[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Rules and Regulations]
[Pages 75628-75638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30017]
[[Page 75628]]
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COUNCIL ON ENVIRONMENTAL QUALITY
40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and
1508
Final Guidance for Federal Departments and Agencies on
Establishing, Applying, and Revising Categorical Exclusions Under the
National Environmental Policy Act
AGENCY: Council on Environmental Quality.
ACTION: Notice of availability.
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SUMMARY: The Council on Environmental Quality (CEQ) is issuing its
final guidance on categorical exclusions. This guidance provides
methods for substantiating categorical exclusions, clarifies the
process for establishing categorical exclusions, outlines how agencies
should engage the public when establishing and using categorical
exclusions, describes how agencies can document the use of categorical
exclusions, and recommends periodic agency review of existing
categorical exclusions. A categorical exclusion is a category of
actions that a Federal agency determines does not normally result in
individually or cumulatively significant environmental effects. This
guidance clarifies the rules for establishing, applying, and revising
categorical exclusions. It applies to categorical exclusions
established by Federal agencies in accordance with CEQ regulations for
implementing the procedural provisions of the National Environmental
Policy Act. The guidance was developed to assist agencies in making
their implementation of the National Environmental Policy Act (NEPA)
more transparent and efficient.
DATES: The guidance is effective December 6, 2010.
FOR FURTHER INFORMATION CONTACT: The Council on Environmental Quality
(ATTN: Horst Greczmiel, Associate Director for National Environmental
Policy Act Oversight), 722 Jackson Place, NW., Washington, DC 20503.
Telephone: (202) 395-5750.
SUPPLEMENTARY INFORMATION: This guidance applies to categorical
exclusions established by Federal agencies in accordance with Sec.
1507.3 of the CEQ Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act, 40 CFR parts 1500-
1508.
Enacted in 1970, the National Environmental Policy Act (NEPA), 42
U.S.C. 4321-4370, is a fundamental tool used to harmonize our
environmental, economic, and social aspirations and is a cornerstone of
our Nation's efforts to protect the environment. NEPA recognizes that
many Federal activities affect the environment and mandates that
Federal agencies consider the environmental impacts of their proposed
actions before deciding to adopt proposals and take action.\1\ Many
Federal actions do not normally have significant effects on the
environment. When agencies identify categories of activities that do
not normally have the potential for individually or cumulatively
significant impacts, they may establish a categorical exclusion for
those activities. The use of categorical exclusions can reduce
paperwork and delay, so that more resources are available to assess
proposed actions that are likely to have the potential to cause
significant environmental effects in an environmental assessment (EA)
or environmental impact statement (EIS). This guidance clarifies the
rules for establishing categorical exclusions by describing: (1) How to
establish or revise a categorical exclusion; (2) how to use public
involvement and documentation to help define and substantiate a
proposed categorical exclusion; (3) how to apply an established
categorical exclusion; (4) how to determine when to prepare
documentation and involve the public when applying a categorical
exclusion; and (5) how to conduct periodic reviews of categorical
exclusions to assure their continued appropriate use and usefulness.
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\1\ A discussion of NEPA applicability is beyond the scope of
this guidance. For more information see CEQ, The Citizen's Guide to
the National Environmental Policy Act, available at
http://ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf
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On February 18, 2010, the Council on Environmental Quality
announced three proposed draft guidance documents to modernize and
reinvigorate NEPA, in conjunction with the fortieth anniversary of the
statute's enactment.\2\ This guidance document is the first of those
three to be released in final form. With respect to the other two
guidance documents, one addresses when and how Federal agencies should
consider greenhouse gas emissions and climate change in their proposed
actions, and the other addresses when agencies need to monitor
commitments made in EAs and EISs, and how agencies can appropriately
use mitigated ``Findings of No Significant Impact.'' The Federal
Register notice announcing the draft categorical exclusion guidance and
requesting public comments was published on February 23, 2010.\3\ CEQ
appreciates the thoughtful responses to its request for comments on the
draft guidance. Commenters included private citizens, corporations,
environmental organizations, trade associations, and State agencies.
CEQ received fifty-eight comments, which are available online at
http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/comments
and at http://www.nepa.gov. The comments that suggested editorial
revisions and requested clarification of terms are addressed in the
text of the final guidance. Comments that raised policy or substantive
concerns are grouped into thematic issues and addressed in the
following sections of this notice.
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\2\ For more information on this announcement, see
http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa
\3\ National Environmental Policy Act (NEPA) Draft Guidance,
Establishing, Applying, and Revising Categorical Exclusions under
the National Environmental Policy Act, 75 FR 8045, Feb. 23, 2010.
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Process for Developing and Using Categorical Exclusions
Many commenters expressed support for CEQ's categorical exclusion
guidance and for the timely and efficient use of categorical exclusions
in the NEPA environmental review process to inform agency
decisionmaking. Some commenters favored guidance that would limit the
use of categorical exclusions. Others expressed concern that this
guidance will discourage the appropriate use of categorical exclusions
or make the NEPA process more difficult for agencies, and thereby delay
agency decisionmaking.
This guidance was developed to provide for the consistent, proper,
and appropriate development and use of categorical exclusions by
Federal agencies. It reinforces the process required to establish
categorical exclusions by explaining methods available to substantiate
categorical exclusions. It also seeks to ensure opportunities for
public involvement and increasing transparency when Federal agencies
establish categorical exclusions and subsequently use those categorical
exclusions to satisfy their NEPA obligations for specific proposed
actions. Additionally, this guidance affords Federal agencies
flexibility in developing and implementing categorical exclusions while
ensuring that categorical exclusions are administered in compliance
with NEPA and the CEQ Regulations. When appropriately established and
applied, categorical exclusions expedite the environmental review
process for proposals that normally do not require additional analysis
and documentation in an EA or an EIS.
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Applicability and Limitations
Some commenters expressed concern that the guidance creates
additional limitations and constraints on the establishment of
categorical exclusions, while others expressed unqualified support for
using text that constrains the scope of the actions to which a
categorical exclusion could apply. The discussion in the guidance of
physical, temporal, or environmental factors that would constrain the
use of a categorical exclusion is consistent with NEPA and past CEQ
guidance.
Federal agencies that identify physical, temporal, or environmental
constraints in the definition of a proposed category of actions may be
able to better ensure that a new or revised categorical exclusion is
neither too broadly nor too narrowly defined. Some information
regarding implementation of mitigation measures that are an integral
part of the proposed actions and how those actions will be carried out
may be necessary to adequately understand and describe the category of
actions and their projected impacts. A better and more comprehensive
description of a category of actions provides clarity and transparency
for proposed projects that could be categorically excluded from further
analysis and documentation in an EA or an EIS.
Public Involvement
Some commenters expressed concern over the timeliness and burden of
NEPA reviews when there is greater public involvement. The final
guidance makes it clear that CEQ strongly encourages public involvement
in the establishment and revision of categorical exclusions. As the
guidance explains, engaging the public in the environmental aspects of
Federal decisionmaking is a key policy goal of NEPA and the CEQ
Regulations. Public involvement is not limited to the provision of
information by agencies; it should also include meaningful
opportunities for the public to provide comment and feedback on the
information made available. Considering recent advances in information
technology, agencies should consider employing additional measures to
involve the public beyond simply publishing a Federal Register notice
as required when an agency seeks to establish new or revised
categorical exclusions.\4\
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\4\ See 40 CFR 1506.6(a) (requiring agencies to make diligent
efforts to involve the public in preparing and implementing their
NEPA procedures).
