E9-24606. National Environmental Policy Act-Categorical Exclusions covering the Broadband Technology Opportunities Program (BTOP)

AGENCY:

National Telecommunications and Information Administration, Commerce.

ACTION:

Notice.

SUMMARY:

The National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce (DOC) publishes these Categorical Exclusions (CEs) of actions that the agency has determined do not individually or cumulatively have a significant effect on the human environment and thus, should be categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement under the National Environmental Policy Act. These CEs are intended to cover only the Broadband Technology Opportunities Program (BTOP).

DATES:

This notice is implemented October 13, 2009.

ADDRESSES:

This notice and the Administrative Record for the NTIA Broadband Technology Opportunities Program categorical exclusions are available at: http://www.nepa.noaa.gov/​procedures.html under “NTIA Broadband Technology Opportunities Program Categorical Exclusions and Administrative Record”. Written requests for a hard copy of the “NTIA Broadband Technology Opportunities Program Categorical Exclusions and Administrative Record” should be submitted to: Steve Kokkinakis, National Oceanic and Atmospheric Administration, Office of Program Planning & Integration, SSMC3, Room 15723, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

Steve Kokkinakis, National Oceanic and Atmospheric Administration, Office of Program Planning & Integration, SSMC3, Room 15723, 1315 East-West Highway, Silver Spring, MD 20910, phone: [phone] x189.

SUPPLEMENTARY INFORMATION:

I. National Environmental Policy Act (NEPA)

NEPA requires that Federal agencies prepare environmental impact statements for major Federal actions that may “significantly affect the quality of the human environment.” NEPA requirements apply to any federal project, decision, or action, including grants that might have an impact on the quality of the human environment. NEPA also established the Council on Environmental Quality (CEQ) to provide guidance to federal agencies and to issue regulations implementing the procedural provisions of NEPA. Among other considerations, the CEQ regulations require Federal agencies to adopt their own implementing procedures to supplement the CEQ regulations, and to establish and use “categorical exclusions” to define categories of actions that do not individually or cumulatively have a significant effect on the human environment. These particular actions, therefore, do not require preparation of an environmental assessment or environmental impact statement as required by NEPA.

On May 26, 2009, the Department of Commerce published a notice in the Federal Register requesting comments on proposed Department-wide CEs (74 FR 24782). On July 10, 2009, the Department of Commerce published a notice in the Federal Register of final Department-wide CEs (74 FR 33204).

Although some of the CE's outlined in the DOC-wide CE notice are applicable to BTOP, it was determined in consultation with CEQ that the existing NEPA requirements and the CEs of the U.S. Department of Agriculture, Rural Utilities Services' (RUS) Telecommunication Program would serve as a better template for BTOP and the RUS Broadband Initiatives Program (BIP). Therefore, it was determined that similarities between the two programs suggested that an alignment of the requirements documents and applicable CEs would streamline the application process and reduce confusion for applicants and future BTOP decisions.

Accordingly, NTIA published a notice in the Federal Register on July 9, 2009 of BTOP-specific CEs (74 FR 32876) and requested comments from the public on the appropriateness and scope of the CEs. The public comment period ended on August 10, 2009. NTIA received three comments representing one private citizen and two organizations. NTIA fully considered all of the comments and provides the responses in the Comments and Agency Response section below.

II. Comments and Agency Responses

Comment #1

The National Audubon Society (NAS) expressed concern that the proposed categorical exclusion for facilities would allow the construction of communication towers without appropriate environmental review, thus “unnecessarily sacrificing the safety of avian wildlife, their habitats, and the environment.” The NAS commented that “the proposed categorical exclusions for BTOP projects include exclusions for guyed towers and towers up to 400 feet in height with no findings regarding their individual or cumulative impacts.” The NAS commented that the administrative record does not support the CE for towers.

Agency Response

The list of BTOP CEs published on July 9, 2009 (74 FR 32876) did not include a specific CE for communication towers. The language that the NAS quotes in its comment is from the “Background” section of the document and was a general statement about the types of projects BTOP/BIP might fund. NTIA never intended the statement to be used to justify the use of a CE for these types of communication towers.

