[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Proposed Rules]
[Pages 8444-8446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02393]



Rural Utilities Service

7 CFR Part 1710

Energy Efficiency and Conservation Loan Program Programmatic 
Environmental Assessment

AGENCY: Rural Utilities Service, USDA.

ACTION: Notice of availability of a Programmatic Environmental 


SUMMARY: The U.S. Department of Agriculture, Rural Utilities Service 
(RUS), has prepared a Programmatic Environmental Assessment (PEA) for a 
new program that will implement the Energy Efficiency and Conservation 
Loan Program (EE). The PEA is available for a 30-day public review and 
comment period. Subsequent to the comment period RUS plans to issue a 
finding of no significant impact.

DATES: Written comments on this Notice must be received on or before 
March 8, 2013.

FOR FURTHER INFORMATION CONTACT: Deirdre M. Remley, Environmental 
Protection Specialist, RUS, Water and Environmental Programs, 
Engineering and Environmental Staff, 1400 Independence Avenue SW, Stop 
1571, Washington, DC 20250-1571, Telephone: (202) 720-9640 or email: 
deirdre.remley@wdc.usda.gov . The PEA is available online at http://www.rurdev.usda.gov/UWP-ea.htm or you may contact Ms. Remley for a hard 

SUPPLEMENTARY INFORMATION: On May 22, 2008, the U.S. Congress enacted 
the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) as 
Public Law 110-234. The 2008 Farm Bill amended Section 12 to authorize 
energy audits and energy efficiency measures and devices to reduce 
demand on electric systems. Section 6101 of the 2008 Farm Bill amended 
Sections 2(a) and 4 of the Rural Electrification Act (RE Act) by 
inserting ``efficiency and'' before ``conservation'' each place it 
appears. Under the authority of the ``efficiency'' provisions added to 
the RE Act by the 2008 Farm Bill, RUS proposes to amend 7 CFR part 1710 
by adding a new subpart H entitled ``Energy Efficiency and Conservation 
Loan Program,'' which expands upon policies and procedures specific to 
loans for a new Energy Efficiency and Conservation Loan program. The 
program would provide loans to eligible rural utility providers 
(Primary Recipients) who would act as intermediaries to make Energy 
Efficiency (EE) loans to consumers in the Primary Recipients' service 
territories (Ultimate Recipients) for EE improvements at the Ultimate 
Recipients' premises.
    This program is funded through existing authorizations and 
appropriations. RUS expects that $250 million per year will be 
dedicated to the EE program. On July 26, 2012, RUS published a proposed 
rulemaking in the Federal Register at 77 FR 43723, with a 60-day 
comment period, for the subpart H of 7 CFR part 1710, which would 
implement the EE program. The final rule will outline the procedures 
for providing loans to eligible Primary Recipients who will establish 
EE activities in their service territories and to pay reasonable 
administrative expenses associated with their loans under the program. 
The proposed rule defines an ``Eligible Borrower'' (Primary Recipient) 
as an electric utility that has direct or indirect responsibility for 
providing retail electric service to persons in a rural area.
    Certain financing actions taken by RUS are Federal actions subject 
to compliance with the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.), the Council on Environmental Quality (CEQ) 
regulations implementing the procedural provisions of NEPA (40 CFR 
parts 1500-1508), and RUS ``Environmental Policies and Procedures'' (7 
CFR part 1794). There are two Federal actions under the new EE program 
being considered in this PEA: (1) Loans awarded by RUS to Primary 
Recipients, and (2) loans and other EE activities that the Primary 
Recipient executes for the benefit of Ultimate Recipients.
    The levels of environmental review for RUS actions are classified 
in 7 CFR part 1794, subpart C, Classification of Proposals. Both agency 
actions for the EE program are classified in Sec.  1794.22(b)(1) (loan 
approvals) as categorically excluded proposals requiring an 
Environmental Report (ER). Due to the limited scope and magnitude of 
most EE loan activities, RUS finds that a programmatic environmental 
analysis of the new EE program will reduce paperwork, duplication of 
effort, and promote a more efficient decision-making process for 
program implementation. RUS reserves the right to update this 
programmatic analysis to take additional information into account or 
develop particular elements of the analysis more fully as may be 
warranted in individual circumstances.
    In summary, RUS has determined that the implementation of the EE 
program would not significantly affect the human or natural 