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The perceived environmental effects of the proposed category of
actions are a factor that an agency should consider when it decides
whether there is a need for public involvement in determining whether
to apply a categorical exclusion. Accordingly, the guidance clarifies
that agencies have flexibility when applying categorical exclusions to
focus their public involvement on those proposed actions and issues the
agency expects to raise environmental issues and concerns that are
important to the public.
In the final guidance, CEQ uses the terms ``encourage'' and
``recommend'' interchangeably. The language of the guidance relating to
public engagement reflects CEQ's authority under NEPA and the CEQ
regulations to guide agency development and implementation of agency
NEPA procedures. It also reflects the importance of allowing agencies
to use their expertise to determine the appropriate level of engagement
with the public.
Substantiating and Documenting Categorical Exclusions
Some commenters raised the concern that the requirement to
substantiate and document categorical exclusions would be burdensome
and cause delay. One commenter recommended that the guidance should
encourage consultation with State agencies, other Federal agencies with
special expertise, and other stakeholders. Another commenter suggested
that the guidance permit agencies to consult with industry project
proponents that possess information that would be useful in
substantiating a categorical exclusion. Along the same lines, another
commenter stated that agencies should be encouraged to seek information
from the most relevant and reliable sources possible.
The guidance has been revised to reflect that, when substantiating
and documenting the environmental effects of a category of actions, a
Federal agency need not be limited to its own experiences. Instead, the
agency should consider information and records from other private and
public entities, including other Federal agencies that have experience
with the actions covered in a proposed categorical exclusion. The
guidance acknowledges that the reliability of scientific information
varies according to its source and the rigor with which it was
developed, and that it is the responsibility of the agency to determine
whether the information reflects accepted knowledge, accurate findings,
and experience with the environmental effects relevant to the actions
that would be included in the proposed categorical exclusion.
The guidance addresses the concerns over timeliness and undue
burdens by explaining that the amount of information required to
substantiate a proposed new or revised categorical exclusion should be
proportionate to the type of activities included in the proposed
category of actions. Actions that potentially have little or no impact
should not require extensive information or documentation. Determining
the extent of substantiation and documentation is ultimately the
responsibility of the agency and will vary depending on the nature of
the proposed action and the effects associated with the action. The
guidance encourages agencies to make use of agency Web sites to provide
further clarity and transparency to their NEPA procedures. It also
recommends using modern technology to maintain and facilitate the use
of documentation in future evaluations and benchmarking.
Extraordinary Circumstances
Several commenters requested clearer and more detailed guidance on
the application of extraordinary circumstances. Extraordinary
circumstances are appropriately understood as those factors or
circumstances that will help an agency identify the situations or
environmental settings when an otherwise categorically-excludable
action merits further analysis and documentation in an EA or an EIS.
Specific comments noted that the determination that an extraordinary
circumstance will require additional environmental review in an EA or
an EIS should depend not solely on the existence of the extraordinary
circumstance but rather on an analysis of its impacts. CEQ agrees with
this perspective. For example, when an agency uses a protected
resource, such as historic property or threatened and endangered
species, as an extraordinary circumstance, the guidance clarifies that
whether additional review and documentation of a proposed action's
potential environmental impacts in an EA or an EIS is required is based
on the potential for significantly impacting that protected resource.
However, CEQ recognizes that some agency NEPA procedures require
additional analysis based solely on the existence of an extraordinary
circumstance. In such cases, the agencies may define their
extraordinary circumstances differently, so that a particular
situation, such as the presence of a protected resource, is not
considered an extraordinary circumstance per se, but a factor to
consider when determining if there are extraordinary circumstances,
such as a significant impact to that resource. This
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way of structuring NEPA procedures is also appropriate. What is
important is that situations or circumstances that may warrant
additional analysis and documentation in an EA or an EIS are fully
considered before a categorical exclusion is used.
The guidance was also revised to clarify how agencies can use the
factors set out in the CEQ Regulations to determine significance. The
Federal agencies are ultimately responsible for the determination of
specific extraordinary circumstances for a category of actions, as well
as the determination of whether to use the significance factors set out
in the CEQ Regulations when establishing extraordinary
circumstances.\5\ Agency determinations are informed by the public and
CEQ during the development of the categorical exclusions.
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\5\ See 40 CFR 1508.27 (defining ``significantly'' for NEPA
purposes in terms of several context and intensity factors for
agencies to consider).
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Documenting the Use of Categorical Exclusions
Commenters were most concerned over the potential for delay and the
creation of administrative burdens for projects and programs. The
guidance makes it clear that the documentation prepared when
categorically excluding an action should be as concise as possible to
avoid unnecessary delays and administrative burdens for projects and
programs. The guidance explains that each agency should determine the
circumstances in which it is appropriate to prepare additional
documentation. It also explains that for some activities with little
risk of significant environmental effects, there may be no practical
need for, or benefit from, preparing any documentation beyond the
existing record supporting the underlying categorical exclusion and any
administrative record for that activity. The guidance makes it clear
that the extent of the documentation prepared is the responsibility of
the agency and should be tailored to the type of action involved, the
potential for extraordinary circumstances, and compliance requirements
of other laws, regulations, and policies.
Cumulative Impacts
Some commenters were concerned that the guidance overlooked the
importance of cumulative effects. As specifically set out in the CEQ
Regulations and the final guidance, the consideration of the potential
cumulative impacts of proposed actions is an important and integral
aspect of the NEPA process. The guidance makes it clear that both
individual and cumulative impacts must be considered when establishing
categorical exclusions. With regard to the cumulative impacts of
actions that an agency has categorically excluded, the guidance
recommends that agencies consider the frequency with which the
categorically-excluded actions are applied. For some types of
categorical exclusions, it may also be appropriate for the agency to
track and periodically assess use of the categorical exclusion to
ensure that cumulative impacts do not rise to a level that would
warrant further NEPA analysis and documentation.
Monitoring
Commenters voiced concerns that the guidance would create a new
requirement for monitoring. The final guidance makes it clear that any
Federal agency program charged with complying with NEPA should develop
and maintain sufficient capacity to ensure the validity of NEPA reviews
that predict that there will not be significant impacts. The amount of
effort and the methods used for assessing environmental effects should
be proportionate to the potential effects of the action that is the
subject of a proposed categorical exclusion and should ensure that the
use of categorical exclusions does not inadvertently result in
significant impacts.
As the guidance explains, agencies seeking to substantiate new or
revised categorical exclusions can rely on the information gathered
from monitoring actions the agency took in the past, as well as from
monitoring the effects of impact demonstration projects. Relying solely
on completed EAs and Findings of No Significant Impact (FONSIs) is not
sufficient without information validating the FONSI which was projected
in advance of implementation. The guidance makes it clear that FONSIs
cannot be relied on as a basis for establishing a categorical exclusion
unless the absence of significant environmental effects has been
verified through credible monitoring of the implemented activity or
other sources of corroborating information. The intensity of monitoring
efforts for particular categories of actions or impact demonstration
projects is appropriately left to the judgment of the agencies.
Furthermore, the guidance explains that in some cases monitoring may
not be appropriate and agencies can evaluate other information.
Review of Existing Categorical Exclusions
Several commenters advocated ``grandfathering'' existing
categorical exclusions. Two other commenters voiced support for the
periodic review of agency categorical exclusions and specifically
requested that the guidance call for rigorous review of existing
categorical exclusions. Two commenters requested that the guidance
explicitly provide for public participation during the review process.
Several verbal comments focused on the recommended seven year review
period and suggested alternative review periods ranging from two to ten
years. Several commenters also requested that the guidance describe
with greater clarity how the periodic review should be implemented.