BTOP, however, does have an option for utilizing a CE for certain specific communications towers. The Department of Commerce published on July 10, 2009 (74 FR 33204) a final list of CEs available for use by all DOC Operating Units. That list included a CE for communication towers with specific limitations on tower height and guy wires: “A-4 Siting/construction/operation of microwave/radio communication towers less than 200 feet in height without guy wires on previously disturbed ground.” This CE did not receive a single public comment from the Federal Register notice on draft CEs published for comment on May 26, 2009. Accordingly, NTIA would only issue a CE for a tower less than 200 feet in height without guy wires on previously disturbed ground. Any NTIA BTOP project that proposes to construct a tower greater than 200 feet in height would require additional environmental documentation, which includes the preparation of an Environmental Assessment or an Environmental Impact Statement. References to the administrative record for CEs for towers less than 200 feet without guy wires were included in the July 10, 2009 notice and are not repeated here.

Comment #2

The Kodiak Kenai Cable Company commented that NTIA should consider expanding Categorical Exclusion B.1, which covers “construction of buried and aerial telecommunications lines, cables, and related facilities” to include submarine cables. The commenter noted that many underserved areas in Alaska are on remote islands where the only practical means of providing broadband access is with submarine cables. According to the commenter, the Army Corps of Engineers (COE) conducted an environmental assessment and issued a finding of no significant impact for a Nationwide Permit (NWP 12) involving “the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the U.S.”, which are similar in nature to projects involving submarine cables.

Agency Response

At this time, NTIA does not have the necessary administrative record to add a CE for submarine cables, however, NTIA will consider the background information provided by the commenter regarding the COE NWP 12 in developing any future amendments to the BTOP CEs.

Comment #3

NTIA should consider a CE for Adirondack Park. Current siting procedures make it difficult to obtain broadband access and wireless communication services in rural areas of upstate New York, thus hindering the ability to communicate with residents and emergency management systems.

Agency Response

Categorical exclusions are intended to exempt certain activities, rather than specific locations, from further environmental review. Categorical exclusions apply to a range of activities that have been shown, individually or cumulatively, not to create significant environmental impacts on the human or natural environment. In addition, in order to qualify for a CE, a project must comply with all state and local laws and regulations. It is incumbent upon the applicant to demonstrate that the project qualifies for a CE. Thus, if Adirondack Park has certain restrictions on siting of broadband or wireless services, then the applicant would need to address those concerns before the project would qualify for a CE and receive funding.

III. BTOP Categorical Exclusions

A. General administrative/ministerial actions. Certain types of actions undertaken by BTOP will not normally require the completion of the BTOP/BIP NEPA Environmental Questionnaire (EQ). These categorically excluded proposals are:

A.1: The issuance of bulletins and information publications that do not concern environmental matters or substantial facility design, construction, or maintenance practices.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions and Environmental Assessments from the U.S. Department of Agriculture, U.S. Department of Homeland Security, Federal Emergency Management Agency, U.S. Coast Guard, and the U.S. Air Force.

A.2: Procurement activities related to the operation of BTOP. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified categorical exclusions from the U.S. Department of Agriculture, U.S. Department of Homeland Security, Federal Emergency Management Agency, U.S. Coast Guard, U.S. Air Force, U.S. Navy, General Services Administration, and the U.S. Department of the Interior.

A.3: Personnel and Administrative Actions. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, U.S. Department of Homeland Security, U.S. Coast Guard, U.S. Department of the Interior, U.S. Army and the U.S. Air Force.

A.4: Purchase of existing facilities or a portion thereof where use or operation will remain unchanged. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, U.S. Department of Homeland Security, and the General Services Administration.

A.5: Internal modifications or equipment additions (e.g., computer facilities, relocating interior walls) to structures or buildings. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, U.S. Department of Homeland Security, and the Federal Emergency Management Agency.

B. Broadband Activities. Applications for financial assistance for the types of proposed actions covered in this section require the submission of an EQ. Applicants shall sufficiently identify all proposed actions so their proper classification can be determined. Detailed descriptions shall be provided for each proposal noted in this section. NTIA may require additional information in addition to a description of what is being proposed, to ensure that proposals are properly classified. Proposed actions within this classification are:

B.1: Construction of buried and aerial telecommunications lines, cables, and related facilities. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, U.S. Department of the Interior, and the U.S. Department of Energy.