[[Page 8445]]

However, to minimize any potential for adverse effects to specific 
environmental resources, Primary Recipients will be required to comply 
with the following mitigation measures. These mitigation measures will 
be incorporated in Primary Recipients' EE program work plans and loan 

1. Land Use/Formally Designated Lands

    RUS would provide guidance to Primary Recipients as part of the 
Environmental Compliance Tool Kit informing Primary Recipients of their 
obligations to coordinate with Federal, state and local agencies for 
approval of any activities that may occur on lands for which these 
agencies may have jurisdiction.

2. Indian Trust Resources

    To ensure that RUS takes into consideration tribal concerns about 
EE program activities and to maintain the government-to-government 
relationship between RUS and tribal sovereign nations, RUS will provide 
guidance to Primary Recipients as part of the Environmental Compliance 
Tool Kit for implementing activities on Indian lands. If necessary, 
mitigation measures for effects to tribal trust resources will be 
developed and implemented on a case-by-case basis.

3. Floodplains

    No mitigation measures or further review of floodplain impacts is 
required if the EE activity is: (1) Restricted to the footprint of 
existing structures, or (2) not restricted to the footprint of existing 
structures, but a review of floodplain maps shows that the Ultimate 
Recipient's premise is not within a floodplain. In accordance with 
Rural Development Instruction 426.2 II.C., and under the authority of 
the National Flood Insurance Protection Act of 1968 as amended by the 
Flood Disaster Protection Act of 1973, RUS is prohibited from providing 
assistance to communities that do not participate in the National Flood 
Insurance Program (NFIP) administered by the Federal Emergency 
Management Agency. Therefore, if a proposed EE activity does not meet 
either of the two exceptions listed above, and if a proposed structure 
cannot be placed outside a floodplain, the Ultimate Recipient must 
obtain flood insurance, if the structure is insurable.

4. Wetlands

    No mitigation measures or further review of wetlands impacts is 
required if the EE activity is: (1) Restricted to the footprint of the 
existing structures or area of previous disturbance, or (2) not 
restricted to the footprint of existing structures or area of previous 
disturbance, but a review of National Resources Conservation Service 
(NRCS) soils maps shows that the Ultimate Recipient's premises is not 
within a hydric soil unit which is one of the three positive indicators 
of identifying wetlands (USACE Wetlands Delineation Manual, 1987).
    EE program activities that involve new construction of facilities 
outside the footprint of existing structures or areas of previous 
disturbance will require a review of NRCS soil maps, and the 
Environmental Compliance Tool Kit would provide guidance on using NRCS 
soils data and on interpreting U.S. Army Corps of Engineers (USACE) 
requirements for wetlands. The tool kit will also provide guidance on 
whether an existing Nationwide Permit may apply to the action, or if 
hydric soils are present at a proposed project site and cannot be 
avoided. If wetlands are potentially affected and if the proposed 
action is under the jurisdiction and is authorized under the general 
conditions of a USACE Nationwide Permit(s), the tool kit would also 
provide a template Preconstruction Notice for a Primary or Ultimate 
Recipient to prepare and send to the District Engineer, USACE having 
jurisdiction over the proposed project area.

5. Coastal Barrier Resources

    The Coastal Barrier Resources Act of 1982 designated units of the 
Coastal Barrier Resources System (CBRS) and created restrictions on 
most new Federal expenditures and financial assistance in these units 
to prevent Federal actions that may encourage development on barrier 
islands. If a Primary Recipient has reason to believe that any of its 
Ultimate Recipients may have premises in a unit of the CBRS, they will 
coordinate with RUS to consult with the U.S. Fish and Wildlife System 
(USFWS). RUS must receive written approval from the USFWS before any 
proposed action within a unit of the CBRS can be taken.

