2024-27545. Notice of Adoption of Categorical Exclusions Under the National Environmental Policy Act

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Department of Defense

Department of the Air Force

AGENCY:

Department of the Air Force, Department of Defense.

ACTION:

Notice of adoption of categorical exclusions.

SUMMARY:

The Department of the Air Force (DAF) has identified categorical exclusions (CATEXes) established by the Department of the Army (DA), Department of the Navy (DON), National Aeronautics and Space Administration (NASA), Tennessee Valley Authority (TVA) and Agricultural Research Service (ARS) that cover categories of actions that DAF is adopting. This notice identifies the thirty-five CATEXes established by the above listed Federal agencies and describes the categories of proposed actions for which the DAF intends to use these CATEXes. The DAF has consulted with these agencies, as described herein, and obtained concurrence on DAF use of these CATEXes.

DATES:

The CATEXes identified below are available for DAF use effective immediately.

ADDRESSES:

Mr. Jack Bush, DAF NEPA Policy and Execution Oversite, 703-695-1773, [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

NEPA and CATEXes

Congress enacted the National Environmental Policy Act, 42 U.S.C. 4321-4347 (NEPA) to encourage productive and enjoyable harmony between humans and the environment, recognizing the profound impact of human activity and the critical importance of restoring and maintaining environmental quality to the overall welfare of humankind. (42 U.S.C. 4321 and 4331). NEPA seeks to ensure that agencies consider the environmental effects of their proposed major actions in their decision-making processes and inform and involve the public in that process. NEPA created the Council on Environmental Quality (CEQ), which promulgated NEPA implementing regulations, 40 CFR parts 1500-1508 (CEQ regulations).

To comply with NEPA, agencies determine the appropriate level of review of any major Federal action—an environmental impact statement (EIS), environmental assessment (EA), or categorical exclusion (CATEX) (40 CFR 1501.3). If a proposed action is likely to have significant environmental effects, the agency must prepare an EIS and document its decision in a record of decision (40 CFR part 1502, and § 1505.2). If the proposed action is not likely to have significant environmental effects or the effects are unknown, the agency may instead prepare an environmental assessment (EA), which involves a more concise analysis and process than an EIS (40 CFR 1501.5). Following the EA, the agency may conclude that the action will have no significant effects and document that conclusion in a finding of no significant impact (40 CFR 1501.6). If the analysis concludes that the action is likely to have significant effects, then an EIS is required.

Pursuant to NEPA and the CEQ regulations, a Federal agency can also establish CATEXes—categories of actions that the agency has determined normally do not significantly affect the quality of the human environment—in their agency NEPA procedures (42 U.S.C. 4336e(1); 40 CFR 1501.4, 1507.3(c)(8)(ii), and 1508.1(e)).

If an agency determines that a CATEX covers a proposed action, it then evaluates the proposed action for extraordinary circumstances in which a normally excluded action may have a significant effect (40 CFR 1501.4(b)). If no extraordinary circumstances are present, the agency may apply the CATEX to the proposed action without preparing an EA or EIS (42 U.S.C. 4336(a)(2), 40 CFR 1501.4). DAF considers extraordinary circumstances pursuant to appendix B to 32 CFR part 989—Categorical Exclusions, § A2.2. Additional Analysis and will concurrently use the agency extraordinary circumstances for the adopted CATEXes as identified below.

If an extraordinary circumstance exists, the agency nevertheless may apply the categorical exclusion if the agency conducts an analysis and determines that the proposed action does not in fact have the potential to result in significant effects notwithstanding the extraordinary circumstance or the agency modifies the action to address the extraordinary circumstance. In such cases, the agency shall document such determination and should publish it on the agency's website or otherwise make it publicly available (40 CFR 1501.4 (b)(1)).

Section 109 of NEPA, enacted as part of the Fiscal Responsibility Act of 2023, allows a Federal agency to adopt another Federal agency's CATEX for proposed actions (42 U.S.C. 4336c). To use another agency's CATEXes under section 109, the adopting agency must identify the relevant CATEX listed in another agency's (“establishing agency”) NEPA procedures that covers the adopting agency's category of proposed actions or related actions; consult with the establishing agency to ensure that the proposed adoption of the CATEX is appropriate for a category of actions; identify to the public the CATEX that the adopting agency plans to use for its proposed actions; and document adoption of the CATEX (42 U.S.C. 4336c).

II. DA, DON, NASA, TVA, and ARS Categorical Exclusions

DAF is adopting fifteen CATEXes established by the DA. These CATEXes are listed in DA's NEPA regulations at 32 CFR part 651, appendix B. Each of the DA CATEXes includes conditions on the scope and application of the ( print page 92912) CATEX within the text of the numbered paragraphs listed below.

