[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Proposed Rules]
[Pages 62527-62538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30341]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1794
RIN 0572-AB33
Environmental Policies and Procedures
AGENCY: Rural Utilities Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Rural Utilities Service (RUS) hereby revises its existing
environmental regulations, Environmental Policies and Procedures, which
have served as RUS' implementation of the National Environmental Policy
Act (NEPA) in compliance with the Council on Environmental Quality
(CEQ) Regulations for Implementing the Procedural Provisions of the
NEPA. Based on new Congressional mandates, changes in the electric
industry, and the agency's experience and review of its existing
procedures, RUS has determined that several changes are necessary for
its environmental review process to operate in a smooth, efficient, and
effective manner.
DATES: Public comments must be received by RUS or bear a postmark or
equivalent, no later than January 23, 1998.
ADDRESSES: Written comments should be sent to Gary J. Morgan, Director,
Engineering and Environmental Staff, Rural Utilities Service, Stop
1571, Room 2242, 1400 Independence Ave., SW., Washington, DC 20250-
1571. This proposed rule and the guidance bulletins in this rule will
be available on the Internet via the RUS home page at www.usda.gov/
rus/.
FOR FURTHER INFORMATION CONTACT: Gary J. Morgan, Director or Lawrence
R. Wolfe, Senior Environmental Protection Specialist, Engineering and
Environmental Staff; Rural Utilities Service, Stop 1571, 1400
Independence Ave., SW., Washington, DC 20250-1571. Telephone (202) 720-
1784. E-mail address (gmorgan@rus.usda.gov) or (lwolfe@rus.usda.gov).
SUPPLEMENTARY INFORMATION:
Classification
This proposed rule has been determined to be significant and was
reviewed by the Office of Management and Budget (OMB) under Executive
Order 12866.
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. RUS has determined that this proposed rule meets
the applicable standards provided in Sec. 3. of the Executive Order.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), RUS certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
If a rule has a significant economic impact on a substantial number of
small entities, the Regulatory Flexibility Act requires agencies to
analyze regulatory options that would minimize any significant impact
of a rule on small entities. The application for financial assistance
under the RUS electric and telecommunications programs and the
application for loans and grants under the RUS water and waste program
are discretionary, regulatory requirements will, therefore, apply only
to those entities which choose to apply for financial assistance or
funding.
Information Collection and Recordkeeping Requirements
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35, as amended) RUS is requesting comments on the information
collection incorporated in this proposed rule.
Comments on this information collection must be received by January
23, 1998.
Comments are invited in: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information; (c) ways to enhance the quality,
utility and clarity of the information to be collected; and (d) ways to
minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques of other
forms of information technology.
For further information contact Lawrence R. Wolfe, Senior
Environmental Protection Specialist; Engineering and Environment Staff;
Rural Utilities Service, Stop 1571, 1400 Independence Ave., SW,
Washington, DC 20250-1571. Telephone: (202) 720-1784. E-mail:
(lwolfe@rus.usda.gov).
Title: 7 CFR Part 1794, Environmental Policies and Procedures.
OMB Number: 0572-NEW.
Type of Request: New collection.
Abstract: The information collection contained in this rule are
requirements prescribed by the National Environmental Policy Act of
1969 (NEPA), as amended (42 U.S.C. 4321-4346), the Council on
Environmental Quality (CEQ) Regulations for Implementing the Procedural
Provisions of NEPA (40 CFR parts 1500-1508) and certain related Federal
environmental laws, statutes, regulations, and Executive Orders.
The major events which influenced the promulgation of the proposed
revisions to this rule were the 1994 reorganization of the U.S.
Department of Agriculture, which transferred the water and waste
program from the former Farmers Home Administration to RUS, reforms
within the electric and telecommunications programs, and fundamental
changes in RUS' implementation of the CEQ regulations.
The proposed rule will combine all three programs (electric,
telecommunications, and water and waste) under a single environmental
regulation and will eliminate unnecessary and burdensome requirements
previously imposed on applicants seeking financial assistance under the
three programs. The streamlining of the regulation will allow RUS
headquarters and field staff to more expeditiously evaluate the
environmental implications of implementing RUS programs and thus speed
up the delivery of these programs to qualified applicants.
RUS applicants would provide environmental documentation, as
prescribed by the rule, to assure that policy contained in NEPA is
followed.
[[Page 62528]]
The burden will vary depending on the type, size, and location of each
project, which would then prescribe the type of information collection
involved. The collection of information is only that information which
is essential for RUS to provide environmental safeguards and to comply
with NEPA as implemented by the CEQ regulations.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 229 hours per response.
Respondents: Business or other for-profit and non-profit
institutions.
Estimated Number of Respondents: 600.
Estimated Number of Responses per Respondents: 3.
Estimated Total Annual Burden on Respondents: 415,000 hours.
Copies of this information collection can be obtained from Dawn
Wolfgang, Program Support and Regulatory Analysis, Rural Utilities
Service. Telephone: (202) 720-0812.
Send comments regarding this information collection requirement to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, ATTN: Desk Officer, USDA, Room 10102, New Executive Office
Building, Washington, DC 20503, and to F. Lamont Heppe, Jr., Director,
Program Support and Regulatory Analysis, Rural Utilities Service, Stop
1522, 1400 Independence Ave., SW., Room 4034, Washington, DC 20250-
1522.
Comments are best assured of having full effect if OMB receives
them within 30 days of publication in the Federal Register. All
comments will become a matter of public record.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review to eliminate unnecessary regulations and improve
those that remain in force.
National Environmental Policy Act Certification
RUS has determined that this proposed rule will not significantly
affect the quality of the human environment as defined by the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Therefore,
this action does not require an environmental impact statement or
assessment.
Program Affected
The program described by this proposed rule is listed in the
Catalog of Federal Domestic Assistance programs under numbers 10.850,
Rural Electrification Loans and Loan Guarantees, 10.851, Rural
Telephone Loans and Loan Guarantees, 10.760, Water and Waste Disposal
System for Rural Communities, 10.764, Resource Conservation Development
Loans, and 10.765, Watershed Protection and Flood Prevention Loans.
This catalog is available on a subscription basis from the
Superintendent of Documents, the U.S. Government Printing Office,
Washington, DC 20402.
Intergovernmental Review
This program is subject to the provisions of Executive Order 12372
that requires intergovernmental consultation with State and local
officials.
Unfunded Mandate
This rule contains no Federal mandates (under the regulatory
provision of Title II of the Unfunded Mandate Reform Act) for State,
local, and tribal governments of the private sector. Thus today's rule
is not subject to the requirements of section 202 and 205 of the
Unfunded Mandate Reform Act.
Background
On March 13, 1984, the Rural Electrification Administration
(predecessor of RUS) published 7 CFR part 1794, Environmental Policies
and Procedures, as a final rule in the Federal Register (49 FR 9544)
covering the actions of the electric and telecommunications programs.
Based on new Congressional mandates, changes in the electric industry,
and the agency's experience and review of its existing procedures, RUS
has determined that several changes are necessary for its environmental
review process to operate in a smooth, efficient, and effective manner.
The existing 7 CFR part 1794 was designed to process proposals from
RUS' electric and telecommunications programs in addition to the
agency's internal administrative actions. The Federal Crop Insurance
Reform and Department of Agriculture Reorganization Act of 1994 (Pub.
L. 103-354, 108 Stat. 3178), under which RUS became the successor to
the Rural Electrification Administration, transferred the water and
waste program from the former Farmers Home Administration (FmHA) to
RUS. Most changes proposed to 7 CFR part 1794 are the result of the
addition of the water and waste program to RUS. The environmental
review requirements of the water and waste program were previously
contained in 7 CFR part 1940, subpart G. While the environmental review
of electric and telecommunications proposals is entirely managed from
the national office, the environmental review of all but major or
highly controversial water and waste proposals is managed by USDA Rural
Development staff in state, county, or district offices. To avoid
confusion, some sections and subsections are further subdivided to
differentiate among the responsibilities of the three program areas.
Examples of differences in program responsibilities and requirements
can be found in Sec. 1794.5, Responsible Officials and Sec. 1794.13,
Public Involvement.
