[Federal Register Volume 78, Number 177 (Thursday, September 12, 2013)]
[Rules and Regulations]
[Pages 56153-56164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22151]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 220
RIN 0596-AD01
National Environmental Policy Act: Categorical Exclusions for
Soil and Water Restoration Activities
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The U. S. Department of Agriculture, Forest Service, gives
notice of revised procedures for implementing the National
Environmental Policy Act and Council on Environmental Quality
regulations. These final implementing procedures are being issued in
regulations concerning National Environmental Policy Act Compliance,
which describes categorical exclusions. Categorical exclusions (CE) are
categories of actions that normally will not result in individual or
cumulative significant impacts on the quality of the human environment
and, therefore, do not require analysis or documentation in either an
environmental assessment or an environmental impact statement.
The revision adds three new categorical exclusions for activities
that restore lands negatively impacted by water control structures,
disturbance events, and roads and trails. Activities that restore lands
occupied by National Forest System Roads and National Forest System
Trails are excluded from this final rule. These will allow the Forest
Service to more efficiently analyze and document the potential
environmental effects of soil and water restoration projects that are
intended to restore the flow of waters into natural channels and
floodplains by removing water control structures, such as dikes,
ditches, culverts, and pipes; restore lands and habitat to pre-
disturbance conditions, to the extent practicable, by removing debris
and sediment following disturbance events; and restore lands occupied
by roads and trails to natural conditions.
These categorical exclusions will not apply where resource
conditions related to the potential effect of a proposed action
constitute an extraordinary circumstance. Activities conducted under
these categorical exclusions must be consistent with Agency procedures
and applicable land management plans and must comply with all
applicable Federal and State laws for protecting the environment.
The road and trail restoration category will be used for restoring
lands impacted by roads and trails that are not
[[Page 56154]]
needed, not maintained, and/or where public access is prohibited. This
category will not be used to make access decisions about which roads
and trails are to be designated for public use.
DATES: This rule is effective September 12, 2013.
ADDRESSES: The Forest Service National Environmental Policy Act
procedures, including its list of categorical exclusions, are set out
in Title 36, Code of Federal Regulations, Part 220, which is available
electronically via the World Wide Web/Internet at http://www.gpoaccess.gov/cfr/index.html. Single paper copies are available by
contacting Peter Gaulke, Forest Service, USDA, Ecosystem Management
Coordination Staff (Mail Stop 1104), 1400 Independence Avenue SW.,
Washington, DC 20250-1104. Additional information and analysis can be
found at http://www/fs/fed/us/emc/nepa.
FOR FURTHER INFORMATION CONTACT: Peter Gaulke, Ecosystem Management
Coordination staff, (202) 205-1521. Individuals who use
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at (800) 877-8339 between 8:00 a.m.
and 8:00 p.m. Eastern Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background
In 2009, Secretary of Agriculture Thomas J. Vilsack called for
restoring forestlands to protect water resources, the climate, and
terrestrial and aquatic ecosystems. The Forest Service spends
significant resources on National Environmental Policy Act (NEPA)
analyses and documentation for a variety of land management projects.
The Agency believes that it is possible to improve the efficiency of
the NEPA process to speed the pace of forest and watershed restoration,
while not sacrificing sound environmental analysis.
The Forest Service is responsible for managing 192 million acres in
National Forests, National Grasslands, and other areas known
collectively as the National Forest System (NFS). The Chief of the
Forest Service, through an organization of Regional Foresters, Forest
Supervisors, and District Rangers, administers and manages the NFS's
natural resources within the principle of multiple use and sustained
yield. For decades, the Forest Service has implemented terrestrial and
aquatic restoration projects. Some of these projects encompassed
actions that promoted restoration activities related to floodplains,
wetlands and watersheds, or damage resulting from past disturbance
events. The Forest Service has found that under normal circumstances
the environmental effects of certain restoration activities have not
been individually or cumulatively environmentally significant. The
Forest Service's experience predicting and evaluating the environmental
effects of the category of activities outlined in this rule has led the
Agency to supplement its NEPA regulations by adding three new
categorical exclusions for activities that achieve soil and water
restoration objectives.
Category 18 allows the restoration of wetlands, streams, and
riparian areas by removing, replacing, or modifying water control
structures such as, but not limited to, dams, levees, dikes, drainage
tiles, ditches, culverts, pipes, valves, gates, and fencing to allow
waters to flow into natural channels and floodplains that restore
natural flow regimes to the extent practicable.
Category 19 allows for the removal of debris and sediment following
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian
systems to pre-disturbance conditions, to the extent practicable, such
that site conditions will not impede or negatively alter natural
processes.
Category 20 allows for implementing restoration activities that
restore, rehabilitate, and/or stabilize lands occupied by roads and
trails, excluding National Forest System Roads and National Forest
System Trails, to a more natural condition by removing, replacing, or
modifying drainage structures and ditches, reestablishing vegetation,
reshaping natural contours and slopes, reestablishing drainage-ways, or
other activities that will restore site productivity and reduce
environmental impacts.
These three Forest Service categorically excluded actions promote
hydrologic, aquatic, and landscape restoration activities and thereby
sustain natural resource values through more efficient management. All
three CEs involve activities that are intended to maintain or restore
ecological functions and better align the Agency's regulations,
specifically its CEs, with the Agency's current activities and
experiences related to restoration.
Many national forests have unmaintained roads and trails that are
not on the National Forest Transportation System or are unauthorized.
These routes are often found adjacent or in close proximity to NFS
roads and NFS trails. These roads and trails are a major challenge in
many national forests and examples of significant environmental damage
and safety issues.
Restoring lands occupied by roads and trails is important to
promote hydrologic, aquatic, and watershed restoration. Activities that
restore lands occupied by a road or trail may include reestablishing
former drainage patterns, stabilizing slopes, restoring vegetation,
blocking the entrance to the road, installing waterbars, removing
culverts, removing unstable fills, pulling back road shoulders, and
completely eliminating the road bed by restoring natural contours and
slopes.
The Forest Service believes it is appropriate to establish soil and
water restoration CEs based on NEPA implementing regulations at 40 CFR
1500.4(p) and 1500.5(k) that identify a CE as a means to reduce
paperwork and delays in project implementation, and based on the
Agency's abundant information showing that the majority of these
identified restoration actions have no significant impacts.
The Forest Service prepares approximately 2,500 to 3,000 CE
decision memos and 400 environmental assessments (EAs) each year.
Because document preparation and review for CEs takes approximately 6
to 9 months less time than a typical EA that can be hundreds of pages
long, cost savings are significant. By using CEs, the Forest Service
gains efficiencies that allow the Agency to move more efficiently
through the environmental review process while not short-cutting public
involvement or sacrificing environmental protection.
The Council on Environmental Quality (CEQ) regulations at 40 CFR
1507.3 provide that agency's National Environmental Policy Act (NEPA)
procedures, after notice and comment, may identify categories of
actions that do not have significant impacts on the human environment
and, consequently, do not require preparation of an environmental
assessment (EA) or an environmental impact statement (EIS). Current
Forest Service procedures for complying with and implementing NEPA are
set out in 36 CFR Part 220. Title 36 CFR 220.6 of the Forest Service
NEPA Regulations lists the categories of actions that do not require
preparation of an EA or an EIS by the Forest Service absent
extraordinary circumstances.
