Appendix 28: Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act

• Author: Nicholas C. Yost
• Pages: 501-511

Establishing, Applying, and Revising Categorical Exclusions Under NEPA Page 501

75628

Federal Register/ Vol. 75, No. 233 / Monday, December 6, 2010 /Rules and Regulations

1

A discussion of NEPA applicability is beyond

the scope of this guidance. For more information

see CEQ, The Citizen’s Guide to the National

Environmental Policy Act, available at

ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.

2

For more information on this announcement,

see http://www.whitehouse.gov/administration/eop/

ceq/initiatives/nepa.

3

National Environmental Policy Act (NEPA) Draft

Guidance, Establishing, Applying, and Revising

Categorical Exclusions under the National

Environmental Policy Act, 75 FR 8045, Feb. 23,

2010.

COUNCIL ON ENVIRONMENTAL

QUALITY

40 CFR Parts 1500, 1501, 1502, 1503,

1504, 1505, 1506, 1507, and 1508

Final Guidance for Federal

Departments and Agencies on

Establishing, Applying, and Revising

Categorical Exclusions Under the

National Environmental Policy Act

AGENCY

: Council on Environmental

Quality.

ACTION

: Notice of availability.

SUMMARY

: The Council on

Environmental Quality (CEQ) is issuing

its final guidance on categorical

exclusions. This guidance provides

methods for substantiating categorical

exclusions, clarifies the process for

establishing categorical exclusions,

outlines how agencies should engage

the public when establishing and using

categorical exclusions, describes how

agencies can document the use of

categorical exclusions, and recommends

periodic agency review of existing

categorical exclusions. A categorical

exclusion is a category of actions that a

Federal agency determines does not

normally result in individually or

cumulatively significant environmental

effects. This guidance clarifies the rules

for establishing, applying, and revising

categorical exclusions. It applies to

categorical exclusions established by

Federal agencies in accordance with

CEQ regulations for implementing the

procedural provisions of the National

Environmental Policy Act. The guidance

was developed to assist agencies in

making their implementation of the

National Environmental Policy Act

(NEPA) more transparent and efficient.

DATES

: The guidance is effective

December 6, 2010.

FOR FURTHER INFORMATION CONTACT

: The

Council on Environmental Quality

(ATTN: Horst Greczmiel, Associate

Director for National Environmental

Policy Act Oversight), 722 Jackson

Place, NW., Washington, DC 20503.

Telephone: (202) 395–5750.

SUPPLEMENTARY INFORMATION

: This

guidance applies to categorical

exclusions established by Federal

agencies in accordance with §1507.3 of

the CEQ Regulations for Implementing

the Procedural Provisions of the

National Environmental Policy Act, 40

CFR parts 1500–1508.

Enacted in 1970, the National

Environmental Policy Act (NEPA), 42

U.S.C. 4321–4370, is a fundamental tool

used to harmonize our environmental,

economic, and social aspirations and is

a cornerstone of our Nation’s efforts to

protect the environment. NEPA

recognizes that many Federal activities

affect the environment and mandates

that Federal agencies consider the

environmental impacts of their

proposed actions before deciding to

adopt proposals and take action.

1

Many

Federal actions do not normally have

significant effects on the environment.

When agencies identify categories of

activities that do not normally have the

potential for individually or

cumulatively significant impacts, they

may establish a categorical exclusion for

those activities. The use of categorical

exclusions can reduce paperwork and

delay, so that more resources are

available to assess proposed actions that

are likely to have the potential to cause

significant environmental effects in an

environmental assessment (EA) or

environmental impact statement (EIS).

This guidance clarifies the rules for

establishing categorical exclusions by

describing: (1) How to establish or

revise a categorical exclusion; (2) how to

use public involvement and

documentation to help define and

substantiate a proposed categorical

exclusion; (3) how to apply an

established categorical exclusion; (4)

how to determine when to prepare

documentation and involve the public

when applying a categorical exclusion;

and (5) how to conduct periodic reviews

of categorical exclusions to assure their

continued appropriate use and

usefulness.

On February 18, 2010, the Council on

Environmental Quality announced three

proposed draft guidance documents to

modernize and reinvigorate NEPA, in

conjunction with the fortieth

anniversary of the statute’s enactment.

2

This guidance document is the first of

those three to be released in final form.

With respect to the other two guidance

documents, one addresses when and

how Federal agencies should consider

greenhouse gas emissions and climate

change in their proposed actions, and

the other addresses when agencies need

to monitor commitments made in EAs

and EISs, and how agencies can

appropriately use mitigated ‘‘Findings of

No Significant Impact.’’ The Federal

Register notice announcing the draft

categorical exclusion guidance and

requesting public comments was

published on February 23, 2010.

3

CEQ

appreciates the thoughtful responses to

its request for comments on the draft

guidance. Commenters included private

citizens, corporations, environmental

organizations, trade associations, and

State agencies. CEQ received fifty-eight

comments, which are available online at

http://www.whitehouse.gov/

administration/eop/ceq/initiatives/

nepa/comments and at http://

www.nepa.gov. The comments that

suggested editorial revisions and

requested clarification of terms are

addressed in the text of the final

guidance. Comments that raised policy

or substantive concerns are grouped into

thematic issues and addressed in the

following sections of this notice.

Process for Developing and Using

Categorical Exclusions

Many commenters expressed support

for CEQ’s categorical exclusion

guidance and for the timely and

efficient use of categorical exclusions in

the NEPA environmental review process

to inform agency decisionmaking. Some

commenters favored guidance that

would limit the use of categorical

exclusions. Others expressed concern

that this guidance will discourage the

appropriate use of categorical

exclusions or make the NEPA process

more difficult for agencies, and thereby

delay agency decisionmaking.

This guidance was developed to

provide for the consistent, proper, and

appropriate development and use of

categorical exclusions by Federal

agencies. It reinforces the process

required to establish categorical

exclusions by explaining methods

available to substantiate categorical

exclusions. It also seeks to ensure

opportunities for public involvement

and increasing transparency when

Federal agencies establish categorical

exclusions and subsequently use those

categorical exclusions to satisfy their

NEPA obligations for specific proposed

actions. Additionally, this guidance

affords Federal agencies flexibility in

developing and implementing

categorical exclusions while ensuring

that categorical exclusions are

administered in compliance with NEPA

and the CEQ Regulations. When

appropriately established and applied,

categorical exclusions expedite the

environmental review process for

proposals that normally do not require

additional analysis and documentation

in an EA or an EIS.