CEQ believes it is extremely important to review the categorical
exclusions already established by the Federal agencies. The fact that
an agency's categorical exclusions were established years ago is all
the more reason to review them to ensure that changes in technology,
operations, agency missions, and the environment do not call into
question the continued use of these categorical exclusions. The
guidance also explains the value of such a review. Reviewing
categorical exclusions can serve as the impetus for clarifying the
actions covered by an existing categorical exclusion. It can also help
agencies identify additional extraordinary circumstances and consider
the appropriate documentation when using certain categorical
exclusions. The guidance states that the review should focus on
categorical exclusions that no longer reflect current environmental
circumstances or an agency's policies, procedures, programs, or
mission.
This guidance recommends that agencies develop a process and
timeline to periodically review their categorical exclusions (and
extraordinary circumstances) to ensure that their categorical
exclusions remain current and appropriate, and that those reviews
should be conducted at least every seven years. A seven-year cycle
allows the agencies to regularly review categorical exclusions to avoid
the use of categorical exclusions that are outdated and no longer
appropriate. If the agency believes that a different timeframe is
appropriate, the agency should articulate a sound basis for that
conclusion, explaining how the alternate timeframe will still allow the
agency to avoid the use of categorical exclusions that are outdated and
no longer appropriate. As described in the guidance, agencies should
use their Web sites to notify the public and CEQ about how and when
their reviews of existing categorical exclusions will be conducted. CEQ
will perform oversight of agencies' reviews, beginning with
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those agencies currently reassessing or experiencing difficulties with
implementing their categorical exclusions, as well as with agencies
facing challenges to their application of categorical exclusions.
The Final Guidance
The final guidance is provided here and is available on the
National Environmental Policy Act Web site (http://www.nepa.gov)
specifically at, http://ceq.hss.doe.gov/ceq_regulations/guidance.html. For
reasons stated in the preamble, above, CEQ issues the following
guidance on establishing, applying, and revising categorical
exclusions.
MEMORANDUM FOR HEADS OF FEDERAL DEPARTMENTS AND AGENCIES
FROM: NANCY H. SUTLEY
Chair
Council on Environmental Quality
SUBJECT: Final Guidance for Federal Departments and Agencies on
Establishing, Applying, and Revising Categorical Exclusions under the
National Environmental Policy Act
The Council on Environmental Quality (CEQ) is issuing this guidance
for Federal departments and agencies on how to establish, apply, and
revise categorical exclusions in accordance with section 102 of the
National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and the CEQ
Regulations for Implementing the Procedural Provisions of NEPA (CEQ
Regulations), 40 CFR Parts 1500-1508.\6\ This guidance explains the
requirements of NEPA and the CEQ Regulations, describes CEQ policies,
and recommends procedures for agencies to use to ensure that their use
of categorical exclusions is consistent with applicable law and
regulations.\7\ The guidance is based on NEPA, the CEQ Regulations,
legal precedent and agency NEPA experience and practice. It describes:
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\6\ The Council on Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of NEPA (CEQ Regulations),
available on www.nepa.gov at
http://ceq.hss.doe.gov/ceq_regulations/regulations.html
This guidance applies only to categorical
exclusions established by Federal agencies in accordance with
section 1507.3 of the CEQ Regulations, 40 CFR 1507.3. It does not
address categorical exclusions established by statute, as their use
is governed by the terms of specific legislation and subsequent
interpretation by the agencies charged with the implementation of
that statute and NEPA requirements. CEQ encourages agencies to apply
their extraordinary circumstances to categorical exclusions
established by statute when the statute is silent as to the use and
application of extraordinary circumstances.
\7\ This guidance is not a rule or regulation, and the
recommendations it contains may not apply to a particular situation
based upon the individual facts and circumstances. This guidance
does not change or substitute for any law, regulation, or any other
legally binding requirement and is not legally enforceable. The use
of non-mandatory language such as ``guidance,'' ``recommend,''
``may,'' ``should,'' and ``can,'' is intended to describe CEQ
policies and recommendations. The use of mandatory terminology such
as ``must'' and ``required'' is intended to describe controlling
requirements under the terms of NEPA and the CEQ regulations, but
this document does not establish legally binding requirements in and
of itself.
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How to establish or revise a categorical exclusion;
How to use public involvement and documentation to help
define and substantiate a proposed categorical exclusion;
How to apply an established categorical exclusion, and
determine when to prepare documentation and involve the public; \8\ and
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\8\ The term ``public'' in this guidance refers to any
individuals, groups, entities or agencies external to the Federal
agency analyzing the proposed categorical exclusion or proposed
activity.
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How to conduct periodic reviews of categorical exclusions
to assure their continued appropriate use and usefulness.
This guidance is designed to afford Federal agencies flexibility in
developing and implementing categorical exclusions, while ensuring that
categorical exclusions are administered to further the purposes of NEPA
and the CEQ Regulations.\9\
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\9\ 40 CFR 1507.1 (noting that CEQ Regulations intend to allow
each agency flexibility in adapting its NEPA implementing procedures
to requirements of other applicable laws).
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I. Introduction
The CEQ Regulations provide basic requirements for establishing and
using categorical exclusions. Section 1508.4 of the CEQ Regulations
defines a ``categorical exclusion'' as
a category of actions which do not individually or cumulatively
have a significant effect on the human environment and which 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 environmental assessment nor an
environmental impact statement is required.\10\
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\10\ Id. at Sec. 1508.4.
Categories of actions for which exclusions are established can be
limited by their terms. Furthermore, the application of a categorical
exclusion can be limited by ``extraordinary circumstances.''
Extraordinary circumstances are factors or circumstances in which a
normally excluded action may have a significant environmental effect
that then requires further analysis in an environmental assessment (EA)
or an environmental impact statement (EIS).\11\
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\11\ Id.
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Categorical exclusions are not exemptions or waivers of NEPA
review; they are simply one type of NEPA review. To establish a
categorical exclusion, agencies determine whether a proposed activity
is one that, on the basis of past experience, normally does not require
further environmental review. Once established, categorical exclusions
provide an efficient tool to complete the NEPA environmental review
process for proposals that normally do not require more resource-
intensive EAs or EISs. The use of categorical exclusions can reduce
paperwork and delay, so that EAs or EISs are targeted toward proposed
actions that truly have the potential to cause significant
environmental effects.\12\
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\12\ See id. at Sec. Sec. 1500.4(p) (recommending use of
categorical exclusions as a tool to reduce paperwork), 1500.5(k)
(recommending categorical exclusions as a tool to reduce delay).
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When determining whether to use a categorical exclusion for a
proposed activity, a Federal agency must carefully review the
description of the proposed action to ensure that it fits within the
category of actions described in the categorical exclusion. Next, the
agency must consider the specific circumstances associated with the
proposed activity, to rule out any extraordinary circumstances that
might give rise to significant environmental effects requiring further
analysis and documentation in an EA or an EIS.\13\ In other words, when
evaluating whether to apply a categorical exclusion to a proposed
activity, an agency must consider the specific circumstances associated
with the activity and may not end its review based solely on the
determination that the activity fits within the description of the
categorical exclusion; rather, the agency must also consider whether
there are extraordinary circumstances that would warrant further NEPA
review. Even if a proposed activity fits within the definition of a
categorical exclusion and does not raise extraordinary circumstances,
the CEQ Regulations make clear that an agency can, at its discretion,
decide ``to prepare an environmental assessment * * * in order to
assist agency planning and decisionmaking.'' \14\
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\13\ 40 CFR 1508.4 (requiring Federal agencies to adopt
procedures to ensure that categorical exclusions are not applied to
proposed actions involving extraordinary circumstances that might
have significant environmental effects).