6. Species of Concern

    To mitigate the potential for a ``take'' under the Endangered 
Species Act or the Migratory Bird Treaty Act, the Environmental 
Compliance Tool Kit would provide guidance on identifying potential 
impacts to special status species that could result from EE program 
activities. The tool kit would provide instructions on how to find 
site-specific information for a given activity and how and when to 
consult with the USFWS.

7. Health and Safety

    To mitigate the potential for exposure to lead paint, work that may 
disturb painted surfaces in pre-1978 structures would be performed by a 
contractor with the appropriate lead certification. To mitigate the 
potential for exposure to asbestos, field personnel planning EE program 
activities at Ultimate Recipients' premises would be trained to 
identify asbestos. If asbestos is found and if there is potential for 
it to be disturbed by a given activity, the asbestos must be removed by 
an asbestos remediation professional prior to the start of work on the 

8. Historic Properties

    To meet responsibilities under Section 106 of the NHPA and its 
implementing regulation (36 CFR Part 800) for the EE program and its 
activities, RUS is pursuing the development of a program alternative in 
accordance with 36 CFR 800.14. In August 2012, RUS invited the ACHP, 
State Historic Preservation Officers (SHPO), Indian tribes, and 
selected industry and tribal organizations to participate in 
consultation to develop this program alternative. With the invitation, 
RUS included a Conceptual Outline which described the EE Program and 
the challenges it presents for Section 106 review, and provided an 
analysis that concluded that a nationwide Programmatic Agreement (PA) 
developed pursuant to 36 CFR 800.14(b) to be the program alternative 
appropriate for the EE Program. The objective of the program 
alternative is to streamline Section 106 review, focusing Federal, 
state and tribal resources where they are most needed. On August 23 and 
24, 2012, RUS hosted a series of webinars for SHPOs and Indian tribes, 
respectively, to discuss and solicit their comments on a nationwide PA, 
as the appropriate program alternative, and topical areas it might 
    While explicit terms of a nationwide PA have not yet been drafted, 
RUS recognizes, as presented in the Conceptual Outline, that any 
proposed program alternative must establish programmatic exemptions or 
thresholds for EE program activities that have little or no potential 
to cause effects to historic properties and standard methods for the EE 
Program to treat defined categories of historic properties, activities, 
and effects.
    As part of the Environmental Compliance Tool Kit, RUS will develop 
a specialized toolkit for Section 106 requirements that will be part of 
the loan commitment documentation which RUS provides to Primary 

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RUS will require Primary Recipients to evaluate each action taken with 
an Ultimate Recipient to ensure consistency with the terms of the 
executed program alternative.
    Primary Recipients will be responsible for documenting activities 
that fall below the established threshold. RUS will review the Primary 
Recipient's documentation of actions that fall below the threshold 
prior to providing reimbursement with Federal funds.
    Any EE Program activity for which exemptions and standard 
treatments are not applicable would be subject to Section 106 review 
under procedures established by the PA or other program alternative. 
Therefore, the program alternative must define a clear threshold for 
RUS involvement in Section 106 review.
    Although few in number, the comments on the Conceptual Outline 
received thus far have been supportive of the development of a 
nationwide PA, the need for streamlining, especially given the large 
number of reviews expected to be generated by EE Program activities, 
and the approach reflected in the Conceptual Outline. Based on these 
comments, RUS is proceeding with development of the first draft of the 
nationwide PA. The program alternative will be executed prior to RUS 
issuing a finding of no significant impact (FONSI). Both the FONSI and 
documents related to the program alternative will be made available to 
the public on RUS's Web site at http://www.rurdev.usda.gov/UWP-ea.htm.

    Dated: January 29, 2013.
Nivin Elgohary,
Assistant Administrator, Electric Programs, USDA, Rural Utilities 
[FR Doc. 2013-02393 Filed 2-5-13; 8:45 am]