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TENNESSEE VALLEY AUTHORITY The final rule incorporates: (1) repetition of requirements already Updates to organizational references to contained in the CEQ regulations and 18 CFR Part 1318 clarify roles and responsibilities within with the understanding that the TVA- TVA; (2) acknowledgement of the use of specific regulations would be applied Procedures for Implementing the modern notification and communication with the CEQ regulations. The final rule National Environmental Policy Act methods to improve public includes many words and phrases that participation; (3) revisions to TVA’s list are defined in either the NEPA statute AGENCY: Tennessee Valley Authority. of categorical exclusions (CEs) to or CEQ regulations (including at 40 CFR ACTION: Final rule. include common actions that have been part 1508). In addition, the final rule demonstrated to have no significant includes definitions for certain terms. SUMMARY: This final rule amends the effect on the human environment and to In its Notice of Proposed Rule, TVA procedures of the Tennessee Valley remove CEs for actions which TVA addressed the implementation of Authority (TVA) for implementing the rarely or no longer undertakes; and (4) Executive Order (E.O.) 13690, National Environmental Policy Act revisions to improve the clarity of the Establishing a Federal Flood Risk (NEPA). The final rule is codified in procedures and remove redundant and Management Standard and a Process for Title 18 of the Code of Federal outdated information. Further Soliciting and Considering Regulations, as part 1318 of Chapter XIII When established in 1980, TVA’s Stakeholder Input. On August 15, 2017, (Tennessee Valley Authority). NEPA implementing procedures were during the public comment period on DATES: This final rule is effective April contained in TVA Instruction IX TVA’s proposed rule, E.O. 13690 was 27, 2020. (Environmental Review), a section of revoked by executive action (E.O. FOR FURTHER INFORMATION CONTACT: TVA’s administrative code of internal 13807, Establishing Discipline and Matthew Higdon, NEPA Specialist, policies and procedures. Under the final Accountability in the Environmental Tennessee Valley Authority, 400 W. rule, the procedures are codified in Title Review and Permitting Process for Summit Hill Drive #11B–K, Knoxville, 18 of the Code of Federal Regulations Infrastructure Projects). TVA made Tennessee 37902. Telephone: 865–632– (CFR), as part 1318 of Chapter XIII changes to Subpart G of the final rule to 8051. Email: [email protected]. (Tennessee Valley Authority), with the reflect that E.O. 13690 was revoked. heading of part 1318 as After considering the public SUPPLEMENTARY INFORMATION: ‘‘Implementation of the National comments on the proposed rule, I. Background Environmental Policy Act of 1969.’’ The additional internal review, and regulations are organized under consultation with CEQ, TVA made This final rule revises TVA’s subparts A through G of part 1318. numerous changes to the proposed rule implementing procedures for assessing Incorporating TVA’s NEPA procedures that are included in the final rule. the effects of TVA’s actions in in the CFR at 18 CFR part 1318 is Public comments and TVA responses accordance with NEPA, as amended (42 intended to promote greater are addressed in Section II below. The U.S.C. 4321 et seq.). The Council on transparency in the NEPA process. TVA responses explain those changes Environmental Quality (CEQ) On June 8, 2017, TVA published the that are based on public input. All regulations at 40 CFR 1505.1 and 1507.3 proposed rule to revise its NEPA changes are summarized in Section III require Federal agencies to adopt procedures in the Federal Register, below. procedures as necessary to supplement initiating a 60-day public review period II. Comments on the Proposed Rule and CEQ’s regulations implementing NEPA (82 FR 26620). In response to public TVA’s Responses and to consult with CEQ during their requests for an extension, on July 28, development. TVA first established its 2017 (82 FR 35133) TVA extended the During the 2017 public review period, procedures for implementing NEPA in comment period for an additional 30 TVA received 1,572 responses, 1980 (45 FR 54511–15, August 15, days. The extended comment period consisting of letters, emails, statements, 1980), and amended the procedures in closed on September 6, 2017. phone calls, and web-based 1983 (48 FR 19264, April 28, 1983) to TVA consulted with CEQ on the submissions. Of those, 61 responses incorporate requirements relating to proposed and final rule. During their contained original substantive floodplain management and protection review of the final rule, CEQ suggested comments. The remaining responses of wetlands, among other things. edits to TVA’s procedures to improve were variations of four form letters In 2016, TVA completed an internal the grammar and clarity of the addressing several general topics, which review of its NEPA procedures and procedures and to ensure the are addressed below. Comments were practices and identified the need to procedures comply with CEQ received from individuals, trade revise some of its procedures to more procedures. After TVA incorporated this associations, nongovernmental accurately address TVA’s current input, CEQ issued a letter to TVA on organizations, local, State and Federal mission, program areas, or February 19, 2020, stating that CEQ entities, and a tribal government. The organizational structure. TVA also reviewed this rule and found it to be in comments received by TVA are found that updating the procedures is conformity with NEPA and CEQ available on the TVA NEPA website necessary to address the evolving energy regulations implementing NEPA (per 40 (https://www.tva.gov/nepa). market place, current communication CFR 1507.3 and NEPA section 102(2)(B), TVA received substantive comments trends, and CEQ guidance issued 42 U.S.C. 4332(2)(B)). If CEQ finalizes on all subparts of the proposed rule subsequent to the initial TVA NEPA its ongoing rulemaking (85 FR 1684), except Subpart B, which addresses the procedures. In addition, TVA identified TVA will review and undertake initiation of the NEPA process. Most opportunities to improve its practices additional revisions to its procedures to commenters, including those who and to clarify the procedures to ensure ensure consistency with the revised submitted comments in variations of environmental compliance and improve CEQ regulations as necessary. form letters, expressed general the decision-making process. In Like TVA’s previous NEPA opposition to TVA’s proposal to updating its procedures, TVA ensures procedures, the final rule supplements establish new CEs. The primary reasons that the procedures reduce paperwork the CEQ regulations. The rule was cited for this opposition were the beliefs and delay to the extent possible. drafted with the objective of minimizing that adding CEs would increase the

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potential for adverse environmental National Environmental Policy Act, 75 does not represent a move by TVA away impacts and that additional CEs would FR 75628, 75631, December 6, 2010; see from its commitment to comply with reduce or eliminate the public’s ability also 40 CFR 1500.5(k)). NEPA. Rather, CEs make TVA’s to be informed of proposed TVA actions A CE is a form of NEPA compliance, compliance with NEPA more efficient and their impacts and to participate in and not an exemption from NEPA. A CE by allowing TVA to focus its resources the decision-making process. TVA also is established for a category of actions on reviewing proposed actions that have received numerous comments that were that TVA has determined, based on the potential for significant not substantive because they included analysis and experience, do not environmental impacts. TVA is statements that were conclusory, individually or cumulatively have committed to conducting thorough, unclear and/or vague, and statements potential to cause significant impacts to systematic, and interdisciplinary related to specific TVA projects or the human environment and, therefore, reviews of its projects and incorporating operations rather than to the proposed do not require the preparation of an the findings of those reviews into its rule. environmental assessment (EA) or an decisionmaking. The following discussion includes the environmental impact statement (EIS). Comment: We oppose the proposed comments received, TVA’s responses to The final rule does not reduce TVA’s amendments to the TVA NEPA the comments, and a description of obligation to comply with NEPA, as procedures. We do not trust TVA and do changes made by TVA to the rule based some commenters assert. Rather, CEs not believe TVA is doing what is best on the comments. TVA has also make TVA’s compliance with NEPA for those in the Valley. prepared a Comment-Response more efficient by allowing TVA to focus Response: TVA regrets that some document to allow commenters to see its resources on reviewing proposed stakeholders hold this view, and how their comments are addressed; the actions that have the potential for remains committed to transparency and identities of commenters are not significant environmental impacts. TVA involving the public in its provided in the responses below for the is committed to conducting thorough, decisionmaking. TVA’s overarching sake of brevity, given the volume of systematic, and interdisciplinary environmental policy is to promote similar comments, but are included in reviews of its projects and incorporating proactive environmental sustainability the Comment-Response document those findings into its decisionmaking. in a balanced and ecologically sound available at the TVA NEPA website Although there is no requirement manner, support sustainable economic (https://www.tva.gov/nepa). under NEPA or CEQ regulations to do growth in the Tennessee Valley, and so, to ensure transparency, TVA has produce cleaner, reliable and affordable A. General Comments on the Proposed added a paragraph in the final rule that power. The update to the NEPA Rule addresses the circumstances in which procedures is consistent with this policy Comment: TVA’s proposal would the public should be notified before a and is intended to promote reduce transparency, limit TVA’s CE is used. As stated in the final rule environmental stewardship and ensure obligation to solicit public input about (§ 1318.200(f)), TVA may consider legal compliance. The updated proposed actions, and reduce public notice before a CE is used if TVA procedures also facilitate the recordkeeping regarding TVA decisions. determines that the public may have implementation of TVA’s mission, use NEPA requires that TVA inform the relevant and important information of evolving energy industry and public on matters that impact people relating to the proposal that will assist communication methods, and and the environment. TVA in its decisionmaking. improvement of its business practices. Response: TVA recognizes that TVA notes that public notice and/or In addition, TVA is incorporating new compliance with NEPA and other involvement has been and will continue guidance, directives and legal environmental laws and requirements is to be provided for certain actions for precedents that are relevant to NEPA of great interest to the people it serves. which CEs may be used. For instance, practices. Nothing in the final rule TVA remains committed to being a good TVA routinely conducts public eliminates TVA’s obligation to continue steward of the environment and meetings when planning new to comply with all applicable local, state incorporating appropriate opportunities transmission lines, provides notice and and federal laws addressing for public review into agency planning comment on certain land actions (e.g., environmental protection when and decisionmaking. land disposals and commercial conducting its activities. TVA remains TVA’s final rule supplements but recreation requests), and, as addressed dedicated to these environmental does not supersede the CEQ’s in Subpart G of the final rule, issues mandates and to being good stewards of regulations implementing NEPA, which notices on certain actions impacting the environment and public lands it contain public involvement wetlands even when those actions come manages. requirements. The final rule retains under CEs. These notices are listed on Comment: TVA’s proposal to amend CEQ’s requirements to involve and TVA’s ‘‘Get Involved Stay Involved’’ its procedures for implementing NEPA consider public and interagency website (https://www.tva.gov/About- endangers public health, safety and the comments during the decision-making TVA/Get-Involved-Stay-Involved). environment. The proposed rule process and to include such comments In addition, TVA will periodically increases the potential for adverse and responses in the administrative publish to the TVA NEPA website a list environmental impacts. record. CEQ regulations instruct of completed actions for which TVA has Response: Protecting public health agencies to apply CEs, where prepared CE documentation to improve and safety is among the key appropriate, because they can ‘‘reduce transparency regarding these minor considerations in all NEPA reviews, paperwork and delay, so that EAs or actions. including the establishment and EISs are targeted toward proposed Comment: TVA should continue to application of CEs, and is TVA’s highest actions that truly have the potential to uphold the spirit and intent of NEPA. priority. The final rule addresses how cause significant environmental effects’’ TVA’s amendments to its procedures TVA considers adverse impacts to the (Final Guidance for Federal weakens the original intent of NEPA. environment, including impacts to Departments and Agencies on Response: The final rule does not sensitive resources, during its decision- Establishing, Applying, and Revising reduce TVA’s obligation to comply with making processes. The procedures also Categorical Exclusions under the NEPA and the establishment of new CEs address consideration of measures to

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minimize or mitigate such impacts. TVA TVA routinely considers climate change Response: CEQ instructs agencies to will continue to adhere to all applicable adaptation and potential greenhouse gas develop their own NEPA procedures local, state and federal laws and emissions when conducting that supplement CEQ regulations (40 regulations when implementing actions environmental reviews. TVA specialists CFR 1507.3(a)). TVA’s regulations were that may potentially impact the draw upon experience as well as drafted to minimize repetition of environment. available science to identify potential requirements already contained in the Comment: TVA is completely environmental impacts of actions and CEQ regulations and with the ignoring NEPA procedures when address any uncertainty. understanding that the TVA-specific engaging in environmental projects, and Comment: TVA should continue to regulations would be applied in TVA has weakened the burden of proof comply with all applicable state or conjunction with the CEQ regulations. and is now considering too many federal regulations during the NEPA The TVA regulations include many projects to be minor. process. words and phrases that are specifically Response: TVA is revising its Response: TVA will continue to defined in either the NEPA statute or procedures to improve its NEPA comply with applicable local, state and CEQ regulations (40 CFR part 1508). compliance by clarifying and updating federal laws when conducting its TVA’s regulations include definitions its procedures (last updated over 35 activities. TVA remains committed to for certain terms to assist in years ago) to make them more accurately coordination and consultation with implementing NEPA, not to reinterpret reflect TVA’s mission and program other government agencies throughout NEPA or CEQ’s regulations. TVA activities. CEQ regulations and guidance the region in the intergovernmental coordinated the review of its amended outline a process by which agencies review for assessing impacts of its procedures with the CEQ to ensure may establish CEs for actions that are actions. TVA’s experience affirms that compliance with NEPA and CEQ’s unlikely to result in significant such coordination benefits TVA’s regulations. On February 19, 2020, CEQ environmental impacts and encourages decision-making processes and results notified TVA that the final rule their use to reduce paperwork and in fewer environmental impacts. conforms to NEPA and the CEQ delay, and allow agencies to focus their Comment: We are concerned about regulations. EAs and EISs on proposed actions that the wind energy project proposed to be The commenter asserted that TVA truly have the potential to cause constructed near Crab Orchard, improperly paraphrases CEQ regulations significant environmental effects. (See Tennessee. TVA should conduct with its statement in the proposed rule response to the first comment above). reviews under NEPA of these types of that EAs should address ‘‘important CEQ’s regulations also require agencies projects and TVA should be the lead environmental issues.’’ CEQ regulations to ‘‘continue to review their policies and federal agency on the project. do emphasize that agencies concentrate procedures and in consultation with the their efforts and attention on important Council to revise them as necessary to Response: The concerns expressed in issues when completing environmental ensure full compliance with the this comment relate to a specific wind analysis. Nonetheless, because of the purposes and provisions of NEPA.’’ 40 energy development project that is no emphasis in NEPA on the ‘‘significance’’ CFR 1507.3(a). TVA has complied with longer under consideration. While of environmental impacts, TVA revised these requirements in establishing the comments related to the Crab Orchard the sentence in the final rule by additional list of CEs and revising other project are outside the scope of this CEs. Many of the new CEs reflect rulemaking process, TVA notes that the replacing ‘‘important environmental actions that TVA had previously final rule includes procedures for issues’’ with ‘‘issues that are potentially excluded under more broadly defined determining the scope of the federal significant.’’ CEs. Newly defined categories and action being proposed, including wind Comment: Given the complexity of revisions to existing CEs provide energy projects, and appropriate levels TVA’s proposed rule, TVA did not clarification and transparency regarding of environmental review and public provide adequate time for the public to the type of actions covered by a CE and involvement for those actions. review the proposed rule. help limit its use to specific actions. Comment: The Tennessee Wildlife Response: The publication of the Comment: The proposed procedures Federation wishes to collaborate with proposed rule in the Federal Register do not address the increased uncertainty TVA to develop and establish policies to initiated a 60-day public comment due to climate change and state that fill in any critical gaps in public period (82 FR 26620, June 8, 2017). TVA must practice caution in relying on communication and understanding that After publication of the notice, TVA the impact findings of past decades as may result from approval of key CE, and received stakeholder requests to extend its basis for conclusions about potential to provide important guidance and the comment period; in response, TVA impacts of future actions. needed transparency. TVA should plan extended the period an additional 30 Response: TVA notes that CEQ for worst-case scenarios to ensure days. The 90-day comment period guidance states that an agency’s past consistency in the future in the absence ended on September 6, 2017. Just prior experience should serve as the basis for of the formal NEPA requirements. to the close of the review period, one identifying whether a proposed activity Response: Thank you for expressing commenter requested a further is one that normally does not require interest in collaborating with TVA. We extension of the comment period. TVA further environmental review (75 FR will continue to seek opportunities for considers 90 days to be adequate; E.O. 75631, December 6, 2010). Although collaboration with stakeholders to 13563, Improving Regulation and past experience serves as the basis for improve our decision-making processes. Regulatory Review, establishes 60 days the list of CEs, TVA relied on a variety Comment: TVA lacks the authority to as the standard duration of comment of supporting information in reinterpret NEPA and CEQ regulations periods for informal rulemaking establishing its CEs. TVA recognizes the in its implementing procedures. TVA processes (75 FR 3821, January 21, importance of understanding changes in impermissibly paraphrases the CEQ 2011). the environment, including climate regulations and improperly constrains Comment: TVA has not provided change, and of using high quality its obligations to comply with adequate documentation to the public to information and scientific analyses to requirements set forth in NEPA and the evaluate the basis for TVA’s proposed inform its decisionmaking. For instance, CEQ regulations. rule.