\14\ 40 CFR 1501.3(b).
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Since Federal agencies began using categorical exclusions in the
late 1970s,
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the number and scope of categorically-excluded activities have expanded
significantly. Today, categorical exclusions are the most frequently
employed method of complying with NEPA, underscoring the need for this
guidance on the promulgation and use of categorical exclusions.\15\
Appropriate reliance on categorical exclusions provides a reasonable,
proportionate, and effective analysis for many proposed actions,
helping agencies reduce paperwork and delay. If used inappropriately,
categorical exclusions can thwart NEPA's environmental stewardship
goals, by compromising the quality and transparency of agency
environmental review and decisionmaking, as well as compromising the
opportunity for meaningful public participation and review.
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\15\ See CEQ reports to Congress on the status and progress of
NEPA reviews for Recovery Act funded projects and activities,
available on http://www.nepa.gov at
http://ceq.hss.doe.gov/ceq_reports/recovery_act_reports.html
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II. Establishing and Revising Categorical Exclusions
A. Conditions Warranting New or Revised Categorical Exclusions
Federal agencies may establish a new or revised categorical
exclusion in a variety of circumstances. For example, an agency may
determine that a class of actions--such as payroll processing, data
collection, conducting surveys, or installing an electronic security
system in a facility--can be categorically excluded because it is not
expected to have significant individual or cumulative environmental
effects. As discussed further in Section III.A.1, below, agencies may
also identify potential new categorical exclusions after the agencies
have performed NEPA reviews of a class of proposed actions and found
that, when implemented, the actions resulted in no significant
environmental impacts. Other categories of actions may become
appropriate for categorical exclusions as a result of mission changes.
When agencies acquire new responsibilities through legislation or
administrative restructuring, they should propose new categorical
exclusions after they, or other agencies, gain sufficient experience
with the new activities to make a reasoned determination that any
resulting environmental impacts are not significant.\16\
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\16\ When legislative or administrative action creates a new
agency or restructures an existing agency, the agency should
determine if its decisionmaking processes have changed and ensure
that its NEPA implementing procedures align the NEPA review and
other environmental planning processes with agency decisionmaking.
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Agencies sometimes employ ``tiering'' to incorporate findings from
NEPA environmental reviews that address broad programs or issues into
reviews that subsequently deal with more specific and focused proposed
actions.\17\ Agencies may rely on tiering to make predicate findings
about environmental impacts when establishing a categorical exclusion.
To the extent that mitigation commitments developed during the broader
review become an integral part of the basis for subsequently excluding
a proposed category of actions, care must be taken to ensure that those
commitments are clearly presented as required design elements in the
description of the category of actions being considered for a
categorical exclusion.
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\17\ 40 CFR 1502.4(d), 1502.20, 1508.28.
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If actions in a proposed categorical exclusion are found to have
potentially significant environmental effects, an agency can abandon
the proposed categorical exclusion, or revise it to eliminate the
potential for significant impacts. This can be done by: (1) Limiting or
removing activities included in the categorical exclusion; (2) placing
additional constraints on the categorical exclusion's applicability; or
(3) revising or identifying additional applicable extraordinary
circumstances. When an agency revises an extraordinary circumstance, it
should make sure that the revised version clearly identifies the
circumstances when further environmental evaluation in an EA or an EIS
is warranted.
B. The Text of the Categorical Exclusion
In prior guidance, CEQ has generally addressed the crafting of
categorical exclusions, encouraging agencies to ``consider broadly
defined criteria which characterize types of actions that, based on the
agency's experience, do not cause significant environmental effects,''
and to ``offer several examples of activities frequently performed by
that agency's personnel which would normally fall in these
categories.'' \18\ CEQ's prior guidance also urges agencies to consider
whether the cumulative effects of multiple small actions ``would cause
sufficient environmental impact to take the actions out of the
categorically-excluded class.'' \19\ This guidance expands on CEQ's
earlier guidance, by advising agencies that the text of a proposed new
or revised categorical exclusion should clearly define the eligible
category of actions, as well as any physical, temporal, or
environmental factors that would constrain its use.
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\18\ Council on Environmental Quality, ``Guidance Regarding NEPA
Regulations,'' 48 FR 34,263, 34,265, Jul. 28, 1983, available on
http://www.nepa.gov at http://ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm
\19\ Id.
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Some activities may be variable in their environmental effects,
such that they can only be categorically excluded in certain regions,
at certain times of the year, or within a certain frequency. For
example, because the status and sensitivity of environmental resources
varies across the nation or by time of year (e.g., in accordance with a
protected species' breeding season), it may be appropriate to limit the
geographic applicability of a categorical exclusion to a specific
region or environmental setting. Similarly, it may be appropriate to
limit the frequency with which a categorical exclusion is used in a
particular area. Categorical exclusions for activities with variable
impacts must be carefully described to limit their application to
circumstances where the activity has been shown not to have significant
individual or cumulative environmental effects. Those limits may be
spatial (restricting the extent of the proposed action by distance or
area); temporal (restricting the proposed action during certain seasons
or nesting periods in a particular setting); or numeric (limiting the
number of proposed actions that can be categorically excluded in a
given area or timeframe). Federal agencies that identify these
constraints can better ensure that a categorical exclusion is neither
too broadly nor too narrowly defined.
When developing a new or revised categorical exclusion, Federal
agencies must be sure the proposed category captures the entire
proposed action. Categorical exclusions should not be established or
used for a segment or an interdependent part of a larger proposed
action. The actions included in the category of actions described in
the categorical exclusion must be stand-alone actions that have
independent utility. Agencies are also encouraged to provide
representative examples of the types of activities covered in the text
of the categorical exclusion, especially for broad categorical
exclusions. These examples will provide further clarity and
transparency regarding the types of actions covered by the categorical
exclusion.
C. Extraordinary Circumstances
Extraordinary circumstances are appropriately understood as those
factors or circumstances that help a Federal agency identify situations
or environmental settings that may require
[[Page 75633]]
an otherwise categorically-excludable action to be further analyzed in
an EA or an EIS. Often these factors are similar to those used to
evaluate intensity for purposes of determining significance pursuant to
section 1508.27(b) of the CEQ Regulations.\20\ For example, several
agencies list as extraordinary circumstances the potential effects on
protected species or habitat, or on historic properties listed or
eligible for listing in the National Register of Historic Places.
---------------------------------------------------------------------------
\20\ Id. at Sec. 1508.27(b).
---------------------------------------------------------------------------
When proposing new or revised categorical exclusions, Federal
agencies should consider the extraordinary circumstances described in
their NEPA procedures to ensure that they adequately account for those
situations and settings in which a proposed categorical exclusion
should not be applied. An extraordinary circumstance requires the
agency to determine how to proceed with the NEPA review. For example,
the presence of a factor, such as a threatened or endangered species or
a historic resource, could be an extraordinary circumstance, which,
depending on the structure of the agency's NEPA implementing
procedures, could either cause the agency to prepare an EA or an EIS,
or cause the agency to consider whether the proposed action's impacts
on that factor require additional analysis in an EA or an EIS. In other
situations, the extraordinary circumstance could be defined to include
both the presence of the factor and the impact on that factor. Either
way, agency NEPA implementing procedures should clearly describe the
manner in which an agency applies extraordinary circumstances and the
circumstances under which additional analysis in an EA or an EIS is
warranted.