Pursuant to CEQ's implementing regulations at 40 CFR 1507.3 and the
November 23, 2010, CEQ guidance memorandum on ``Establishing, Applying,
and Revising Categorical Exclusions under the National Environmental
Policy Act,'' (www.nepa.gov) the Forest Service
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gathered information supporting establishment of these three
categorical exclusions.
Based on its review of all the information provided, the Forest
Service finds that the CEs will not individually or cumulatively have
significant effects on the human environment. The Agency's finding is
predicated on data from implementing comparable past actions; the
expert judgment of the responsible officials who made the findings for
projects reviewed for this supporting statement; information from other
professional staff, experts, and scientific analyses; a review and
comparison of similar CEs implemented by other Federal agencies; and
the Forest Service's experience implementing soil and water restoration
activities and subsequent monitoring of potential associated impacts.
This combination of reviews gives the Forest Service confidence that
the CEs will facilitate scientifically sound, efficient, and timely
planning and decision making for select soil and water restoration
activities. Additional information regarding this review is available
at http://www.fs.fed.us/emc/nepa/restorationCE.
Actions relying on any of these CEs remain subject to Agency
requirements to conduct scoping and require a determination that there
are not extraordinary circumstances that would otherwise require
documentation in an EA or EIS. These CEs will require a project or case
file and decision memo, including, in part, a rationale for using the
CEs and a finding that extraordinary circumstances do not exist.
The main clarifications to the proposed CEs in this final rule
include:
Clarifying that activities to remove, replace, or modify
water control structures will not alter or cancel valid existing rights
or special use authorizations;
Adding text to an example in CE 18 that illustrates the
size and scope of dam removal;
Replacing the term ``non-system roads and trails'' with
``excluding National Forest System Roads and National Forest System
Trails'' in CE 20. This clarification ensures that terminology in CE 20
conforms to corresponding terminology in Forest Service regulations and
directives (36 CFR 212.1 and Forest Service Manual (FSM) 7705);
Deleting an example in CE 20 that duplicates actions in
another example;
Removing example text that either directly or indirectly
overlaps with existing CE activities--such as the removal of downed or
damaged trees to restore wildlife or aquatic habitat; and
Removing the distinction between ``natural or human''
caused disturbance events.
Other clarifications are highlighted in the response to comments.
Pursuant to regulations at 40 CFR 1505.1 and 1507.3, the Forest
Service consulted with CEQ during the development of the CEs. Prior to
the publication of these final CEs, CEQ provided written confirmation
that amending Forest Service NEPA procedures by adding the new CEs was
in conformity with NEPA and the CEQ regulations. This letter is
available at http://www.fs.fed.us/emc/nepa/restorationCE.
To improve clarity, the final rule received minor text adjustments
and corrections to punctuation and grammar. These edits did not change
the substance, meaning, or implementation of the CEs.
Comments on the Proposal
The proposed rule was published in the Federal Register on June 13,
2012 (77 FR 35323), for a 60-day comment period. The Forest Service
received 9,660 responses, consisting of letters, emails, Web-based
submissions, and facsimiles. Of those, 420 were original responses, and
the remaining 9,240 responses were organized response campaign (form)
letters. Comments were received from the public, local governments, and
other State and Federal agencies. The respondents represented all 50
States, the District of Columbia, Puerto Rico, Federated States of
Micronesia, and several foreign countries. The States with the largest
number of responses include California (1,708), New York (839), and
Florida (589). The Forest Service received responses from two Federal
agencies and 12 county government officials.
Public comment on the proposed rule addressed a wide range of
topics, many of which were directed at access and travel management
issues on NFS lands. Many people supported the proposed CEs or favored
further expansion of their categorically excluded activities, while
many others opposed the proposal or recommended no further
consideration of one or more of the categories. The Department
considered all the comments and made a number of changes to the text of
the CEs in response. A summary of comments received and the
Department's responses follow.
Categorical Exclusion 18 Comments
Some respondents suggested that removal of water control structures
could have significant indirect effects by reducing flows to livestock
watering holes and wildlife habitat. Others were concerned that the
lack of thresholds would cause direct and indirect effects that would
warrant documentation in an EA or EIS.
Response: Typically, the Agency has found that these particular
activities do not have significant effects. If the removal of a water
control structure has potential for a ``significant'' effect, an EA or
EIS will be prepared.
CEs are an essential part of NEPA that provide an agency's
determination that certain actions do not result in significant impacts
to the environment, eliminating the need for lengthy documentation. The
reduced documentation requirement for projects applying categorical
exclusions does not mean that the projects avoid or escape
environmental analysis. Rather, a thorough environmental analysis is
conducted but paperwork is limited commensurate with an agency's
experience conducting similar actions and with full regard to the
potential for extraordinary circumstances that warrant preparation of
an EA or EIS.
These CEs will not apply where there are extraordinary
circumstances such as adverse effects on threatened and endangered
species or their designated critical habitat, wilderness areas,
inventoried roadless areas, wetlands, and archeological or historic
sites.
One comment highlighted that dams vary in size, amount of water
impounded and the amount of excavation, dredging, placement of fill,
and reengineering needed. Other respondents commented that CE 18, as
worded, lacked specific quantifiable limitations on the amount of
acceptable ground disturbance while others suggest that the use of the
term ``minimal'' required additional clarity.
Response: CE 18 is limited to activities with a specific goal and
outcome, which is restoration of lands impacted by water control
structures. In response to the public comment for more specific
limitations on the amount of ground disturbance, the Agency has further
defined the category to not allow altering or canceling existing rights
or special use authorizations; provided a specific example of a type of
culvert to be replaced; and specific type and hazard potential of dams
proposed for removal, replacement, or modification.
Based on Forest Service direction in Forest Service Manual (FSM)
7500, the text of CE 18 now includes an example that articulates the
type and hazard potential of dams proposed for removal, replacement, or
modification. This example provides a hazard classification that
includes dams where failure, malfunction, or misoperation would
[[Page 56156]]
result in no probable loss of human life and minor damages limited to
undeveloped or agricultural lands and for which significant
improvements are not planned.
One respondent commented that any proposal that requires a Clean
Water Act National Pollution Discharge Elimination System (NPDS) or
Section 401 permit should require documentation in a full EA or EIS and
not be categorically excluded.
Response: It is appropriate to coordinate NEPA review processes
with other planning or environmental reviews (40 CFR 1500.2(c)). The
mere existence of a State or Federal permit requirement is not a strong
indicator of the degree of environmental significance of an action for
purposes of NEPA. Also, State programs implementing NPDES requirements
can be quite variable and would impede consistent application of NEPA
across the National Forest System.
Some respondents highlighted the concern that removal of water
control structures without consideration or respect for State water
laws, valid adjudicated water rights, and the constitutionally held
water rights of States and individual citizens could result in a
complete or partial taking. Similarly, several respondents stated that
the Forest Service cannot, in contradiction to Federal policy, close
any rights-of-way and remove access to water rights for present and
future mineral or ranching operations.
The Department recognizes the concern over protecting existing
access and use of water and water-related facilities. Nothing in the
final rule authorizes the alteration or revocation of any existing
rights, contracts, permits, special use authorizations, or other legal
instruments held by miners, grazing permittees, States, or other
entities. To give further assurance that the function of this category
deals exclusively with restoration of wetlands, streams and riparian
areas, rather than affecting rights and privileges of use, CE 18 has
been modified to include an express assurance and qualification that
the category is only available where actions are consistent with valid
existing rights and legal instruments.