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Response: TVA’s Federal Register comply with Section 106 of the National require additional environmental review notice provided relevant supplementary Historic Preservation Act (NHPA) in in an EA or an EIS should depend not information associated with the place of the regulations at 36 CFR 800.3 solely on the presence of sensitive proposed rule, including a lengthy through 800.6. resources, but also on the potential that statement of the basis and a description Response: TVA occasionally uses the those resources would be impacted by of the proposed changes to each section process established under 36 CFR 800.8 the proposed action. When appropriate, of the procedures (82 FR 26620, June 8, when beneficial and will continue to do TVA will consult with the U.S. Fish and 2017). TVA also prepared and made so. The final rule encourages early Wildlife Service to analyze the potential available its Proposed Categorical coordination and public involvement in impacts to threatened or endangered Exclusions Supporting Documentation the NEPA process. TVA prefers not to species and apply appropriate measures (Supporting Documentation) for the include specific provisions relating to to address those impacts. TVA would proposed CEs to describe its review of compliance with the NHPA in its NEPA not apply a CE to any action with the CEs and to support its findings that procedures, but would continue to use potential to result in the lethal taking of certain categories of actions do not the process in 36 CFR 800.8 to gain a threatened or endangered species. result in significant environmental efficiencies. Comment: The Department of the effects. TVA prepared the document to C. Comments on Subpart C—Categorical Interior recommended that TVA modify comply with CEQ’s guidance to agencies Exclusions TVA’s extraordinary circumstances on substantiating changes to agency CEs section (18 CFR 1318.201 of the final Comment: Under its procedures (75 FR 75628, December 6, 2010). The rule) regarding special status species in addressing ‘‘extraordinary organization that made this comment a manner that is consistent with the circumstances,’’ TVA is adding that ‘‘the submitted a Freedom of Information Act Department’s language as well as other mere presence of one or more of the (FOIA) request seeking several thousand Federal agencies. records associated with almost 700 resources’’ listed does not preclude the use of a CE, and the determination of Response: In response to the NEPA reviews. TVA fulfilled the request Department of the Interior comment, in compliance with FOIA. whether extraordinary circumstances exists depends upon the existence of a TVA has revised this provision on B. Comments on Subpart A—General cause-effect relationship between the extraordinary circumstances under Information proposed action and the effect on the § 1318.201(a) in the final rule. ‘‘Threatened or endangered species’’ is Comment: TVA cannot define the resources. Regarding threatened and term ‘‘controversial’’ as proposed in endangered species, it is our replaced with ‘‘Species listed or Subpart A of its proposed rule. understanding that consideration of proposed to be listed under the Response: The language in the rule these is not specified in the CEs, but the Endangered Species Act on the List of reflects current case law addressing the provision (in § 1318.201(b) of the final Endangered or Threatened Species, or meaning of ‘‘controversial’’ under rule) would still allow for an action designated Critical Habitat for these NEPA. Courts have consistently held involving threatened or endangered species.’’ This change accurately reflects that controversy refers to disagreement species to be categorically excluded and the current practice of TVA to review with respect to the characterization of preclude the opportunity for public for potential impacts to listed species as the effects on the quality of the human review and comment. TVA should well as species proposed to be listed, environment, rather than opposition to ensure appropriate consideration of and to the habitat on which such a proposal. See, e.g., Native Ecosystems species in need of management. If there species rely, when considering whether Council v. U.S. Forest Serv., 428 F.3d are federally-listed threatened and it is appropriate to apply a CE to an 1233, 1240 (9th Cir. 2005) (stating that endangered species on TVA managed action. mere opposition or uncertainty does not lands or lands where TVA is working, Comment: TVA should identify render a project ‘‘controversial’’ under actions should not be categorically potential wind turbine projects as NEPA); River Road Alliance, Inc. v. excluded. ‘‘Extraordinary Circumstances.’’ Corps of Engineers, 764 F.2d 445, 451 Response: TVA’s NEPA procedures Response: A commenter who raised (7th Cir. 1985) (‘‘[P]ublic opposition [to require that extraordinary circumstances concerns about a specific wind energy a project] would be the environmental be reviewed prior to determining project also stated that a potential counterpart to the ‘heckler’s veto’ of whether an action qualifies as a CE. One electrical transmission interconnection First Amendment law.’’). of the extraordinary circumstances is to wind turbine projects should be TVA will continue to consider the whether there is potential that considered an extraordinary context and intensity of a potential threatened or endangered species would circumstance. TVA notes the list of impact to determine whether the action be significantly impacted by the action extraordinary circumstances in the final has the potential to significantly affect (§ 1318.201(a)(1)(i) of the final rule). rule are factors or circumstances in the environment; the definition of TVA’s final rule incorporates changes to which an action listed by TVA as a CE ‘‘controversial’’ clarifies that a dispute TVA’s list of extraordinary has the potential to cause significant as to the size, nature or effect of the circumstances to make it clearer that an environmental effects, thereby requiring action’s impacts must be supported by impact to sensitive resources, including further analysis and documentation in scientific commentary that casts doubt threatened or endangered species, is an an EA or an EIS. It would be on the agency’s methodology or data. important factor for consideration in inappropriate to include a specific type Comment: The Commonwealth of determining whether a CE should be of action to the list of extraordinary Virginia Department of Historic used. circumstances; however, whether Resources encouraged TVA to include a Under § 1318.201(b), TVA will review ‘‘extraordinary circumstances’’ are brief statement of the possibilities and the presence of sensitive resources as a present would be analyzed for all advantages of the coordinating process factor to consider in making a projects including wind projects. TVA and documentation required for the determination whether the resource may notes that the final rule does not include preparation of an EA and finding of no be impacted by the action. TVA’s final a CE for industrial-scale wind projects significant impact (FONSI) or an EIS rule also clarifies that the determination of the type that are of concern to the and Record of Decision (ROD), to that an extraordinary circumstance will commenter.

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Comment: The proposed procedures Comment: TVA’s definition of defined at 40 CFR 1508.20) a potential regarding the identification of ‘‘extraordinary circumstances’’ impact or to resolve an extraordinary extraordinary circumstances are improperly segregates consideration of circumstance. Under the final rule, TVA inconsistent with NEPA and CEQ ‘‘controversy’’ from determining may modify a proposed action in order guidance. significance. to resolve or alleviate the circumstances Response: Under § 1318.201(a), the Response: The division of the section that are considered extraordinary. In final rule provides that an action that into separate paragraphs (with other cases, TVA may implement may otherwise be categorically excluded § 1318.201(a)(1) identifying specific mitigation measures that address the may not be so classified if an environmental resources and circumstances and ensure that no extraordinary circumstance is present § 1318.201(a)(2) addressing controversy) significant impacts from the action and cannot be mitigated. If any of the does not segregate ‘‘controversy’’ from would occur. Often, the mitigation extraordinary circumstances listed in the extraordinary circumstances measures are identified through other Section 1318.201(a) apply to the determination. Rather, it reflects proper environmental processes (such as proposed action, TVA would consider organization: Controversy is included consultation under NHPA or the whether the proposal can be modified to under § 1318.201(a)(1) since it is not an Endangered Species Act (ESA)). resolve the circumstances that are ‘‘environmental resource.’’ Comment: TVA’s proposed CEs are considered extraordinary. In some cases, Consideration of whether the written so broadly that they would such measures to resolve extraordinary significance of environmental impacts is apply to almost every activity the utility circumstances may be required through or may be ‘‘highly controversial’’ is still undertakes and threaten public health, the application of other environmental an important consideration in public safety and the environment. regulatory processes (e.g., the Clean determining whether extraordinary Several terms used in CE definitions are Water Act or NHPA) such that the circumstances exist, and the procedures too subjective and lack sufficient potential for significant impacts to the now more clearly reflect CEQ’s specificity. resource is resolved. Other regulatory significance criteria. Response: TVA disagrees that the processes, including consultation with TVA did not remove consideration of changes represent a broad expansion in State Historic Preservation Officers or ‘‘other environmentally significant the scope of actions that may be the U.S. Fish and Wildlife Service, resources’’; the text of the procedures categorically excluded. The expanded sometimes provide appropriate was revised for clarity and TVA added list still covers only those categories of measures to resolve extraordinary to § 1318.201(a)(1) a statement that it actions that individually or circumstances, which facilitate the would consider whether ‘‘the action has cumulatively do not have a significant identification of appropriate the potential to significantly impact impact on the environment. Many of the mitigations, but do not replace TVA’s environmental resources, including the actions specifically addressed in new compliance with NEPA. following resources: . . . .’’ The CEs have been covered under the more Other agencies have recently purpose of this section was not to broadly defined CEs established by TVA promulgated similar procedures for exclude consideration of in 1980, as disclosed in the Supporting extraordinary circumstances, including environmentally significant resources Documentation. For example, one of the the National Aeronautics and Space not specifically enumerated, but to CEs established in 1980 (CE 5.2.1, Administration, the National Capital identify resources most likely to be ‘‘Routine operation, maintenance, and Planning Commission, and the Air encountered. minor upgrading of existing TVA Force Retirement Homes. TVA also Comment: TVA procedures facilities’’) is replaced by multiple new notes that the cause-effect relationship addressing extraordinary circumstances CEs. Many of the CEs established in between a proposed action and the (18 CFR 1318.201 of the final rule) fail 1980 lacked specificity and limiting potential effect on resources is also to distinguish between the routine criteria so that they were subject to considered by the U.S. Forest Service mitigation which is a type of best broad interpretation over time by staff. when reviewing for extraordinary management practice and the more The new and revised CEs included in circumstances (see 36 CFR 220.6(b)(2)). expansive mitigation actions described the final rule represent a more detailed As noted above, when issuing its final at 40 CFR 1508.20. TVA fails to list of specific activities that are tailored 2010 guidance on CEs, CEQ stated in its distinguish between actions for which to TVA programs. preamble that it had received specific routine procedures address impacts and In its 1983 guidance on NEPA comments noting that, ‘‘the has been overly broad in its discussion regulations, CEQ encouraged agencies to determination that an extraordinary of ‘‘mitigated actions.’’ The procedures ‘‘consider broadly defined criteria circumstance will require additional contain language about mitigation that which characterize types of actions that, environmental review in an EA or an would allow agencies to downgrade based on the agency’s experience, do EIS should depend not solely on the significant impacts that had the not cause significant environmental existence of the extraordinary potential for an EA and public input. effects’’ (48 FR 34263, July 28, 1983). circumstance but rather on an analysis Response: As previously stated, Later, in 2010, CEQ guided agencies to of its impacts.’’ In reply to this TVA’s procedures do not supersede clearly define eligible categories of comment, CEQ stated that it agreed with those of CEQ. The use of the term actions and the factors that would this perspective (75 FR 75629, ‘‘mitigation’’ in § 1318.201 is consistent constrain their use. With the list of CEs December 6, 2010). TVA’s rule is with the definition of the word in 40 in the final rule, TVA has struck a consistent with this guidance. A CFR 1508.20. TVA considered the balance between these two ends of the determination of the potential effects of comment and does not find it necessary guidance spectrum. It has established an action and its severity should be to include in its procedures a CEs that are not so narrow that they considered by TVA to identify the distinction between routine and the would not allow TVA flexibility to situations or environmental settings non-routine mitigation, as suggested by consider project-specific issues but that when an otherwise categorically the commenter. are more specific so as to improve excludable action merits further TVA disagrees with the comment that clarity and avoid misapplication. analysis and documentation in an EA or a CE cannot be used when it is possible As discussed in the Supporting an EIS. to modify a proposal to mitigate (as Documentation prepared by TVA to

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substantiate its CE revisions, TVA also specialists to consider and document the form of a CEC. Generally, proposed uses several terms in the definition of its whether there are any extraordinary actions that carry little probability of CEs as narrative descriptors of circumstances associated with a significant environmental impacts (e.g., parameters appropriate for the CE’s use. proposed activity. Often, specialists those that do not result in ground For instance, terms like ‘‘minor,’’ conduct field visits to make their disturbance) do not require such ‘‘limited,’’ ‘‘small,’’ ‘‘routine,’’ and determinations. Using the CEC, TVA documentation, consistent with CEQ’s ‘‘small-scale’’ are included as specialists verify that a proposed 2010 guidance that ‘‘there is no practical limitations in some CEs. Several such activity falls within the definition of the need for, or benefit from, preparing descriptors have been included in CE and that there are no extraordinary additional documentation when TVA’s procedures since 1980. TVA has circumstances associated with the applying a categorical exclusion to those determined that these narrative activity. activities.’’ (75 FR 75636, December 6, parameters are effective for assessing As TVA has always done, some 2010) application of the CEs and will continue routine activities with no potential for When establishing its NEPA to apply a reasonable interpretation to environmental effects (training procedures in 1980, TVA did not such terms on a project-specific basis. personnel, or changing a bathroom specify in its procedures whether CEs TVA would continue to consider the faucet) would not require paperwork to required documentation. Rather, TVA potential intensity of a proposed action check for environmental effects. Even provides to staff administrative when interpreting such descriptors in for categorically excluded activities, guidance to establish documentation making CE determinations. (In its 2010 TVA must comply with other applicable requirements. TVA will continue to guidance, CEQ notes that when laws and requirements, including the determine documentation requirements identifying extraordinary circumstances, ESA, the Clean Water Act, and NHPA, through implementing internal guidance agencies commonly use factors similar further ensuring that significant rather than including such requirements to the intensity criteria for determining environmental impacts would not in the final rule. Such an approach significance pursuant to 40 CFR occur. allows TVA flexibility to change 1508.27(b).) The term ‘‘minor’’ is well Comment: TVA’s justifications for guidance if the need for additional understood by TVA staff as applying to expanding the list of CEs falsely rely on documentation is identified or as the actions limited in scale and scope; the assumption that actions that had agency acquires experience with under the final rule, the term in some insignificant effects in the past must implementing the new CEs. therefore have an insignificant effect in CEs is accompanied by a new spatial Comment: TVA should engage an the future. Past findings are not likely to limitation. TVA notes that procedures of expert panel to evaluate scientific basis hold up in these days of climate change many federal agencies include similar for expansion of CEs and narrative descriptions. As with each where ecosystem compositions and implementation of floodplain Federal agency, TVA must ensure that their resiliency are threatened. management. the CEs are appropriately used, that staff Response: CEQ’s 2010 guidance on Response: A team of environmental is adequately trained, and that CEs provides direction on how to and legal professionals was involved in environmental compliance is ensured substantiate new or revised CEs: ‘‘An the development of the revised through the implementation of these agency’s assessment of the procedures by responsible staff and environmental effects of previously procedures. The team included TVA managers. implemented or ongoing actions is an environmental professionals, including TVA’s use of the term ‘‘generally’’ as important source of information to a flood plains management specialist, as used in spatial limits indicates that the substantiate a categorical exclusion. well as external contributors with limit is not a strict limit. If a project area Such assessment allows the agency’s extensive experience in environmental slightly exceeds the spatial limit, some experience with implementation and compliance. In addition to these consideration may be made by staff to operating procedures to be taken into professionals, TVA relied on its determine whether the CE may still account in developing the proposed extensive experience as well as the apply based on consideration of categorical exclusion.’’ (75 FR 75631, experiences of other federal agencies potential impacts. TVA would not apply December 6, 2010) Consistent with this when defining its CEs. the CE to actions that substantially guidance, TVA cited to and relied on Comment: The Commonwealth of exceed the spatial limit. The term almost 700 previously implemented Virginia Department of Historic ‘‘including, but not limited to’’ activities to support the establishment Resources recommends that TVA introduces exemplary actions to which or revisions of CEs. As stated above, include that CEs under NEPA may still the CE applies; CEQ has encouraged although past experience serves as the require compliance with the NHPA and agencies to identify representative basis for the list of CEs, TVA recognizes ESA. examples of the type of activities the importance of understanding Response: In response to this ‘‘especially for broad categorical changes in the environment, including recommendation, TVA added a exclusions’’ in order to further clarify climate change, and of using current statement in the procedures to clarify the types of actions covered (75 FR high quality information and scientific that the use of a CE does not relieve 75632, December 6, 2010). analyses to inform its decisionmaking. TVA from compliance with other For most activities that could qualify The extraordinary circumstance statutes or consultations. This statement for a CE, TVA specialists complete a provision at § 1318.201 provides TVA has been inserted at § 1318.200(e). TVA categorical exclusion checklist (CEC) to the ability to consider changes in the notes that a majority of actions that document TVA’s review of the proposed environment that would make the use of qualify for a categorical exclusion are activity. The CEC consists of 60 a CE inappropriate. also covered under a programmatic questions about potential site-specific Comment: TVA should require that all agreement under Section 106 of the environmental issues associated with an CEs are documented and should NHPA that was developed through a activity and is completed by an promulgate the documentation review process involving the public, the interdisciplinary team to document requirements in the rule. Advisory Council on Historic their findings. The CEC is part of an Response: TVA notes that a majority Preservation, the State Historic automated system that prompts TVA of its CEs will require documentation in Preservation Officers, and the tribes.