Agencies should review their existing extraordinary circumstances
concurrently with the review of their categorical exclusions. If an
agency's existing extraordinary circumstances do not provide sufficient
parameters to limit a proposed new or revised categorical exclusion to
actions that do not have the potential for significant environmental
effects, the agency should identify and propose additional
extraordinary circumstances or revise those that will apply to the
proposed categorical exclusion. If extensive extraordinary
circumstances are needed to limit a proposed categorical exclusion, the
agency should also consider whether the proposed categorical exclusion
itself is appropriate. Any new or revised extraordinary circumstances
must be issued together with the new or revised categorical exclusion
in draft form and then in final form according to the procedures
described in Section IV.
III. Substantiating a New or Revised Categorical Exclusion
Substantiating a new or revised categorical exclusion is basic to
good decisionmaking. It serves as the agency's own administrative
record of the underlying reasoning for the categorical exclusion. A key
issue confronting Federal agencies is how to substantiate a
determination that a proposed new or revised categorical exclusion
describes a category of actions that do not individually or
cumulatively have a significant effect on the human environment.\21\
Provided below are methods agencies can use to gather and evaluate
information to substantiate proposed new or revised categorical
exclusions.
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\21\ See id. at Sec. Sec. 1508.7, 1508.8, 1508.27.
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A. Gathering Information To Substantiate a Categorical Exclusion
The amount of information required to substantiate a categorical
exclusion depends on the type of activities included in the proposed
category of actions. Actions that are reasonably expected to have
little impact (for example, conducting surveys or purchasing small
amounts of office supplies consistent with applicable acquisition and
environmental standards) should not require extensive supporting
information.\22\ For actions that do not obviously lack significant
environmental effects, agencies must gather sufficient information to
support establishing a new or revised categorical exclusion. An agency
can substantiate a categorical exclusion using the sources of
information described below, either alone or in combination.\23\
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\22\ Agencies should still consider the environmental effects of
actions that are taken on a large scale. Agency-wide procurement and
personnel actions could have cumulative impacts. For example,
purchasing paper with higher recycled content uses less natural
resources and will have lesser environmental impacts. See ``Federal
Leadership in Environmental, Energy, and Economic Performance,''
E.O. No. 13,514, 74 FR 52,117, Oct. 8, 2009.
\23\ Agencies should be mindful of their obligations under the
Information Quality Act to ensure the quality, objectivity, utility,
and integrity of the information they use or disseminate as the
basis of an agency decision to establish a categorical exclusion.
See Information Quality Act, Pub. L. No. 106-554, section 515
(2000), 114 Stat. 2763, 2763A-153 (codified at 44 U.S.C. 3516
(2001)); see also ``Guidelines for Ensuring and Maximizing the
Quality, Objectivity, Utility, and Integrity of Information
Disseminated by Federal Agencies, Republication,'' 60 FR 8452, Feb.
22, 2002, available at http://www.whitehouse.gov/omb/inforeg/infopoltech.html. Additional laws and regulations that establish
obligations that apply or may apply to the processes of establishing
and applying categorical exclusions (such as the Federal Records
Act) are beyond the scope of this guidance.
---------------------------------------------------------------------------
1. Previously Implemented Actions
An agency's assessment of the environmental effects of previously
implemented or ongoing actions is an important source of information to
substantiate a categorical exclusion. Such assessment allows the
agency's experience with implementation and operating procedures to be
taken into account in developing the proposed categorical exclusion.
Agencies can obtain useful substantiating information by monitoring
and/or otherwise evaluating the effects of implemented actions that
were analyzed in EAs that consistently supported Findings of No
Significant Impact. If the evaluation of the implemented action
validates the environmental effects (or lack thereof) predicted in the
EA, this provides strong support for a proposed categorical exclusion.
Care must be taken to ensure that any mitigation measures developed
during the EA process are an integral component of the actions
considered for inclusion in a proposed categorical exclusion.
Implemented actions analyzed in an EIS can also be a useful source
of substantiating information if the implemented action has independent
utility to the agency, separate and apart from the broader action
analyzed in the EIS. The EIS must specifically address the
environmental effects of the independent proposed action and determine
that those effects are not significant. For example, when a discrete,
independent action is analyzed in an EIS as part of a broad management
action, an evaluation of the actual effects of that discrete action may
support a proposed categorical exclusion for the discrete action. As
with actions previously analyzed in EAs, predicted effects (or lack
thereof) should be validated through monitoring or other corroborating
evidence.
Agencies can also identify or substantiate new categorical
exclusions and extraordinary circumstances by using auditing and
implementation data gathered in accordance with an Environmental
Management System or other systems that track environmental performance
and the effects of particular actions taken to attain that
performance.\24\
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\24\ An EMS provides a systematic framework for a Federal agency
to monitor and continually improve its environmental performance
through audits, evaluation of legal and other requirements, and
management reviews. The potential for EMS to support NEPA work is
further described in CEQ's Guidebook, ``Aligning National
Environmental Policy Act Processes with Environmental Management
Systems'' (2007), available on http://www.nepa.gov at
http://ceq.hss.doe.gov/publications/nepa_and_ems.html
---------------------------------------------------------------------------
[[Page 75634]]
Agencies should also consider appropriate monitoring or other
evaluation of the environmental effects of their categorically-excluded
actions, to inform periodic reviews of existing categorical exclusions,
as discussed in Section VI, below.
2. Impact Demonstration Projects
When Federal agencies lack experience with a particular category of
actions that is being considered for a proposed categorical exclusion,
they may undertake impact demonstration projects to assess the
environmental effects of those actions. As part of a demonstration
project, the Federal agency should monitor the actual environmental
effects of the proposed action during and after implementation. The
NEPA documentation prepared for impact demonstration projects should
explain how the monitoring and analysis results will be used to
evaluate the merits of a proposed categorical exclusion. When designing
impact demonstration projects, an agency must ensure that the action
being evaluated accurately represents the scope, the operational
context, and the environmental context of the entire category of
actions that will be described in the proposed categorical exclusion.
For example, if the proposed categorical exclusion would be used in
regions or areas of the country with different environmental settings,
a series of impact demonstration projects may be needed in those areas
where the categorical exclusion would be used.
3. Information From Professional Staff, Expert Opinions, and Scientific
Analyses
A Federal agency may rely on the expertise, experience, and
judgment of its professional staff as well as outside experts to assess
the potential environmental effects of applying proposed categorical
exclusions, provided that the experts have knowledge, training, and
experience relevant to the implementation and environmental effects of
the actions described in the proposed categorical exclusion. The
administrative record for the proposed categorical exclusion should
document the experts' credentials (e.g., education, training,
certifications, years of related experience) and describe how the
experts arrived at their conclusions.
Scientific analyses are another good source of information to
substantiate a new or revised categorical exclusion. Because the
reliability of scientific information varies according to its source
and the rigor with which it was developed, the Federal agency remains
responsible for determining whether the information reflects accepted
knowledge, accurate findings, and experience relevant to the
environmental effects of the actions that would be included in the
proposed categorical exclusion. Peer-reviewed findings may be
especially useful to support an agency's scientific analysis, but
agencies may also consult professional opinions, reports, and research
findings that have not been formally peer-reviewed. Scientific
information that has not been externally peer-reviewed may require
additional scrutiny and evaluation by the agency. In all cases,
findings must be based on high-quality, accurate technical and
scientific information.\25\
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\25\ See 40 CFR 1500.1(b), 1502.24.
---------------------------------------------------------------------------
4. Benchmarking Other Agencies' Experiences
A Federal agency cannot rely on another agency's categorical
exclusion to support a decision not to prepare an EA or an EIS for its
own actions. An agency may, however, substantiate a categorical
exclusion of its own based on another agency's experience with a
comparable categorical exclusion and the administrative record
developed when the other agency's categorical exclusion was
established. Federal agencies can also substantiate categorical
exclusions by benchmarking, or drawing support, from private and public
entities that have experience with the actions covered in a proposed
categorical exclusion, such as State and local agencies, Tribes,
academic and professional institutions, and other Federal agencies.