Due to the requirements of the existing regulation, RUS has
sometimes gone through a lengthy environmental review with no
commensurate benefit to the quality of the human environment.
Consequently, significant time and resources have been expended by RUS
and its applicants when early indications strongly suggest that an
easier and more expeditious procedure would be more prudent. Experience
has shown that several types of minor RUS applicant proposals involve
negligible environmental impact. In a number of instances, such
projects have been delayed as a result of outdated procedures without
any benefit to the quality of the human environment.
To foster clarity, readability, and brevity, this proposed rule
includes changes to the format of the current rule. A list of
definitions has been added to subpart A. Existing subparts B and C have
been combined. The order in which proposals are classified in subpart C
has been arranged from minor to major actions. The arrangement of
subparts D through G mirrors the order of classification in subpart C.
Information originally included in subpart J on Supplemental
Environmental Impact Statements (EIS) has been incorporated into
proposed subpart G.
Appendix A, which displays a flow chart of RUS' EIS process would
be deleted. RUS believes that displaying a flow chart of its EIS
process as part of this regulation had limited value and there is no
benefit to include it in the proposed revision.
For further guidance in the preparation of public notices and
environmental documents, RUS is preparing a series of guidance
bulletins. Three program specific bulletins that will be issued
concurrently with the final rule provide guidance in preparing the
Environmental Report (ER) for proposed actions classified as
categorical exclusions and proposed actions which require an
Environmental Assessment (EA). A fourth bulletin provides applicants
with guidance in
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the preparation of public notices and public involvement activities.
Further information on these bulletins is provided in Sec. 1794.8.
This proposed rule contains a variety of substantive and procedural
changes from the provisions of the current rule. Some of these
revisions are minor or merely intended to clarify existing RUS policy
and procedure, such as Sec. 1794.4 (Trivial Violations) which was
deleted and Sec. 1794.7 which defines some of the terminology specific
to the agency. Other revisions reflect fundamental changes in RUS'
implementation of the CEQ regulations and are outlined below.
The relationship between RUS and its electric and
telecommunications applicants has changed substantially since RUS
issued the final rule in March of 1984. Changes that have occurred in
the last 4 years have been particularly dramatic. Historically, RUS
provided substantially all of its applicants' capital needs and
established a lending relationship reflecting that dominant lending
role. However, because of limited annual loan authorization levels, RUS
no longer serves such a role. Moreover, in a 1993 amendment to section
306E of the Rural Electrification Act of 1936, as amended (7 U.S.C.
936e), Congress required RUS to abandon its close hands-on control of
its applicants and instead follow the practices of private market
lenders. RUS has done so through the development of new forms of loan
agreements and security instruments and the publication of 7 CFR Part
1717, subpart M, Operational Controls, which reduce or eliminate much
of the oversight and control historically exercised by RUS.
Reflecting these changes and reforms, RUS proposes to revise that
section of the regulations identifying actions requiring environmental
review. Environmental reviews will be required in connection with the
approval of financial assistance for applicants and the issuance of
rules, regulations, and bulletins by RUS. No reviews will be required
in connection with approvals provided by RUS pursuant to its loan
contracts and security instruments with applicants such as approvals of
lien accommodations or the use of general funds by applicants. These
approvals are ministerial and are not federal actions subject to
environmental reviews.
The existing regulation states that all RUS prepared environmental
documents will use metric units with non-metric equivalents in
parentheses and that environmental documents prepared by or for the
applicant should follow the same format. RUS proposes to reverse that
format. All RUS prepared environmental documents will use non-metric
equivalents with one of the following two options: metric units in
parentheses immediately following the non-metric equivalents or a
metric conversion table as an appendix. RUS environmental guide
bulletins will recommend that applicants follow the same format.
Within subpart C, a classification system defines the level of
environmental review required for agency and applicant proposed
actions. Sections 1794.21 through 1794.25 are further subdivided when
appropriate to differentiate between actions being proposed by RUS and
actions proposed by electric, telecommunications, and water and waste
program applicants. The purpose of these additional subsections is to
aid program applicants in determining the category in which their
proposed action is classified.
A number of classification changes are being proposed within
subpart C. These proposed reclassifications involve minor actions
proposed by applicants which rarely, if ever, result in significant
environmental impact or public interest. These changes will streamline
environmental review of minor actions, and will allow the agency to
focus its resources on larger projects. RUS believes that the proposed
changes will provide adequate safeguards to identify any unusual
circumstances that may require additional agency scrutiny.
Within Secs. 1794.21(a) and 1794.22(a), RUS proposes to modify the
thresholds for acreage (facility sites), and capacity (generation
facilities). Three categories of proposals that previously required RUS
approval of applicant actions would be deleted, five categories of
proposals would be downgraded to no longer require an Environmental
Report (ER), and six new categories of proposals would be added to
Sec. 1794.21(a). One proposal that previously required an Environmental
Assessment (EA) and two new categories of proposals would be added to
Sec. 1794.22(a).
In addition to modifying the thresholds for acreage and capacity,
RUS proposes to impose different thresholds for construction of
electric generating capacity at new sites versus existing sites and to
add three new categories of proposals within Sec. 1794.23. Proposed
acreage and capacity threshold changes within Sec. 1794.24, and a
proposed capacity threshold change within Sec. 1794.25 reflect changes
that would be made in Secs. 1794.21(a), 1794.22(a), and 1794.23. No
change is proposed for the existing thresholds for transmission line
length, however, the existing thresholds for multiple substations
associated with transmission lines would be eliminated. Capacity
thresholds would also be eliminated for hydroelectric proposals in
Secs. 1794.22 and 1794.23. RUS proposed instead to, in most cases,
adopt the NEPA document prepared by the Federal Energy Regulatory
Commission, the Federal licensing agency of hydroelectric projects in
which RUS applicants participate.
The thresholds for proposed actions in the Water and Waste Program
as defined in 7 CFR part 1940, subpart G, were reclassified in
Secs. 1794.21(b) and 1794.22(b). In 7 CFR part 1940, subpart G, EAs are
classified into two categories, Class I and II; each category
establishing a level of documentation commensurate with the extent of
potential environmental impacts. Class I EAs were classified as routine
minor actions which typically do not justify more extensive
documentation as are necessary for Class II EAs. The Class I EA
includes a checklist to document environmental impacts similar to that
of a categorical exclusion.
Based on historical experience and a survey of the thresholds
established by other agencies who administer similar types of water and
waste programs, RUS is proposing to eliminate the two tiered
classification for EAs and adopt the more traditional classification
scheme as outlined in the CEQ regulations. Because RUS co-funds a
significant portion of its projects with other Federal and State
agencies, a more traditional classification and documentation scheme is
thought to be more conducive to minimizing duplicative environmental
review efforts.
All current thresholds in 7 CFR part 1940, subpart G were re-
evaluated and would be reclassified based on the following parameters.
The primary parameter determining thresholds between categorically
excluded actions and those actions which require the preparation of EAs
would be the volume of water or wastewater, as defined in terms of
equivalent residential dwelling units. The proposed regulation would
require applicants to design categorically excluded proposals to meet
current needs with a modest growth potential and to serve predominantly
residential uses either within the existing service area of a system or
confined to within a one-mile extension beyond current community
boundaries. The proposed regulation would require that proposed actions
not meeting the above conditions warrant a more detailed analysis as
outlined for EAs.
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In addition, specialized criteria would be established for not
classifying a proposed action as a categorical exclusion. These
criteria are consistent conceptually with the U. S. Environmental
Protection Agency's environmental review requirements in 40 CFR 6.505
for Title II of the Clean Water Act, Grants for Construction of
Treatment Works.
Reviewers that disagree with RUS' proposed classifications and or
thresholds are encouraged to cite specific experiences that support
their position on this proposed action.
RUS proposes to modify its procedures in subparts D through G of
this part. In Sec. 1794.32, public notice requirements are established
for proposed actions that impact important land resources (floodplains,
wetlands, and important farmland). Notice of availability requirements
in Sec. 1794.42 would be modified for all three program areas. As
proposed, the EA would be the subject document of the notice, where
previously, the applicant's ER was the subject document. By this change
the notice requirements for all three programs would be consistent for
both EA proposals and EA with scoping proposals. This change will
encourage more public involvement by allowing public review of EA
proposals prior to the issuance of a Finding of No Significant Impact
(FONSI).