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Comment: The Eastern Band of the regulations requiring that agencies because CEs are established for Cherokee Indians requested that TVA consider connected actions. Under categories of actions without knowledge continues to alert the tribes when TVA’s final rule, larger projects may not of the specific locations of these actions. historic resources or gravesites are be broken down into small parts such The assessment of site-specific impacts found while actions under the new that the use of a CE for a small part is more appropriately undertaken by proposed CEs are undertaken. In these commits TVA to a plan of action for the TVA when applying the CEs. instances, work should be stopped larger project. TVA NEPA compliance Consistent with CEQ’s 2010 guidance, immediately and tribes should be staff responsible for oversight of the the discussions of revised or new CEs consulted. procedures will continue to review vary. The amount of information Response: This practice is currently proposals to verify that the action is not provided by TVA to substantiate each observed by TVA and no changes to an interdependent part of a larger revised or new category depends on the TVA’s NEPA procedures affect TVA’s proposal that has no independent type of activities included in the continued commitment to comply with utility. Further, TVA has taken care to proposed category of actions and their the requirements of NHPA, the Native define each CE to ensure it covers stand- potential to result in significant American Graves Protection and alone actions that have independent environmental effects. For instance, Repatriation Act, or other laws relating utility. TVA programs implement TVA’s discussion of CEs for to historic properties. numerous activities to meet program administrative actions are less detailed Comment: Using CEs leads to less goals and objectives. While such than the discussions of CEs that are thorough environmental reviews and activities may be implemented to more likely to result in impacts to the less robust decisionmaking (e.g., it does achieve broad goals or missions of TVA, physical environment. In addition, not allow for considerations such as TVA does not agree that the TVA’s discussion of revisions to mitigation measures). implementing actions of TVA programs existing CEs are generally less detailed Response: A categorical exclusion is or missions are, necessarily, than the substantiating information not an exemption from environmental interdependent, connected or even provided for new CEs because the review under NEPA, but is instead the similar, as asserted by the commenter. revisions to existing CEs are typically result of an agency’s evaluation of a TVA does not agree with the assertion minor. class of actions that, in the absence of that all natural resource management Comment: The Supporting extraordinary circumstances, do not actions are connected actions, nor that Documentation fails to provide any individually or cumulatively have the all transmission development and analysis of the potential for potential to cause significant maintenance actions, all road cumulatively significant effects on any environmental impacts. TVA’s final rule development and management actions, of the 50 proposed CEs. identifies procedures that require TVA and all electricity regulation actions are Response: TVA’s Supporting staff to conduct reviews of the proposed connected due to ‘‘binding Documentation provides information action to determine whether it would be characteristics.’’ Such an interpretation and includes a brief description of the appropriate to use a CE for the action is unreasonable and inconsistent with common impacts of activities that and to ensure that extraordinary CEQ regulations as well as TVA NEPA would be covered under new or circumstances are not present. Because procedures and practices. Further, TVA expanded CEs. As stated in the previous the vast majority of actions undertaken notes that in the 2011 Natural Resource response, the documentation is by federal agencies have no significant Plan (NRP) EIS, TVA committed to consistent with CEQ’s 2010 guidance environmental impacts, CEs are the conducting an ‘‘appropriate’’ level of regarding establishing CEs. The covered most frequently used approach for NEPA review; such reviews may be actions are minor in nature and would federal agencies to comply with NEPA. completed as CEs, EAs or EISs, not result in individually or For example, between 2013 and 2018, depending on the nature of the cumulatively significant impacts. TVA TVA evaluated over 12,000 actions proposal, its potential impacts, and considered the frequency with which under CEs but less than 200 that whether the action meets the definition the categorically excluded actions are required completion of an EA or EIS. of an established CE. applied when identifying new CEs. CEQ considers CEs to be efficient tools Comment: In its Supporting Further, many of the CE actions most for conducting a review process for Documentation, TVA does not take the likely to result in ground disturbance actions which typically do not have required hard look at the potential are limited in scope and infrequent and significant effects on the human direct and indirect environmental would not be conducted as segments of environment. In cases where TVA effects of the individual and cumulative greater development proposals, thereby specialists identify the potential for application of the CEs. reducing potential cumulative effects. adverse impacts and/or the need for Response: CEQ’s guidance to agencies Comment: In its Supporting mitigation to address the impacts, TVA on establishing CEs directs the Documentation, TVA does not consider would carefully consider whether it is preparation of documentation with the climate-related impacts of any of the appropriate to use the CE or to complete sufficient information to substantiate proposed CEs; certain categories of an EA or EIS. the new CEs (75 FR 75628, December 6, actions have potential to contribute to Comment: TVA’s proposed CEs 2010). TVA included in the Supporting climate change and/or be affected by segment activities in a manner that Documentation a summary of the climate change. avoids NEPA review of activities that, general types of impacts that would Response: As noted above, TVA’s considered together, would require an occur for such actions, based on TVA’s Supporting Documentation for the CEs EA or EIS. TVA may not create CEs for experience with these actions and input provides a summary of findings based activities that would normally tier to from interdisciplinary experts. This on past environmental reviews. While programmatic EAs and EISs (e.g., TVA’s information provides important context the assessment of impacts in the Natural Resource Plan). to TVA’s findings that such actions do Supporting Documentation is Response: TVA addresses the not, individually or cumulatively, result necessarily general in nature, TVA will potential segmenting of actions in in significant environmental effects. The continue to consider the potential § 1318.200(c) of the final rule and will description of impacts in the Supporting environmental impacts of proposed site- continue to comply with CEQ Documentation is general in nature specific actions, including their

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potential to contribute to climate considers all mitigation measures and commonly addressed when applying change, prior to applying the CEs. TVA best management practices that are mitigation to proposed actions. The notes that CEs that include in-kind incorporated into a proposed action in review by TVA for extraordinary replacement of turbines, purchase of its decision whether to apply any CE to circumstances will allow TVA to existing combustion turbine or that action. This approach is supported determine whether mitigation measures combined-cycle plants, or certain rate by the CEQ final guidance on the are necessary and to consider whether changes are defined to limit covered ‘‘Appropriate Use of Mitigation and additional environmental review at the actions to those which result in no new Monitoring and Clarifying the EA or EIS level is necessary. emissions or in very minor generation Appropriate Use of Mitigated Findings Based on public input, TVA again changes, thereby ensuring no significant of No Significant Impact’’ (76 FR 3843, reviewed the 215 EAs and FONSIs cited impact to the environment. January 21, 2011). In its guidance, CEQ in the Supporting Documentation and TVA notes that certain shoreline and noted that ‘‘[m]any Federal agencies rely confirmed that the vast majority of EAs floodplain impacts of climate change on mitigation to reduce adverse and FONSIs provide support for the may be tempered because TVA actively environmental impacts as part of the proposed CEs. However, TVA found manages the Tennessee River system to planning process for a project, that it would not be appropriate to rely reduce flooding. The commenter also incorporating mitigation as integral on some of the cited EAs and FONSIs noted potential impacts of certain components of a proposed project to support the proposed CEs. TVA activities to bat species. Each proposed design before making a determination updated the Supporting Documentation action would be reviewed for about the significance of the project’s by removing 30 EA and FONSI citations; extraordinary circumstances, including environmental impacts. Such mitigation the updated document is available for the potential to impact listed or can lead to an environmentally public review at the TVA NEPA website proposed threatened and endangered preferred outcome and in some cases (https://www.tva.gov/nepa). TVA species. As noted above, TVA revised reduce the projected impacts of agency believes that the information provided the CE procedures at § 1318.200(d) to actions to below a threshold of in the updated Supporting affirm that the use of a CE does not significance. An example of mitigation Documentation complies with CEQ’s relieve TVA from compliance with ESA measures that are typically included as 1983 and 2010 guidance on establishing and other statutes. part of the proposed action are agency CEs and adequately supports our Comment: The EAs and EISs cited by standardized best management practices determinations regarding the proposed TVA in its Supporting Documentation such as those developed to prevent CEs. do not support the proposed CEs. Many storm water runoff or fugitive dust Comments addressing the of TVA’s cited EAs and EISs included emissions at a construction site’’ (Id.). segmentation of actions addressed mitigation measures; an agency must Several mitigation measures under programmatic EISs are address ensure that mitigation measures in cited identified in the cited EAs and FONSIs above. TVA notes that the most EAs and EISs are ‘‘integral components’’ were developed through other frequently cited EIS in its Supporting of the actions included in a CE. environmental compliance processes Documentation is the NRP EIS. The Response: The Supporting (e.g., through consultation with U.S. documentation notes that at the Documentation provided by TVA cites Fish and Wildlife Service regarding completion of the EIS, TVA determined to almost 700 NEPA reviews (CEs, EAs, endangered species or through that no significant adverse impacts and EISs). TVA listed many NEPA coordination with the U.S. Army Corps would result from implementing the records and described others in greater of Engineers to address impacts to plan and many beneficial impacts were depth when they were particularly wetland resources). TVA considers such described. In numerous sections of the relevant to the category of actions. In measures to be integral components of Supporting Documentation, TVA addition to the support provided by the the proposed action because TVA’s highlighted several EISs that were vast array of cited EAs and EISs in the action could not be implemented representative NEPA documents of the documentation, the expertise acquired without compliance with these other relevant analyses conducted by TVA by TVA through the implementation of environmental laws and regulations. that supports its findings for specific NEPA over four decades also Commenters request that the CEs and provided a summary of the EIS substantiates the proposed CEs. TVA’s mitigation measures listed in the cited and its findings in the narrative. Supporting Documentation represents a EAs and FONSIs be included in the Comment: The CEs of other agencies sufficient summary of the relevant definition of the CE because they are that TVA uses as benchmarking information to substantiate its integral components of the category of examples in the Supporting determinations that these categories of actions. Because the majority of Documentation do not support the CEs actions do not normally result in mitigation measures listed in the cited as written. significant environmental impacts. EAs and FONSIs are included in the Response: The inclusion in TVA’s Many of the EAs and associated project design or derive from TVA’s Supporting Documentation of the CEs of FONSIs cited by TVA in its Supporting compliance with other environmental other agencies as benchmarks for the Documentation include mitigation laws, TVA does not consider it CEs in the final rule is appropriate. The measures to address impacts; some of necessary to include potential documentation includes a short these mitigation measures resolve mitigations in a CE’s definition. Rather, discussion of how comparable the potentially significant impacts. The what is integral is the review by TVA of agency’s CE is to the TVA category and most commonly listed mitigation proposed actions to determine whether describes supporting information, when measures in TVA FONSIs include mitigation measures are needed. In available, from the administrative standardized best management practices addition to the limits included in the records issued by the agencies when the implemented by TVA (e.g., to address definitions, which are intended to CEs were established. TVA noted in the storm water runoff at a construction eliminate the potential for significant documentation the extent to which the site); although listed as mitigating impacts, TVA’s consideration and CEs were similar and supported its CE, measures, TVA considers these to be review for extraordinary circumstances highlighting which were more relevant standard practices that are incorporated prior to use of a CE address the same or to the TVA CE and which provided less into TVA’s project design. TVA similar environmental concerns that are or only partial support. The

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benchmarked CEs were intended to review will verify that no extraordinary 16 constructing new transmission provide additional support for the TVA circumstances exist that would preclude infrastructure falls under an exemption. CE; TVA relied primarily on its own the use of CE 19. The commenter asserts that the category experience in identifying categories of Comment: Proposed CE 16, which of actions has significant direct, indirect actions that do not typically result in includes the construction of new and cumulative effects, and TVA has significant environmental impacts. transmission lines and substations, not taken a ‘‘hard look’’ at the Comment: By proposing to would allow TVA to construct new environmental effects of activities categorically exclude electricity transmission line infrastructure in applicable to CE 16, simply citing its contracts (under CE 6) without limiting increments of ‘‘generally’’ 10 miles, as own NEPA analyses and ignoring the application to situations where the long as they ‘‘generally’’ require no effects of CE 16. contract will definitively not have such more than 125 acres of new rights-of- Response: TVA did not propose CE 16 impacts, TVA undermines the CEQ way, no more than 1 mile of new access as a means to avoid tiering such site- requirement that agencies consider road construction, and support facilities specific analyses to the programmatic reasonable alternatives to a proposed that physically disturb no more than 10 EIS it is currently preparing to address action. acres. The inclusion of the term rights-of-way vegetation management. Response: The proposed revision to ‘‘generally’’ means that the explicit 10- That EIS does not address the impacts the CE established by TVA in 1980 was mile limitation is meaningless. TVA associated with construction of new intended to clarify that transactions that provides no rationale for why a 10-mile transmission infrastructure, but spur expansion or development of transmission line does not have vegetation maintenance on existing facilities and/or transmission significant environmental effects, while lines. infrastructure are not covered under the an 11-mile transmission line would. TVA’s experience supports the CE. Upon further internal deliberation, Without limiting the contiguous determination that construction of new however, TVA determined that no application of CE 16, TVA could simply transmission lines, when limited, would clarification was needed to the CE, as break up a 150-mile; 1,000-mile; or not result in significant environmental staff shared that understanding of the 10,000-mile stretch of new transmission impacts. As noted in TVA’s Supporting existing CE. In the final rule, TVA infrastructure into 10-mile increments Documentation, CE 16 would not cover carries forward the existing CE without and categorically exclude all of its the construction of a 500-kV revision as CE 6. activities. transmission line up to 10 miles, as Comment: Proposed CE 15, which Response: CEQ regulations and asserted by the commenter, because addresses transmission line guidance and TVA’s final rule 500-kV lines have a wider right-of-way. maintenance actions, violates and (§ 1318.200(c)) prohibit the use of a CE Rather, with the acreage limit included contravenes the injunction of the United on a segment or interdependent part of in the CE (125 acres), less than 5.9 miles States District Court in Sherwood v. a larger proposed action. The TVA of new 500-kV transmission line TVA. There should be no CE for environmental compliance staff remains construction would be allowed. vegetation management due to the responsible for screening proposed In its Supporting Documentation, adverse impacts it has on the actions and ensuring that larger projects TVA included a summary of common environment. are reviewed in their entirety. As noted impacts associated with such actions. Response: TVA has withdrawn the above, TVA would not categorically TVA’s review of potential impacts of proposed CE pertaining to right-of-way exclude contiguous proposals as such actions, as limited, is based on maintenance actions from the final rule. asserted by the commenter. decades of experience, dozens of NEPA TVA is currently undertaking a TVA explains that the 10-mile and records, benchmarking to other federal programmatic environmental review of 125-acre limits are established based on agencies, and the professional expertise these actions. extensive TVA experience and provides and knowledge of staff. TVA agrees that Comment: The implementation of a discussion of these limits in the CE when considering these actions, a proposed CEs 15 and 19, both of which Supporting Documentation (background review must be conducted to determine deal with the vegetation management discussion of CE 16). For instance, in its the potential impacts to resources; TVA decisions in TVA transmission 2015 and 2019 Integrated Resource would complete a CEC for each action, corridors, have the potential to impact Plans (IRP) EIS, TVA reviewed dozens allowing qualified TVA specialists to high natural resource land that contain of TVA projects and their impacts. For review the proposals and identify habitation for plant and wildlife as well those EIS reviews, dozens of EAs potential extraordinary circumstances. drinking water supplies. completed since 2005 were identified Use of the CE for such actions does not Response: As noted above, TVA has that address new transmission line relieve TVA from compliance with other not carried the proposed CE 15 construction, including 11 EAs statutes, including ESA. If the pertaining to right-of-way maintenance addressing new transmission extraordinary circumstances cannot be actions into the final rule. TVA notes construction over 10 miles. See Table 5– resolved, TVA would complete an EA or that CE 19 pertains to ending vegetation 2 of the 2019 Final EIS (available at EIS. management activities, as transmission https://www.tva.gov/irp). As stated in TVA’s Supporting lines are retired. Under CE 19, TVA As stated in the Supporting Documentation, there are CEs of other would conduct a complete and thorough Documentation, the CE limits actions to agencies that provide support for TVA’s review of the proposed action using its no more than 10 miles in length and no findings that such actions do not CEC to determine whether extraordinary more than 125 acres of new ROWs. This typically result in significant circumstances exist that would require CE’s acreage limit applied to actions environmental impacts. TVA TVA to conduct additional involving new 500-kV transmission line acknowledges that these CEs are not environmental review. The CEC review construction would limit the length of identical to CE 16 and notes that TVA is conducted by a qualified such lines to less than 5.9 miles. bases its spatial limits in CE 16 on its multidisciplinary team of experts. Comment: TVA has conceded that an own experience. Existing current resource data will be EIS must be prepared for tree clearing Comment: In CE 16, TVA does not used when available, or new field data and vegetation management for existing define what types of mitigation would will be obtained when needed. The CEC transmission lines, however, under CE be required for wetland impacts and