When determining whether it is appropriate to rely on another
entity's experience, an agency must demonstrate that the benchmarked
actions are comparable to the actions in a proposed categorical
exclusion. The agency can demonstrate this based on: (1)
Characteristics of the actions; (2) methods of implementing the
actions; (3) frequency of the actions; (4) applicable standard
operating procedures or implementing guidance (including extraordinary
circumstances); and (5) timing and context, including the environmental
settings in which the actions take place.
B. Evaluating the Information Supporting Categorical Exclusions
After gathering substantiating information and determining that the
category of actions in the proposed categorical exclusion does not
normally result in individually or cumulatively significant
environmental effects, a Federal agency should develop findings that
demonstrate how it made its determination. These findings should
account for similarities and differences between the proposed
categorical exclusion and the substantiating information. The findings
should describe the method and criteria the agency used to assess the
environmental effects of the proposed categorical exclusion. These
findings, and the relevant substantiating information, should be
maintained in an administrative record that will support: Benchmarking
by other agencies (as discussed in Section III.A.4, above); applying
the categorical exclusions (as discussed in Section V.A, below); and
periodically reviewing the continued viability of the categorical
exclusion (as discussed in Section VI, below). These findings should
also be made available to the public, at least in preliminary form, as
part of the process of seeking public input on the establishment of new
or revised categorical exclusions, though the final findings may be
revised based on new information received from the public and other
sources.
IV. Procedures for Establishing a New or Revised Categorical Exclusion
Pursuant to section 1507.3(a) of the CEQ Regulations, Federal
agencies are required to consult with the public and with CEQ whenever
they amend their NEPA procedures, including when they establish new or
revised categorical exclusions. An agency can only adopt new or revised
NEPA implementing procedures after the public has had notice and an
opportunity to comment, and after CEQ has issued a determination that
the procedures are in conformity with NEPA and the CEQ regulations.
Accordingly, an agency's process for establishing a new or revised
categorical exclusion should include the following steps:
Draft the proposed categorical exclusion based on the
agency's experience and substantiating information;
Consult with CEQ on the proposed categorical exclusion;
Consult with other Federal agencies that conduct similar
activities to coordinate with their current procedures, especially for
programs
[[Page 75635]]
requesting similar information from members of the public (e.g.,
applicants);
Publish a notice of the proposed categorical exclusion in
the Federal Register for public review and comment;
Consider public comments;
Consult with CEQ on the public comments received and the
proposed final categorical exclusion to obtain CEQ's written
determination of conformity with NEPA and the CEQ Regulations;
Publish the final categorical exclusion in the Federal
Register;
File the categorical exclusion with CEQ; and
Make the categorical exclusion readily available to the
public through the agency's Web site and/or other means.
A. Consultation With CEQ
The CEQ Regulations require agencies to consult with CEQ prior to
publishing their proposed NEPA procedures in the Federal Register for
public comment. Agencies are encouraged to involve CEQ as early as
possible in the process and to enlist CEQ's expertise and assistance
with interagency coordination to make the process as efficient as
possible.\26\
---------------------------------------------------------------------------
\26\ 40 CFR 1507.3(a) (requiring agencies with similar programs
to consult with one another and with CEQ to coordinate their
procedures).
---------------------------------------------------------------------------
Following the public comment period, the Federal agency must
consider the comments received and consult again with CEQ to discuss
substantive comments and how they will be addressed. CEQ shall complete
its review within thirty (30) days of receiving the final text of the
agency's proposed categorical exclusion. For consultation to
successfully conclude, CEQ must provide the agency with a written
statement that the categorical exclusion was developed in conformity
with NEPA and the CEQ Regulations. Finally, when the Federal agency
publishes the final version of the categorical exclusion in the Federal
Register and on its established agency Web site, the agency should
notify CEQ of such publication so as to satisfy the requirements to
file the final categorical exclusion with CEQ and to make the final
categorical exclusion readily available to the public.\27\
---------------------------------------------------------------------------
\27\ Id.
---------------------------------------------------------------------------
B. Seeking Public Involvement When Establishing or Revising a
Categorical Exclusion
Engaging the public in the environmental aspects of Federal
decisionmaking is a key aspect of NEPA and the CEQ Regulations.\28\ At
a minimum, the CEQ Regulations require Federal agencies to make any
proposed amendments to their categorical exclusions available for
public review and comment in the Federal Register,\29\ regardless of
whether the categorical exclusions are promulgated as regulations
through rulemaking, or issued as departmental directives or orders.\30\
To maximize the value of comments from interested parties, the agency's
Federal Register notice should:
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\28\ National Environmental Policy Act of 1969, Sec. 2 et seq.,
42 U.S.C. 4321 et seq.; see, e.g., 40 CFR 1506.6(a) (requiring
agencies to make diligent efforts to involve the public in preparing
and implementing their NEPA procedures); 40 CFR 1507.3(a) (requiring
each agency to consult with CEQ while developing its procedures and
before publishing them in the Federal Register for comment;
providing that an agency's NEPA procedures shall be adopted only
after an opportunity for public review; and providing that, once in
effect, the procedures must be made readily available to the
public).
\29\ See 40 CFR 1507.3 (outlining procedural requirements for
agencies to establish and revise their NEPA implementing
regulations), 1506.6(a) (requiring agencies to involve the public in
rulemaking, including public notice and an opportunity to comment).
\30\ NEPA and the CEQ Regulations do not require agency NEPA
implementing procedures, of which categorical exclusions are a key
component, to be promulgated as regulations through rulemaking.
Agencies should ensure they comply with all appropriate agency
requirements for issuing and revising their NEPA implementing
procedures.
---------------------------------------------------------------------------
Describe the proposed activities covered by the
categorical exclusion and provide the proposed text of the categorical
exclusion;
Summarize the information in the agency's administrative
record that was used to substantiate the categorical exclusion,
including an evaluation of the information and related findings; \31\
---------------------------------------------------------------------------
\31\ This step is particularly beneficial when the agency
determines that the public will view a potential impact as
significant, as it provides the agency the opportunity to explain
why it believes that impact to be presumptively insignificant.
Whenever practicable, the agency should include a link to a Web site
containing all the supporting information, evaluations, and
findings. Ready access to all supporting information will likely
minimize the need for members of the public to depend on Freedom of
Information Act requests and enhance the NEPA goals of outreach and
disclosure. Agencies should consider using their regulatory
development tools to assist in maintaining access to supporting
information, such as establishing an online docket using http://www.regulations.gov
---------------------------------------------------------------------------
Define all applicable terms;
Describe the extraordinary circumstances that may limit
the use of the categorical exclusion; and
Describe the available means for submitting questions and
comments about the proposed categorical exclusion (for example, e-mail
addresses, mailing addresses, Web site addresses, and names and phone
numbers of agency points of contact).
When establishing or revising a categorical exclusion, agencies
should also pursue additional opportunities for public involvement
beyond publication in the Federal Register in cases where there is
likely to be significant public interest and additional outreach would
facilitate public input. The extent of public involvement can be
tailored to the nature of the proposed categorical exclusion and the
degree of expected public interest.