RUS would also change its notice requirements for electric program
projects requiring scoping. The timing of RUS' Federal Register notice
for public scoping meetings in Sec. 1794.52 would be reduced from 30
days to 14 days prior to the meeting. RUS has determined that no
appreciable benefit has resulted from an earlier notice requirement.
The existing regulation allows RUS to adopt the applicant's ER as its
EA but requires RUS to prepare its own EA from the applicant's
Environmental Impact Assessment (EIA) where a proposed action requires
scoping. RUS proposes to change this requirement by allowing the EIA to
serve as its EA provided RUS completes an independent evaluation which
certifies the accuracy of the document (see Sec. 1794.53) and thus be
consistent with 40 CFR Sec. 1506.5(a).
RUS would modify its policy regarding the use of contractor
prepared EIS's. Under the existing regulation, RUS was required to use
agency funds when an independent contractor was chosen by RUS to
prepare the EIS. In accordance with the provisions of 7 CFR part 1789,
``Use of Consultants Funded by Applicants'' and Section 759A of the
Federal Agriculture Improvement and Reform Act of 1996, the draft and
final EIS may be prepared by a consultant selected by RUS and funded by
the applicant. A new requirement, publication of a notice of
availability by RUS and the applicant for a Record of Decision would be
established in Sec. 1794.63. Information on Supplemental EIS's would be
included in subpart G of this part.
Any environmental document accepted or prepared by RUS prior to the
effective date of these regulations should be developed in accordance
with the RUS' environmental requirements in effect at the time the
document was accepted or prepared by RUS.
List of Subjects in 7 CFR Part 1794
Environmental impact statements, Reporting and recordkeeping
requirements.
For reasons set forth in the preamble, chapter XVII of title 7 of
the Code of Federal Regulations is proposed to be amended by revising
part 1794 to read as follows:
PART 1794--ENVIRONMENTAL POLICIES AND PROCEDURES
Subpart A--General
Sec.
1794.1 Purpose.
1794.2 Authority
1794.3 Actions requiring environmental review.
1794.4 [Reserved].
1794.5 Metric units
1794.6 Responsible officials.
1794.7 Definitions.
1794.8 Guidance.
1794.9 [Reserved]
Subpart B--Implementation of the National Environmental Policy Act
1794.10 Applicant responsibilities.
1794.11 Apply NEPA early in the planning process.
1794.12 Consideration of alternatives
1794.13 Public involvement.
1794.14 Interagency involvement and coordination.
1794.15 Limitations on actions during the NEPA process.
1794.16 Tiering.
1794.17 Mitigation
1794.18--1794.19 [Reserved]
Subpart C--Classification of Proposals
1794.20 Control.
1794.21 Categorically excluded proposals without an ER.
1794.22 Categorically excluded proposals requiring an ER.
1794.23 Proposals normally requiring an EA.
1794.24 Proposals normally requiring an EA with scoping.
1794.25 Proposals normally requiring an EIS.
1794.26-1794.29 [Reserved]
Subpart D--Procedure for Categorical Exclusions
1794.30 General.
1794.31 Classification.
1794.32 Environmental report.
1794.33 Agency action.
1794.34-1794.39 [Reserved]
Subpart E--Procedure for Environmental Assessments
1794.40 General.
1794.41 Document requirements.
1794.42 Notice of availability.
1794.43 Agency finding.
1794.44 Timing of agency action.
1794.45-1794.49 [Reserved]
Subpart F--Procedure for Environmental Assessments With Scoping
1794.50 Normal sequence.
1794.51 Preparation for scoping.
1794.52 Scoping meetings.
1794.53 Environmental impact analysis.
1794.54 Agency determination.
1794.55--1794.59 [Reserved]
Subpart G--Procedure for Environmental Impact Statement
1794.60 Normal sequence.
1794.61 Environmental impact statement.
1794.62 Supplemental EIS.
1794.63 Record of decision.
1794.64 Timing of agency action.
1794.65--1794.69 [Reserved]
Subpart H--Adoption of Environmental Documents
1794.70 General.
1794.71 Adoption of an EA.
1794.72 Adoption of an EIS.
1794.73 Timing of agency action.
1794.74--1794.79 [Reserved]
Authority: 7 U.S.C. 6941 et seq.; 42 U.S.C. 4321 et seq.; 40 CFR
parts 1500-1508.
Subpart A--General
Sec. 1794.1 Purpose.
(a) This part contains the policies and procedures of the Rural
Utilities Service (RUS) for implementing the requirements of the
National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C.
4321-4346); the Council on Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of NEPA (40 CFR parts 1500-1508)
and certain related Federal environmental laws, statutes, regulations,
and Executive Orders (E.O.) that apply to RUS' programs and
administrative actions.
(b) The policies and procedures contained in this part are intended
to help RUS officials make decisions that are based on an understanding
of environmental consequences, and take actions that protect, restore,
and enhance the environment. In assessing the potential environmental
impacts of its actions, RUS will consult early with appropriate
Federal, State, and local
[[Page 62531]]
agencies and other organizations to provide decision-makers with
information on the issues that are truly significant to the action in
question.
Sec. 1794.2 Authority.
(a) This part derives its authority from and is intended to be
compliant with NEPA, CEQ Regulations for Implementing the Procedural
Provisions of NEPA, and other RUS regulations.
(b) Where practicable, RUS will use NEPA analysis and documents and
review procedures to integrate the requirements of related
environmental statutes, regulations, and orders.
(c) This part integrates the requirements of NEPA with other
planning and environmental review procedures required by law, or by RUS
practice including but not limited to:
(1) Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(2) The National Historic Preservation Act (16 U.S.C. 470 et seq.);
(3) Farmland Protection Policy Act (7 U.S.C. 4201 et seq.);
(4) E.O. 11593, Protection and Enhancement of the Cultural
Environment (3 CFR, 1971 Comp., p. 154);
(5) E.O. 11514, Protection and Enhancement of Environmental Quality
(3 CFR, 1970 Comp., p. 104);
(6) E.O. 11988, Floodplain Management (3 CFR, 1977 Comp., p. 117);
(7) E.O. 11990, Protection of Wetlands (3 CFR, 1977 Comp., p. 121);
and
(8) E.O. 12898, Federal Actions To Address Environmental Justice in
Minority Populations and Low Income Populations (3 CFR, 1994 Comp., p.
859).
(d) Applicants are responsible for ensuring that proposed actions
are in compliance with all appropriate RUS requirements, environmental
statutes, regulations, and E.O.s. Bulletins identified in Sec. 1794.8
contain a list of certain statutes, regulations, and E.Os that may be
applicable to proposed actions for which RUS financial assistance is
provided. Environmental documents submitted by the applicant shall be
prepared under the supervision and guidance of RUS and RUS will
evaluate and be responsible for the accuracy of all information
contained therein.
Sec. 1794.3 Actions requiring environmental review.
The provisions of this part apply to actions by RUS including the
approval of financial assistance pursuant to the Electric,
Telecommunications, and Water and Waste Programs, the disposal of
property held by RUS pursuant to such programs, and the issuance of new
or revised rules, regulations, and bulletins.
Sec. 1794.4 [Reserved]
Sec. 1794.5 Metric units.
RUS normally will prepare environmental documents using non-metric
equivalents with one of the following two options; metric units in
parentheses immediately following the non-metric equivalents or a
metric conversion table as an appendix. Environmental documents
prepared by or for a RUS applicant should follow the same format.
Sec. 1794.6 Responsible officials.
The Administrator of RUS has the responsibility for Agency
compliance with all environmental laws, regulations, and E.O.s that
apply to RUS programs and administrative actions. Responsibility for
ensuring environmental compliance for actions taken by RUS has been
delegated as follows:
(a) Electric and Telecommunications Programs. The appropriate
Assistant Administrator is responsible for ensuring compliance with
this part for the respective programs.
(b) Water and Waste Program. The Assistant Administrator for this
program is responsible for ensuring compliance with this part at the
national level. The State Director is the responsible official for
ensuring compliance with this part for actions taken at the State
Office level.
Sec. 1794.7 Definitions.