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what parameters are needed for impacts. Should extraordinary proposals to verify that the action is not reviewing the area of impacted circumstances or the potential for an interdependent part of a larger wetlands. Proposed CE 16 should be significant effects be identified during proposal that has no independent limited to construction of new this review, TVA would not use a CE, utility. To clarify the limitations of this transmission lines less than 4 miles in but would prepare an EA or an EIS. CE, TVA revised the beginning of the length that do not require offsite TVA notes that its process for siting definition of CE 17 to clarify that the mitigation of wetland impacts. new transmission projects is designed to category includes only ‘‘routine’’ Response: TVA did not find it allow public input at various stages. modifications, repairs or maintenance appropriate to include the list of the Typically, TVA issues public actions and only ‘‘minor’’ upgrade of types of mitigation measures it would notifications and conducts public open and addition to existing infrastructure. implement to address wetlands in its house meetings for new transmission CEQ guidance affirms that CEs are not NEPA procedures. TVA notes that its line proposals to ensure that members of exemptions or waivers of NEPA review; wetland biologists take part in the the public that may be affected by the they are simply one type of NEPA review process of actions that may be project have an opportunity to learn review. Under CE 17, TVA will conduct categorically-excluded to determine more about the proposal and provide a complete and thorough review of the whether extraordinary circumstances feedback. These opportunities for public proposed action using its CEC to exist. These biologists conduct desktop input often precede the NEPA process identify extraordinary circumstances reviews and field surveys to determine and are conducted regardless of the that may require the preparation of an whether wetlands may be affected by an level of NEPA review. EA or EIS. The CEC review is conducted action. If wetlands may be impacted, As previously noted, TVA has added by a qualified multidisciplinary team of TVA coordinates with the U.S. Army § 1318.202 (Public Notice) to Subpart C experts. Existing, current resource data Corps of Engineers and state agencies in of the final rule to clarify that public will be used when available, or new compliance with Sections 401 and 404 notice and involvement may be field data will be obtained when of the Clean Water Act and determines provided by TVA for CEs ‘‘if TVA needed. Should the potential for whether impacted wetlands require determines that the public may have significant effects be identified during mitigation. If avoidance or minimization relevant and important information this review, a higher level of NEPA of wetland impacts is not possible, relating to the proposal that will assist review would be initiated. appropriate mitigation generally refers TVA in its decisionmaking.’’ TVA made two edits to the to compensatory mitigation via Comment: Proposed CE 17 would Supporting Documentation after purchase of credits from an offsite allow TVA to exclude the modification, reviewing the comments. In section wetland mitigation bank to offset loss of repair, and maintenance of all existing 3.17.3.3, TVA removed the reference to wetland function. The level of NEPA infrastructure, without limitation based communication-related equipment and review does not affect the determination on the activities’ geographic scope or structures because its inclusion was in of compensatory mitigation. Offsite environmental effects. The broad error. In section 3.17.3.4, TVA removed mitigation is a common practice language allows TVA to exclude any the Department of Homeland Security implemented to resolve wetland and all changes without incorporating CE as a benchmark CE for CE 17. An impacts. TVA’s experience has shown the NEPA process. earlier draft version of CE 17 included that the potential for wetlands impacts, Response: As presented in the actions relating to communication while real, is small and insignificant for Supporting Documentation, CE 17 is equipment that were later removed and actions that would fall under CE 16. based on TVA’s experience with the Supporting Documentation had not TVA uses assessment methods for hundreds of similar projects, been properly revised to remove the quantifying wetland functional capacity categorized as TVA’s CE 5.2.17 under information relating to communication and projecting loss of wetland function TVA’s previous NEPA procedures, equipment. TVA finds that the CEs of from proposed disturbances. amended by this rule. The extensive the Departments of Energy and When considering the extent of a records show that while the activities Commerce support TVA’s conclusion proposal’s wetland impacts, TVA contemplated under CE 17 could have that actions under CE 17 do not result wetland biologists apply standard localized, minor, short-term adverse in significant environmental impacts; analytical approaches and practices that effects, they do not cause significant thus, these benchmark CEs were are based on professional judgment, environmental effects. Through the retained. scientific norms, administrative development of several new CEs for Comment: Proposed CEs 15, 16, and guidance, and regulatory compliance. transmission-related actions, TVA is 17 do not adequately address TVA addresses such parameters in other providing more specific definitions of cumulative impacts, which should be forms of guidance and administrative these activities to clarify for TVA staff considered in siting. policy documents outside of NEPA. which activities may be categorically Response: TVA has considered the Comment: Construction actions such excluded. The special limitations and potential cumulative impacts of these as those under CE 16 should not be review for extraordinary circumstances categories of actions. Consistent with exempted from NEPA due to the conducted by TVA when these actions CEQ’s 2010 guidance on establishing projects’ potential to impact the are proposed ensure that these actions CEs, TVA considered the frequency environment and surrounding citizens would not result in significant effects. with which the categorically-excluded negatively. Transmission system CECs are actions may be applied and the Response: As stated in a previous typically prepared for small and isolated dispersed geographic area across which response, CEs are not exemptions from projects. Any system-wide effort to actions would occur across the seven- or waivers of NEPA review; they are a uprate a portion of the TVA state TVA region. The CEs include type of NEPA review. Under CE 16, transmission system would, by the spatial limitations to constrain the use TVA will conduct a review of the requirements of this procedure, be of the CE and ensure that cumulative proposed action using its CEC to assessed under a higher level of NEPA impacts are not significant (as noted determine whether extraordinary review. TVA NEPA compliance staff above, TVA has withdrawn CE 15 from circumstances exist and to confirm that responsible for oversight of the the final rule). CE 16 has a greater the action would not have significant procedures will continue to review potential for cumulative impacts than

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CE 17, due to the new disturbances specifies that TVA will ensure that a considered and reviewed the analysis associated with the actions. TVA notes larger project is not impermissibly conducted in its IRP EIS to determine that cumulative impacts associated with broken down into small parts such that the average impacts associated with new CE 17, which addresses modification, the use of a CE would irreversibly and or upgraded transmission infrastructure repair, maintenance, or upgrade of irretrievably commit TVA to a particular projects. existing transmission infrastructure, plan of action for the larger project. The spatial limit for area of would be limited, as most of this Further, § 1318.200(d) provides that disturbance (125 acres) is consistent infrastructure already exists. TVA has determined that the classes of with the limitation included in CE 16, In the Supporting Documentation, actions qualifying for CEs do not which is also supported by TVA TVA cites to numerous NEPA reviews individually or cumulatively have a experience and environment reviews (as that have occurred primarily since 2005. significant effect on the human explained in the Supporting These NEPA documents likewise serve environment, subject to review for Documentation discussion of CE 16). as a record of TVA’s consideration of extraordinary circumstances. Section Therefore, actions under CE 19, as cumulative impacts. In addition, TVA 1318.201 of the final rule specifies that circumscribed by the spatial limitation, relies on its integrated resource actions normally qualifying as a CE would not result in significant planning efforts to review actions cannot be reviewed at this level if an environmental impacts. TVA again needed to ensure the transmission of extraordinary circumstance is present notes that specialists will complete a power through the TVA region and that cannot be mitigated. These CEC for every application of CE 19 to consider their regional impacts. The IRP requirements in TVA’s NEPA ensure that the proposed CE would not was completed in 2011 and regulations set the boundaries for use of be applied when there are extraordinary supplemented in 2015. A new IRP was all of TVA’s CEs. circumstances requiring additional completed by TVA in 2019. The 2015 Comment: Regarding CE 19, tree NEPA review. and 2019 IRP Final EISs provide clearing and vegetation management The summary of potential impacts in important supporting information for practices for existing transmission the Supporting Documentation is the establishment of CE 16 and 17 and infrastructure have significant consistent with CEQ’s 2010 guidance are referenced in TVA’s Supporting environmental indirect, direct, and adequately substantiates the Documentation. individual, and cumulative effects, creation of CE 19. TVA disagrees with Comment: Proposed CEs 15, 16 and thereby requiring an EIS. If the tree the opinion of commenters regarding 17 should be withdrawn because TVA is clearing for maintaining rights-of-way the benchmarked CEs of other agencies; currently doing a programmatic EIS on and existing transmission has the CEs of other agencies cited by TVA its transmission systems. significant environmental effects, surely in the Supporting Documentation are Response: As noted above, TVA has the same is true for new transmission comparable to CE 19 and address withdrawn from the final rule the infrastructure. TVA has not shown that similar activities involving similar proposed CE (CE 15) pertaining to right- a 25-mile standard for rebuilding methods, occurring with similar of-way maintenance actions. The transmission lines will not have an frequency, timing and context. programmatic EIS currently underway is insignificant impact on the Comment: Proposed CE 20 should not focused on right-of-way vegetative environment. In its Supporting include surplus transmission or maintenance. TVA considers actions Documentation, TVA incorrectly states generation properties that have falling under CEs 16 and 17 to be that the three benchmarked CEs of other recreational and/or natural resource outside the scope of that programmatic federal agencies are ‘‘comparable.’’ value. EIS. Response: Categorical exclusion 19 Response: This CE does not apply to Comment: Proposed CE 18 contains addresses the common activities TVA generation properties. It applies only to no limit to the length, geographic scope, conducts to retire transmission lines or existing transmission-related equipment or environmental impacts that the to rebuild transmission lines that may and facilities. Generally, any properties installation of fiber optics, electricity require a limited right-of-way addressed in CE 20 are industrial in transmission control devices and expansion. The definition of the CE 19 character and, thus, are not suitable for supporting towers could have under the includes spatial limitations such that no recreational use and have limited CE. The CE does not set forth specific action would exceed 25 miles in length natural resources value. criteria for and identification of the or constitute an expansion of more than Comment: The definition of proposed actions that it proposes to categorically 125 acres of an existing right of way. CE 20 does not set forth ‘‘specific exclude (40 CFR 1507.3(b)(2)). Expansions of larger transmission lines criteria for and identification of’’ the Response: TVA does not consider the (e.g., 500kV) would be shorter in length actions that it proposes to categorically revision of this CE to expand the scope because of the 125-acre limit. These exclude, as instructed by CEQ (40 CFR of covered actions. Rather, the revision spatial limitations are not arbitrary. 1507.3(b)(2)). CE 20 must be rewritten to is intended to clarify and add additional TVA relied on a combination of its describe specific activities. examples of activities, as recommended extensive experience to identify a Response: TVA’s revision to this CE by CEQ in their 2010 guidance. TVA’s proper linear distance limit to ensure does not broadly expand the scope of examples are not intended to be that the category of actions would not the actions covered. The primary change exhaustive of all possible activities that result in significant environmental to this CE is that existing substations, fit within the subject class of activities. impacts. switchyards, and transmission TVA anticipates that the inclusion of As explained in the Supporting equipment would be included in examples will more clearly define for Documentation, the 25-mile limit for existing properties that may be TVA staff the activities associated with redevelopment along existing ROWs is transferred or leased under the CE. this CE. supported by previous environmental Because covered actions are limited to TVA notes that installation of optical reviews conducted by TVA that resulted existing infrastructure or rights-of-way, ground wire would have been covered in findings of no significant impacts; the actions are unlikely to alter the under the previous, broadly defined since 2002, TVA has reviewed 108 such environmental status quo and unlikely version of this CE (established in 1980). projects by completing CECs and 16 to result in any new environmental TVA’s NEPA procedure at § 1318.200(c), projects by completing EAs. TVA impacts. TVA’s experience supports its

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determination that transactions or turbine plants located in or near the TVA disagrees that the eight CEs of agreements to acquire or transfer Tennessee Valley. TVA notes that the other agencies do not support the new existing infrastructure do not typically purchase or lease of an existing facility CE. The CEs of other agencies need not change the environmental status quo. would only take place if it were in be identical to TVA’s CE to provide The replacement of the word ‘‘sale’’ keeping with the IRP. The TVA IRP and support; these CEs are comparable, with the word ‘‘disposal’’ in the the types of generation choices that TVA similar and relevant to TVA’s CE definition of the CE clarifies that the would consider would have already because they address the same types of action includes any transfer of been assessed in the IRP and its EIS actions. ownership, rather than just monetary prior to the use of this CE. An example action listed in the purchases. The word ‘‘disposal’’ refers Comment: TVA should withdraw proposed CE 22 was the ‘‘stabilization of to the transfer of the property, not the proposed CE 22 because it is sites.’’ TVA notes that dispersed destruction or demolition of the unreasonably broad and may be used to recreation sites such as trails or infrastructure; this definition of disposal inappropriately develop its public primitive campsites are more likely to is well understood within TVA by staff lands. TVA’s documentation does not be much smaller in size than developed and decision makers. In the context of support its findings. TVA should not TVA recreation sites that are more the CE, where other types of real estate categorically exclude any natural accessible to the public (e.g., actions are addressed, this term is not resource management activities. campgrounds, picnic areas, trailheads). unclear. The CE would not apply to Response: The definition of the CE Establishing and maintaining a proposals to demolish such sufficiently defines discrete and routine dispersed recreation site typically infrastructure. types of actions in well-defined settings. requires less intense, smaller-scale These actions are distinct from other TVA staff is familiar with the terms activities. The stabilization of dispersed actions relating to TVA’s transmission included in the CE and have experience recreation sites or facilities differs from system for which TVA may use a CE. in applying such terms. The term the stabilization of shoreline addressed Under the final rule, TVA will ensure ‘‘generally’’ does not negate the spatial in the NRP. The term ‘‘stabilization of that a larger project is not impermissibly limit but serves to provide TVA staff sites’’ in the context of dispersed broken down into small parts some discretion for an activity that may recreation management may apply to (§ 1318.200(c)). slightly exceed the limit. If a project minor actions at a discrete site or Comment: Proposed CE 21 lacks the area would slightly exceed the spatial portion of a site or facility to address specificity required by NEPA and the limit, project staff would consult with overuse or erosion or to make the site CEQ regulations to ensure that no TVA NEPA staff to determine whether or facility more resilient to impacts. For significant environmental impacts will the CE may still apply based on instance, rock cribbing may be added occur as a result of application of the consideration of potential impacts. As along a trail to address erosion or wear CE. TVA must evaluate the potential noted in the supporting document, TVA from use. To stabilize the trail section or impacts of its action against the actual has previously excluded such actions campsites, TVA would ‘‘harden’’ the baseline conditions (and level of under several CEs. The new CE is more site to concentrate impacts to one area emissions), rather than the permitted specifically defined than the previous, (e.g., a tent pad) and reduce impacts to levels. broadly defined CEs and provides adjacent vegetation and soils consistent Response: In response to this clarity and transparency regarding the with Leave No Trace principles. comment, TVA revised the CE to reflect types of actions covered. The actions Because the term ‘‘hardening of sites’’ is that the planned operation by TVA of identified in the text of the CE are a term more often used by TVA purchased or leased facilities should be provided as examples to improve clarity specialists and outdoor recreation consistent with the ‘‘normal operating and transparency. professionals than ‘‘stabilization of levels’’ of the existing facilities rather The discussion of impacts in each sites,’’ TVA has revised the CE to than the limits identified in the section of the Supporting include both ‘‘hardening’’ and facilities’ environmental permits. This Documentation is, as noted in the ‘‘stabilization’’ of site. The change revision will further ensure that impacts document, a summary of TVA’s findings would be a better example of a covered to the environment are insignificant that further demonstrate how TVA made action because it is more familiar. because the category of actions would its determination that such actions do Comment: TVA should either adjust effectively be limited to the continuing not typically result in significant CE 23 so that it complies with the operation of an existing facility. environmental effects. Prior to requirements of NEPA, or it should Under the final rule, TVA would conducting some actions, TVA would withdraw it as a CE. consider whether an action has the review each proposal to determine if Response: TVA revised this CE to potential to significantly impact extraordinary circumstances exist. If include example activities and to add a environmental resources due to they do, an EA or EIS would be spatial limitation on activities. The extraordinary circumstances before a CE prepared if the extraordinary examples improve clarity and can be used. Before using the CE, circumstances cannot otherwise be transparency regarding the types of consideration would be given to resolved. actions that fall under the CE; the potential air resource impacts and As noted above, TVA would not spatial limitation is included to ensure whether greenhouse gas emissions are categorically exclude any segment or that the CE is not used for projects that significant. interdependent part of a larger proposed would result in significant TVA disagrees with the assertion that action and TVA has no intention of environmental impacts. Because these the generic EA completed by TVA and establishing thousands of dispersed are the only revisions proposed by TVA cited in its Supporting Documentation recreation sites across hundreds of for this CE, TVA did not provide does not substantiate TVA’s finding that thousands of acres of public lands as additional analysis in the Supporting the category of actions do not have suggested by the commenter; such Documentation as it did for new CEs. significant impacts. The generic EA development is inconsistent with TVA’s TVA has not developed and does not addresses the purchase or lease and objectives to provide quality dispersed foresee the potential development of operation of existing combustion recreation experiences and public use areas in the manner turbine or combined-cycle combustion opportunities on undeveloped lands. described by the commenter. Further,

