(k), which identify a 
categorical exclusion as a means to reduce paperwork and delays in 
project implementation, and the Agency's abundance of information 
showing that the majority of these identified restoration actions have 
no significant impacts.
    Pursuant to CEQ's implementing regulations at 40 CFR Sec.  1507.3 
and the November 23, 2010, CEQ guidance memorandum on ``Establishing, 
Applying, and Revising Categorical Exclusions under the National 
Environmental Policy Act,'' the Forest Service gathered information 
supporting establishment of these three categorical exclusions using 
the following four methods:
    (1) The Forest Service reviewed EAs that implemented actions that 
were entirely or partially covered under one of the proposed 
categorical exclusions. This review showed that these projects did not 
individually or cumulatively result in a significant effect on the 
human environment.
    (2) The Forest Service consulted with professional staff and 
experts who have experience leading interdisciplinary teams and 
conducting environmental analysis of project proposals, implementing 
restoration activities, guiding the development and execution of 
restoration programs, and studying the techniques, effects, and 
outcomes associated with soil and water restoration activities. The 
experience of these professional staff included persons from every 
Forest Service and nearly every geographic region across the United 
States, including Alaska.
    (3) The Forest Service also studied peer-reviewed scientific 
analyses, research papers, and monitoring reports about activities 
identified under these categorical exclusions.
    (4) Finally, the Forest Service reviewed categorical exclusions 
adopted by eight other federal agencies that cover activities that are 
comparable in size and scope and that are implemented under similar 
natural resource conditions with similar environmental impacts to those 
covered under the categories in this proposed rule.
    Based on this review, the Forest Service finds that the proposed 
categorical exclusions would not individually or cumulatively have 
significant effects on the human environment. The Agency's finding is

[[Page 35325]]

predicated on data from implementing comparable past actions; the 
expert judgment of the responsible officials who made the findings for 
the projects reviewed for this supporting statement; information from 
other professional staff and experts, and scientific analyses; a review 
and comparison of similar categorical exclusions implemented by other 
federal agencies; and the Forest Service's experience implementing soil 
and water restoration activities and subsequent monitoring of potential 
associated impacts. Additional information is available at http://www.fs.fed.us/emc/nepa/restorationCE.

Implementing the Proposed Categorical Exclusion

    Actions relying on one of these categorical exclusions remain 
subject to agency requirements to conduct scoping and require a 
determination that there are not extraordinary circumstances that would 
otherwise require documentation in an EA or EIS. These proposed 
categorical exclusions would require a project or case file and 
decision memo, including, in part, a rationale for using the 
categorical exclusion and a finding that extraordinary circumstances do 
not require documentation in an EA or EIS.

Regulatory Certification

Environmental Impact

    The intent of the proposed rule is to increase administrative 
efficiency in connection with conducting important restoration 
activities on National Forest System lands while assuring that no 
significant environmental effects occur. The proposed amendment of 
Forest Service NEPA Regulations (36 CFR 220.6) concerns NEPA 
documentation for certain types of soil and water restoration 
activities. The Council on Environmental Quality does not direct 
agencies to prepare a NEPA analysis or document before establishing 
agency procedures that supplement the CEQ regulations for implementing 
NEPA. Agencies are required to adopt NEPA procedures that establish 
specific criteria for, and identification of, three classes of actions: 
Those that require preparation of an EIS; those that require 
preparation of an EA; and those that are categorically excluded from 
further NEPA review (40 CFR 1507.3(b)). Categorical exclusions are one 
part of those agency procedures, and therefore establishing categorical 
exclusions does not require preparation of a NEPA analysis or document. 
Agency NEPA procedures are internal procedural guidance to assist 
agencies in the fulfillment of agency responsibilities under NEPA, but 
are not the agency's final determination of what level of NEPA analysis 
is required for a particular proposed action. The requirements for 
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 
1507.3. The determination that establishing categorical exclusions does 
not require NEPA analysis and documentation has been upheld in 
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 
(S.D. Ill. 1999), aff'd, 230 F. 3d 947, 954-55 (7th Cir. 2000).

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on regulatory planning and review. The Office of 
Management and Budget has determined that this is not a significant 
rule. The proposed rule would not have an annual effect of $100 million 
or more on the economy, nor would it adversely affect productivity, 
competition, jobs, the environment, public health or safety, or state 
or local government. This proposed rule would not interfere with an 
action taken or planned by another agency, nor would it raise new legal 
or policy issues. Finally, this proposed rule would not alter the 
budgetary impacts of entitlements, grants, user fees, or loan programs, 
or the rights and obligations of recipients of such programs.

Regulatory Flexibility Act

    This proposed rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). The Agency has determined that 
this proposed rule would not have a significant economic impact on a 
substantial number of small entities as defined by the Act because the 
proposed rule would not impose recordkeeping requirements; it does not 
affect their competitive position in relation to large entities; and it 
would not affect their cash flow, liquidity, or ability to remain in 
the market.


    The Agency has considered this proposed rule under the requirements 
of Executive Order 13132, ``Federalism.'' The Agency has concluded that 
the proposed rule conforms with the federalism principles set out in 
this Executive Order; would not impose any compliance costs on the 
states; and would not have substantial direct effects on the states or 
the relationship between the national government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the Agency has determined that no further 
assessment of federalism implications is necessary.