The following definitions, as well as the definitions contained in
40 CFR part 1508 of the CEQ regulations, apply to the implementation of
this part:
Applicant. The organization applying for financial assistance or
other approval from either the Electric or Telecommunications Programs
or the organization applying for a loan or grant from the Water and
Waste Program.
Construction Work Plan (CWP). The document required by 7 CFR part
1710.
Emergency situation. The repairs made to return the damaged
facilities of an applicant's system back to service because of a
natural disaster or system failure that may involve an immediate or
imminent threat to public health or safety.
Environmental Impact Analysis (EIA). The document submitted by the
applicant for proposed actions subject to compliance with Sec. 1794.24
and under special circumstances Sec. 1794.25.
Environmental Report (ER). The environmental document and
documentation normally submitted by applicants for proposed actions
subject to compliance with Secs. 1794.22 and 1794.23. An ER for the
Water and Waste Program refers to the environmental review
documentation normally included as part of the Preliminary Engineering
Report.
Environmental review. Any one or all of the levels of environmental
analysis described under subpart C of this part.
Equivalent Dwelling Unit (EDU). Level of water or waste service
provided to a typical rural residential dwelling.
Important Land Resources. Defined pursuant to the U.S. Department
of Agriculture's Departmental Regulation 9500-3, Land Use Policy, as
important farmland, prime forestland, prime rangeland, wetlands, and
floodplains. Copies of the Departmental Regulation are available from
USDA, Rural Utilities Service, Washington, DC 20250.
Loan Design. Document required by 7 CFR part 1737.
Preliminary Engineering Report (PER). Document required by 7 CFR
part 1780 for Water and Waste Programs. A PER is prepared by an
applicant's engineering consultant documenting a proposed action's
preliminary engineering plan and design and the applicable
environmental review activities as required in this part. Upon approval
by RUS, the PER, or a portion thereof, shall serve as the RUS
environmental document.
Supervisory control and data acquisition system (SCADA). Electronic
monitoring and control equipment installed at electric substations and
switching stations.
Third-party consultant. A party selected by RUS to prepare the EIS
for proposed actions listed in Sec. 1794.25 where the applicant
initiating the proposal agrees to fund preparation of the document in
accordance with the provisions of 7 CFR Part 1789, ``Use of Consultants
Funded by Borrowers'' and Section 759A of the Federal Agriculture
Improvement and Reform Act of 1996 (7 U.S.C. 2204b(b)).
Sec. 1794.8 Guidance.
(a) Electric and Telecommunications Programs. For further guidance
in the preparation of public notices and environmental documents, RUS
has prepared a series of program specific guidance bulletins. RUS
Bulletin 1794A-600 provides guidance in preparing the ER for proposed
actions classified as categorical exclusions (CEs) (Sec. 1794.22(a));
RUS Bulletin 1794A-601 provides guidance in preparing the ER for
proposed actions which require EAs (Sec. 1794.23(b)); and RUS Bulletin
1794A-602 provides guidance in the preparation of public notices.
Copies of
[[Page 62532]]
these bulletins are available upon request by contacting Rural
Utilities Service, Publications Office, PSRA, Stop 1522; 1400
Independence Avenue, SW; Washington, D.C. 20250-1522.
(b) Water and Waste Program. RUS Bulletin 1780-26 provides guidance
in preparing the PER for proposed actions classified as CEs
(Sec. 1794.22(b)) and EAs (Sec. 1794.23(c)). A copy of this bulletin is
available upon request by contacting the appropriate State Director.
State Directors may provide supplemental guidance to meet State and
local laws and regulations and to provide for orderly application
procedures and efficient service to applicants. State Directors shall
obtain the Administrator's approval for all supplements to RUS Bulletin
1780-26.
Sec. 1794.9 [Reserved]
Subpart B--Implementation of the National Environmental Policy Act
Sec. 1794.10 Applicant responsibilities.
As described in subpart C of this part, applicants shall, under
RUS' direct guidance and supervision, prepare the applicable
documentation concurrent with a proposed action's engineering,
planning, and design activities. Documentation shall not be considered
complete until all public review periods, as applicable, have expired
and RUS' concurrence, as defined by the appropriate decision document
and associated public notice, has been issued. This section does not in
any way relieve RUS or the applicant of the responsibilities for the
scope, objectivity, and content of the entire environmental document or
compliance with any policy, regulation, EO, or statute.
Sec. 1794.11 Apply NEPA early in the planning process.
The environmental review process requires early coordination with
and involvement of RUS. Applicants should consult with RUS at the
earliest stages of planning for any proposal that may require an RUS
action. For proposed actions that normally require an EIS, applicants
shall consult with RUS prior to obtaining the services of an
environmental consultant.
Sec. 1794.12 Consideration of alternatives.
In determining what are reasonable alternatives, RUS considers a
number of factors. These factors may include, but are not limited to,
the proposed action's size and scope, state of the technology, economic
considerations, legal and socioeconomic concerns, availability of
resources, and the timeframe in which the identified need must be
fulfilled.
Sec. 1794.13 Public involvement.
(a) General. In carrying out its responsibilities under NEPA, RUS
shall make diligent efforts to involve the public in the environmental
review process through public notices and public hearings and meetings.
Specific guidance is found in RUS bulletins. See Sec. 1794.8.
(1) All public notices required by this part shall describe the
nature, location, and extent of the proposed action and indicate the
availability and location of additional information. They shall be
published in newspaper(s) of general circulation within the proposed
action's area of environmental impact and the county(s) in which the
proposed action will take place or such other places as RUS determines.
(2) The number of editions in which the notices should be published
will be established on a project-by-project basis. Alternative forms of
notice may also be necessary to ensure that residents located in the
area affected by the proposed action are notified. The applicant should
consult with RUS prior to the issuance of notices.
(3) A copy of all comments received by the applicant concerning
environmental aspects of the proposed action shall be provided to RUS
in a timely manner. RUS and applicants shall assess and consider public
comments both individually and collectively. Responses to public
comments will be appended to the applicable environmental document.
(4) RUS and applicants shall make available to the public all
environmental documents, comments received, errata sheets and
amendments thereto, public notices, interagency correspondence, and any
applicable reference material. These materials shall be placed in
locations convenient for the public as determined by RUS and the
applicants.
(5) Public hearings or meetings shall be held at reasonable times
and locations concerning environmental aspects of a proposed action in
all cases where, in RUS' opinion, the need for hearings or meetings is
indicated in order to develop adequate information on the environmental
implications of the proposed action. Public hearings or meetings will
be coordinated to the extent practicable with other meetings which may
be required by RUS. Applicants shall, as necessary, participate in all
public hearings or meeting.
(6) Scoping procedures, in accordance with 40 CFR 1501.7, are
required for proposed actions normally requiring an EA with scoping
(Sec. 1794.24) or an EIS (Sec. 1794.25). RUS may require scoping
procedures to be followed for other proposed actions where appropriate
to achieve the purposes of NEPA.
(b) Electric and Telecommunication Programs. RUS shall have public
notices published in the Federal Register and the applicant shall
concurrently have a similar notice published in a newspaper(s) as
described in this section. Applicants shall obtain proof of publication
from the newspaper(s) for inclusion into the applicable environmental
document.
(c) Water and Waste Programs. The applicant shall have public
notices described in this section published in a newspaper(s).
Applicants shall obtain proof of publication from the newspaper(s) for
inclusion into the applicable environmental document. Only where the
proposed actions requires an EIS shall RUS, in addition to applicant
published notices, publish notice in the Federal Register.
Sec. 1794.14 Interagency involvement and coordination.
In an attempt to reduce or eliminate duplication of effort with
State or local procedures, RUS will, to the extent possible and in
accordance with 40 CFR 1506.2, actively participate with any
governmental agency to cooperatively or jointly prepare environmental
documents so that one document will comply with all applicable laws.
Where RUS has agreed to participate as a cooperating agency, in
accordance with 40 CFR 1501.6, RUS may rely upon the lead agency's
procedures for implementing NEPA procedures. In addition, RUS shall
request that:
(a) The lead agency indicate that RUS is a cooperating agency in
all NEPA related notices published for the proposed action;
(b) The scope and content EA or EIS satisfies the statutory and
regulatory requirements applicable to RUS; and
(c) The applicant shall inform RUS in a timely manner of its
involvement in a proposed action where another Federal agency is
preparing an environmental document so as to permit RUS to adequately
fulfill its duties as a cooperating agency.