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under CEQ regulations and the final rule proposed action’s impacts, adding such reviews up to 2,000 approvals under (§ 1318.200(c)), any use of CEs that text to this CE definition is unnecessary. Section 26a of the TVA Act annually. would result in the impermissible TVA has adopted the final rule to Many such actions have included segmentation of a larger project into ensure that its decisions are made in construction by TVA or others of boat smaller parts is prohibited. accordance with the policies and ramps. Boats ramps are included in the Comment: Proposed CE 24 lacks purposes of NEPA. text of CEs 26 and 27 to provide clarity specificity and should be either revised Comment: Proposed CEs 24 and 25 about their inclusion in actions covered by TVA so that it complies with the are too broad and could be under these CEs. TVA specialists requirements of NEPA or withdrawn. misconstrued. TVA should break the complete an environmental review Response: The revisions to this CE do CEs into multiple, separate CEs to checklist (i.e., CEC) for each of these not expand its scope. TVA has changed improve clarity. actions to ensure that there are no the definition to improve clarity and Response: Based on TVA’s experience extraordinary circumstances associated added an example of recreational use in applying CEs 24 and 25 since 1980, with the proposal. The impacts to that has commonly been covered under the types of actions that may be covered shoreline habitation for vegetation and this CE in the past, as discussed in under the CEs are not too broad or other aquatic life is considered during TVA’s Supporting Documentation. The subject to misapplication. Actions of the review. The standard permit term ‘‘minor’’ will remain in the CE to each category are reasonably similar in conditions applied to permit holders serve as a limit; a reasonable nature and potential impacts from further reduce the potential for adverse interpretation will continue to be actions in each category are generally impacts. applied to the term. Because the similar. In revising its procedures, TVA Comment: TVA should either revise changes to the definition are minor and weighed each CE to determine whether or withdraw CE 27 because it lacks the scope of the category is not the category should be broken into specificity and does not comply with expanded, the Supporting separate CEs to improve clarity. In some the requirements of NEPA. The CE Documentation provided only a cases, TVA identified a need to split should be revised to correct that bank summary of the changes. categories but in other instances, had no stabilization is a management practice. Comment: Proposed CE 25 would reason to create new CEs based on past Response: As noted above, TVA allow TVA to sell, lease, or transfer experiences. TVA determined that while reviews up to 2,000 actions a year land, as well as the accompanying some clarification may be found in involving installation of shoreline mineral rights, land rights, and splitting certain CEs, it must also structures, primarily in response to structures, as long as TVA determines consider the merit of minimizing applications by private homeowners that these acts are ‘‘minor,’’ a term that, changes to its list of CEs. Where a need residing along reservoir shorelines. This left undefined and without appropriate was not evident, as in the case of these CE was added to TVA’s procedures context or other limits, provides TVA two CEs, TVA opted to not make because the CE established for such unfettered discretion. TVA should additional revisions to its procedures. actions in 1980 did not explicitly allow revise the CE to comply with NEPA or Comment: Proposed CE 26 lacks TVA to apply the CE for its own actions, withdraw the CE. specificity; it should be revised to despite the fact that the impacts of such Response: TVA’s changes to the comply with NEPA or withdrawn. TVA projects are substantially the same. definition of this CE are intended to Response: The comments do not Such actions, whether conducted by clarify the actions covered and to add specifically address the addition by applicants or TVA, are very common, as examples of actions (e.g., rights in TVA of an example action covered by noted in TVA’s Supporting ownership of permanent structures); the CE. The only proposed change to Documentation. CEQ encourages the inclusion of this CE is the replacement of the term The spatial limitation of 0.5 mile for examples in the definitions of CEs. The ‘‘boat docks’’ with ‘‘boat docks and stabilization projects is intended to definition includes ‘‘lease’’ to reflect ramps.’’ This is needed to clarify the ensure that actions under this CE are that all transfers of property or rights types of actions addressed by this CE. minor in nature. To identify a spatial would be covered; impacts of leases of TVA’s Supporting Documentation limit for the definition of this CE, TVA properties are substantially similar to addresses this change; TVA did not reviewed environmental records of over property transfers. The term ‘‘minor’’ provide additional analysis in the 800 separate actions to identify an remains in the definition of the CE as a documentation because no other appropriate limit to the distance for the narrative limitation. TVA will continue changes were proposed. The term length of stabilization projects. The to apply a reasonable interpretation to ‘‘minor’’ has been used in this CE since Supporting Documentation notes that this term and will ensure that the CE is 1980 and is understood by TVA staff. over two dozen EAs completed by TVA not applied to major actions with CEQ and TVA procedures forbid for shoreline or streambank stabilization significant environmental effects. The segmentation of activities. For reasons and/or installation of riprap materials use of the term ‘‘minor’’ does not give stated above, TVA did not establish were reviewed, with an average length TVA unfettered discretion to apply the documentation requirements for its CE. of over 1.5 mile of riprap per project. CE without context or limits. The plain Comment: The Department of the When considering past projects that meaning of this term as well as the Interior expressed concern over the were categorically excluded, the average ‘‘extraordinary circumstances’’ potential damage to existing shoreline length of projects was found to be provision would limit TVA’s discretion. habitation for vegetation and other smaller than 1.5 miles. Rather than TVA notes that the other agency CE aquatic life resulting from new boat establish a 1.5-mile limit based on definition identified by the commenter ramps and the installation of minor TVA’s evaluation of past EAs for includes stipulations to review shoreline structures or facilities shoreline or streambank stabilization, proposals for impacts and extraordinary (covered under CEs 26 and 27). TVA establishes a shorter linear circumstances. Because TVA’s process Response: Approvals of minor distance as a limit because most of the for determining whether it is shoreline structures and facilities are projects it reviews are much shorter appropriate to apply any CE to a among TVA’s most commonly reviewed than 1.5 miles in distance. TVA proposed action requires a review of actions. As explained in the Supporting identified 0.5 mile as the spatial limit extraordinary circumstances and the Documentation for the CEs, TVA for the CE because TVA experience in

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numerous projects supports at least this land plans prior to development of the requests that may precipitate the need to distance. next plan for that reservoir. Outside of consider such minor land use allocation Based on the suggestion by a a normal land planning cycle, revisions changes. commenter, TVA made a minor to land use allocations in land plans can TVA disagrees that the cited EAs and grammatical revision to the definition of be made to correct administrative errors EISs and the benchmarked CEs of other CE 27 in the final rule to improve that occurred during the planning agencies do not provide support for this clarity. process. Further, land use allocation CE. TVA finds that because those EAs, Comment: The Department of the changes occurring outside of a normal EISs and other agency CEs concern Interior requested that TVA consider planning cycle are to be made consistent similar project with similar scopes, they modifying Proposed CEs 27 and 33 due with TVA’s Land Policy. Specifically, provide additional support for TVA’s to the impact they may have on aquatic the Land Policy provides, ‘‘TVA shall determination that allocations changes life along the shorelines. The proposed consider changing a land use that are minor and limited in scope do CEs may not encompass all problems designation outside of the normal not result in significant environmental that would face construction on the planning process only for water-access impacts. Other assertions made shorelines. For significant projects TVA purposes for industrial or commercial regarding the segmenting of actions might even be able to consult the U.S. recreation operations on privately contemplated in a tiered programmatic Fish and Wildlife Service without the owned backlying land or to implement document and the need for use of CEs. TVA’s Shoreline Management Policy.’’ documentation requirements are Response: TVA acknowledges that Allocation changes for other purposes addressed by TVA in other responses. stabilization actions under the CE have would occur during the normal land Comment: TVA should either revise the potential to directly impact benthic planning process. Updates to land plans CE 29 so that it complies with the fauna and other aquatic habitat. TVA within the normal land planning cycle, requirements of NEPA or withdraw it. reviews each proposal for potential whether it be for a portion of a reservoir, The acreage limitation is too large for impacts to sensitive resources, an entire reservoir, or a group of actions in these habitats. In addition, including federally protected species. reservoirs, involves the preparation of TVA may segment such activities, Such reviews would continue under the an EA or EIS. The new CE would apply which is not appropriate, and does not CEs as TVA reviews for extraordinary to land use allocations outside of a provide sufficient information in its circumstances (as noted above, TVA has normal planning cycle and would not Supporting Documentation to revised its extraordinary circumstances apply to land planning efforts within substantiate the new CE. as suggested by the Department of the the normal planning process. Response: Based on extensive Interior to clarify the review for impacts Also, TVA made minor revisions to experience in conducting minor natural to federal special status species). TVA the scope of the CE. The proposed CE resource management actions, TVA has has revised its Supporting addressed four types of land use plan determined that certain actions would Documentation to address potential modifications: Changes to address not result in significant environmental impacts to benthic fauna and other minor administrative errors; changes to impacts. As noted in the Supporting aquatic habitat; the draft Supporting incorporate new information (when Documentation, TVA has proposed this Documentation released for public consistent with a previously-approved CE to more efficiently implement review should have addressed these decision); allocation changes to a more projects to maintain or restore the potential impacts. Based on experience restrictive or protective allocation; and natural functions of these resources, and extensive environmental review of minor allocation changes to implement consistent with objectives in its NRP past projects, TVA has determined that TVA’s shoreline and land management and other TVA policies. such actions would not result in policies. Upon further review of the CE After publication of the Notice of significant environmental impacts. and after considering the public Proposed Rule, TVA staff had further Comment: TVA should either revise comments, TVA removed from the deliberations about the acreage figure proposed CE 28 so that it complies with scope of the CE the amendments to land identified in the definition of CE 29 that the requirements of NEPA or withdraw use allocations to a more restrictive or was intended as a spatial limitation for it. protective allocation (if consistent with this category of actions. TVA had Response: The scope of CE 28 is other TVA plans and policies). Such proposed that a 125-acre limitation limited to minor land allocation proposals are unusual and would not would generally apply for the CE modifications and would not affect generally occur outside of the normal because, as discussed in the Supporting broad swaths of lands. TVA has made planning process. In addition, TVA Documentation, the limitation would be several revisions to the CE in the final added a spatial limitation of 10 acres to consistent with limitations of other rule. the final action covered by the CE, proposed CEs. Based on additional TVA revised the definition of the CE thereby limiting the amount of land consideration, a limitation of 10 acres is to clarify that the only modifications to affected by a land use allocation more appropriate given the sensitive land use plans covered by the CE are modification that occurs outside of a nature of wetland, riparian and aquatic changes to land use allocations. In TVA planning cycle. The acreage limit ecosystems. In addition, the 10-acre addition, the CE would only apply to is similar to the general limitation limitation more accurately reflects such allocation modifications that are applied to other CEs in the final rule. TVA’s past experiences in proposed ‘‘outside of a normal planning TVA notes that the ‘‘shoreline or land implementing projects in these types of cycle.’’ This clarification is added management policies’’ referenced in this ecosystems. The definition of CE 29 was because TVA only considers minor CE are those relating to the Shoreline revised accordingly in the final rule. allocation changes outside of a normal Management Policy and TVA’s Land When applying CE 29, TVA would planning process under limited Policy. TVA has revised its discussion use a CEC to determine whether circumstances. TVA’s land plans and of this CE in its Supporting extraordinary circumstances exist for policies (e.g., NRP, Comprehensive Documentation to provide additional each proposed action. Qualified TVA Valleywide Land Plan, Land Policy, and explanation and background specialists will review whether the Shoreline Management Policy) limit the information on its land use planning actions have the potential to types of revisions that can be made to practices and the types of actions and significantly impact environmental

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resources and will consider whether the Natural Resources Conservation differences (e.g., in spatial limitations). measures are necessary to mitigate Service). TVA believes, however, that these CEs impacts and resolve extraordinary Comment: TVA should either revise of the other federal agencies address circumstances. Existing current resource CE 30 so that it complies with the similar activities as TVA’s CE 31 and data will be used or new field data will requirements of NEPA, or withdraw it. provide additional support for TVA’s be obtained when needed. The final rule Response: TVA cites to previous determination. provides that during this review TVA responses regarding the potential for Comment: TVA should either revise may resolve the potential impacts segmentation of actions, the NEPA CE 32 so that it complies with the through mitigation. The CEC review documents cited by TVA in its requirements of NEPA or withdraw it. ultimately determines whether it is Supporting Documentation, and the Response: TVA disagrees that the CE appropriate to use a CE for the action or appropriateness of using a CE for NRP lacks sufficient specificity or clarity. whether additional environmental implementing actions. TVA staff in NEPA, Environmental review is needed. The use of a CE for In addition, comments also asserted Operations and Compliance, and an action does not relieve TVA from that two of the 19 CEs cited by TVA in Natural Resources reviewed the compliance with other statutes or benchmarking provide insufficient definition of the CE and found that consultations, including, for example, support for CE 30. TVA included several actions specified therein are clear and the ESA or NHPA. examples of actions in CE 30, as was well-understood. The CE is defined to CEQ regulations prohibit the practice done by the Bureau of Land describe common actions conducted by of segmenting projects into smaller Management for its CE C8. TVA cites to TVA to manage invasive plants. These components in order to avoid finding a six Forest Service CEs and addresses the actions do not result in significant significant impact of a project comparability in the Supporting environmental impacts if conducted in considered as a whole. TVA complies Documentation, acknowledging that adherence to the spatial limits. TVA has with this regulation, as reflected in certain Forest Service CEs do not extensive experience in conducting § 1318.200, which includes direction to directly address certain TVA actions in these types of vegetation management avoid segmenting larger projects into CE 30. When benchmarking to other actions and, as noted in the Supporting small parts when applying CEs. agencies’ experiences, as described in Documentation, has reviewed similar Environmental staff is responsible for the Supporting Documentation, TVA actions under a CE in the past. TVA has screening out this type of activity and found numerous applicable and determined that for many natural ensuring that larger projects are comparable CEs that provide additional resource management actions that reviewed in their entirety. TVA staff support to TVA’s determination that would implement its NRP, the CE would not use CE 29 for restoration or such actions qualify for a CE. provides an appropriate level of site enhancement activities that are Comment: Proposed CE 31 lacks specific environmental review. proposed across a wide area, as asserted; specificity, impacts of such actions are As previously stated, TVA would the CE would be used for discrete significant, and cited EAs, EISs, and conduct a review of all actions falling actions within the same area or benchmarked CEs do not support TVA’s under this CE using a CEC to determine immediate vicinity. determination. TVA did not take a hard whether extraordinary circumstances TVA disagrees that the Supporting look and is playing a shell game by exist and document its findings. Documentation is insufficient. The NRP establishing a CE for actions addressed Qualified TVA specialists will review EIS and other cited NEPA records under programmatic NEPA, and whether the actions have the potential provide important support that these documentation should be defined in the to significantly impact environmental restoration and enhancement actions do final rule. For these reasons TVA should resources, including sensitive bat not typically result in significant revise or withdraw the CE. species, and will consider whether environmental impacts. The NRP EIS Response: The comments relating to measures are necessary to mitigate states that TVA would conduct the definition of the CE (e.g., use of the impacts and resolve extraordinary ‘‘appropriate’’ levels of review when limiting terms and failure to specify the circumstances. The CEC checklist specific implementing actions are geographic area when conducting review ultimately determines whether it proposed; it does not state that EAs or actions), the potential that such actions is appropriate to use a CE for the action EISs would be necessary to review may result in significant impacts, the or whether additional environmental minor, implementing activities. As adequacy of the EAs and EISs cited in review under an EA or EIS is needed. previously stated, the Supporting the Supporting Documentation, and the TVA also disagrees with assertions Documentation is intended to provide appropriateness of using CEs for certain relating to the relevance of the information to substantiate TVA’s natural resource program actions have benchmarked CE of the Forest Service; determination that certain actions do been previously asserted; the responses the Forest Service CE includes not result in significant impacts. CEQ’s above are equally applicable here. vegetation control activities, including 2010 guidance affirms that agencies may Again, TVA notes that information in the application of herbicides. rely on previously implemented actions the Supporting Documentation includes Comment: TVA’s procedures for and associated NEPA records to a summary of relevant NEPA documents project planning under proposed CEs substantiate new CEs; TVA does not to substantiate CE 31. The experiences 29, 30, 31 and 32 are unclear. TVA find that it is inappropriate to cite only of TVA and the implemented projects stated in its NRP EIS that it would to TVA EAs or EISs to support this and cited by TVA in the document support perform ‘‘site and/or activity-specific other CEs. TVA notes that the TVA’s determination that such environmental reviews’’ for such Supporting Documentation also activities, when limited, would not activities. If the activities are covered provides supporting information from result in significant impacts. The CEs of under the CEs, what environmental very similar CEs promulgated by other other agencies cited in the document review process will TVA use? federal agencies, including agencies provide further support; TVA notes that Response: TVA’s determination that with land management and the Forest Service and Bureau of Land certain natural resource management conservation responsibilities (e.g., the Management CEs are similar in nature actions would not result in significant Forest Service, Department of Homeland but acknowledges in the Supporting environmental impacts is based on Security, Fish and Wildlife Service, and Documentation that there are extensive experience in conducting

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these minor actions. As noted in the conducting environmental reviews for decline of the water table or degradation Supporting Documentation, TVA has low-volume groundwater withdrawal of the aquifer.’’ conducted many of these actions under wells. As noted in the Supporting Comment: CE 36 sweeps in far too CEs in the past. TVA has determined Documentation, the digging, drilling, much, and would exempt from NEPA that for many actions addressed under boring and associated activities that review exactly the sort of activities that its NRP, the CE provides an appropriate occur when wells are installed do not should be reviewed under NEPA. CE 36 level of site-specific environmental vary greatly based on the well’s should be withdrawn, or at the very review. As noted above, CEs are not purpose. The scope of work is similar least, TVA should promulgate exemptions or waivers of NEPA reviews whether the well is installed for water requirements that would require that and TVA would conduct a review of all withdrawal or water monitoring. application of CE 36 be documented and actions falling under CEs 29, 30, 31, and Regarding comments on plugging of be made publicly available on TVA’s 32 using a CEC. Qualified TVA wells, TVA agrees that there are website. specialists review each action to differences in the nature of plugging of Response: As previously noted, CEs determine whether it is appropriate to groundwater wells and oil or gas wells are not exemptions from or waivers of use a CE for the action or whether at the end of their operating lives. NEPA review; they are simply one type additional environmental review in an However, the commenter’s specific of NEPA review. Among the actions EA or EIS is needed due to any concerns about oil or gas wells relate to falling under CE 36 are some of TVA’s extraordinary circumstances. The use of the potential for adverse effects that most common, routinely implemented a CE for an action does not relieve the these wells pose if not properly plugged, actions to maintain operations of its TVA entity from compliance with other rather than the impacts associated with facilities and equipment. Covered statutes or consultations, including, for TVA’s actions to plug groundwater actions are very minor, with little or no example, the ESA or NHPA. wells. The intent of plugging new ground disturbance, and a minor Comment: Proposed CE 35 lacks the groundwater wells is to address the potential for new pollutant emissions specificity required by CEQ and NEPA threat to public safety and water and air streams. This CE only applies to existing buildings, infrastructure systems, to ensure that actions would have little quality posed by the wells. To reduce facilities and grounds, and operating potential for significant impacts. the potential for confusion regarding equipment at TVA locations; actions Commenters suggested various changes, what the ‘‘abandonment’’ of a well that require new or revised permits are including eliminating the CE entirely, involves, TVA revised the text of the CE removing groundwater supply wells not covered by this CE. in the final rule by deleting ‘‘and As demonstrated in the Supporting from the category of actions, applying a abandonment’’ from the text and adding low volume limit on covered water Documentation, TVA has many years of clarification that wells would be experience with the routine operation, supply wells, eliminating its plugged at the end of their operating applicability to other types of wells repair or in-kind replacement, and life. (e.g., oil and gas), and providing maintenance activities for existing The CE includes a statement limiting clarification for determining what is buildings, infrastructure systems, ‘‘low potential’’ during site its use to circumstances when there is facility grounds, and operating characterization. The water quality ‘‘low potential for seismicity, equipment. Many of these activities are incident in Shelby County, Tennessee, subsidence, and contamination of considered so routine, and have been reflects the need for more stringent freshwater aquifers.’’ The inclusion of repeated so often that TVA estimates it reviews under NEPA and it would be this text ensures that TVA reviews for has documented the lack of significant inappropriate to apply a CE for water the potential for such circumstances impacts of these types of actions in wells. prior to determining whether a CE may hundreds of CEs. Based on over 30 years Response: Based on consideration of be used for an action. Those qualified to of experience with assessing the impacts the comments received, TVA has make such determinations would be of the actions covered in CE 36, TVA revised this CE to apply a limit to the employed to make such determinations. believes that in the absence of installation or modification of low- Information provided in the Supporting extraordinary circumstances, these are volume groundwater withdrawal wells. Documentation provides an adequate repetitive actions that have been shown TVA had not intended the CE, as summary of TVA’s experience, to have negligible effects. Decisions proposed, to be used for installing wells previously implemented actions, and about the appropriate level of NEPA for high volumes of water withdrawal. benchmarking to other agency CEs. review for TVA actions are made by For wells with such high volumes of Finally, TVA received numerous qualified environmental specialists, staff withdrawal, TVA would complete an comments stating that the water quality attorneys, and informed project EA or EIS of such actions, as was done incident at its Allen plant in 2017 is a managers, based on project descriptions at TVA’s Allen Fossil Plant. result of its installation of wells for including maps, photographs and By comparison, TVA has extensive cooling water. Studies do not show a drawings as appropriate. A project experience installing small-scale link between the TVA action and the screening review team facilitates this groundwater monitoring and poor water quality findings. Equally process. withdrawal wells, including low- important, this CE is not for high- The terms used in the definition of volume wells for potable water use at volume withdrawal wells such as those the CE (e.g., routine, in-kind, facilities in remote locations (e.g., at the Allen plant. To ensure its replacement, maintenance) are well campgrounds). TVA does not agree with application only to small, local understood by TVA staff. The CE one commenter’s assertion that there is groundwater withdrawal wells, the provides clarification of how these a substantial difference in the types of definition of the CE was revised to terms are used and terms are given potential environmental impacts further limit the application of this CE context through the examples. In the associated with establishing and to ‘‘low-volume’’ withdrawal wells, third sentence, the term ‘‘substantial operating groundwater withdrawal ‘‘provided that there would be no change’’ is used when describing a wells for supply and groundwater drawdown other than in the immediate limitation: The category does not withdrawal wells for monitoring, based vicinity of the pumping well and that include actions that result in a on TVA’s experience in installing and there is no potential for long-term substantial change in the design