1. (b)(13) Actions affecting Army property that fall under another Federal agency's list of categorical exclusions when the other Federal agency is the lead agency (decision maker), or joint actions on another Federal agency's property that fall under that agency's list of categorical exclusions (Record of Environmental Consideration [REC] required). ( Note: The DAF Environmental Planning Function must document application of this CATEX on AF Form 813 Request for Environmental Impact Analysis as the DAF does not use Army required RECs; this applies to each instance of REC application in the following discussions).

2. (c)(1) Construction of an addition to an existing structure or new construction on a previously undisturbed site if the area to be disturbed has no more than 5.0 cumulative acres of new surface disturbance. This does not include construction of facilities for the transportation, distribution, use, storage, treatment, and disposal of solid waste, medical waste, and hazardous waste (REC required).

3. (c)(2) Demolition of non-historic buildings, structures, or other improvements and disposal of debris therefrom, or removal of a part thereof for disposal, in accordance with applicable regulations, including those regulations applying to removal of asbestos, polychlorinated biphenyls (PCBs), lead-based paint, and other special hazard items (REC required).

4. (c)(3) Road or trail construction and repair on existing rights-of-ways or on previously disturbed areas.

5. (d)(1) Land regeneration activities using only native trees and vegetation, including site preparation. This does not include forestry operations (REC required).

6. (d)(2) Routine maintenance of streams and ditches or other rainwater conveyance structures (in accordance with USACE permit authority under section 404 of the Clean Water Act and applicable state and local permits), and erosion control and stormwater control structures (REC required).

7. (d)(3) Implementation of hunting and fishing policies or regulations that are consistent with state and local regulations.

8. (e)(2) Acquisition, installation, and operation of utility and communication systems, mobile antennas, data processing cable and similar electronic equipment that use existing right-of-way, easement, distribution systems, and/or facilities (REC required).

9. (e)(4) Modification, product improvement, or configuration engineering design change to materiel, structure, or item that does not change the original impact of the materiel, structure, or item on the environment (REC required).

10. (e)(7) Modification and adaptation of commercially available items and products for military application (for example, sportsman's products and wear such as holsters, shotguns, sidearms, protective shields, etc.), as long as modifications do not alter the normal impact to the environment (REC required).

11. (f)(1) Grants or acquisitions of leases, licenses, easements, and permits for use of real property or facilities in which there is no significant change in land or facility use. Examples include, but are not limited to, Army controlled property and Army leases of civilian property to include leases of training, administrative, general use, special purpose, or warehouse space (REC required).

12. (f)(2) Disposal of excess easement areas to the underlying fee owner (REC required).

13. (f)(6) Disposal of real property (including facilities) by the Army where the reasonably foreseeable use will not change significantly (REC required).

14. (g)(1) Routine repair and maintenance of buildings, airfields, grounds, equipment, and other facilities. Examples include but are not limited to: Removal and disposal of asbestos-containing material (for example, roof material and floor tile) or lead-based paint in accordance with applicable regulations; removal of dead, diseased, or damaged trees; and repair of roofs, doors, windows, or fixtures (REC required for removal and disposal of asbestos-containing material and lead-based paint or work on historic structures).

15. (g)(2) Routine repairs and maintenance of roads, trails, and firebreaks. Examples include but are not limited to: grading and clearing the roadside of brush with or without the use of herbicides; resurfacing a road to its original conditions; pruning vegetation, removal of dead, diseased, or damaged trees and cleaning culverts; and minor soil stabilization activities.

The DAF is adopting fifteen CATEXes established by the DON. These CATEXes are listed in DON NEPA regulations at 32 CFR 775.6. Each of the DON CATEXes includes conditions on the scope and application of the CATEX within the text of the numbered paragraphs listed below.

1. (f)(14) Alterations of and additions to existing buildings, facilities, and systems ( e.g., structures, roads, runways, vessels, aircraft, or equipment) when the environmental effects will remain substantially the same and the use is consistent with applicable regulations.

2. (f)(27) Minor land acquisitions or disposals where anticipated or proposed land use is like existing land use and zoning, both in type and intensity.

3. (f)(33) New construction that is like or compatible with existing land use ( i.e., site and scale of construction are consistent with those of existing adjacent or nearby facilities) and, when completed, the use or operation of which complies with existing regulatory requirements ( e.g., a building within a cantonment area with associated discharges and runoff within existing handling capacities). The test for whether this CATEX can be applied should focus on whether the proposed action generally fits within the designated land use of the proposed site.

4. (f)(34) Demolition, disposal, or improvements involving buildings or structures when done in accordance with applicable regulations including those regulations applying to removal of asbestos, PCBs, and other hazardous materials.

5. (f)(37) Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site.