One respondent commented that any decision with respect to the
efficacy, safety, or functioning of any small dam regulated by
individual States is beyond the competence of any District Office or
personnel of the Forest Service.
Response: The Federal Guidelines for Dam Safety require periodic
inspection and evaluation of dams to reduce the risk to human life and
property from dam failure. In accordance with Forest Service direction
(FSM 7504.6), Forest Supervisors are responsible for designating a
qualified engineer to provide technical oversight of construction,
inspection, and management of dams operated by the Forest Service.
An operation and maintenance (O&M) plan is required for any dam
with a significant or high hazard potential classification operated by
the Forest Service or the holder of a special use authorization on NFS
lands (FSM 7513). O&M plans may be prepared for dams with a low hazard
potential classification if warranted based on their significance or
complexity. The owner of a dam is responsible for preparing and
maintaining an O&M plan for that dam. Coordination with the Forest
Service and appropriate State agencies in the preparation of O&M plans
for dams operated by the holder of a special use authorization is
required. O&M plans for dams operated by the holder of a special use
authorization are reviewed by a qualified engineer and approved by the
authorized officer. Further direction regarding inspection programs is
found in FSM 7514.
Categorical Exclusion 19 Comments
One respondent suggested that the use of riprap, rocks, and
bioengineering techniques are directly at odds with the concept of
restoring natural processes.
Response: CE 19 aims to restore uplands, wetlands, or riparian
systems, to the extent practical, through the removal of debris and
sediment following disturbance events. In some instances, this may
include the stabilization of sediment sources through the use of
riprap, rocks, and other techniques. By reducing sources of
sedimentation downslope or downstream, wetlands or riparian systems
have an increased likelihood of successful recovery from disturbance
events.
Some respondents commented on the use of the term ``human caused
events'' and expressed concern that the term is ambiguous and could be
broadly interpreted to include ``any multiple use activity undertaken
by the Forest Service.''
Response: The Department agrees that the use of the term ``human-
caused disturbance events'' provided a level of confusion. Similarly,
limiting the category of actions to only ``natural disturbance events''
did not provide for restorative actions that result from events that
result from man-caused events. In both cases, the intent of the
category is for restoration activities that remove debris and sediment
following disturbance ``events'', not correcting chronic sources of
debris and sediment. With this in mind, the text of CE 19 was modified
to remove reference to ``natural and human'' caused disturbance events
by simply using the term ``disturbance event'' together with
parenthetically including an example list of possible events. To
clarify the intent of the category, the word ``directly'' now precedes
the term disturbance event that focuses the restoration activities on
disturbances, not past management activities.
Other respondents requested clarification on the terms ``pre-
disturbance conditions'' and ``natural processes'' and how such
conditions will be determined.
Response: The Department determined that in some cases restoring
sites to a natural condition, such as those conditions within the
natural range of variation, is not attainable without major site
reconstruction or may not be desirable due to current management and
use of the site. Therefore, the use of the term ``pre-disturbance
conditions'' was included. The intent of CE 19 is to stabilize debris
and sediment sources and restore the sites to the conditions that
existed prior to the disturbance event. The intent is not to modify the
existing management emphasis or current use of the site.
One comment highlighted the importance of downed and dead tree
removal for restoration, clean-up, and repair activities along utility
lines and corridors after a disturbance. Other respondents suggested
that the proposed removal of downed and damaged trees is not needed to
improve wildlife habitat and is unrelated to the restoration of soil
and water resources. Another respondent suggested that the Forest
Service should ensure that any potential benefits related to downed
trees are evaluated prior to removing such debris from rivers and
streams following natural events.
Response: The Department believes that in certain cases the removal
of down and damaged trees is beneficial to the habitat of terrestrial
or aquatic species. The intent of this example is to restore sites
impacted by disturbance events where the amount and juxtaposition of
downed and damaged trees is negatively impacting species habitat
recovery or presents a health and safety risk to the public.
Upon further review, the Department believes that the Forest
Service already has categories of actions that allow for wildlife
habitat improvement; the maintenance of roads, trails, or utility
lines; and the protection of public health and safety. For example,
safety
[[Page 56157]]
hazard trees associated with roads, trails, recreation facilities, and
administrative sites may be removed as part of routine maintenance of
those facilities. Therefore, this example has been removed from CE 19
in the final rule.
Categorical Exclusion 20 Comments
Several respondents expressed a concern that the intent of CE 20
has not been clearly articulated or justified.
Response: The impact of roads and trails to watershed health has
been widely documented. Roads affect watershed condition because more
sediment is contributed to streams from roads and road construction
than any other land management activity. Roads directly alter natural
sediment and hydrologic regimes by changing streamflow patterns and
amounts, sediment loading, transport, deposition, channel morphology
and stability, and water quality and riparian conditions within a
watershed. Roads can also increase sediment routing to streams by
creating areas prone to surface runoff, altering slope stability in
cut-and-fill areas, removing vegetation, and altering drainage
patterns. Road density is known to add to sediment caused by erosion
and mass wasting in upland forested landscapes in the Pacific
Northwest, and it is reasonable to assume that similar relationships
exist elsewhere. Road-related mass soil movements can continue for
decades after roads have been constructed, and long-term slope failures
frequently occur after road construction and timber harvest.
CE 20 focuses on the restoration of lands occupied by roads and
trails to restore site productivity and reduce environmental impacts.
Project decisions made using this CE will be aimed at restoration goals
and will not be used to make access decisions. The Forest Service
maintains this intent of CE 20 by excluding its application from
National Forest System Roads and National Forest System Trails. This
category's focus is on roads and trails that have been illegally
created, or have already been removed from the Agency's designated road
and trail system. The intent of this category is to restore lands
occupied by roads and trails where legal access is already prohibited.
Many respondents expressed concern that establishment of CE 20
would make it easier for the Forest Service to reduce the number and
mileage of trails and roads and therefore exclude many legitimate uses
of the Forests. Another respondent commented that further restriction
of use by hikers, bicycles, motorcycles, horses, campers, and so on
only increases the damage to the trails/roads that remain.
Response: The road and trail restoration CE 20 will not be used to
make access decisions about which roads and trails are to be designated
open for public use, or which will be closed from public use. Nothing
in the final rule revokes any contracts, special use authorizations,
legal instruments, or right-of-way held by any entity. CE 20 will not
restrict or remove the legal use or access of roads or trails by the
recreational community, law enforcement personnel, search and rescue
organizations, or other uses where that access and use is not already
prohibited.
The restoration of lands occupied by roads and trails is important
to promote hydrologic, aquatic, and watershed restoration. This CE will
allow the Forest Service to restore roads and trails more efficiently
where public access is not currently permitted--roads and trails that
are already closed.
A number of respondents commented that the Forest Service should be
opening up more lands for use by the public instead of removing roads
and trails from the system, and characterized CE 20 as an effort to
slowly remove any and all motorized vehicle access to NFS lands.
Response: The Department disagrees with this characterization of
this rule. CE 20 will not be used to remove motorized vehicle access.
It will be used to restore lands where access is already prohibited.