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capacity, function, or operation of a determinations by TVA that these the final rule. Under CE 37, TVA will facility, system, or equipment. TVA activities have significant impacts. The conduct a review of the proposed action notes that this term refers to the extent Supporting Documentation has been using its CEC. The determination of the to which an existing facility, system or revised, where appropriate, to avoid potential for any significant impact due equipment is changed, rather than the such confusion. to extraordinary circumstances is made extent to which those changes would Comment: The Virginia Department of during the completion of the CEC affect the environment. As stated in the Historic Resources expressed concern review by a qualified multidisciplinary second sentence of the CE, actions with the wording in CE 36 that refers to team of experts. Should extraordinary would be limited to those which do not structures less than 50 years old that circumstances reflecting the potential alter the current condition or location of will receive routine maintenance. This for significant effects be identified the facilities, systems or equipment for official suggested that TVA include the during this review, TVA staff would use for designated purposes. TVA notes need to consider historic properties in complete a higher level of NEPA review. that portions of these statements are the introductory section on TVA’s statement in its Supporting based on the definition of the ‘‘extraordinary circumstances.’’ Documentation that such actions ‘‘under Department of Energy (DOE) CE (B1.3), Response: Under the final rule, TVA normal circumstances’’ do not have a which includes similar factors that has included the potential for an action significant effect on the human constrain its use. Nevertheless, TVA has to significantly impact cultural or environment articulates TVA’s deleted the term ‘‘substantial’’ from this historic resources as an extraordinary determination that a CE is appropriate sentence to avoid potential confusion by circumstance to consider prior to use of for these actions, if TVA verifies that no TVA staff in the application of the CE. a CE (§ 1318.201(a)(1)(iii)). Because extraordinary circumstances exist that Likewise, TVA also reviewed the use of actions under CEs 36 and 37 pertain to may require TVA to conduct additional the word ‘‘substantially’’ under item (a) maintenance and potential environmental review. TVA notes that of CE 36 and has deleted it from the modifications to buildings and the examples given by the commenter description of the example action to structures, TVA included text to the (such as boiler expansions that would avoid confusion. examples listed under CEs 36 and 37 dramatically change the output of a Commenters also assert that ‘‘a that limit the application of these CEs to generator or the lifespan of the unit) are category of action is only appropriate for activities at structures and buildings not covered under this CE because such a CE if those activities are incapable of that are less than 50 years old. This components are major pieces of causing significant environmental limitation is intended to ensure proper equipment (under item (a) of the CE). impact’’ and that ‘‘[f]or something to be consideration of potential impacts to Further, the definition of the CE categorically excluded, it should never cultural or historic resources and of the specifically limits its use under item (b) have significant environmental effects.’’ possible need to conduct consultation to modifications that do not However, Federal agencies, in under Section 106 of NHPA. As noted substantially change emissions or developing their NEPA procedures, are above, TVA also added to the final rule discharges beyond current permitted required to consider extraordinary a statement that the use of a CE for an levels. Other limitations are included in circumstances in which a normally action does not relieve TVA from items (e), (f) and (g), which provide excluded action may have a significant compliance with NHPA. additional factors for consideration environmental effect.’’ See 40 CFR Comment: Proposed CE 37 is prior to use of the CE. TVA found that 1508.4. CEQ describes such inconsistent with the requirements of the DOE CE is similar in nature and extraordinary circumstances as ‘‘factors NEPA, and the actions covered by provides additional support for TVA’s or circumstances in which a normally proposed CE 37 are exactly the sort that determination that such actions, as excluded action may have a significant should be subjected to NEPA analysis. limited, do not result in significant environmental effect. . . .’’ (75 FR It is inappropriate to benchmark to the impacts. 75629, December 6, 2010). CEQ’s DOE’s CEs. TVA should withdraw the Comment: The current language of recognition that there are circumstances CE. proposed CE 38 is too broad and would in which a category of actions that are Response: TVA has extensive allow TVA to construct new facilities categorically excluded may nevertheless experience in completing routine and anywhere without the completion of an result in significant impacts serves to minor actions to modify, upgrade, EA or public input. caution agencies to use the uprate and complete other activities at Response: The construction of new ‘‘extraordinary circumstances’’ its existing facilities, grounds and buildings and associated infrastructure provision to cull out any particular equipment. The covered actions are in small areas are activities common to action from a CE category that may have necessary to maintain current facility TVA. TVA has extensive experience in a significant effect. In TVA’s Supporting infrastructure, grounds, and equipment. conducting environmental reviews of Documentation, TVA described In addition to the spatial limitation (10 actions impacting less than 10 acres of categories of actions that do not have acres) applying to this CE, several land previously not disturbed by human significant impacts, but was mindful additional limitations are included in activity or 25 acres of land so disturbed. that extraordinary circumstances may the definition of actions listed under TVA’s extensive experience and exist that apply an exception to the rule. items (a) through (g). environmental records support its In the June 2017 release of the Since 1980, activities under CE 37 conclusion that such actions, as limited document, TVA’s use of the terms have been categorically excluded under in the CE, would not result in ‘‘typically’’ or ‘‘normally’’ in some CEs 5.2.1 of TVA’s previous procedures. significant impacts. TVA notes again was apparently misinterpreted by some TVA believes that replacing the very that CEs are not exemptions or waivers commenters. TVA’s intent for each of its broadly defined and widely used CE of NEPA review; rather, they are simply conclusions for each category of actions 5.2.1 is necessary to provide more a type of environmental review. TVA is to affirm that it has determined that specific definitions and examples to will continue to review proposed the actions do not result in significant TVA staff of categorically excluded actions to ensure that extraordinary impacts, under normal circumstances. actions. Generally, TVA’s consideration circumstances are not present that The use of terms like ‘‘typically’’ or of such activities would not change; the would prevent the application of this ‘‘normally’’ should not be interpreted as level of review would be similar under CE. The appropriate reliance on CEs to

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consider minor actions with little limiting the extent of such impacts. generation choices that TVA would potential for significant effects provides TVA would complete a review using a consider would have already been a reasonable, proportionate, and CEC for each action under CE 42 to assessed in the IRP and its EIS. Use of effective analysis of the impacts of the ensure extraordinary circumstances and CE 45 (through the completion of a CEC) action. potential impacts of the action are allows TVA to verify that the site- CE 38 would not apply to the siting, considered. specific impacts of particular generation construction, and use of new power Comment: Several commenters choices comports with the analysis in generating facilities. The CE is intended expressed concern with the scope of the IRP and its EIS. to address only buildings and associated actions covered under CE 45. Two As described in the Supporting infrastructure (e.g., parking areas, utility commenters recommended that TVA Documentation, this CE is benchmarked lines serving the building). To improve revise its proposed CE 45 and delete closely with those of other federal clarity, TVA added an example of items (c) and (d) from the list of covered agencies, primarily the Department of associated infrastructure to the actions, which address a small number Energy. TVA grouped different energy definition of the CE. After considering of wind turbines and small-scale actions under one CE because all such the comment, TVA reviewed its biomass power plants, respectively. actions are renewable energy actions Supporting Documentation and revised Response: Upon further and would only be permitted at existing the discussion to clearly express TVA’s consideration, TVA has removed items TVA facilities. Further, CE 45 has intent that the CE would not apply to (c) and (d) from the list of covered limitations: it applies to projects new construction of power generation actions of CE 45. TVA reviewed these covering less than 10 acres of land facilities. actions again and concluded that it is previously not disturbed by human Comment: TVA should change the 10- unlikely to pursue the installation of activity or up to 25 acres of lands so acre limit in proposed CEs 38 and 43 to wind turbines at its facilities in the disturbed, consistent with other spatial 5 acres and the 25-acre limit to 10 acres, foreseeable future. Further, lack of limits identified by TVA. As noted respectively. extensive experience assessing the above, TVA revised this CE in the final Response: The suggestion is noted. impacts of wind turbines cautioned rule and removed the wind turbine and The commenter did not explain why the TVA against placing this category of biomass power plants from the list of suggested limits would be more actions under a CE. For the same renewable energy actions covered by the appropriate. TVA’s own experience reasons, TVA removed actions category. provides adequate justification for the associated with small-scale biomass Comment: Proposed CE 45 item (b), use of these limits. power plants from this CE in the final which addresses solar photovoltaic Comment: The Department of the rule. systems, should be revised to remove Interior recommended adding the Comment: TVA should either adjust the reference to on-the-ground systems, installation or replacement of small CE 45 so that it complies with the thereby limiting the category to solar scale bridges to the listed actions under requirements of NEPA or withdraw it as system mountings on existing buildings this CE (when such structures may a proposed CE. CE 45 is too broad in its or structures. facilitate improved fish and wildlife current language regarding several Response: The comment expressing passage) and suggested that TVA potential renewable energy activities this preference is noted. TVA notes that evaluate potential modifications to that would fall under the new CE. covered actions would only occur at an existing roadways that intersect aquatic According to this commenter, the broad existing TVA facility and a spatial resources as to make sure a beneficial language does not encompass projects limitation would apply. impact is occurring for aquatic that should fall under the NEPA Comment: We are opposed to any resources. The Department also noted process. green field development. that TVA should evaluate how it will Response: TVA does not consider the Response: Comment noted. address the potential impacts from CE to be too broadly defined. TVA notes Comment: Commenters expressed constructing or replacing culverts and that actions may only be implemented opposition to the proposed CE 46 consider modifying CE 42 concerning at an existing TVA facility to limit its because TVA does not have experience the issue. Finally, the Department noted impacts and reduce the likelihood for with the construction of drop-in that CE 42 allows for ground conflicts. When reviewing whether an hydroelectric systems. Without this disturbance pertaining to TVA projects, action falls within a CE, TVA must experience, these commenters stated and recommends modifying the ensure that no extraordinary that TVA could not substantiate the CE. language to encompass parameters circumstances relating to the proposed According to these commenters, the when the CE can be used. action are present and whether the installation of these hydroelectric Response: TVA’s CE for action has the potential to significantly systems would disrupt the native improvements to existing roads, trails, impact environmental resources (see biodiversity within the Tennessee River and parking areas includes several § 1318.201(a)). Because the potential for and should not be categorically example actions; however, covered significant impacts is considered when excluded. actions are not limited to the example determining whether to use a CE, Response: Based on public comment actions listed. A reasonable adding such a limit to the definition and additional internal consideration, interpretation of the CE would allow for would be redundant. A TVA TVA withdrew the proposed CE 46 from limited improvements to roadways that interdisciplinary team would review the final rule. TVA had proposed the CE include small-scale bridge installation, each proposal and complete a review to include the installation, modification, particularly if the bridge installation checklist before using the CE. operation and removal of small, drop-in, may result in fewer impacts to aquatic TVA’s Supporting Documentation run-of-the-river hydroelectric systems. resources than culvert installation. TVA summarizes TVA’s findings and TVA determined that such actions are acknowledges that road improvement information that supports the not foreseeable. activities may result in impacts to the establishment of the CEs. Actions Comment: Several commenters environment but limits the use of the CE covered under CE 45 would only take expressed concern with proposed CE 47, only to minor expansions of existing place if they are consistent with TVA’s regarding modifications of TVA rate roads, trails and parking areas, thereby IRP. The TVA IRP and the types of structure. According to two

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commenters, TVA bases its claim that used to provide supporting information controversial’’ actions, TVA will actions in this category would not have for the establishment of a CE. consider controversy over the nature any significant impacts off previous Based on further internal deliberation and scale of the impacts (e.g., scientific internal reviews of four NEPA filings, and consideration of public input, TVA disagreement relating to the potential wherein TVA stated that the proposed revised CE 47 to simplify it and to omit impacts), as opposed to mere opposition changes could have ‘‘negligible or minor from the CE’s scope any modification to a federal project. TVA agrees that it effects on environmental resources.’’ that results in minor increases in energy may not be appropriate to use a CE for While the scope of those prior rate generation. TVA had proposed to apply certain rate change proposals if structure modifications may have been a reasonable interpretation of the term extraordinary circumstances are present, minor, these commenters assert, TVA’s ‘‘minor increases’’ when applying the if TVA finds there to be potential for intention to pursue a broad rate CE in the future. However, TVA significant impacts, or if additional adjustment and rate change in 2018 may determined that further limiting the use review is needed to improve the have impacts that are more dramatic. of the CE to only actions that result in decision-making process. Response: During the public review no predicted increase overall TVA- Comment: TVA’s claim in its period for this rulemaking, TVA made system electricity consumption is more Supporting Documentation that CE 47 public its intention to consider appropriate and ensures that no would have similar scope as the DOE CE modifications to its rate structure in significant impacts would result from is inaccurate because the DOE CE 2018. TVA received numerous the action. includes limitations that CE 47 does not comments expressing concerns that CE Although a proposed action may meet include (referring to DOE CE B1.1 and 47 would be used for the 2018 rate the definition of a CE (i.e., may fall DOE CE B3.4). change. Although such comments within the category of actions), TVA Response: The new CE established by relating to a specific proposal are not may determine that it would be more TVA for minor rate modifications is within the scope of this rulemaking, appropriate to conduct a more thorough based on TVA’s own past experience. TVA notes that it did not propose the review. According to the final rule, TVA The DOE’s experience provides CE with any specific proposed staff would first review the proposal to additional support for the establishment modifications to the rate structure in ensure that it meets the definition of the of a CE for TVA rate change proposals mind. The new CE was proposed based CE and its limitations. Then, TVA with certain limitations applied. TVA solely on past experience. In the case of would review the proposal and acknowledges that the DOE’s mission the proposed 2018 rate change, TVA determine whether any of the differs from its own, and the Bonneville completed an EA for the proposal and extraordinary circumstances defined in Power Authority region differs from the provided opportunity for public review § 1318.201 may occur. As described in Tennessee Valley region. TVA of the analysis; the EA further supports the Supporting Documentation, TVA acknowledges that there are differences TVA’s conclusion that such actions interdisciplinary staff completes a in the scope of the DOE CEs and TVA’s would not normally result in significant Categorical Exclusion Checklist to verify CE 47. As addressed in the Supporting environmental impacts. that there are no extraordinary Documentation, DOE analysis of its CEs Comment: CE 47 would reverse TVA’s circumstances and to ensure that the draws similar conclusions as TVA’s longstanding practice of analyzing rate action has no potential for significant analysis of CE 47: That impacts to the changes with rigorous environmental environmental impacts. If extraordinary environment would occur only if the analysis and EISs. The timing of circumstances are present and cannot be rate change involved changes to the proposing the CE is concerning, given resolved or the potential for significant operation of generation resources. TVA’s plan to update their rate structure impacts exist, TVA would complete a Accordingly, TVA has limited use of in 2018 to specifically address the more rigorous analysis in an EA or EIS this CE to actions that result in no proliferation of distributed energy of the proposed action. Under the final predicted increases in overall energy resources and energy efficiency across rule, TVA may consider providing use (including any change that may their service territory. It is worrisome public notice when a CE is used if it is result in system-wide demand that TVA would try to exempt rate determined that the public may have reduction). Because of the limitation, changes from environmental analysis relevant and important information and based on its own experience, TVA just months before a proposed rate relating to the proposal that will assist has determined that such actions do not change that might affect how TVA in its decisionmaking. result in significant environmental renewables and energy efficiency are Comment: The definition of CE 47 impacts. priced. lacks specificity for ‘‘minor’’ increases Response: As noted above, TVA did and the scope of extraordinary D. Comments on Subpart D— not propose the CE with any specific circumstances that would constitute the Environmental Assessments future proposed modifications to rate need for an EA or EIS. Comment: TVA’s NEPA procedures structure in mind and completed an EA Response: As noted above, TVA has addressing the circulation of findings of in 2018 to consider the 2018 rate change revised the CE’s definition to exclude no significant impacts for public proposal. TVA NEPA staff first proposals that may result in increases in comment are inconsistent with the CEQ identified the category for consideration overall energy use. TVA’s procedures Regulations and guidance. as a potential CE more than five years directing staff to consider whether the Response: To ensure consistency with ago, after completing numerous reviews ‘‘significance of the environmental CEQ regulations at 40 CFR 1501.4(e)(2), of similar proposals that TVA impacts . . . is or may be highly TVA revised § 1303(d)(1) in the final concluded would result in no controversial’’ are consistent with CEQ’s rule. As previously noted, TVA’s significant impacts. significance criterion (40 CFR procedures do not supersede the CEQ TVA’s experience in reviewing prior 1508.27(4)), which directs agencies to regulations. rate changes serves to support the consider ‘‘the degree to which the Comment: TVA’s NEPA procedures conclusion that such actions do not effects on the quality of the human for EAs discourage early public typically result in significant environment are likely to be highly involvement in projects and are contrary environmental impacts. According to controversial.’’ Guided by existing case to the CEQ Regulations, which requires CEQ, such longstanding practices can be law as to what constitutes ‘‘highly agencies to consider whether public