Sec. 1794.15 Limitations on actions during the NEPA process.
(a) Until RUS concludes its environmental review process, the
applicant shall take no action concerning the proposed action which
would have an adverse environmental impact or limit the choice of
reasonable alternatives being considered in the environmental review
process. See 40 CFR 1506.1.
(b) Electric Program. In determining which applicant activities
related to a
[[Page 62533]]
proposed action can proceed prior to completion of the environmental
review process, RUS must determine, among other matters that:
(1) The activity shall not have an adverse environmental impact and
shall not preclude the search for other alternatives. For example,
purchase of water rights, optioning or transfer of land title, or
continued use of land as historically employed will not have an adverse
environmental impact. However, site preparation or construction at or
near the proposed site (e.g. rail spur) or development of a related
facility (e.g. opening a captive mine) normally will have an adverse
environmental impact.
(2) Expenditures are minimal. To be minimal the expenditure must
not exceed the amount of loss which the applicant could absorb without
jeopardizing the Government's security interest in the event the
proposed action is not approved by the Administrator, and must not
compromise the objectivity of RUS' environmental review.
Notwithstanding other considerations, expenditures equivalent to up to
10 percent of the proposed action's cost normally will not compromise
RUS' objectivity. Expenditures for the purpose of producing
documentation required for RUS' environmental review are excluded from
this limitation.
Sec. 1794.16 Tiering.
It is the policy of RUS to prepare programmatic level analysis in
order to tier an EIS and an EA where it is practicable, and there will
be a reduction of delay and paperwork, or where better decision making
will be fostered. This policy is in compliance with the requirements of
40 CFR 1502.20.
Sec. 1794.17 Mitigation.
(a) General. In addition to complying with the requirements of 40
CFR 1502.14(f), it is RUS policy that a discussion of mitigative
measures essential to render the impacts of the proposed action not
significant will be included in or referenced in the Finding of No
Significant Impact (FONSI) and the Record of Decision (ROD).
(b) Water and Waste Program. (1) Mitigation measures which involve
protective measures for environmental resources cited in this part or
restrictions or limitations on real property located in the service
areas of the proposed action shall be negotiated with applicants and
any relevant regulatory agency so as to be enforceable. All mitigation
measures incorporating land use issues shall recognize the rights and
responsibilities of landholders in making private land use decisions
and recognize the responsibility of governments in influencing how land
may be used to meet public needs.
(2) Mitigation measures shall be included in the letter of
conditions.
(3) RUS has the responsibility for the post approval construction
or security inspections or monitoring to ensure that all mitigation
measures included in the environmental documents have been implemented
as specified in the letter of conditions.
Secs. 1794.18-1794.19 [Reserved]
Subpart C--Classification of Proposals
Sec. 1794.20 Control.
Electric and Telecommunications Programs. For environmental review
purposes, RUS has identified and established categories of proposed
actions (Secs. 1794.21 through 1794.25). An applicant may propose to
participate with other parties in the ownership of a project where the
applicant(s) does not have sufficient control to alter the development
of the project. In such a case, RUS shall determine whether the
applicant participants have sufficient control and responsibility to
alter the development of the proposal prior to determining its
classification. Where the applicant proposes to participate with other
parties in the ownership of a proposal and all applicants cumulatively
own:
(a) Five percent or less of a project, the proposed action will not
be considered a Federal action subject to this part;
(b) Thirty three and one-third percent or more of a project, the
proposed action shall be treated in its usual category;
(c) More than five percent but less than 33\1/3\ percent of a
project, RUS shall determine whether the applicant participants have
sufficient control and responsibility to alter the development of the
proposal. Consideration shall be given to such factors as:
(1) Whether construction would be completed regardless of RUS
financial assistance or approval;
(2) The stage of planning and construction;
(3) Total applicant participation;
(4) Participation percentage of each utility; and
(5) Managerial arrangements and contractual provisions.
Sec. 1794.21 Categorically excluded proposals without an ER.
(a) General. Certain types of action taken by RUS do not normally
require an ER. Proposed actions within this classification are:
(1) The issuance of bulletins and information publications that do
not concern environmental matters or substantial facility design,
construction, or maintenance practices;
(2) Procurement activities related to the operation of RUS; and
(3) Personnel and administrative actions.
(b) Electric and Telecommunications Programs. Applications for
financial assistance for the types of proposed actions listed below,
normally do not require the submission of an ER. These types of actions
are subject to the requirements of Sec. 1794.31. Applicants shall
sufficiently describe all proposed actions so their proper
classification can be determined. Detailed description shall be
provided for those proposed actions so noted. Proposed actions within
this classification are:
(1) Purchase of land where use shall remain unchanged, or the
purchase of existing water rights where no associated construction is
involved;
(2) Additional or substitute financial assistance for proposed
actions which have previously received environmental review and
approval from the RUS, provided the scope of the proposal and
environmental considerations have not changed;
(3) Rehabilitation or reconstruction of transportation facilities
within existing rights-of-way (ROW) or generating facility sites where
there is no substantial increase in use. A description of the
rehabilitation or reconstruction shall be provided to RUS;
(4) 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). A description of the
additions or changes and the area to be impacted by the expansion shall
be provided to RUS;
(5) Internal modifications or equipment additions (e.g., computer
facilities, relocating interior walls) to structures or buildings;
(6) Internal or minor external changes to electric generating or
fuel processing facilities and related support structures where there
is negligible impact on the outside environment. A description of the
changes shall be provided to RUS;
(7) Ordinary maintenance or replacement of equipment or small
structures (e.g., line support structures, line transformers, microwave
facilities, telecommunications remote switching and multiplexing
sites);
[[Page 62534]]
(8) 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;
(9) SCADA and energy management systems involving no new external
construction;
(10) Testing or monitoring work (e.g., soil or rock core sampling,
monitoring wells, air monitoring;
(11) Studies and engineering undertaken to define proposed actions
or alternatives sufficiently so that environmental effects can be
assessed;
(12) Construction of electric power lines within the fenced area of
an existing substation, switching station, or within the boundaries of
an electric generating facility site. A description of the facilities
to be constructed shall be provided to RUS;
(13) Contracts for certain items of equipment which are part of a
proposed action for which RUS is preparing an EA or EIS, and which meet
the limitations on actions during the NEPA process as established in 40
CFR 1506.1(d) and contained in Sec. 1794.17 (e.g., long lead time items
such as turbines, boilers, or substation transformers);
(14) 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. A description of the facilities to be constructed shall
be provided to RUS;
(15) Phase or voltage conversions, reconductoring or upgrading of
existing electric distribution lines, or telecommunication facilities.
A description of the facilities to be constructed shall be provided to
RUS;
(16) Construction of new power lines, substations, or
telecommunications facilities on previously disturbed industrial or
commercial, where the applicant has no control over the location of the
new facilities. Related off-site facilities would be treated in their
normal category. A description of the facilities to be constructed
shall be provided to RUS;
(17) Participation by an applicant(s) in any proposed action where
total applicant financial participation will be five percent or less;
(18) Purchase of existing facilities or a portion thereof where use
or operation will remain unchanged and which presently are in
compliance with environmental laws and regulations. A description of
the facilities to be purchased along with a certification from the
utility owner that the facilities are in compliance with applicable
environmental laws and regulations shall be provided to RUS;
(19) Additional bulk commodity storage (e.g., coal, fuel oil,
limestone) within existing generating station boundaries. A
certification attesting to the current state of compliance of the
existing facilities and a description of the facilities to be added
shall be provided to RUS;
(20) Proposals designed to reduce the amount of pollutants released
into the environment (e.g., precipitators, baghouse or scrubber
installations, coal washing equipment) which will have no other
environmental impact outside the existing facility site. A description
of the facilities to be constructed shall be provided to RUS;
(21) Construction of standby diesel electric generators one
megawatt or less 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
an industrial facility served by the applicant. A description of the
facilities to be constructed shall be provided to RUS;
(22) Construction of onsite facilities designed for the transfer of
ash, scrubber wastes, and other byproducts from coal-fired electric
generating stations for recycling or storage at an existing coal mine
(surface or underground). A description of the facilities to be
constructed shall be provided to RUS;
(23) Changes or additions to an existing water well system,
including new water supply wells and associated pipelines within the
boundaries of an existing well field or generating station site. A
description of the changes or additions shall be provided; and
(24) Repowering or uprating of an existing unit(s) at a fossil-
fueled generating station that does not include the substitution of one
fuel combustion technology with another.