Additionally, unless specifically restricted, all NFS lands are
open for use by the public. Yet, not all NFS lands are intended to be
open or accessed by roads. The Forest Service's multiple-use mission
does not contemplate that every acre of National Forest be managed for
every multiple use as Congress recognizes that some land will be used
for less than all of the resources (16 U.S.C. 531). The Forest Service
provides for a wide range of user experiences, including remote
recreational experiences that are accessed by non-road or trail access.
One respondent stated that it is not motorized activities, but
rather the lack of enforcement of existing laws governing motorized
use, that cause resource damage. Others believe that rather than
creating new rules, we need to enforce the ones we have.
Response: Forest Service law enforcement personnel play a critical
role in ensuring compliance with laws and regulations, protecting
public safety, and protecting National Forest resources. However, the
scope of this final rule does not address enforcement of motorized use
on NFS lands. This final rule addresses environmental analysis and
documentation efficiencies for the restoration of lands occupied by
roads and trails, with the exception of National Forest System Roads
and National Forest System Trails.
Several respondents expressed the concern that road and trail
closures, as well as removal of water barriers and bridges, will have a
negative impact on Americans with disabilities that rely on this access
to recreate on NFS lands.
Response: Under section 504 of the Rehabilitation Act of 1973, no
person with a disability can be denied participation in a Federal
program that is available to all other people solely because of his or
her disability. A person with a disability must be able to achieve the
purpose of a Federal program without modification to the program that
fundamentally alters its nature. A fundamental alteration of the nature
of a program occurs when a basic aspect of that program is changed.
USDA's program and activity requirements and compliance procedures
implementing section 504 are set forth in 7 CFR Part 15e.
In conformance with section 504, Americans with disabilities are
welcome on all NFS lands that are open for public access. However,
allowing people with disabilities to use routes that are not open to
the public would fundamentally alter the nature of the Forest Service's
travel management program.
Many respondents commented that the Forest Service has not
adequately assessed the present and future needs of its road and trail
system to provide for its multiple-use mandate, including wildfire
suppression, search and rescue activities, forest management, and
multiple recreational activities.
Response: The Forest Service is continuing to implement the 2005
Travel Management Rule. Completion of Subpart A (36 CFR 212.5(b)) will
identify a properly sized road system for each NFS unit. The ultimate
goal is management and sustainability of a road system that minimizes
adverse environmental impacts by assuring roads are in locations only
where they are necessary to meet access needs, and can be maintained
within budget constraints.
Apart from the goals and implementation of the 2005 Travel
Management Rule, this final rule will be used for restoring lands
impacted by roads and trails that are no longer needed, no longer
maintained, and/or where access is already prohibited. This category
will not be used to make access
[[Page 56158]]
decisions about which roads and trails are to be designated for public
use.
A couple of respondents expressed concerns that the environmental
effects of road obliteration are far greater and less desirable than
allowing a roadway to recover naturally and ultimately could result in
unforeseen and unacceptable indirect effects though flooding to
downstream public and private property owners.
Response: CE 20 allows for, barring the presence of extraordinary
circumstances, a range of activities designed to restore lands impacted
by roads and trails, excluding National Forest System Roads and
National Forest System Trails. This includes the mechanized
decommissioning activities, blocking of unauthorized access and
allowing routes to recover naturally. Project-specific decisions on the
appropriate method to restore impacted lands are based on site-specific
conditions and will require a project or case file and decision memo,
including, in part, a rationale for using the CE and a finding that
extraordinary circumstances do not exist.
Some respondents commented on the importance of roads and trails to
tribal communities to access sacred sites and state that further
reduction of these access routes would impact tribal elders who rely on
this access to reach these areas. They recommended working with Tribes
before making such decisions. Other respondents expressed concern over
the impacts of decommissioning on cultural and archeological resources
and on the historical importance that some of these routes hold for
interpreting history.
Response: Effects on tribal sacred sites and other areas of
historical, archeological, and cultural importance to Tribes, including
effects of tribal access to those sites, may be possible on specific
sites where the CEs will be used. As with the implementation of all
CEs, Tribes will be contacted during the scoping process for projects
with tribal implications, even if the project may be categorically
excluded from further analysis and documentation in an EA or EIS.
Pursuant to Executive Order 13175, the Forest Service determined
that this promulgation of this final rule would not have tribal
implications requiring advance consultation. Yet the Forest Service
maintains a strong commitment to government-to-government consultation
on agency policies that may substantially affect Federally-recognized
Indian Tribes, and to consulting with Alaska Native Corporations. Thus,
on May 6, 2011, a package outlining the proposed rule was transmitted
to each Forest Service Regional Forester for distribution and use in
consultations with all Federally recognized Indian Tribes and Alaska
Native Corporations
Several respondents commented that CE 20, as worded, lacked
specific quantifiable limitations on the amount of acceptable soil
displacement, ground disturbance, or miles of road allowable. Another
respondent suggested the Forest Service should be overly cautious on
implementing CE 20 and should exclude categorically excluded activities
in floodplains, riparian areas, and areas near streams.
Other respondents state that while projects proposed under any CEs
may have beneficial direct, indirect, and cumulative impacts that could
be good; they also suggest numerical limits be placed on the size and
scope of projects to ensure the benefits. Still other respondents
contend that the proposed categories of actions do have significant
effects and do not qualify for a CE.
Response: The three soil and water restoration CEs set forth in
this final rule are intended to implement restorative activities that
benefit wetlands, floodplains, riparian areas, stream courses, and
those sites that are negatively impacting watershed and riparian
health. Excluding their use from floodplains, riparian areas, or areas
adjacent to streams would substantially diminish their ability to
benefit watershed, riparian and upland health, and the Agency's ability
to expedite restoration activities that fall under these three
categories of actions.
CE 20 is for activities that restore, rehabilitate, or stabilize
lands and to restore site productivity and reduce environmental impacts
from existing site conditions. If there are extraordinary circumstances
related to the proposed action, an EA or EIS will need to be prepared.
Any activity performed using one of the three new CEs must meet all
applicable Federal, State, and local laws, as well as land and resource
management plan standards and guidelines. Under the three new
categories, the responsible official must conduct appropriate
consultations with Federal and State regulatory agencies such as those
required by the Endangered Species Act and the National Historic
Preservation Act. For decades, the Forest Service has implemented
terrestrial and aquatic restoration projects. The Agency's careful
analysis during this rulemaking and long experience in dealing with
soil and water restoration treatments leads the Agency to conclude that
implementation of the three new categories will not result in
significant impacts on the environment.
Several respondents argued that if a prior access decision was
necessary to use CE 20, then little to no efficiency would be gained in
the NEPA process.
Response: CE 20 applies to roads and trails. The deliberate removal
of a forest road or trail from the unit's travel management atlas would
generally be accomplished through a unit's identification of the
minimum road system needed for safe and efficient access, and the
administration, use and protection of NFS lands. Such reviews are
science based and include to the degree practical a broad spectrum of
interested and affected citizens and other groups. Proposals based on
the reviews are evaluated in compliance with NEPA. In cases where
access decisions and road and trail decommissioning decisions are made
at the same time, CE 20 will not be necessary. However, not all access
decisions include specific proposals for decommissioning and CE 20 will
be available in these situations.