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comment is ‘‘practicable,’’ not whether would consider supplementing an EA § 1318.400(a). After further the public has already been involved. when there are ‘‘important components consideration and review of public TVA procedures do not reflect CEQ of the proposed action that remain to be comments, TVA includes two new requirements to provide public review implemented.’’ This text was also added actions that will normally require an EIS of an EA. Where TVA decides that an under § 1318.406 addressing in the final rule: the development of action described in § 1318.400(a) does supplementing EISs. TVA will continue integrated resource plans for power not need an EIS, the agency must to comply with CEQ regulations generation and system-wide reservoir discuss the basis for this decision in a addressing the supplementation of operations plans. document that is made available to the NEPA documents, including those TVA notes that the first two actions public ‘‘upon request.’’ Under relating to circulating supplemental listed under § 1318.400(a) include a § 1318.301(c), the EA will be circulated documents for public review. variety of types of projects. TVA also to the public for review and comment, Comment: TVA’s procedures are notes that examples provided by the but under § 1318.400(b), the public has flawed because TVA arbitrarily and commenter of categories of projects to request the document containing the inaccurately paraphrases the scope of addressed by TVA in recent NEPA basis for the agency’s decision not to analysis required in EAs and EISs. reviews include several that TVA found prepare an EIS (normally provided for Response: TVA’s NEPA implementing would result in no significant impacts to in an EA), and no public comment procedures supplement but do not the environment. occurs. TVA should fix this supersede CEQ’s NEPA regulations. Comment: Wind turbine projects are contradiction. Under § 1318.302(b) of the procedures, actions that should normally require an Response: The comments address a TVA elaborates on the requirements for EIS. EAs and addresses each of the CEQ contradiction between §§ 1318.301(c) Response: Comment noted. The requirements. TVA’s use of the term and 1318.400(b). TVA has deleted the appropriate level of NEPA review would ‘‘reasonable alternatives’’ is consistent phrase ‘‘upon request’’ from be determined by TVA in accordance with CEQ guidance on the consideration § 1318.400(b) to make clear that the EA with §§ 1318.101 and 1318.400. The size of alternatives (see CEQ’s Forty Most that forms the basis for not preparing an and location of proposed generating Asked Questions (questions 1 and 2) EIS for actions falling within the facilities would be considered prior to and Attachment A of its 2016 guidance categories specified in § 1318.400(a) will determining whether an EIS would be be made available for public review. regarding ‘‘Emergencies and the required. Further, § 1318.301(a) of the proposed National Environmental Policy Act’’). rule has been revised to include text CEQ regulations describe EAs as Comment: The procedures addressing from TVA’s previous procedures, ‘‘concise’’ documents that offer brief the adoption of environmental reviews established in 1980, regarding public discussions of environmental impacts, of other agencies are inconsistent with involvement in the preparation of an EA sufficient to determine whether NEPA and the CEQ regulations. TVA that TVA had proposed to remove from preparation of an EIS is required and to applies under § 1318.407(b), the wrong this section. After considering public aid in compliance with NEPA when no factors in determining whether an EIS input on § 1318.301(a), TVA decided to EIS is necessary. TVA agrees that may be adopted, and TVA’s procedure include the text (with minor edits) determining whether significant impacts relating to what it must do if it is because it provides general guidance for may occur from an action is the proper determined that the EIS may not be determining the appropriate level of scope of the EA. In the final rule, TVA adopted is inconsistent with CEQ public involvement in the EA process. revised the statement of the proposed regulations. TVA’s procedure under In the final rule, TVA also retains the rule that EAs should address ‘‘important § 1318.407(c), when serving as a sentence providing that the public’s environmental issues’’ (§ 1318.300(a)) to cooperating agency, conflicts with CEQ prior involvement may be also state that EAs should address ‘‘issues regulations (40 CFR 1506.3(c)). considered because often, a TVA EA that are potentially significant.’’ TVA Response: Based on this comment as process occurs concurrently with will continue to conduct reviews that well as further deliberation, TVA has another regulatory process or avoid discussions of trivial or irrelevant revised § 1318.407 in the final rule to environmental review by another matters, consistent with CEQ ensure that the procedures conform to agency. During other regulatory regulations and guidance. CEQ regulations. TVA agrees with the processes, the public is often provided The final rule does not substantively commenter that the last sentence of the a meaningful opportunity to comment revise procedures relating to the scope proposed procedure under on the environmental impacts of a of EISs. TVA notes that § 1318.400(d) § 1318.407(b), which addressed what proposal. When this occurs, TVA will cites to CEQ regulations addressing the action TVA would take if it determines integrate the public review opportunity scope and detail of the EIS (40 CFR that it is not appropriate to adopt an provided by the other regulatory process 1502.10–1502.18). agency’s EIS, conflicted with CEQ into its NEPA review. Consideration of requirements. TVA revised this this is consistent with CEQ’s regulations E. Comments on Subpart E— statement in the final rule to conform to requiring an agency to involve Environmental Impact Statements CEQ requirements. Regarding the environmental agencies, applicants and Comment: Contrary to the comment relating to § 1318.407(c) of the the public to the extent practicable (40 requirements of NEPA and the CEQ proposed rule, TVA does not find it CFR 1501.4(b)), to reduce delays in the regulations, TVA proposes to prepare necessary to restate the CEQ regulation NEPA process (40 CFR 1500.5), and to EISs only for a very narrow category of in this case. When TVA concludes that integrate the requirements of NEPA with major Federal actions. another agency’s EIS adequately other planning and environmental Response: When determining the addresses TVA’s proposed action, it is review procedures (40 CFR 1500.2). scope of its revision to these procedures, implicit that TVA has determined that Comment: TVA’s procedures for TVA considered whether additional the agency addressed TVA’s input in a supplementing EAs are inconsistent categories of actions should be added to satisfactory manner. Because of with NEPA and the CEQ regulations. the list of actions normally requiring an revisions, § 1318.407(c) of the proposed Response: TVA revised § 1318.304(a) EIS. Some revisions were proposed and rule is now § 1318.407(d) in the final in the final rule to clarify that TVA included in the final rule under rule.

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Comment: The procedures addressing supplementation of NEPA documents, impacts must be identified in the EA records of decision is inconsistent with including those relating to circulating and FONSI. The section also addresses NEPA and the CEQ regulations. supplemental documents for public the roles and responsibilities associated Response: TVA made the requested review. with tracking and monitoring the edit in the final rule, omitting the word Comment: TVA arbitrarily and progress of implementing the ‘‘normally’’ in § 1318.405(d). TVA notes inaccurately paraphrases the commitments. If TVA makes changes to that § 1318.405(d) and CEQ regulations alternatives analysis required in EAs mitigation measures that serve as a basis allow certain preliminary activities that and EISs. Limiting alternative analysis of a FONSI, TVA would reevaluate the do not result in adverse impacts or limit to merely address ‘‘key action FONSI and post the revised FONSI for the choice of reasonable alternatives to alternatives’’ is inconsistent with CEQ public review. occur prior to the issuance of the Record regulations. Comment: The procedures addressing of Decision (40 CFR 1506.1(a)). Response: TVA notes that the term programmatic NEPA reviews are Comment: The procedures for ‘‘key action alternative’’ was included in inconsistent with NEPA and the CEQ developing EISs inappropriately give TVA procedures promulgated in 1980 regulations because they would allow TVA unfettered discretion and deprive and was not used to limit alternative TVA to implement actions prior to the public of input into key portions of analysis. In the final rule, TVA changed completion of the NEPA review and the NEPA process, including scoping, the term ‘‘key action alternatives’’ to they do not address CEQ guidance alternatives analysis, and RODs. ‘‘reasonable action alternatives’’ relating public involvement and Response: Except for minor edits to (§ 1318.402(g)) to ensure consistency transparency while conducting reflect current TVA organization names, with CEQ regulations. TVA will environmental reviews. TVA proposed no substantive changes continue to comply with CEQ Response: It is not the intent of the to § 1318.402(a). TVA notes that its regulations and guidance addressing the final rule to allow interim actions under procedures clearly state that the initial need to consider reasonable alternatives. consideration to be implemented prior descriptions of alternatives, The comment also addresses the to the conclusion of a NEPA review. environmental issues, and schedules for inclusion of a definition of Section 1318.503(c) addresses environmental review are ‘‘tentative.’’ ‘‘practicable’’ in the final rule. TVA implementing actions that have been Such early descriptions provided by notes that its minor revision to this previously planned and approved by TVA are essential to initial project definition is intended to clarify its use TVA under NEPA. Based on the planning (including identifying needed in Subpart G of the final rule. resources of funds or staff to conduct comment, TVA has revised the review) and represent good F. Comments on Subpart F— § 1318.503(c) to make its intent clearer governance; they are critical as well in Miscellaneous Procedures and to reflect that the criteria at 40 CFR verifying whether an EIS is appropriate. Comment: Procedures addressing 1506.1(c) must be met. Based on TVA’s experience, it is mitigation are inconsistent with NEPA Comments related to the need to usually ineffective to initiate scoping for and the CEQ regulations. incorporate CEQ guidance relating to public input without providing the Response: TVA’s revision to this public involvement and transparency public with basic information about a section of the procedures was limited to are noted. TVA will continue to project or how TVA intends to review minor changes to clarify roles and complete programmatic NEPA reviews the proposal. TVA and other federal responsibilities and to clarify for policies, plans, programs or suite of agencies find that providing such considerations taken into account when projects in a manner consistent with information during scoping improves determining whether to modify or delete CEQ regulations and guidance. TVA the public scoping process and, previously-made mitigation finds these reviews to be particularly ultimately, the decision-making process. commitments. TVA will continue to valuable when establishing program When conducting scoping, TVA will comply with CEQ requirements and priorities and plans, determining how continue to communicate to the public guidance relating to mitigation. policies may best be implemented, and that its determinations about the Paragraphs (a), (b), (c) and (d) of planning proposals that may have broad proposal are preliminary and that § 1318.501 reflect the obligation to geographic influence. Public scoping is intended to inform and identify, disclose, implement and involvement in these reviews would engage the public in order to receive monitor these mitigation commitments. comply with CEQ requirements as well input. In addition, TVA will continue to Occasionally, circumstances have arisen as the applicable TVA procedures. comply with CEQ regulations by that require reconsideration of When minor actions are proposed that determining when it is appropriate to mitigation commitments (in fact, CEQ may implement TVA programs, such hold scoping meetings. addresses some of these circumstances activities would properly be reviewed to Comment: The procedures addressing in its 2011 guidance relating to determine an appropriate level of NEPA the supplementation of EISs are not mitigation). In those cases, as stated in review. In some cases, actions may fall consistent with NEPA or CEQ’s the final rule, TVA would consider the within a category of actions and a CE regulations. environmental significance of changes may be used. In others, an EA or EIS Response: In response to this to commitments before modifying or may be prepared. comment, TVA revised the first deleting the mitigation commitments The commenter also suggested adding sentence under § 1318.406. The phrase (§ 1318.501(e)). This would ensure that numerous provisions to the final rule to ‘‘and important decisions related to the TVA considers whether additional incorporate the CEQ guidance. These proposed action remain to be made’’ has NEPA review is needed, including comments are noted. TVA will continue been changed to ‘‘and important supplementing a NEPA document. prior to consider the CEQ’s guidance to components of the proposed action to modifying the commitment. ensure good NEPA practices are remain to be implemented . . . .’’ As TVA notes that § 1318.501 also employed during programmatic reviews. noted above, TVA made a similar addresses the identification of Comment: Procedures in Subpart F change to § 1318.304(a) for consistency. mitigation measures in FONSIs and, regarding emergency actions and TVA will continue to comply with CEQ under § 1318.501(a), all measures that ‘‘unforeseen situations’’ are inconsistent regulations addressing the mitigate expected significant adverse with NEPA and the CEQ regulations.

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Response: In response to the National Wetland Inventory mapping, addressing ‘‘Determination of Project comment, TVA has revised § 1318.510 current aerial imagery depicting land Specific Federal Flood Risk to make clear that these procedures use/land cover, and soils maps. Where Management Standard (FFRMS) apply only to emergencies. The term deemed necessary, TVA conducts field Elevations and Their Applicability.’’ ‘‘unforeseen situations’’ was removed. surveys of wetlands to map wetland This document is unclear concerning TVA also made additional minor boundaries and collect additional climate change and the effects of revisions to this section to ensure information for NEPA effects weather. consistency with CEQ regulations determinations. Wetland determinations Response: During the public review of addressing emergency circumstances. are performed according to U.S. Army the proposed rule, TVA received Corps of Engineers standards, which comments on a document relating to G. Comments on Subpart G— require documentation of hydrophytic how TVA would determine FFRMS Floodplains and Wetlands (wet-site) vegetation, hydric soil, and elevations available to the public as Comment: TVA’s proposed rule wetland hydrology. Wetland condition supporting information relating to its improperly sidelines the public in is assessed using a regional wetland proposed procedures on flood risk. TVA TVA’s decisionmaking regarding assessment method, the TVA Rapid notes that the comments do not relate to floodplains and wetlands because it Assessment Method, which was the TVA rule itself. As previously states that ‘‘[p]ublic notice of actions developed using the same ecological stated, E.O. 13807 revoked E.O. 13690 affecting floodplains or wetlands is not metrics as the Ohio Rapid Assessment relating to the FFRMS. Although the required if the action is categorically Method and calibrated to reflect FFRMS is no longer is effect, TVA excluded under Section 1318.200.’’ regional wetland differences specific to requires flood-damageable structures Response: Although TVA did not the TVA region. and facilities along TVA reservoirs to be propose any revisions to the sentence Environmental effects of proposed located at or above the 0.2-annual- addressed in this comment, TVA actions upon wetlands are assessed for chance (500 year) flood elevation. considered the comment and, after site-specific wetland conditions and TVA has sponsored and followed further deliberation, revised the first include an analysis of cumulative research that has shown very little paragraph of § 1318.603 to state that impacts to wetlands within a watershed climate change projected for the TVA public notice will be provided for and ecoregion context. Regional wetland region. In order to better understand our proposed actions affecting floodplains status and trends data is obtained full risk (out to extreme flooding levels), or wetlands that are subject to the through land use/land cover analysis. TVA has created an industry-leading applicable E.O.s, including categorically These wetland evaluation methods PFHA platform that includes a wide excluded actions. utilize current best practices and are range of factors probabilistically. These Comment: TVA must implement fundamentally based on botany, factors include: Storm type, directives in E.O. 11988 for the hydrology, pedology, ecology, and precipitation frequency per storm type, Management of Flood Risk in Federal geomorphology. These methods are also storm seasonality per storm type, storm Infrastructure. tied to regulatory-standards for wetland placement in space and time, rainfall- Response: TVA’s Class Review of identification and delineation; these runoff relations, river routing per the Certain Repetitive Actions in the 100- standards are developed by multiple TVA operating policy, and starting Year Floodplain (46 FR 22845–46, April national advisory teams and undergo states sampled from the historic record 21, 1981) includes a provision that ‘‘[a]ll periodic evaluation and updates based re-sampled out to 1,000 years. activities will adhere to the minimum on changes in wetland science. This PFHA system gives TVA a robust standards of the National Flood Comment: TVA should update its understanding of the probabilities for Insurance Program published at 44 CFR flood frequency analysis, while flood elevations due to a wide range of 60.1–60.8, and any future amendments continuing to analyze hydrology for the factors. The science on how climate thereto, and comply with local TVA region. TVA should continue to change might affect extreme storms is floodplain regulations.’’ TVA applies utilize its approach on flood risk evolving. If a method to incorporate the process provided in the Class management and its proposed climate projections into our PFHA Review to every proposed action subject determination chart. system becomes available, TVA would to NEPA. The current TVA NEPA Response: Comment noted. TVA consider incorporating it. TVA agrees procedures pertaining to the disposition recognizes the need to review and with the commenter that the public of real property were brought forward update, as appropriate, its flood health and safety of the people of the without change to § 1318.604(a) and (b) frequency analyses and resultant flood Tennessee Valley are best served when and address property in the floodplain elevations based on newer modeling the data used to develop estimates of conveyed by TVA. Additionally, TVA techniques, improved hydrologic rainfall and subsequent runoff are requires flood-damageable structures methods, additional years of observed accurate, up-to-date, and account for and facilities along TVA reservoirs to be data, and newly available climate tools. potential extreme weather events. located at or above the 0.2-annual- TVA has created an industry-leading chance (500-year) flood elevation. probabilistic flood hazard analysis III. Description of Changes Made Comment: TVA should use an (PFHA) platform. This platform handles As indicated in many of the responses informed, science-based approach to a wide range of factors probabilistically to public comments, TVA made changes evaluate the impacts of its actions on all to better understand our flood risk up to to the procedures after considering the floodplains and wetlands. extreme flooding levels. This PFHA public comments, additional internal Response: Science-based methods and system gives TVA a robust review, and further consultation with tools for wetland identification, understanding of the probabilities for CEQ on the final rule. The following delineations, and assessment are flood elevations due to a wide range of paragraphs contain a summary of key integral for an accurate analysis to meet factors. Updates to TVA flood frequency changes under each subpart from those NEPA standards. For all proposed analyses would incorporate the PFHA published in the Notice of Proposed projects, TVA specialists conduct an platform. Rule. initial wetland review. This initial Comment: When TVA published its TVA does not repeat discussion of wetland assessment is conducted using proposed rule, it provided its document procedures in this final rule that were