(c) Water and Waste Program. Applications for financial assistance
for certain proposed actions do not normally require the submission of
an ER. These types of actions are subject to the classification
requirements of Sec. 1794.31. Proposed actions within this
classification are:
(1) Management actions relating to invitation for bids, contract
award, and the actual physical commencement of construction activities;
(2) Proposed actions that primarily involve the purchase and
installation of office equipment or motorized vehicles;
(3) The award of financial assistance for technical assistance,
planning purposes, environmental analysis, management studies, or
feasibility studies; and
(4) Loan closing and service activities that do not alter the
purpose, operation, location, or design of the proposal as originally
approved, such as subordinations, and amendments and revisions to
approved actions, and the provision of additional financial assistance
for cost overruns.
Sec. 1794.22 Categorically excluded proposals requiring an ER.
(a) Electric and Telecommunications Programs. Applications for
financial assistance for the types of proposed actions listed herein
normally require the submission of an ER and are subject to the
requirements of Sec. 1794.32. In order to provide for extraordinary
circumstances, RUS may require development of an ER for proposals
listed in Sec. 1794.21(b). Proposed actions within this classification
are:
(1) Construction of electric power lines and associated facilities
designed for or capable of operation at a nominal voltage of either:
(i) Less that 69 kilovolts (kV);
(ii) Less than 230 kV if no more than 25 miles (40.2 kilometers) of
line are involved; or
(iii) 230 kV or greater involving no more than three miles (4.8
kilometers) of line;
(2) Construction of buried and aerial telecommunications lines,
cables, and related facilities;
(3) Construction of microwave facilities, SCADA, and energy
management systems involving no more than five acres (2 hectares) of
physical disturbance at any single site;
(4) 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;
(5) 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 (ROW). Changes to
existing transmission lines that require 20 percent or greater pole
replacement will be considered the same as new construction;
(6) 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;
(7) Construction of substations, switching stations, or
telecommunications switching or
[[Page 62535]]
multiplexing centers requiring no more than five acres (2 hectares) of
new physically disturbed land or fenced property;
(8) Construction of diesel electric generating facilities of five
megawatts (MW) (nameplate rating) or less either at an existing
generation or substation site. This category also applies to a diesel
electric generating facility of five MW or less that is located at or
adjacent to an existing landfill site and supplied with refuse derived
fuel. All new associated facilities and related electric power lines
shall be covered in the ER;
(9) Additions to or the replacement of existing generating units at
a hydroelectric facility or dam which will result in no change in the
normal maximum surface area or normal maximum surface elevation of the
existing impoundment. All new associated facilities and related
electric power lines shall be covered in the ER;
(10) Construction of a battery energy storage system at an existing
generating station or substation site;
(11) Proposals designed or associated with facilities that will
reduce the amount of pollutants released into the environment which
will not have significant environmental impacts outside of the existing
facility site; and
(12) Construction of new water supply wells and associated
pipelines not located within the boundaries of an existing well field
or generating station site.
(b) Water and Waste Program. For certain proposed actions,
applications for financial assistance normally require the submittal of
an ER as part of the PER. These types of actions are subject to the
requirements of Sec. 1794.32. Proposed actions within this
classification are:
(1) Rehabilitation of existing facilities, functional replacement
or rehabilitation of equipment, or the construction of new ancillary
facilities adjacent or appurtenant to existing facilities, including
but not limited to, replacement of utilities such as water or sewer
lines and appurtenances for existing users with modest or moderate
growth potential, reconstruction of curbs and sidewalks, street
repaving, and building modifications, renovations, and improvements;
(2) Facility improvements to meet current needs with a modest
change in use, size, capacity, purpose or location from the original
facility. The proposed action must be designed for predominantly
residential use with other new or expanded users being small-scale,
commercial enterprises having limited secondary impacts;
(3) Construction of new facilities that are designed to serve
populations less than 500 EDU in size with modest growth potential. The
proposed action must be designed for predominantly residential use with
other new or expanded users being small-scale, commercial enterprises
having limited secondary impacts and must be located within the
existing service area of the facility;
(4) The extension, enlargement or construction of interceptors,
collection, transmission or distribution lines within a one-mile (1.6
kilometer) limit from existing service areas estimated from any
boundary listed as follows:
(i) The corporate limits of the community being served;
(ii) If there are developed areas immediately contiguous to the
corporate limits of a community, the limits of these developed areas;
or
(iii) If an unincorporated area is to be served, the limits of the
developed areas;
(5) Actions described in Sec. 1794.21(c)(4) which alter the
purpose, operation, location, or design of the proposed action as
originally approved;
(6) Installation of new water supply wells or water storage
facilities that are required by a regulatory authority or standard
engineering practice as a backup to existing production well(s) or as
reserve for fire protection; and
(7) The lease or disposal of real property by RUS which may result
in a change in use of the real property in the reasonably foreseeable
future and such change is equivalent in magnitude or type as described
above.
(c) Specialized criteria for not granting a CE for Water and Waste
Projects. An EA must be prepared if a proposed action normally
classified as a CE meets any of the following:
(1) The facilities to be provided will either create a new or
relocate an existing discharge to surface or ground waters;
(2) The facilities will result in substantial increases in the
volume of discharge or the loading of pollutants from an existing
source or from new facilities to receiving waters; or
(3) The facilities would provide capacity to serve a population
greater than 500 EDUs or a 30 percent increase in the existing
population whichever is larger.
Sec. 1794.23 Proposals normally requiring an EA.
RUS will normally prepare an EA for all proposed actions which are
neither categorical exclusions (Secs. 1794.21 and 1794.22) nor normally
requiring an EIS (Sec. 1794.25). For certain actions within this class,
scoping and document procedures contained in Secs. 1794.50 through
1794.54 shall be followed (see Sec. 1794.24). The following are
proposed actions which normally require an EA and shall be subject to
the requirements of Secs. 1794.40 through 1794.44.
(a) General. Issuance or modification of RUS regulations concerning
environmental matters.
(b) Telecommunications and Water and Waste Programs. An EA shall be
prepared for applications for financial assistance for all proposed
actions not specifically defined as a CE or otherwise specifically
categorized by the Administrator on a case-by-case basis.
(c) Electric Program. Applications for financial assistance for
certain proposed actions normally require the preparation of an EA.
Proposed actions falling within this classification are:
(1) Construction of combustion turbine or diesel generating
facilities of 50 MW (nameplate rating) or less at a new site (no
existing generating capacity) except for items covered by
Sec. 1794.22(a)(8). All new associated facilities and related electric
power lines shall be covered in the EA;
(2) Construction of combustion turbine or diesel generating
facilities of 100 MW (nameplate rating) or less at an existing
generating site, except for items covered by Sec. 1794.22(a)(8). All
new associated facilities and related electric power lines shall be
covered in the EA;
(3) Construction of any other type of new electric generating
facilities of 10 MW (nameplate rating) or less. All new associated
facilities and related electric power lines shall be covered in the EA;
(4) Repowering or uprating of an existing unit(s) at a fossil-
fueled generating station where the existing fuel combustion technology
of the affected unit(s) is substituted for another (e.g., coal or oil-
fired boiler is converted to a fluidized bed boiler or replaced with a
combustion turbine unit);
(5) Installation of new generating units at an existing
hydroelectric facility or dam, or the replacement of existing
generating units at a hydroelectric facility or dam which will result
in a change in the normal maximum surface area or normal maximum
surface elevation of the existing impoundment. All new associated
facilities and related electric power lines shall be covered in the EA;
(6) A new drilling operation or the expansion of a mining or
drilling operation;
(7) Purchase of existing facilities or a portion thereof which are
presently in violation of Federal, State, or local environmental laws
or regulations;
[[Page 62536]]
(8) Construction of cooperative headquarters, maintenance, and
equipment storage facilities involving more than 10 acres (4 hectares)
of physical disturbance or fenced property;
(9) The construction of electric power lines and related facilities
designed for and capable of operation at a nominal voltage of 230 kV or
more involving more than three miles (4.8 kilometers) but not more than
25 miles (40 kilometers) of line;
(10) The construction of electric power lines and related
facilities designed for or capable of operation at a nominal voltage of
69 kV or more but less than 230 kV where more than 25 miles (40
kilometers) of power line are involved;
(11) The construction of substations or switching stations
requiring greater than five acres (2 hectares) but not more than 10
acres (4 hectares) of new physical disturbance at a single site; and
(12) Construction of facilities designed for the transfer and
storage of ash, scrubber wastes, and other byproducts from coal-fired
electric generating stations that will be located beyond the existing
facility site boundaries.