Several respondents expressed support and highlighted the
importance of protecting and accelerating restoration on National
Forests, including the water produced within its watersheds.
Response: These comments were in support of the proposal and need
no specific response.
Several respondents suggested that it would be less expensive to
maintain roads and trails than to decommission them. Others suggest
that much of the resource damage on roads and tails is not from use by
the public, but by the inability of the Forest Service to maintain
them. In addition, several respondents addressed funding issues, such
as how the Agency pays for restoration if it cannot pay for road
maintenance.
Response: CE 20 applies to restoring lands occupied by roads and
trails excluding National Forest System Roads and National Forest
System Trails. The Agency expends appropriated funds to maintain
National Forest System Roads and National Forest System Trails for
motor vehicle use.
The Forest Service maintains forest roads and trails in accordance
with their management objectives and availability of funding.
Unfortunately, resources are limited, and the Forest Service has a
substantial backlog of maintenance needs. The Agency's road maintenance
funding has steadily decreased over the past decade, while trail
maintenance funding has remained flat. These funding trends are
anticipated to continue. Over time, all roads and trails
[[Page 56159]]
require some level of maintenance. In some cases, an extended lack of
maintenance can lead to so much deterioration of a road or trail that
it must be closed to administrative and public use or ecologically
restored to address user safety or prevent severe environmental damage.
Restoring lands occupied by roads and trails requires a one-time
expense vs. long-term reoccurring road and trail maintenance funding.
A number of respondents encouraged broadening the scope of CE 20 to
include restoration of forest roads that are currently closed to
motorized use while others encouraged the Forest Service to allow for
NFS and unauthorized roads to be converted to NFS trails. Similarly,
one respondent suggested that although some Forest roads are not
designated for motor vehicle use, they could remain open to non-
motorized uses, such as mountain bicycling and horseback riding and
should not be decommissioned.
Response: Designation of routes for motor vehicle use is beyond the
scope of this rulemaking. Designation of routes is occurring consistent
with the Forest Service's travel management rule at the local level.
Decisions regarding whether to authorize non-motorized uses on roads
and trails not designated for motor vehicle use are also beyond the
scope of this rulemaking. Decisions to authorize non-motorized uses on
such routes are made at the local level, consistent with the applicable
land management plan and road and trail management objectives and the
long-term economic, social, and environmental sustainability of the
unit's road and trail system.
At this time the Department has chosen to move forward with
establishing a road and trail restoration CE that excludes National
Forest System Roads and National Forest System Trails. The Department
agrees that proposals to convert certain NFS roads to NFS trails may be
appropriate, and the Agency will continue to propose these conversions
and document the appropriate environmental analysis and decision-making
through existing CEs, an EA or, if necessary, in an EIS. The Department
believes that the establishment of a CE for decisions that remove
public and administrative use of forest transportation system roads and
trails at this time is unnecessary and would divert public and agency
focus from the Agency's continued implementation of the 2005 Travel
Management Rule.
The Department also believes that the evaluation of roads for
conversion to other uses, including motorized and non-motorized trail
designation, is best handled at the local level by officials with
first-hand knowledge of the particular circumstances, uses and
environmental impacts involved, working closely with local governments,
users and other members of the public. The long-term economic, social,
and environmental sustainability of the unit's road and trail system
will also factor into this evaluation.
One respondent suggested the Forest Service prioritize the use of
CE 20 to those roads and trails that are negatively impacting aquatic,
hydrologic, or watershed resources.
Response: Roads and trails proposed for restoration are prioritized
through a variety of criteria, including resource degradation,
available funding, and public and private partnerships. Restoration
activities, such as road and trail decommissioning, are also
prioritized through the Watershed Condition Framework (WCF) (http://www.fs.fed.us/publications/watershed/), a comprehensive approach for
proactively implementing integrated restoration on priority watersheds
on National Forests and Grasslands. The WCF improves the way Forest
Service approaches watershed restoration by targeting the
implementation of integrated suites of activities in those watersheds
that have been identified as priorities for restoration. The WCF
prioritizes watersheds for restoration and develops watershed action
plans that may include road and trail restoration proposals.
Implementing CE 20 will allow the Agency to more efficiently improve
watershed conditions by restoring lands occupied by unauthorized roads
and trails that have been identified as sources of ecological
degradation.
Several comments highlighted the concern that decommissioning roads
that have valid existing rights-of-ways may have significant impacts to
local economies if roads that access water, grazing allotments, mineral
entries, or other inholdings were eliminated under these proposed CE.
Others expressed concerns over the social, cultural, and economic
impacts, and unintended consequences that communities would encounter
from road closures.
Response: Most national forest visitors use authorized routes to
access the national forests, whether for recreational sightseeing;
camping and hiking; hunting and fishing; commercial purposes such as
logging, mining, and grazing; administration of utilities and other
land uses; outfitting and guiding; or many other multiple uses of NFS
lands. Any access associated with the exercise of valid existing rights
or other permitted authorized uses of the NFS will be on authorized
private, NFS, or State, county, or local routes. Restoring roads and
trails using CE 20 will not affect access via authorized routes.
One respondent suggested that the proposed rule did not take a hard
look at the environmental justice impacts under Executive Order 12898.
Response: The Department takes its environmental justice
responsibilities very seriously and principles of environmental justice
are considered throughout decisionmaking. This final rule establishing
these CEs does not itself compel or authorize any particular action and
the Department sees no indication the establishment will cause
disproportionately high and adverse effects on the environment and
human health of minority and/or low-income populations. Further, the
Forest Service applies strategies and techniques during its NEPA
compliance efforts to ensure compliance with E.O. 12898 so that
meaningful environmental justice considerations can be appropriately
assessed at the project level.
One respondent expressed concern that the proposed rule seeks to
obliterate unauthorized routes, and the Forest Service cannot then
fulfill its promise under 36 CFR 212.50 that such routes may be added
to the forest transportation system.
Response: The Department recognizes that the Forest Service's road
and trail systems will continue to meet changing administrative and
social needs and are based on the consideration of ecological, social,
and economic sustainability. Designations of NFS roads, NFS trails, and
areas on NFS lands pursuant to 36 CFR 212.51 may be revised as needed
to meet changing conditions. Revisions of designations are made in
accordance with the requirements for public involvement and the
requirements for coordination with governments and Tribes. Public
involvement is also required when restoration activities are proposed
to be categorically excluded from documentation in an EA or EIS using
CE 20.
One respondent commented that all roads not identified on a
national forest's motor vehicle use map under the travel management
rule and process are considered ``unauthorized'' and could be
decommissioned without further public comment.
Response: Unauthorized roads defined in the travel management rule
are not roads excluded from the Forest Service unit's motor vehicle use
map. Any proposals to decommission roads (unauthorized or not), will go
through the NEPA process, including ``scoping'' under Forest Service
NEPA procedures.
[[Page 56160]]
Scoping is required for Forest Service categorical exclusions.
Several respondents commented that the public involvement process
on initial access decisions does not dampen the issues associated with
road closures, and broad public involvement is warranted for projects
subject to proposed CE 20. Others expressed concern that proposed CE 20
would shortcut the public involvement process required by an EA or EIS
conducted as part of the travel management process.