6. (f)(38) Relocation of personnel into existing federally owned or commercially leased space that does not involve a substantial change affecting the supporting infrastructure ( e.g., no increase in vehicular traffic beyond the capacity of the supporting road network to accommodate such an increase)

7. (f)(39) Pre-lease upland exploration activities for oil, gas, or geothermal reserves ( e.g., geophysical surveys).

8. (f)(40) Installation of devices to protect human or animal life ( e.g., raptor electrocution prevention devices, fencing to restrict wildlife movement onto airfields, and fencing and grating to prevent accidental entry to hazardous areas).

9. (f)(41) Reintroduction of endemic or native species (other than endangered or threatened species) into their historic habitat when no substantial site preparation is involved.

10. (f)(42) Temporary closure of public access to DON property to protect human or animal life.

11. (f)(45) Natural resources management actions undertaken or permitted pursuant to agreement with or subject to regulation by Federal, State, or local organizations having ( print page 92913) management responsibility and authority over the natural resources in question, including, but not limited to, prescribed burning, invasive species actions, timber harvesting, and hunting and fishing during seasons established by State authorities pursuant to their State fish and game management laws. The natural resources management actions must be consistent with the overall management approach of the property as documented in an Integrated Natural Resources Management Plan (INRMP) or other applicable natural resources management plan.

12. (f)(46) Minor repairs in response to wildfires, floods, earthquakes, landslides, or severe weather events that threaten public health or safety, security, property, or natural and cultural resources, and that are necessary to repair or improve lands unlikely to recover to a management-approved condition ( i.e., the previous state) without intervention. Covered activities must be completed within one year following the event and cannot include the construction of new permanent roads or other new permanent infrastructure. Such activities include but are not limited to: Repair of existing essential erosion control structures or installation of temporary erosion controls; repair of electric power transmission infrastructure; replacement or repair of storm water conveyance structures, roads, trails, fences, and minor facilities; revegetation; construction of protection fences; and removal of hazard trees, rocks, soil, and other mobile debris from, on, or along roads, trails, or streams.

13. (f)(47) Modernization (upgrade) of range and training areas, systems, and associated components (including, but not limited to, targets, lifters, and range control systems) that support current testing and training levels and requirements. Covered actions do not include those involving a substantial change in the type or tempo of operation, or the nature of the range ( i.e., creating an impact area in an area where munitions had not been previously used).

14. (f)(49) DON actions that occur on another Military Service's property where the action qualifies for a CATEX of that Service, or for actions on property designated as a Joint Base or Joint Region that would qualify for a CATEX of any of the Services included as part of the Joint Base or Joint Region. If the DON action proponent chooses to use another Service's CATEX to cover a proposed action, the DON must obtain written confirmation the other Service does not object to using its CATEX to cover the DON action. The DON official making the CATEX determination must ensure the application of the CATEX is appropriate and that the DON's proposed action was of a type contemplated when the CATEX was established by the other Service. Use of this CATEX requires preparation of a Record of CATEX or Decision Memorandum.

15. (f)(8) Routine repair and maintenance of buildings, facilities, vessels, aircraft, ranges, and equipment associated with existing operations and activities ( e.g., localized pest management activities, minor erosion control measures, painting, refitting, general building/structural repair, landscaping, or grounds maintenance).

The DAF is adopting three CATEXes established by the NASA. These CATEXes are listed in NASA NEPA regulations at 14 CFR 1216.304. Each of the NASA CATEXes includes conditions on the scope and application of the CATEX within the text of the numbered paragraphs listed below.

1. (d)(2)(i) Routine maintenance, minor construction or rehabilitation, minor demolition, minor modification, minor repair, and continuing or altered operations at, or of, existing NASA or NASA-funded or -approved facilities and equipment, such as buildings, roads, grounds, utilities, communication systems, and ground support systems, such as space tracking and data systems.

2. (d)(3)(i) Research, development, and testing in compliance with all applicable Federal, federally recognized Indian Tribe, State, and/or local law or requirements and Executive orders.

3. (d)(3)(iii) Use of lasers for research and development, scientific instruments and measurements, and distance and ranging, where such use meets all applicable Federal, federally recognized Indian Tribe, State, and/or local law or requirements, and Executive orders. This applies to lasers used in spacecraft, aircraft, laboratories, watercraft, or outdoor activities.

The DAF is adopting one CATEX established by the TVA. This CATEX is listed in TVA's NEPA regulations at 18 CFR part 1318, appendix A. The TVA CATEX includes conditions on the scope and application of the CATEX within the text of the paragraph below.