Sec. 1794.24 Proposals normally requiring an EA with scoping.
(a) Electric Program. Applications for financial assistance for
certain proposed actions require the use of a scoping procedure in the
development of the EA. These types of actions are subject to the
requirements of Secs. 1794.50--1794.54. Proposed actions falling within
this classification are:
(1) The construction of electric power lines and related facilities
designed for and capable of operation at a nominal voltage of 230 kV or
more where more than 25 miles (40 kilometers) of power line are
involved;
(2) The construction of substations and switching stations require
new physical disturbance or fencing of more than 10 acres (4 hectares)
at any one site; and
(3) Construction of combustion turbines and diesel generators of
more than 50 MW at a new site or more than 100 MW at an existing site;
and the construction of any other type of electric generating facility
of more than 10 MW but not more than 50 MW (nameplate rating). All new
associated facilities and related electric power lines shall be covered
in any EA or EIS that is prepared.
(b) Telecommunications and Water and Waste Programs. There are no
actions normally falling within this classification.
Sec. 1794.25 Proposals normally requiring an EIS.
Applications for financial assistance for certain proposed actions
that may significantly affect the quality of the human environment
shall require the preparation of an EIS.
(a) Electric Program. An EIS will normally be required in
connection with proposed actions involving the following types of
facilities:
(1) New electric generating facilities of more than 50 MW
(nameplate rating) other than diesel generators or combustion turbines.
All new associated facilities and related electric power lines shall be
covered in the EIS; and
(2) A new mining operation when the applicants have effective
control (e.g., dedicated mine or purchase of a substantial portion of
the mining equipment).
(b) Proposals listed above are subject to the requirements of
Secs. 1794.60, 1794.61, 1794.63, and 1794.64. Preparation of a
supplemental draft or final EIS in accordance with 40 CFR 1502.9 shall
be subject to the requirements of Secs. 1794.62 and 1794.64.
(c) Telecommunications and Water and Waste Programs. No groups or
sets of proposed actions normally require the preparation of an EIS.
The environmental review process, as described in this part, shall be
used to identify those proposed actions for which the preparation of an
EIS is necessary. If an EIS is required, RUS shall proceed directly to
its preparation. Prior completion of an EA is not mandatory.
Secs. 1794.26-1794.29 [Reserved]
Subpart D--Procedure for Categorical Exclusions
Sec. 1794.30 General.
The procedures of this subpart which apply to proposed actions
classified as CE's in Secs. 1794.21 and 1794.22 provide RUS with
information necessary to determine if the proposed action meets the
criteria for a CE. Where, because of extraordinary circumstances, a
proposed action may have a significant effect on the quality of the
human environment, RUS may require additional environmental
documentation.
Sec. 1794.31 Classification.
(a) Electric and Telecommunications Programs. RUS will normally
determine the proper environmental classification of projects based on
its evaluation of the project description set forth in the construction
work plan or loan design which the applicant is required to submit with
its application for financial assistance. Each project must be
sufficiently described to ensure its proper classification. RUS may
require the applicant to develop detailed descriptions where
appropriate.
(b) Water and Waste Program. RUS will normally determine the proper
environmental classification for projects based on its evaluation of
the preliminary planning and design information. This information is
developed by the applicant under the guidance and supervision of the
State Environmental Coordinator.
Sec. 1794.32 Environmental report.
(a) For proposed actions listed in Secs. 1794.21(a) and 1794.21(b),
the applicant is normally not required to submit an ER.
(b) For proposed actions listed in Secs. 1794.22(a) and 1794.22(b),
the applicant shall normally submit an ER or its equivalent. The
applicant may be required to publish public notices and provide
evidence of such with its ER if the proposed action is located in,
impacts on, or converts important land resources.
Sec. 1794.33 Agency action.
RUS may act on an application for financial assistance upon
determining, based on the review of documents as set forth above and
such additional information as RUS deems necessary, that the project is
categorically excluded.
Secs. 1794.34-1794.39 [Reserved]
Subpart E--Procedure for Environmental Assessments
Sec. 1794.40 General.
This subpart applies to proposed actions described in Sec. 1794.23.
Where appropriate to carry out the purposes of NEPA, RUS may impose, on
a case-by-case basis, additional requirements associated with the
preparation of an EA. If at any point in the preparation of an EA, RUS
determines that the proposed action will have a significant impact on
the environment, the preparation of an EIS shall be required and the
procedures in subpart G of this part shall be followed.
Sec. 1794.41 Document requirements.
Applicants will provide an ER in accordance with the appropriate
guidance documents referenced in Sec. 1794.8. After RUS has evaluated
the ER and has determined the ER adequately addresses all applicable
environmental issues, the ER will normally serve as RUS' EA. RUS will
take responsibility for the scope and content of an EA.
[[Page 62537]]
Sec. 1794.42 Notice of availability.
(a) Prior to RUS making a finding in accordance with Sec. 1794.43
and upon RUS' authorization and guidance, the applicant shall have a
notice published which announces the availability of the EA and
solicits public comments on the EA.
(b) Electric and Telecommunications Programs. RUS shall have a
notice published in the Federal Register which announces the
availability of the EA and solicits public comments on the EA.
Sec. 1794.43 Agency finding.
(a) If RUS finds, based on an EA that the proposed action will not
have a significant impact on the human environment, RUS will prepare a
FONSI. Upon authorization of RUS, the applicant shall have a notice
published which informs the public of the RUS' finding and the
availability of the EA and FONSI. The notice shall be prepared and
published in accordance with RUS guidance.
(b) Electric and Telecommunications Programs. RUS shall have a
notice published in the Federal Register that announces the
availability of the EA and FONSI.
Sec. 1794.44 Timing of agency action.
RUS may take its final action on proposed actions requiring an EA
(Sec. 1794.23) at any time after publication of the RUS and applicant
notices that a FONSI has been made.
Secs. 1794.45-1794.49 [Reserved]
Subpart F--Procedure for Environmental Assessments With Scoping
Sec. 1794.50 Normal sequence.
For proposed actions covered by Sec. 1794.24 and other actions
determined by the Administrator to require an EA with Scoping, RUS and
the applicant will follow the same procedures for scoping and the
requirements for notices and documents as for proposed actions normally
requiring an EIS through the point at which the Environmental Impact
Assessment (EIA) is submitted (see Sec. 1794.54). After the EIA has
been submitted, RUS will make a judgment to utilize the EIA as its EA
and issue a FONSI or prepare an EIS.
Sec. 1794.51 Preparation for scoping.
(a) As soon as practicable after RUS and the applicant have
developed a schedule for the environmental review process, RUS will
have its notice of intent to prepare an EA or EIS published in the
Federal Register (see 40 CFR 1508.22). The applicant shall have
published, in a timely manner, a notice similar to RUS' notice.
(b) As part of the early planning, the applicant should consult
with appropriate Federal, State, and local agencies to inform them of
the proposed action, identify permits and approvals which must be
obtained, and administrative procedures which must be followed.
(c) Before formal scoping is initiated, RUS will require the
applicant to submit an Alternative Evaluation Study and either a Siting
Study (generation) or a Macro-Corridor Study (transmission lines).
(d) The applicant is encouraged to hold public information meetings
in the general location of the proposed action and any reasonable
alternatives when such applicant meetings will make the scoping process
more meaningful. A written summary of the comments made at such
meetings must be submitted to RUS as soon as practicable after the
meetings.