Response: Public involvement associated with decommissioning forest
roads as part of transportation planning is required by 36 CFR
212.5(b). Public involvement associated with designation or revision of
the motor vehicle use map maintained as part of the travel management
rule is governed by 36 CFR 212.52. The Forest Service's experience is
that the majority of issues associated with road and trail restoration
activities are related to access and travel management policies, rather
than from implementing restoration projects. CE 20 applies to
restoration work on lands occupied by unneeded and unauthorized roads
and trails and does not include National Forest System Roads and
National Forest System Trails. When applying CE 20, Forest Service
officials will conduct appropriate scoping and public involvement
assuring that citizen views are taken into account in an appropriate
manner given the context of the decisions being made.
Comments Applicable to All Three Categories
One respondent expressed concern that the proposed CEs would allow
the Forest Service to conduct work outside of NFS boundaries and as
such could not be supported.
Response: Establishing these CEs in the Agency's NEPA regulations
does not expand the scope of the Forest Service's authority to fund,
authorize or carry out restoration activities. Additionally, this rule
does not authorize any on-the-ground actions, whether inside or outside
the administrative boundary of the NFS. All Forest Service actions,
whether on or off NFS lands, must be independently supported by valid
statutory authority.
One respondent questioned that Forest Service Chief Thomas L.
Tidwell did not have delegated authority to promulgate rules and
regulations, such as these proposed CEs.
Response: The Chief of the Forest Service has been delegated
authority to issue proposed rules relating to Forest Service programs
(7 CFR 2.60(a)(37)). The authority to issue final rules and regulations
relating to administration of Forest Service programs is reserved to
the Secretary or Under Secretary for Natural Resources and Environment,
except as otherwise provided (7 CFR 2.60(b)(1)).
Several respondents expressed concern that the proposed rule is an
attempt to circumvent the NEPA and the CEs given the Forest Service
latitude to implement a wide and abusive range of activities when the
language ``examples include but are not limited to'' is included.
Response: When using these three CEs, the responsible officials
will consider, on a project-by-project basis, whether or not any of the
Forest Service identified extraordinary circumstances apply. The
responsible official will prepare a project file and decision memo that
will be available for public review (36 CFR 220.6(f)). The decision
memo contains the responsible official's rationale for categorically
excluding an action and selecting that particular category, and
includes a determination that no extraordinary circumstances exist.
CEs are an integral part of NEPA compliance and use of CEs in no
way evades compliance with NEPA. Additionally, CEs are a legitimate
tool for reducing excessive paperwork and avoiding allocating resources
where they are not needed, thereby allowing the Agency to devote more
resources to environmental analysis and subsequent decision-making. The
CEQ regulations for implementing the procedural provisions of NEPA
direct Federal agencies to identify those typical classes of actions
that normally do not require either an EIS or EA (40 CFR 1507.3). CEQ
defines such classes of actions as CEs. ``Categorical exclusion'' means
a category of actions that do not individually or cumulatively have a
significant effect on the human environment and that have been found to
have no such effect in procedures adopted by a Federal agency in
implementation of these regulations (Sec. 1507.3) and for which,
therefore, neither an EA nor an EIS is required (40 CFR 1508.4).
In subsequent guidance regarding NEPA regulations, CEQ explained
that the use of CEs avoids unnecessary documentation of minor
environmental effects in EAs and allows agencies to focus their
environmental review efforts on the major actions that will have a
significant effect on the environment (48 FR 34263), also see 40 CFR
1500.4(p)). CEQ also encourages agencies to identify CEs using broadly
defined criteria that characterize types of actions that normally do
not have significant environmental effects, including cumulative
effects (48 FR 34263).
Concerns over the misuse of these CEs to allow soil and water
restoration activities can be addressed through agency oversight on the
application of the categories.
Several comments supported the proposed CEs and NEPA efficiencies
for projects that are intended to benefit the environment, and are
likely to have little if any negative environmental effects. Others
believe the Forest Service can continue to implement restoration
projects effectively without these proposed CEs.
Response: CEs are to be used for routine actions that have been
found by the Forest Service through experience and environmental review
to have no significant environmental effects either individually or
cumulatively (40 CFR 1508.4). Forest Service NEPA procedures require
that all proposed actions to be categorically excluded from
documentation in an EA or EIS must be reviewed for extraordinary
circumstances and may include appropriate surveys and analyses, taking
into account best available science, and appropriate consultation with
Tribes and regulatory agencies, as required by the Endangered Species
Act, the National Historic Preservation Act, Clean Water Act, and Clear
Air Act. Accordingly, these CEs do not apply where there are
extraordinary circumstances (36 CFR 220.6(b)).
Some respondents commented that the proposed CEs are redundant and
suggested there are categories of actions already in place that cover
water restoration, road maintenance and repair, riparian and habitat
protection, or that a simple EA could suffice in other situations.
Response: The Department has carefully reviewed the proposed rule
against existing agency CEs and determined that the restoration
activities promulgated in this final rule are not redundant with
existing agency categories. The review of the proposed rule led to the
elimination of CE 19, example 3, which was determined to be
redundant with activities included under an existing category.
Some respondents suggested the Forest Service should not rely
solely on the judgment of the responsible official to decide whether an
impact displays the necessary relationships and potential for effects
and the subsequent need for an EA or EIS. They recommend numeric
thresholds to determine when proposals no longer fit under CEs to
prevent line officers from abusing their authority.
[[Page 56161]]
Response: The Forest Service's NEPA procedures (36 CFR 220.6) list
the categories of actions that the Agency has found typically will not
have individually or cumulatively significant effects on the human
environment. These procedures also provide for extraordinary
circumstances in which a normally excluded action may have a
significant environmental effect. These extraordinary circumstances
includes a list of ``[r]esource conditions that should be considered in
determining whether extraordinary circumstances related to the proposed
action warrant further analysis and documentation in an EA
[environmental assessment] or an EIS [environmental impact statement] .
. .''
The regulations at 36 CFR 220.6(b)(2) also state,''[t]he mere presence
of one or more of these resource conditions does not preclude use of a
categorical exclusion. It is (1) the existence of a cause-effect
relationship between a proposed action and the potential effect on
these resource conditions and (2) if such a relationship exists, the
degree of the potential effect of a proposed action on these resource
conditions that determines whether extraordinary circumstances exist.
The Forest Service has consistently considered current information
when making initial determinations on the use of a CE. Pursuant to
existing direction, the Forest Service must conduct a sufficient review
to determine that no extraordinary circumstances preclude the use of
CEs. This determination may include appropriate surveys, consideration
of the best available science, consultation with Tribes, and
coordination with agencies that have regulatory responsibilities under
other statues, such as the Endangered Species Act, National Historic
Preservation Act, Clean Water Act, and Clean Air Act. Responsible
Officials consider, on a project-by-project basis, whether or not
extraordinary circumstances exist.
Many respondents expressed concern that the use of a CE does not
provide for adequate public participation and disclosure, placing a
proposal only in the Schedule of Proposed Actions is inadequate
scoping, and that an EA or EIS is necessary for the activities proposed
under these categories of actions.
Response: As directed by CEQ regulations (40 CFR 1507.3), the
Forest Service has developed agency policy for implementing the NEPA
and CEQ's regulations. As noted in Forest Service NEPA regulations (26
CFR 220.4(e)): ``Scoping is required for all Forest Service proposed
actions, including those that would appear to be categorically excluded
from further analysis and documentation in an EA [environmental
assessment] or an EIS [environmental impact assessment].'' The FSH
1909.15, chapter 10, section 11 further clarifies this stating:
``Although the Council on Environmental Quality (CEQ) Regulations
require scoping only for environmental impact statement (EIS)
preparation, the Forest Service has broadened the concept to apply to
all proposed actions.''