CEQ encourages Federal agencies to engage interested parties such
as public interest groups, Federal NEPA contacts at other agencies,
Tribal governments and agencies, and State and local governments and
agencies. The purpose of this engagement is to share relevant data,
information, and concerns. Agencies can involve the public by using the
methods noted in section 1506.6 of the CEQ Regulations, as well as
other public involvement techniques such as focus groups, e-mail
exchanges, conference calls, and Web-based forums.
CEQ also strongly encourages Federal agencies to post updates on
their official Web sites whenever they issue Federal Register notices
for new or revised categorical exclusions. An agency Web site may serve
as the primary location where the public learns about agency NEPA
implementing procedures and their use, and obtains efficient access to
updates and supporting information. Therefore, agencies should ensure
that their NEPA implementing procedures and any final revisions or
amendments are easily accessed through the agency's official Web site
including when an agency is adding, deleting, or revising the
categorical exclusions and/or the extraordinary circumstances in its
NEPA implementing procedures.
V. Applying an Established Categorical Exclusion
When applying a categorical exclusion to a proposed action, Federal
agencies face two key decisions: (1) Whether to prepare documentation
supporting their determination to use a categorical exclusion for a
proposed action; and (2) whether public engagement and disclosure may
be useful to inform determinations about using categorical exclusions.
A. When To Document Categorical Exclusion Determinations
In prior guidance, CEQ has ``strongly discourage[d] procedures that
would require the preparation of additional paperwork to document that
an activity has been categorically excluded,'' based on an expectation
that ``sufficient information will usually be available
[[Page 75636]]
during the course of normal project development'' to determine whether
an EIS or an EA is needed.\32\ Moreover, ``the agency's administrative
record (for the proposed action) will clearly document the basis for
its decision.'' \33\ This guidance modifies our prior guidance to the
extent that it recognizes that each Federal agency should decide--and
update its NEPA implementing procedures and guidance to indicate--
whether any of its categorical exclusions warrant preparation of
additional documentation.
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\32\ ``Guidance Regarding NEPA Regulations,'' 48 FR 34,263,
34,265, Jul. 28, 1983, available on http://www.nepa.gov at
http://ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm.
\33\ Id.
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Some activities, such as routine personnel actions or purchases of
small amounts of supplies, may carry little risk of significant
environmental effects, such that there is no practical need for, or
benefit from, preparing additional documentation when applying a
categorical exclusion to those activities. For those activities, the
administrative record for establishing the categorical exclusion and
any normal project development documentation may be considered
sufficient.
For other activities, such as decisions to allow various stages of
resource development after a programmatic environmental review,
documentation may be appropriate to demonstrate that the proposed
action comports with any limitations identified in prior NEPA analysis
and that there are no potentially significant impacts expected as a
result of extraordinary circumstances. In such cases, the documentation
should address proposal-specific factors and show consideration of
extraordinary circumstances with regard to the potential for localized
impacts. It is up to agencies to decide whether to prepare separate
NEPA documentation in such cases or to include this documentation in
other project-specific documents that the agency is preparing.
In some cases, courts have required documentation to demonstrate
that a Federal agency has considered the environmental effects
associated with extraordinary circumstances.\34\ Documenting the
application of a categorical exclusion provides the agency the
opportunity to demonstrate why its decision to use the categorical
exclusion is entitled to deference.\35\
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\34\ See, e.g., California v. Norton, 311 F.3d 1162, 1175-78
(9th Cir. 2002).
\35\ The agency determination that an action is categorically
excluded may itself be challenged under the Administrative Procedure
Act, 5 U.S.C. 501 et seq.
---------------------------------------------------------------------------
Documentation may be necessary to comply with the requirements of
other laws, regulations, and policies, such as the Endangered Species
Act or the National Historic Preservation Act. When that is the case,
all resource analyses and the results of any consultations or
coordination should be incorporated by reference in the administrative
record developed for the proposed action. Moreover, the nature and
severity of the effect on resources subject to additional laws or
regulations may be a reason for limiting the use of a categorical
exclusion and therefore should, where appropriate, also be addressed in
documentation showing how potential extraordinary circumstances were
considered and addressed in the decision to use the categorical
exclusion.
For those categorical exclusions for which an agency determines
that documentation is appropriate, the documentation should cite the
categorical exclusion being used and show that the agency determined
that: (1) The proposed action fits within the category of actions
described in the categorical exclusion; and (2) there are no
extraordinary circumstances that would preclude the proposed action
from being categorically excluded. The extent of the documentation
should be tailored to the type of action involved, the potential for
extraordinary circumstances and environmental effects, and any
applicable requirements of other laws, regulations, and policies. If
lengthy documentation is needed to address these aspects, an agency
should consider whether it is appropriate to apply the categorical
exclusion in that particular situation. In all circumstances, any
documentation prepared for a categorical exclusion should be concise.
B. When To Seek Public Engagement and Disclosure
Most Federal agencies do not routinely notify the public when they
use a categorical exclusion to meet their NEPA responsibilities. There
are some circumstances, however, where the public may be able to
provide an agency with valuable information, such as whether a proposal
involves extraordinary circumstances or potentially significant
cumulative impacts that can help the agency decide whether to apply a
categorical exclusion. CEQ therefore encourages Federal agencies to
determine--and specify in their NEPA implementing procedures--those
circumstances in which the public should be engaged or notified before
a categorical exclusion is used.
Agencies should utilize information technology to provide the
public with access to information about the agency's NEPA compliance.
CEQ strongly recommends that agencies post key information about their
NEPA procedures and implementation on a publicly available Web site.
The Web site should include:
The text of the categorical exclusions and applicable
extraordinary circumstances;
A synopsis of the administrative record supporting the
establishment of each categorical exclusion with information on how the
public can access the entire administrative record;
Those categorical exclusions which the agency determines
are and are not likely to be of interest to the public; \36\ and
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\36\ Many agencies publish two lists of categorical exclusions:
(1) Those which typically do not raise public concerns due to the
low risk of potential environmental effects, and (2) those more
likely to raise public concerns.
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Information on agencies' use of categorical exclusions for
proposed actions, particularly in those situations where there is a
high level of public interest in a proposed action.
Where an agency has documented a categorical exclusion, it should also
consider posting that documentation online. For example, in 2009, the
Department of Energy adopted a policy to post documented categorical
exclusion determinations online.\37\ By adopting a similar policy,
other agencies can significantly increase the quality and transparency
of their decisionmaking when using categorical exclusions.
---------------------------------------------------------------------------
\37\ See Department of Energy, Categorical Exclusion
Determinations, available at
http://www.gc.energy.gov/NEPA/categorical_exclusion_determinations.htm.
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VI. Periodic Review of Established Categorical Exclusions
The CEQ Regulations direct Federal agencies to ``continue to review
their policies and procedures and in consultation with [CEQ] to revise
them as necessary to ensure full compliance with the purposes and
provisions of [NEPA].'' \38\ Many agencies have categorical exclusions
that were established many years ago. Some Federal agencies have
internal procedures for identifying and revising categorical exclusions
that no longer reflect current environmental circumstances, or current
agency policies, procedures, programs, or mission. Where an agency's
categorical exclusions have not been regularly
[[Page 75637]]
reviewed, they should be reviewed by the agency as soon as possible.
---------------------------------------------------------------------------
\38\ 40 CFR 1507.3.
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There are several reasons why Federal agencies should periodically
review their categorical exclusions. For example, a Federal agency may
find that an existing categorical exclusion is not being used because
the category of actions is too narrowly defined. In such cases, the
agency should consider amending its NEPA implementing procedures to
expand the description of the category of actions included in the
categorical exclusion. An agency could also find that an existing
categorical exclusion includes actions that raise the potential for
significant environmental effects with some regularity. In those cases,
the agency should determine whether to delete the categorical
exclusion, or revise it to either limit the category of actions or
expand the extraordinary circumstances that limit when the categorical
exclusion can be used. Periodic review can also help agencies identify
additional factors that should be included in their extraordinary
circumstances and consider whether certain categorical exclusions
should be documented.