1. (31) The following forest management activities:

a. Actions to manipulate species composition and age class, including, but not limited to, harvesting or thinning of live trees and other timber stand improvement actions ( e.g., prescribed burns, non-commercial removal, chemical control), generally covering up to 125 acres and requiring no more than 1 mile of temporary or seasonal permanent road construction.

b. Actions to salvage dead and/or dying trees including, but not limited to, harvesting of trees to control insects or disease or address storm damage (including removal of affected trees and adjacent live, unaffected trees as determined necessary to control the spread of insects or disease), generally covering up to 250 acres and requiring no more than 1 mile of temporary or seasonal permanent road construction; and

c. Actions to regenerate forest stands, including, but not limited to, planting of native tree species upon site preparation, generally covering up to 125 acres and requiring no more than 1 mile of temporary or seasonal permanent road construction.

The DAF is adopting a CATEX established by the ARS. This CATEX is listed in 7 CFR 520.5. The ARS CATEX includes conditions on the scope and application of the CATEX within the text of the paragraph below.

1. (b)(2) Research programs or projects of limited size and magnitude or with only short-term effects on the environment. Examples are:

(i) Research operations conducted within any laboratory, greenhouse or other contained facility where research practices and safeguards prevent environment impacts such as the release of hazardous materials into the environment.

(ii) Inventories, studies or other such activities that have limited context and minimal intensity in terms of changes in the environment.

(iii) Testing outside of the laboratory, such as in small, isolated field plots, which does not involve the use of control agents requiring containment or a special license or a permit from a regulatory agency.

III. DAF's Use of Adopted CATEXes

DAF expects to use the above listed CATEXes for proposed actions that would enhance mission capabilities and effectiveness, improve safety, and increase operational efficiencies. The examples listed below are illustrative and not an exclusive list of the proposed actions for which CATEXes may be available. For example, the DAF would construct minor additions or small construction projects where the site and scale of the new construction is compatible with existing land use, and upon completion, the use or operation of the new construction would comply with existing regulations consistent with DA CATEX (c)(1) or DON CATEX (f)(33). Also, consistent with DA CATEX (c)(2), the DAF may utilize this CATEX ( print page 92914) for the demolition of facilities and structures, not including historic buildings even where asbestos, PCB's, lead-based paint, and other special hazard items are present. DON CATEX (f)(37) would allow DAF to conduct routine dredging to maintain navigational channels to their original permitted depths. Use of DA CATEX (d)(2) would allow the DAF to conduct routine maintenance of stormwater conveyance structures in accordance with USACE permit requirements under section 404 of the Clean Water Act to reduce flooding. The categories of actions described herein are activities for which the DAF contemplates using the CATEXes at this time; however, DAF may expand use of the CATEXes identified in section II to other activities where appropriate and would consult with the establishing agency, as needed. When the establishing agency CATEX requires written record to document application of the CATEX, the DAF Environmental Planning Function (EPF) shall complete a detailed Air Force Form 813 Request for Environmental Impact Analysis to document application of the CATEX. Where the CATEX mentions the owning agency, DAF adoption makes the CATEX available for DAF activities.

IV. Consideration of Extraordinary Circumstances

If an agency determines that a CATEX covers a proposed action, the agency must evaluate the proposed action for extraordinary circumstances in which a normally excluded action may have a significant effect consistent with 40 CFR 1501.4(b). DAF has its own NEPA implementing procedures to guide its application of extraordinary circumstances. Further, DAF will apply the owning agency's extraordinary circumstances. If an extraordinary circumstance is present, determine whether there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects, consistent with 40 CFR 1501.4(b). The DAF EPF must document application of any mitigated CATEX on a fully developed AF Form 813. If DAF cannot apply a CATEX to a particular proposed action due to extraordinary circumstances, DAF will prepare an EA or EIS, consistent with 40 CFR 1501.4(b)(2).

V. Consultation With Establishing Agencies and Determination of Appropriateness

DAF worked with DA, DON, NASA, TVA, and ARS to identify thirty-five CATEXes that could apply to DAF proposed actions and began consultation on 20 March 2024. During the consultation, the agencies discussed whether the categories of DAF proposed actions would be appropriately covered by CATEXes from the above listed Federal agencies; the extraordinary circumstances that DAF should consider before applying these CATEXes to DAF's proposed actions; the requirement to evaluate, before use of the above listed Federal agencies CATEXes, the conditions listed as integral elements in these agencies NEPA regulations (listed in Section II above); and what documentation DAF should complete when applying these CATEXes. The agencies also considered past use of the CATEXes by the DA, DON, NASA, TVA, and ARS, including how often these agencies modified a proposed action or prepared an EA or EIS for a proposed action otherwise covered by the CATEXes. At the conclusion of that process, the agencies determined that DAF's proposed use of the CATEXes as described in this notice would be appropriate.

VI. Conclusion

This notice documents adoption of the thirty-five CATEXes listed above in accordance with 42 U.S.C. 4336c (4)), and they are available for use by DAF, effective immediately.

Tommy W. Lee,

Acting Air Force Federal Register Liaison Officer.