As part of the scoping process for proposals potentially covered by
these CEs, the responsible official must determine the extent of
interest and invite the participation of affected Tribes, Federal
agencies, State agencies, local agencies, and other interested parties,
as appropriate. The Forest Service is committed to fulfilling its
public involvement responsibilities with all parties interested in
projects potentially qualifying for these CEs.
Although not intended to be the sole scoping mechanism, the Forest
Service also provides notice of upcoming proposals through the use of a
Schedule of Proposed Actions (36 CFR 220.4(e)(3) and FSH 1909.15, Zero
Code, sec. 06). The schedule gives early and informal notice of
proposals to make the public aware of Forest Service activities and
provides an opportunity for the public to indicate their interest in
specific proposals. Schedules may be distributed in hard copy by the
respective forest and can be found at http://www.fs.fed.us/sopa.
Finally, it is important to note that the level of environmental
documentation, whether in a CE, EA, or EIS is based on the potential
for or lack of significant environmental effects.
Many comments expressed concern that the use of a CE will reduce
the need for public input and eliminate the notice, comment, and
appeals procedure for these categories of actions.
Response: On March 19, 2012, the U.S. District Court for the
Eastern District of California found that Forest Service regulations
exempting certain categorically excluded projects from notice, comment,
and appeal violated the Appeals Reform Act (ARA) and enjoined the
Forest Service, from applying 36 CFR 215.4(a) and 215.12(f) for certain
categorical exclusions.
The Forest Service has appealed that decision but instructed its
Line Officers to abide and comply with the District Court's orders. At
least for now, the three CEs are subject to the public notice, comment,
and appeal procedures being applied for other CEs that require a
decision memorandum (36 CFR 220.6(e)).
One respondent stated the Forest Service has no mission to restore
lands to pre-disturbance or pre-settlement conditions and suggested the
type of restoration proposed in this rule does not meet NFS needs.
Response: The authority for restoring NFS lands derives from many
laws enacted by Congress that define the purpose of National Forests
and Grasslands. Consistent with the Multiple-Use Sustained-Yield Act of
1960 (16 U.S.C. 528-531) (MUSYA), the Forest Service manages the NFS to
sustain the multiple use of its renewable resources in perpetuity while
maintaining the long-term health and productivity of the land.
Resources are managed through a combination of approaches and concepts
for the benefit of human communities and natural resources. Land
management plans guide sustainable, integrated resource management of
the resources within the plan area in the context of the broader
landscape, giving due consideration to the relative values of the
various resources in particular areas.
Thus the Forest Service has stated its mission is to ``Sustain the
health, diversity, and productivity of the Nation's forests and
grasslands to meet the needs of present and future generations'' (FSM
1000, Zero Code, section 1020.21).
FSM 2020 provides for using ecological restoration to manage NFS
lands in a sustainable manner. This directive reaches across all
program areas and activities applicable to managing NFS lands and
resources so as to ensure integration and coordination at all levels
and within all organizational units.
One respondent commented that the information supporting the
establishment of these CEs did not adequately address the socio-
economic effects, as well as environmental effects.
Response: The primary economic effects of the CEs for soil and
water restoration activities are changes in costs of conducting
environmental analysis and documentation. Under current NEPA
procedures, the level of analysis and documentation required for these
activities often required agency personnel to extend processing
timeframes and expend undue resources and funding to document
restoration projects in an EA. The Forest Service has determined that
this categorical exclusion will not have an annual effect of $100
million or more on the economy or adversely affect productivity,
competition, jobs, the environment, public health or safety, or tribal,
State, or local governments. The economic effect from these CEs is
expected to
[[Page 56162]]
result in a reduction in the administrative burden of preparing
unnecessary EAs and findings of no significant impact.
Commenters suggested that the proposed policy runs counter to the
collaborative process established by Federal land managers and the use
of the proposed CEs are not acceptable without first coordinating
proposed actions with local governments and interested and affected
public.
Response: The Forest Service strongly believes in engaging Tribes
and Native Corporations, other Federal agencies, State and local
governments, individuals, and public and private organizations or
entities, using collaborative processes where feasible and appropriate.
CEs require scoping for public participation and the responsible
official must determine the extent of interest and invite the
participation of affected Federal agencies, affected Tribes, State and
local agencies, and other interested parties, as appropriate. The
scoping process may incorporate collaborative components in the public
involvement process, as determined locally for a site-specific project
based on the interested and affected public.
One commenter questioned the validity of reviewing other agency CEs
in supporting this proposed rule stating other agencies have missions,
environmental and geophysical conditions, and a scope of projects that
are different than those encountered by the Forest Service.
Response: Pursuant to CEQ's November 23, 2010, CEQ guidance
memorandum on ``Establishing, Applying, and Revising Categorical
Exclusions under the National Environmental Policy Act,''
(www.nepa.gov) the Forest Service gathered information supporting
establishment of these three CEs. The information gathered includes
data from implementing comparable past actions; the expert judgment of
the responsible officials who made the findings for the projects
reviewed for this supporting statement; information from other
professional staff and experts, and scientific analyses; a review and
comparison of similar CEs implemented by other Federal agencies; and
the Forest Service's experience implementing soil and water restoration
activities and subsequent monitoring of potential associated impacts.
The November 23, 2010, CEQ guidance memo also allows for the
``benchmarking of other agency experiences,'' that is using comparable
actions (categorically excluded actions) from other Federal agencies.
The Forest Service has identified a set of CEs from other Federal
agencies that have similar characteristics, similar methods of
implementation; applicable procedures (including extraordinary
procedures), and context and timing (including the environmental
settings).
Conclusion
The USDA Forest Service finds that the category of actions defined
in the CEs presented at the end of this notice do not individually or
cumulatively have a significant effect on the human environment. The
Agency's finding is first predicated on the reasoned expert judgment of
the responsible officials who made the original findings and
determinations in the restoration projects reviewed; the professional
staff and experts consulted on the activities in these CEs; the
benchmarked CEs of other Federal agencies; and, finally, the Agency's
judgment that the profile of soil and water restoration activities
represents the Agency's past practices and is indicative of the
Agency's future activities.
These CEs will permit timely environmental documentation, decision-
making and implementation of select soil and water restoration
activities. Additionally, it will conserve limited agency funds.
The text of the final categorical exclusions is set out at the end
of this notice.
Regulatory Certification
Environmental Impact
The intent of the final rule is to increase administrative
efficiency in connection with conducting important restoration
activities while assuring that no significant environmental effects
occur. The amendment of Forest Service NEPA Regulations (36 CFR 220.6)
concerns NEPA documentation for certain types of soil and water
restoration activities. The CEQ does not direct agencies to prepare a
NEPA analysis or document before establishing agency procedures that
supplement the CEQ regulations for implementing NEPA. Agencies are
required to adopt NEPA procedures that establish specific criteria for,
and identification of, three classes of actions: Those that require
preparation of an EIS; those that require preparation of an EA; and
those that are categorically excluded from further NEPA review (40 CFR
1507.3(b)). CEs are one part of those agency procedures, and therefore
establishing CEs does not require preparation of a NEPA analysis or
document. Agency NEPA procedures are internal procedural guidance to
assist agencies in fulfilling Agency responsibilities under NEPA, but
are not the Agency's final determination of what level of NEPA analysis
is required for a particular proposed action. The requirements for
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and
1507.3. The determination that establishing CEs does not require NEPA
analysis and documentation has been upheld in Heartwood, Inc. v. U.S.
Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230
F. 3d 947, 954-55 (7th Cir. 2000).
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on regulatory planning and review. The Office of
Management and Budget has determined that this is not a significant
rule. The final rule would not have an annual effect of $100 million or
more on the economy, nor would it adversely affect productivity,
competition, jobs, the environment, public health or safety, or State
or local government. This final rule would not interfere with an action
taken or planned by another agency, nor would it raise new legal or
policy issues. Finally, this final rule would not alter the budgetary
impacts of entitlements, grants, user fees, or loan programs, or the
rights and obligations of recipients of such programs.
Regulatory Flexibility Act
This final rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). The Agency has determined that
this final rule would not have a significant economic impact on a
substantial number of small entities as defined by the Act because the
final rule would not impose record-keeping requirements; it does not
affect their competitive position in relation to large entities; and it
would not affect their cash flow, liquidity, or ability to remain in
the market.
Federalism
The Agency has considered this final rule under the requirements of
Executive Order 13132, ``Federalism.'' The Agency has concluded that
the final rule conforms with the federalism principles set out in this
Executive Order; would not impose any compliance costs on the States;
and would not have substantial direct effects on the states or the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, the Agency has determined that no further
assessment of federalism implications is necessary.
[[Page 56163]]
Consultation and Coordination With Indian Tribal Governments
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian tribal Governments,'' the
Agency has assessed the impact of this final rule on Indian Tribes and
has determined that it would not have substantial direct effects on one
or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, and therefore the final rule would not
have tribal implications. The final rule deals with requirements for
NEPA analysis and has no direct effect on occupancy and use of NFS
lands. The Agency has also determined that this final rule would not
impose substantial direct compliance costs on Indian tribal governments
or preempt tribal law. Therefore, it has been determined that this
final rule does not require advance consultation with Indian Tribes
under Executive Order 13175.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, ``Governmental Actions
and Interference with Constitutionally Protected Property Rights.'' The
Agency has determined that the final rule would not pose the risk of a
taking of protected private property.
Civil Justice Reform
The Agency has reviewed this final rule under Executive Order 12988
of February 7, 1996, ``Civil Justice Reform.'' After adoption of this
final rule, (1) all State and local laws and regulations that conflict
with this final rule or that would impede full implementation of this
final rule would be preempted; (2) no retroactive effect would be given
to this final rule; and (3) the final rule would not require the use of
administrative proceedings before parties could file suit in court
challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Agency has assessed the effects of this rule on State, local,
and tribal governments and the private sector. This final rule would
not compel the expenditure of $100 million or more by any State, local,
or tribal government or anyone in the private sector. Therefore, a
statement under section 202 of the act is not required.
Energy Effects
The Agency has reviewed this final rule under Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' The Agency has determined that
this final rule does not constitute a significant energy action as
defined in the Executive Order.
Controlling Paperwork Burdens on the Public
This final rule does not contain any additional record keeping or
reporting requirements or other information collection requirements as
defined in 5 CFR Part 1320 that are not already required by law or not
already approved for use, and therefore, imposes no additional
paperwork burden on the public. Accordingly, the review provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR Part 1320 do not apply.
List of Subjects in 36 CFR Part 220
Administrative practices and procedures, Environmental impact
statements, Environmental protection, National forests, Science and
technology.
For the reasons set out in the preamble, the Forest Service amends
part 220 of Title 36 of the Code of Federal Regulations as follows:
PART 220--NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE
0
1. The authority citation for part 220 continues to read as follows:
Authority: 42 U.S.C. 4321 et seq.: E.O. 11514; 40 CFR parts
1500-1508; 7 CFR part 1b.
0
2. In Sec. 220.6, add paragraphs (e)(18), (19), and (20) to read as
follows:
Sec. 220.6 Categorical exclusions.
* * * * *
(e) * * *
(18) Restoring wetlands, streams, riparian areas or other water
bodies by removing, replacing, or modifying water control structures
such as, but not limited to, dams, levees, dikes, ditches, culverts,
pipes, drainage tiles, valves, gates, and fencing, to allow waters to
flow into natural channels and floodplains and restore natural flow
regimes to the extent practicable where valid existing rights or
special use authorizations are not unilaterally altered or canceled.
Examples include but are not limited to:
(i) Repairing an existing water control structure that is no longer
functioning properly with minimal dredging, excavation, or placement of
fill, and does not involve releasing hazardous substances;
(ii) Installing a newly-designed structure that replaces an
existing culvert to improve aquatic organism passage and prevent
resource and property damage where the road or trail maintenance level
does not change;
(iii) Removing a culvert and installing a bridge to improve aquatic
and/or terrestrial organism passage or prevent resource or property
damage where the road or trail maintenance level does not change; and
(iv) Removing a small earthen and rock fill dam with a low hazard
potential classification that is no longer needed.
(19) Removing and/or relocating debris and sediment following
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian
systems to pre-disturbance conditions, to the extent practicable, such
that site conditions will not impede or negatively alter natural
processes. Examples include but are not limited to:
(i) Removing an unstable debris jam on a river following a flood
event and relocating it back in the floodplain and stream channel to
restore water flow and local bank stability;
(ii) Clean-up and removal of infrastructure flood debris, such as,
benches, tables, outhouses, concrete, culverts, and asphalt following a
hurricane from a stream reach and adjacent wetland area; and
(iii) Stabilizing stream banks and associated stabilization
structures to reduce erosion through bioengineering techniques
following a flood event, including the use of living and nonliving
plant materials in combination with natural and synthetic support
materials, such as rocks, riprap, geo-textiles, for slope
stabilization, erosion reduction, and vegetative establishment and
establishment of appropriate plant communities (bank shaping and
planting, brush mattresses, log, root wad, and boulder stabilization
methods).
(20) Activities that restore, rehabilitate, or stabilize lands
occupied by roads and trails, excluding National Forest System Roads
and National Forest System Trails, to a more natural condition that may
include removing, replacing, or modifying drainage structures and
ditches, reestablishing vegetation, reshaping natural contours and
slopes, reestablishing drainage-ways, or other activities that would
restore site productivity and reduce
[[Page 56164]]
environmental impacts. Examples include but are not limited to:
(i) Decommissioning a road that is no longer a National Forest
System Road to a more natural state by restoring natural contours and
removing construction fills, loosening compacted soils, revegetating
the roadbed and removing ditches and culverts to reestablish natural
drainage patterns; (ii) Restoring an unauthorized trail to a natural
state by reestablishing natural drainage patterns, stabilizing slopes,
reestablishing vegetation, and installing water bars; and
(ii) Installing boulders, logs, and berms on an unauthorized road
segment to promote naturally regenerated grass, shrub, and tree growth.
* * * * *
Dated: August 30, 2013.
Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2013-22151 Filed 9-11-13; 8:45 am]
BILLING CODE 3410-11-P