B.2: Construction of microwave facilities involving no more than five acres (2 hectares) of physical disturbance at any single site. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions and Findings of No Significant Impact on Environmental Assessments from the U.S. Department of Agriculture, the National Telecommunications and Information Administration, and the U.S. Department of Energy.

B.3: Construction of cooperative or company headquarters, maintenance facilities, or other buildings involving no more than 10 acres (4 hectares) of physical disturbance or fenced property. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions and Findings of No Significant Impact on Environmental Assessments from the U.S. Department of Agriculture, the U.S. Coast Guard, the U.S. Navy, the Economic Development Administration, and the National Oceanic and Atmospheric Administration.

B.4: Changes to existing transmission lines that involve less than 20 percent pole replacement, or the complete rebuilding of existing distribution lines within the same right of way. Changes to existing transmission lines that require 20 percent or greater pole replacement will be considered the same as new construction. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.5: Changes or additions to existing substations, switching stations, telecommunications switching or multiplexing centers, or external changes to buildings or small structures requiring one acre (0.4 hectare) or more but no more than five acres (2 hectares) of new physically disturbed land or fenced property. This categorical exclusion is supported by a long-standing categorical exclusion and administrative record. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, Rural Utilities Services. Based upon the extensive history of RUS application of these Categorical Exclusions and the lack of extraordinary circumstances associated with their application, this legacy Categorical Exclusion is determined to be applicable to BTOP projects.

B.6: Construction of substations, switching stations, or telecommunications switching or multiplexing centers requiring no more than five acres (2 hectares) of new physically disturbed land or fenced property. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.7: Changes or additions to microwave sites, substations, switching stations, telecommunications switching or multiplexing centers, buildings, or small structures requiring new physical disturbance or fencing of less than one acre (0.4 hectare).

This categorical exclusion is supported by a long-standing categorical exclusion and administrative record from the U.S. Department of Agriculture, Rural Utilities Service. Based upon the extensive history of RUS application of these Categorical Exclusions and the lack of extraordinary circumstances associated with their application, these legacy Categorical Exclusions are determined to be applicable to BTOP projects and appropriate justification for this Categorical Exclusion.

B.8: Ordinary maintenance or replacement of equipment or small structures (e.g. line support structures, line transformers, microwave facilities, telecommunications remote switching and multiplexing sites). This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.9: The construction of telecommunications facilities within the fenced area of an existing substation, switching station, or within the boundaries of an existing electric generating facility site. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.10: Testing or monitoring work (e.g., soil or rock core sampling, monitoring wells, air monitoring). This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.11: Studies and engineering undertaken to define proposed actions or alternatives sufficiently so that environmental effects can be assessed. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.12: Rebuilding of power lines or telecommunications cables where road or highway reconstruction requires the applicant to relocate the lines either within or adjacent to the new road or highway easement or right-of-way. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.13: Phase or voltage conversions, reconductoring or upgrading of existing electric distribution lines, or telecommunication facilities. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture and the U.S. Department of Energy.

B.14: Construction of standby diesel electric generators (one megawatt or less total capacity) and associated facilities, for the primary purpose of providing emergency power, at an existing applicant headquarters or district office, telecommunications switching or multiplexing site, or at an industrial, commercial or agricultural facility served by the applicant. This categorical exclusion is supported by long-standing categorical exclusion and administrative record from the U.S. Department of Agriculture Rural Utilities Services. Based upon the extensive history of RUS application of these Categorical Exclusions and the lack of extraordinary circumstances associated with their application, this legacy Categorical Exclusion is determined to be applicable to BTOP projects.

Paperwork Reduction Act

This notice does not contain collection-of-information requirements subject to the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). Notwithstanding any other provision of law, no person is required to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

Environmental Impact

These procedures supplement CEQ regulations and Department of Commerce NEPA procedures, and provides guidance to NTIA employees regarding procedural requirements for the application of NEPA provisions to BTOP decisions including grants and funding applicant actions. CEQ does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.

Dated: October 5, 2009.

Paul N. Doremus,

NOAA NEPA Coordinator, Office of Program Planning and Integration.