Agencies should exercise sound judgment about the appropriateness
of categorically excluding activities in light of evolving or changing
conditions that might present new or different environmental impacts or
risks. The assumptions underlying the nature and impact of activities
encompassed by a categorical exclusion may have changed over time.
Different technological capacities of permitted activities may present
very different risk or impact profiles. This issue was addressed in
CEQ's August 16, 2010 report reviewing the Department of the Interior's
Minerals Management Service's application of NEPA to the permitting of
deepwater oil and gas drilling.\39\
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\39\ Council on Environmental Quality, Report Regarding the
Mineral Management Service's National Environmental Policy Act
Policies, Practices, and Procedures as They Relate to Outer
Continental Shelf Oil and Gas Exploration, available at
http://ceq.hss.doe.gov/current_developments/docs/CEQ_Report_Reviewing_MMS_OCS_NEPA_Implementation.pdf (Aug. 2010) at 18-20 (explaining
that MMS NEPA review for the Macondo Exploratory Well relied on
categorical exclusions established in the 1980s, before deepwater
drilling became widespread).
---------------------------------------------------------------------------
Agencies should review their categorical exclusions on an
established timeframe, beginning with the categorical exclusions that
were established earliest and/or the categorical exclusions that may
have the greatest potential for significant environmental impacts. This
guidance recommends that agencies develop a process and timeline to
periodically review their categorical exclusions (and extraordinary
circumstances) to ensure that their categorical exclusions remain
current and appropriate, and that those reviews should be conducted at
least every seven years. A seven-year cycle allows the agencies to
regularly review categorical exclusions to avoid the use of categorical
exclusions that are outdated and no longer appropriate. If the agency
believes that a different timeframe is appropriate, the agency should
articulate a sound basis for that conclusion, explaining how the
alternate timeframe will still allow the agency to avoid the use of
categorical exclusions that are outdated and no longer appropriate. The
agency should publish its process and time period, along with its
articulation of a sound basis for periods over seven years, on the
agency's Web site and notify CEQ where on the Web site the review
procedures are posted. We recognize that due to competing priorities,
resource constraints, or for other reasons, agencies may not always be
able to meet these time periods. The fact that a categorical exclusion
has not been evaluated within the time established does not invalidate
its use for NEPA compliance, as long as such use is consistent with the
defined scope of the exclusion and has properly considered any
potential extraordinary circumstances.
In establishing this review process, agencies should take into
account factors including changed circumstances, how frequently the
categorical exclusions are used, the extent to which resources and
geographic areas are potentially affected, and the expected duration of
impacts. The level of scrutiny and evaluation during the review process
should be commensurate with a categorically-excluded activity's
potential to cause environmental impacts and the extent to which
relevant circumstances have changed since it was issued or last
reviewed. Some categorical exclusions, such as for routine purchases or
contracting for office-related services, may require minimal review.
Other categorical exclusions may require a more thorough reassessment
of scope, environmental effects, and extraordinary circumstances, such
as when they are tiered to programmatic EAs or EISs that analyzed
activities whose underlying circumstances have since changed.
To facilitate reviews, the Federal agency offices charged with
overseeing their agency's NEPA compliance should develop and maintain
sufficient capacity to periodically review their existing categorical
exclusions to ensure that the agency's prediction of no significant
impacts is borne out in practice.\40\ Agencies can efficiently assess
changed circumstances by utilizing a variety of methods such as those
recommended in Section III, above, for substantiating new or revised
categorical exclusions. These methods include benchmarking, monitoring
of previously implemented actions, and consultation with professional
staff. The type and extent of monitoring and other information that
should be considered in periodic reviews, as well as the particular
entity or entities within the agency that would be responsible for
gathering this information, will vary depending upon the nature of the
actions and their anticipated effects. Consequently, agencies should
utilize the expertise, experience, and judgment of agency professional
staff when determining the appropriate type and extent of monitoring
and other information to consider. This information will help the
agency determine whether its categorical exclusions are used
appropriately, or whether a categorical exclusion needs to be revised.
Agencies can also use this information when they engage stakeholders in
developing proposed revisions to categorical exclusions and
extraordinary circumstances.
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\40\ 40 CFR 1507.2.
---------------------------------------------------------------------------
Agencies can also facilitate reviews by keeping records of their
experiences with certain activities in a number of ways, including
tracking information provided by agency field offices.\41\ In such
cases, a Federal agency could conduct its periodic review of an
established categorical exclusion by soliciting information from field
offices about the observed effects of implemented actions, both from
agency personnel and the public. On-the-ground monitoring to evaluate
environmental effects of an agency's categorically-excluded actions,
where appropriate, can also be incorporated into an agency's procedures
for conducting its oversight of ongoing projects and can be included as
part of regular site visits to project areas.
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\41\ Council on Environmental Quality, The NEPA Task Force
Report to the Council on Environmental Quality--Modernizing NEPA
Implementation, p. 63 (Sept. 2003), available on http://www.nepa.gov
at http://ceq.hss.doe.gov/ntf/report/index.html
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Agencies can also conduct periodic review of existing categorical
exclusions through broader program reviews. Program reviews can occur
at various levels (for example, field office, division office,
headquarters office) and on various scales (for example, geographic
location, project type, or areas identified in an interagency
agreement). While a
[[Page 75638]]
Federal agency may choose to initiate a program review specifically
focused on categorical exclusions, it is possible that program reviews
with a broader focus may yield information relevant to categorical
exclusions and may thus substitute for reviews specifically focused on
categorical exclusions. However, the substantial flexibility that
agencies have in how they structure their review procedures underscores
the importance of ensuring that the review procedures are clear and
transparent.
In working with agencies on reviewing their existing categorical
exclusions, CEQ will look to the actual impacts from activities that
have been subject to categorical exclusions, and will consider the
extent and scope of agency monitoring and/or other substantiating
evidence. As part of its oversight role and responsibilities under
NEPA, CEQ will contact agencies following the release of this guidance
to ascertain the status of their reviews of existing categorical
exclusions. CEQ will make every effort to align its oversight with
reviews being conducted by the agency and will begin with those
agencies that are currently reassessing their categorical exclusions,
as well as with agencies that are experiencing difficulties or facing
challenges to their application of categorical exclusions.
Finally, it is important to note that the rationale and supporting
information for establishing or documenting experience with using a
categorical exclusion may be lost if an agency has inadequate
procedures for recording, retrieving, and preserving documents and
administrative records. Therefore, Federal agencies will benefit from a
review of their current practices for maintaining and preserving such
records. Measures to ensure future availability could include greater
centralization of records, use of modern storage systems and
improvements in the agency's electronic and hard copy filing
systems.\42\
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\42\ Agencies should be mindful of their obligations to maintain
and preserve agency records under the Federal Records Act for
maintaining and preserving agency records. 44 U.S.C. 3101 et seq.
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VII. Conclusion
This guidance will help to guide CEQ and the agencies when an
agency seeks to propose a new or revised categorical exclusion. It
should also guide the agencies when categorical exclusions are used for
proposed actions, when reviewing existing categorical exclusions, or
when proposing new categorical exclusions. Questions regarding this
guidance should be directed to the CEQ Associate Director for NEPA
Oversight.
Nancy H. Sutley,
Chair.
[FR Doc. 2010-30017 Filed 12-3-10; 8:45 am]
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