Sec. 1794.52 Scoping meetings.
(a) Both RUS and the applicant shall have a notice published which
announces a public scoping meeting is to be conducted, either in
conjunction with the notice of intent or as a separate notice.
(b) The RUS notice shall be published in the Federal Register at
least 14 days prior to the meeting(s). The applicant's notice shall be
published in a newspaper at least 10 days prior to the meeting(s).
Other forms of media may also be used by the applicant to notice the
meetings.
(c) Where an environmental document is the subject of the hearing
or meeting, that document will be made available to the public at least
10 days in advance of the meeting.
(d) The scoping meeting(s) will be held in the area of the proposed
action at such places as RUS determines will best afford an opportunity
for public involvement. Any person or representative of an
organization, or government body desiring to make a statement at the
meeting may make such statement in writing or orally. The format of the
meeting may be one of two styles. It can either be of the traditional
style which features formal presentations followed by a comment period,
or the open house style in which attendees are able to individually
obtain information on topics or issues of interest within an
established time period. A transcript will be made of the scoping
meeting.
(e) As soon as practicable after the scoping meeting(s), RUS, as
lead agency, shall determine the significant issues to be analyzed in
depth and identify and eliminate from detailed study the issues which
are not significant or which have been covered by prior environmental
review. RUS will develop a proposed scope for further environmental
study and review. RUS will send a copy of this proposed scope to
cooperating agencies and the applicant, and allow recipients 30 days to
comment on the scope's adequacy and emphasis. After expiration of the
30 day period, RUS shall provide written guidance to the applicant
concerning the scope of environmental study to be performed and
information to be gathered.
Sec. 1794.53 Environmental impact analysis.
(a) After scoping procedures have been completed, RUS will require
the applicant to develop and submit an EIA. The EIA shall be prepared
under the supervision and guidance of the RUS staff and RUS will
evaluate and be responsible for the accuracy of all information
contained therein.
(b) The EIA will normally serve as the RUS EA. The EIA can also
serve as the basis for an EIS, and under such circumstances will be
made an appendix to the EIS. After RUS has reviewed and found the EIA
to be satisfactory, the applicant shall provide RUS with a sufficient
number of copies of the EIA to satisfy RUS' distribution plan.
(c) The EIA shall include a summary of the construction and
operation monitoring and mitigation measures for the proposed action.
These measures may be revised as appropriate in response to comments
and other information. and shall be incorporated by summary or
reference into the FONSI or ROD.
Sec. 1794.54 Agency determination.
Following the scoping process and the development of a satisfactory
EA, RUS shall make a judgment as to whether or not the proposed action
is a major Federal action significantly affecting the quality of the
human environment. If a significant effect is evident, RUS will
continue with the procedures in subpart G of this part. If a
significant effect is not evident, RUS will proceed in accordance with
Secs. 1794.42 through 1794.44.
Secs. 1794.55-1794.59 [Reserved]
Subpart G--Procedure for Environmental Impact Statements
Sec. 1794.60 Normal sequence.
For proposed actions requiring an EIS (see Sec. 1794.25), the NEPA
process shall proceed in the same manner as for proposed actions
requiring an EA with
[[Page 62538]]
scoping through the point at which the scoping process is completed
(see Sec. 1794.52).
Sec. 1794.61 Environmental impact statement.
(a) General. An EIS shall be prepared in accordance with 40 CFR
part 1502. The draft and final EIS may be prepared by a third-party
consultant selected by RUS and funded by the applicant.
(1) After a draft or final EIS has been prepared, RUS and the
applicant shall concurrently have a notice of availability for the
document published. The time period allowed for review will be a
minimum of 45 days for a draft EIS and 30 days for a final EIS. This
period is measured from the date that the U.S. Environmental Protection
Agency (EPA) publishes a notice in the Federal Register in accordance
with 40 CFR 1506.10.
(2) In addition to circulation required by 40 CFR 1502.19, the
draft and final EIS (or summaries thereof, at RUS' discretion) shall be
circulated to the appropriate state, regional, and metropolitan
clearinghouses.
(3) Where a final EIS does not require substantial changes from the
draft EIS, RUS may document required changes through errata sheets,
insertion pages, and revised sections to be incorporated into the draft
EIS. In such cases, RUS shall circulate such changes together with
comments on the draft EIS, responses to comments, and other appropriate
information as its final EIS. RUS will not circulate the draft EIS
again, although the draft EIS will be provided if requested within 30
days of publication of notice of availability of the final EIS.
(b) Electric Program. Where an EIA has been prepared by the
applicant or its consultant, RUS will develop its draft and final EIS
from the EIA. An EIA will not be required if the draft and final EIS is
prepared by a third-party consultant.
Sec. 1794.62 Supplemental EIS.
(a) A supplement to a draft or final EIS shall be prepared,
circulated, and given notice by RUS and the applicant in the same
manner (exclusive of scoping) as a draft and final EIS (see
Sec. 1794.61).
(b) Normally RUS and the applicant will have published notices of
intent to prepare a supplement to a final EIS in those cases where a
ROD has already been issued.
(c) RUS, at its discretion, may issue an information supplement to
a final EIS where RUS determines that the purposes of NEPA are
furthered by doing so even though such supplement is not required by 40
CFR 1502.9(c)(1). RUS and the applicant shall concurrently have a
notice of availability published. The notice requirements shall be the
same as for a final EIS and the information supplement shall be
circulated in the same manner as a final EIS. RUS shall take no final
action on any proposed modification discussed in the information
supplement until 30 days after the RUS notice of availability or the
applicant's notice is published, whichever occurs later.
Sec. 1794.63 Record of decision.
(a) Upon completion of the review period for a final EIS, RUS will
have its ROD published in accordance with 40 CFR 1505.2 and 1506.10.
(b) Separate RUS and applicant notices shall be published
concurrently. The notices shall summarize the RUS decision and announce
the availability of the ROD. Copies of the ROD will be made available
upon request from the point of contact identified in the notice.
Sec. 1794.64 Timing of agency action.
(a) RUS may take its final action or execute commitments on
proposed actions requiring an EIS or Supplemental EIS at any time after
the ROD has been published.
(b) For budgetary purposes some financial assistance may be
approved conditionally with a stipulation that no funds shall be
advanced until a ROD has been prepared .
Secs. 1794.65-1794.69 [Reserved]
Subpart H--Adoption of Environmental Documents.
Sec. 1794.70 General.
This subpart covers the adoption of environmental documents
prepared by other Federal agencies. Where applicants participate in
proposed actions for which an EA or EIS has been prepared by or for
another Federal agency, RUS may adopt the existing EA or EIS in
accordance with 40 CFR 1506.3.
Sec. 1794.71 Adoption of an EA.
RUS may adopt a Federal EA or EIS or a portion thereof as its EA.
RUS shall make the EA available and assure that notice is provided in
the same manner as if RUS had prepared the EA.
Sec. 1794.72 Adoption of an EIS.
(a) Where RUS determines that an existing Federal EIS requires
additional information to meet the standards for an adequate statement
for RUS' proposed action, RUS may adopt all or a portion of the EIS as
a part of its draft EIS. The circulation and notice provisions for a
draft and final EIS (see Sec. 1794.61) apply.
(b) If RUS was not a cooperating agency but determines that another
Federal agency's EIS is adequate, RUS shall adopt the EIS as its final
EIS. RUS and the applicant shall have separate notices published
advising of RUS' adoption of the EIS and independent determination of
its adequacy.
(c) If the adopted EIS is generally available and meets the
Agency's standards, RUS shall have a public notice published informing
the public of its action and availability of the EIS to interested
parties upon request. If the adopted EIS is not generally available,
RUS shall have a public notice published as above and will circulate
copies in accordance with 40 CFR 1502.19 and 1506.3.
Sec. 1794.73 Timing of agency action.
Where RUS has adopted another agency's environmental documents, the
timing of the action shall be subject to the same requirements as if
RUS had prepared the required EA or EIS.
Secs. 1794.74-1794.79 [Reserved]
Dated: November 12, 1997.
Inga Smulkstys,
Deputy Under Secretary, Rural Development.
[FR Doc. 97-30341 Filed 11-21-97; 8:45 am]
BILLING CODE 3410-15-P