Consultation and Coordination With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000, 
``Consultation and Coordination with Indian Tribal Governments,'' the 
Agency has assessed the impact of this proposed rule on Indian Tribal 
governments and has determined that it would not significantly or 
uniquely affect communities of Indian Tribal governments. The proposed 
rule deals with requirements for NEPA analysis and has no direct effect 
on occupancy and use of National Forest System lands. The Agency has 
also determined that this proposed rule would not impose substantial 
direct compliance costs on Indian Tribal governments or preempt Tribal 
law. Therefore, it has been determined that this proposed rule would 
not have Tribal implications requiring advance consultation with Indian 

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights.'' The Agency has determined that the proposed rule 
would not pose the risk of a taking of protected private property.

Civil Justice Reform

    The Agency has reviewed this proposed rule under Executive Order 
12988 of February 7, 1996, ``Civil Justice Reform.'' After adoption of 
this proposed rule, (1) all state and local laws and regulations that 
conflict with this rule or that would impede full implementation of 
this rule would be preempted; (2) no retroactive effect would be given 
to this proposed rule; and (3) the proposed rule would not require the 
use of administrative proceedings before parties could file suit in 
court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Agency has assessed the effects of this proposed rule on 
state, local, and Tribal governments and the private sector. This 
proposed rule would not compel the expenditure of $100 million or more 
by any state, local, or Tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the act is not 

[[Page 35326]]

Energy Effects

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

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any additional record keeping 
or reporting requirements or other information collection requirements 
as defined in 5 CFR part 1320 that are not already required by law or 
not already approved for use, and therefore, imposes no additional 
paperwork burden on the public. Accordingly, the review provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its 
implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 220

    Administrative practices and procedures, Environmental impact 
statements, Environmental protection, National forests, Science and 

    For the reasons set out in the preamble, the Forest Service 
proposes to amend part 220 of title 36 of the Code of Federal 
Regulations as follows:


    1. The authority citation for 36 CFR part 220 continues to read as 

    Authority:  42 U.S.C. 4321 et seq.: E.O. 11514; 40 CFR parts 
1500-1508; 7 CFR part 1b.

    2. In Sec.  220.6, add paragraphs (e)(18), (19), and (20) 
categorical exclusion categories read as follows:

Sec.  220.6  Categorical exclusions.

* * * * *
    (e) * * *
    (18) Restoring wetlands, streams, and riparian areas by removing, 
replacing, or modifying water control structures such as, but not 
limited to, dams, levees, dikes, ditches, culverts, pipes, valves, 
gates, and fencing, to allow waters to flow into natural channels and 
floodplains and restore natural flow regimes to the extent practicable. 
Examples include but are not limited to:
    (i) Removing, replacing, or repairing existing water control 
structures that are no longer functioning properly; only minimal 
dredging, excavation, or placement of fill is required and do not 
involve releasing hazardous substances;
    (ii) Installing a newly designed culvert that replaces an existing 
inadequate culvert to improve aquatic organism passage or prevent 
resource or property damage where the road or trail maintenance level 
does not change; and
    (iii) Removing a culvert and installing a bridge to improve aquatic 
and/or terrestrial organism passage or prevent resource or property 
damage where the road or trail maintenance level does not change.
    (19) Removing debris and sediment following natural or human-caused 
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian 
systems to pre-disturbance conditions, to the extent practicable, such 
that site conditions will not impede or negatively alter natural 
processes. Examples include but are not limited to:
    (i) Removing deposited debris and sediment resulting from natural 
or human-caused disturbance events from impacted sites using manual or 
mechanized equipment where minimal excavation is required;
    (ii) Clean-up and removal of infrastructure debris, such as, 
benches, tables, outhouses, concrete, culverts, and asphalt following a 
flood event from a stream reach and/or adjacent wetland area;
    (iii) Removal of downed or damaged trees that limit or reduce 
public access, result in potential risks to public safety, or where 
removal is needed to restore wildlife, or protect infrastructure; and
    (iv) Stabilizing stream banks and associated stabilization 
structures to reduce erosion through bioengineering techniques 
following a natural or human-caused event, including the utilization of 
living and nonliving plant materials in combination with natural and 
synthetic support materials, such as rocks, riprap, geo-textiles, for 
slope stabilization, erosion reduction, and vegetative establishment 
and establishment of appropriate plant communities (bank shaping and 
planting, brush mattresses, log, root wad, and boulder stabilization 
    (20) Activities that restore, rehabilitate, or stabilize lands 
occupied by non-National Forest System roads and trails to a more 
natural condition that may include removing, replacing, or modifying 
drainage structures and ditches, reestablishing vegetation, reshaping 
natural contours and slopes, reestablishing drainage-ways, or other 
activities that would restore site productivity and reduce 
environmental impacts. Examples include but are not limited to:
    (i) Decommissioning of anon-system road to a more natural state by 
restoring natural contours and removing construction fills, 
revegetating the roadbed and removing ditches and culverts;
    (ii) Restoring a non-system trail by reestablishing natural 
drainage patterns, stabilizing slopes, reestablishing vegetation, and 
installing water bars;
    (iii) Completely eliminating the roadbed of unauthorized roads by 
loosening compacted soils, removing culverts, reestablishing natural 
drainage patterns, restoring natural contours, and restoring 
vegetation; and
    (iv) Installing boulders, logs, and berms on a non-system trail 
segment to promote naturally regenerated grass, shrub, and tree growth.

    Dated: May 11, 2012.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2012-14284 Filed 6-12-12; 8:45 am]