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not changed relative to what was included in the proposed rule. As noted • TVA added an example of the type described in the Notice of Proposed under Section II above, proposed CE 15 of infrastructure that may be included Rule. Thus, the Notice of Proposed Rule was removed because TVA’s vegetation under CE 38. may be consulted for further management activities along existing • TVA made minor revisions to CEs explanation regarding changes in the rights-of-way are under review, and CE 38, 43, 45, 46, and 49 to clarify the rule. 46 and two items listed under CE 45 spatial limitations that would apply. were removed because the likelihood of • TVA made a minor revision to CE Subpart A—General Information TVA conducting such actions is not 42 to clarify that examples in the CE are § 1318.20 Policy. In the final rule, foreseeable. In total, TVA made changes considered to be ‘‘minor.’’ • TVA made minor revisions to paragraph in the final rule affecting 19 CEs, as TVA removed ‘‘improvements’’ to (c) to improve clarity. follows: access roads and parking areas from the § 1318.40 Definitions. In the final • In the final rule, TVA carries scope of CE 43 because CE 42 would rule, TVA made changes to this section apply to such improvements. forward the existing CE 5.2.6 as CE 6 • because E.O. 13690 was revoked by and will not revise the CE as proposed Items (c) and (d) were removed executive action in August 2017. TVA in the proposed rule. from CE 45’s list of covered actions in removed the definition of ‘‘Federally • In the list of example actions of CE response to public comment and TVA’s funded projects’’ and deleted a sentence 13, TVA revised ‘‘soil borings’’ to determination that such actions are not under ‘‘Floodplain’’ because these were foreseeable. ‘‘geotechnical borings’’ to be consistent • proposed by TVA to address the Federal with the terminology used in other CEs. TVA moved item (e) from the list of actions under CE 45 and added it to the Flood Risk Management Standard in • For CE 17, TVA added the adjective list of CEs as CE 46 (replacing the E.O. 13690. TVA also moved the ‘‘routine’’ to the CE’s definition, proposed CE 46 that was removed); TVA definition of ‘‘Official responsible for clarified that upgrades of existing revised the scope of the new CE 46 to NEPA compliance’’ from Subpart F of transmission infrastructure would be reflect that TVA’s action is the purchase the proposed rule to this section. minor, and revised the scope of the CE of power at such facilities. TVA also to exclude routine actions at existing Subpart B—Initiating the NEPA Process removed from the CE the limitation that substations and switching stations § 1318.101 NEPA determination. In actions could only occur ‘‘on or because those actions would be covered the final rule, TVA revised paragraph contiguous to an existing landfill or under CE 36 or CE 37. (d) to provide additional information wastewater treatment plant’’ because it • For CE 21, based on public input, about how the determination that an is unnecessary; the CE definition TVA clarified that the CE may be used action is already covered by an existing already restricts actions to areas if future operations by TVA of existing NEPA review will be made and previously developed or disturbed by combustion turbine or combined-cycle documented. human activity. plants are ‘‘within the normal operating • As a result of public comment and Subpart C—Categorical Exclusions levels of the purchased or leased further internal deliberation, TVA In the final rule, TVA made revisions facility,’’ rather than ‘‘within existing revised CE 47 to simplify the definition environmental permit’’ levels. to each section of the procedures • and to limit the scope of covered relating to CEs, including the list of CEs In the list of example actions of CE actions. found in Appendix A to Subpart C, 22, TVA replaced ‘‘stabilization of sites’’ Incorporating all of these changes has primarily because of public input, as with ‘‘hardening and stabilization of resulted in changes to the list of 28 CEs addressed above. One section was sites’’ to include a term more familiar to established by TVA in 1980 and 1983. TVA recreation specialists. In the final rule, 9 of these CEs are added to the Subpart. • § 1318.200 Purpose and scope. At TVA revised CE 25 to clarify that eliminated, the definition of 14 CEs are the request of an interagency partner, the CE applies only to the transfer, lease revised, and 5 are carried forward TVA added a statement affirming that or disposal of minor property or rights. unchanged. The final rule establishes 31 • the use of a CE does not relieve TVA TVA revised CE 27 to correct a new CEs. Incorporating these changes, from compliance with other statutes and grammatical error. TVA has 50 CEs in the final rule. TVA • consultations, including the ESA and TVA decreased the general acreage updated its Supporting Documentation NHPA. limitation of CE 29 from 125 acres to 10 to reflect the CEs in the final rule and § 1318.201 Extraordinary acres after additional consideration by posted it to TVA’s website circumstances. At the request of an TVA staff. (www.tva.gov/nepa). interagency partner, TVA revised the • As a result of public comment, TVA definition of one of the extraordinary revised CE 34 to limit the scope of Subpart D—Environmental Assessments circumstances to clarify the covered actions. § 1318.300 Purpose and scope. In consideration given to species listed or • TVA revised CE 35 based on public response to public comment, TVA proposed to be listed under the ESA and input to make it clear that the category modified text in paragraph (b) their designated critical habitat. of actions includes only low-volume addressing what issues would be the § 1318.202 Public notice. To address water supply wells that would not subject of EAs. The phrase ‘‘important public concerns and consistent with impact important aquifers. environmental issues’’ is replaced by CEQ guidance, TVA added a new • TVA removed the terms ‘‘issues that are potentially significant.’’ section to the Subpart to address when ‘‘substantial’’ and ‘‘substantially’’ from TVA also made minor grammatical edits to seek public engagement and the definition of CE 36, added an to paragraph (a). disclosure when using a CE. example action (b), and made minor § 1318.301 Public and stakeholder Appendix A—Categorical exclusions. revisions to example actions (d) and (e) participation in the EA process. As In the final rule, the list of CEs was for clarity. noted above, TVA received a comment revised based on public input on the • TVA revised the example action (d) questioning whether its proposed proposed rule and additional internal of CE 37 to reflect that the CE only procedure relating to the consideration deliberation. TVA removed two CEs and applies to ‘‘large’’ heating and air given to public involvement in the two portions of a third CE that were systems. preparation of an EA was consistent

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with CEQ regulations. After further alternatives’’ with ‘‘reasonable action Subpart F—Miscellaneous Procedures deliberations, TVA decided to retain the alternatives.’’ procedures established in 1980 (with § 1318.500 Public participation. In § 1318.402 Scoping process. In the the final rule, TVA revised this section minor edits) and to retain the proposed final rule, numerous grammatical edits text (with minor edits for grammar). by eliminating paragraph (c) of the were made to the section to improve proposed rule, which related to the TVA determined that the previous clarity. Paragraph (e) was revised to procedures provide general guidance as open meetings of the Board of Directors; clarify that 30 days will be the TVA determined that the paragraph was well as additional context for the minimum public comment period sentence included in the proposed rule. not a regulatory provision and did not during scoping. In response to public TVA also made other minor edits to address the implementation of NEPA. and CEQ comments, TVA revised paragraphs (b) and (c) for grammar and TVA revised the paragraph addressing paragraph (g) to improve consistency clarification. privacy provisions for public comments § 1318.302 EA preparation. In the with CEQ regulations and the in paragraph (d) of the final rule to final rule, TVA revised this section. recommended format for an EIS. clarify that the public will be notified Notably, in paragraph (a), TVA replaced § 1318.403 DEIS preparation, how their comments and information the word ‘‘practical’’ with ‘‘practicable’’ transmittal and review. In the final rule, will become part of the public record. and ‘‘should’’ with ‘‘shall.’’ Paragraph TVA revised paragraph (b) to clarify that § 1318.501 Mitigation commitment (g) was revised to clarify that at the cooperating agencies will have the identification, auditing, and reporting. conclusion of an EA process, NEPA opportunity to take part in the Numerous grammatical edits were made compliance staff may conclude that preparation of the DEIS and not simply to this section in the final rule to additional analysis is needed to review it once it has been completed. improve clarity. supplement the EA. Paragraph (c) was revised to reflect the § 1318.503 Programmatic and § 1318.303 Finding of No Significant roles and responsibilities associated generic NEPA documents. After Impact. In the final rule, paragraph (a) with approval and publication of the considering comments from the public is revised to clarify the roles and DEIS. TVA made additional minor edits regarding paragraph (c), TVA revised responsibilities associated with to the section for grammar. preparation and approval of a FONSI. the paragraph to make clear that TVA Paragraph (d) was revised based on § 1318.403 FEIS preparation and would be consistent with criteria public comment to clarify when a draft transmittal. In the final rule, TVA established in CEQ regulations at 40 FONSI would be made available for incorporated input from CEQ and made CFR 1506.1(c) addressing limitations on public review and comment. numerous grammatical edits to the actions during the NEPA process. § 1318.304 Supplements and section. Paragraph (b) was revised to § 1318.509 Substantial compliance. adoptions. TVA revised paragraph (a) to clarify which documents will be After further review and in state that TVA will consider circulated if changes needed to the DEIS consideration of CEQ input, TVA supplementing EAs when there are to complete an FEIS are minor. In eliminated paragraph (a) of this section ‘‘important components of the proposed addition, paragraph (d) was revised to as presented in the proposed rule, action that remain to be implemented’’ reflect the roles and responsibilities which addressed flexibility in rather than when there are ‘‘important associated with approval and implementing the procedures and decisions remaining to be made.’’ Minor publication of the FEIS. reviewing proposed actions. TVA also grammatical edits to paragraph (b) are § 1318.405 Agency decision. In the revised paragraph (b) to address minor included in the final rule. final rule, TVA revised paragraph (a) to deviations with the procedures, who would approve such deviations, and Subpart E—Environmental Impacts remove the reference to emergency whether they give rise to an Statements circumstances, which are addressed in Subpart F. Based on public input, TVA independent cause of action. § 1318.400 Purpose and scope. After deleted the word ‘‘normally’’ from § 1318.510 Emergency actions. additional internal review and in paragraph (d) of this section to make the Based on public input and to clarify that response to public comment, TVA procedure consistent with CEQ the section addresses emergency added two types of actions that guidance and regulations. situations only, TVA removed from normally will require an EIS. TVA also paragraph (a) of this section the revised two actions to clarify that the § 1318.406 Supplements. In response to public comment, TVA statement that procedures may be scope of the actions includes not only consolidated, modified or omitted construction activities but operation of revised this section to clarify that TVA will consider supplementing EISs when because of ‘‘unforeseen situations.’’ In the facilities. TVA removed the words addition, based on public and CEQ ‘‘upon request’’ from paragraph (b) of there are ‘‘important components of the proposed action that remain to be input, paragraphs (a) and (b) were § 1318.400 to be consistent with revised to improve clarity and ensure § 1318.301(c) in the final rule. Minor implemented’’ rather than when there are important decisions related to the consistency with CEQ regulations at 40 revisions were made for clarity to CFR 1506.11. paragraphs (b), (c), and (d), including proposed action that remain to be made. replacing the word ‘‘should’’ for ‘‘shall § 1318.407 EIS adoption. In § 1318.512 Status reports. In the in two places. response to public and CEQ input, TVA final rule, TVA revised the section to § 1318.401 Lead and cooperating revised each paragraph of the section to clarify that status reports pertaining agency determinations. Minor edits ensure consistency with CEQ only to EISs and EAs under were made to paragraph (a) for clarity. regulations at 40 CFR 1506.3. In the development would be published on TVA replaced ‘‘practical’’ with final rule, the revised paragraphs (a), (b), TVA’s website. ‘‘practicable’’ and ‘‘should’’ with and (c) address corresponding sections § 1318.513 Official response for ‘‘shall’’ based on further internal review. of the CEQ regulations. Paragraphs (d) NEPA compliance efforts. In the final TVA also added ‘‘purpose and need for and (e) were revised in order to clarify rule, this section was removed from the proposed action’’ to the list of EIS when TVA may make a decision about Subpart F and inserted as a definition components and revised ‘‘key action its proposed action. under § 1318.40.

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Subpart G—Floodplains and Wetlands IV. Administrative Requirements C. Paperwork Reduction Act As noted above, in its proposed rule, A. Unfunded Mandates Reform Act and This final rule does not contain TVA had incorporated guidance Various Executive Orders Including E.O. information collection requirements that require approval by OMB under the pertaining to E.O. 13690. The E.O. was 12866, Regulatory Planning and Review; E.O. 12898, Federal Actions To Address Paperwork Reduction Act, 44 U.S.C. revoked by executive action on August 3501 et seq. 15, 2017, during the public review of Environmental Justice in Minority the proposed rule. Populations and Low-Income D. National Environmental Policy Act Populations; E.O. 12988, Civil Justice The CEQ does not direct agencies to § 1318.600 Purpose and scope. Reform Act; E.O. 13045, Protection of Because E.O. 13690 was revoked by prepare a NEPA analysis before Children From Environmental Health establishing agency procedures that executive action (E.O. 13807, Risks; E.O. 13132, Federalism; E.O. Establishing Discipline and supplement the CEQ regulations for 13175, Consultation and Coordination implementing NEPA. TVA’s NEPA Accountability in the Environmental With Indian Tribal Governments; E.O. Review and Permitting Process for procedures assist in the fulfillment of its 13211, Actions Concerning Regulations responsibilities under NEPA, but are not Infrastructure), TVA revised paragraph That Significantly Affect Energy Supply, (a) to remove the reference to E.O. the agency’s final determination of what Distribution, and Use; and E.O. 13771, level of NEPA analysis is required for a 13690; some minor grammatical edits Reducing Regulation and Controlling particular agency action. The were also made to improve clarity. Regulatory Costs requirements for establishing agency Paragraph (b) was revised to delete the This rule amends TVA’s procedures NEPA procedures are set forth at 40 CFR reference to the FFRMS (addressed in 1505.1 and 1507.3. The determination E.O. 13690), and a new, more general for the implementation of NEPA and is not subject to review by the Office of that establishing agency NEPA reference was added to ensure procedures does not require NEPA consideration of any applicable Federal Management and Budget (OMB) under E.O. 12866. The rule contains no analysis and documentation has been flood risk management standard that upheld in Heartwood, Inc. v. U.S. Forest may be in force at the commencement Federal mandates for State, local, or tribal government or for the private Service, 73 F. Supp. 2d 962, 972–73 of an environmental review. TVA also (S.D. III. 1999), aff’d, 230 F.3d 947, 954– sector. TVA has determined that these revised paragraph (c) by adding 55 (7th Cir. 2000). amendments will not have a significant ‘‘allocation to private parties’’ to the text annual effect of $100 million or more or List of Subjects in 18 CFR Part 1318 to make TVA’s procedure more result in expenditures of $100 million in consistent with E.O. 11990, regarding Administrative practice and any one year by State, local, or tribal when the order applies to actions on procedure, Environmental impact governments or by the private sector. non-Federal property. statements, Environmental protection, Nor will the amendments have concerns Floodplains, Floods, Wetlands. § 1318.603 Public notice. TVA for environmental health or safety risks ■ removed from paragraph (a) the that may disproportionately affect For the reasons stated in the preamble, statement that proposed actions that children, have significant effect on the TVA adds part 1318 to chapter XIII of may be categorically excluded will not supply, distribution, or use of energy, or title 18 of the Code of Federal Regulations to read as follows: be subject to public notice requirements. disproportionally impact low-income or Text was added to clarify that TVA will minority populations. Accordingly, the PART 1318—IMPLEMENTATION OF provide public notice for proposed rule has no implications for any of the THE NATIONAL ENVIRONMENTAL actions affecting floodplains or wetlands aforementioned authorities. POLICY ACT OF 1969 that are subject to E.O.s 11988 and B. Regulatory Flexibility Act 11990 and that have not been previously Subpart A—General Information excluded by a class review for repetitive Under the Regulatory Flexibility Act, Sec. actions conducted by TVA. TVA also 5 U.S.C. 601 et seq., TVA is required to 1318.10 Purpose. 1318.20 Policy. revised paragraph (b)(4) to reflect the prepare a regulatory flexibility analysis 1318.30 Abbreviations. revocation of E.O. 13690 and to unless the head of the agency certifies 1318.40 Definitions. generalize the language to incorporate that the proposal will not have a Subpart B—Initiating the NEPA Process any Federal floodplain protection significant economic impact on a standards. substantial number of small entities. 1318.100 Action formulation. TVA’s Chief Executive Officer has 1318.101 NEPA determination. certified that the final rule will not have Subpart C—Categorical Exclusions a significant economic impact on a 1318.200 Purpose and scope. substantial number of small entities 1318.201 Extraordinary circumstances. within the meaning of the Regulatory 1318.202 Public notice. Flexibility Act. This determination is Appendix A to Subpart C of Part 1318— based on the finding that the final rule Categorical Exclusions amends existing TVA procedures and Subpart D—Environmental Assessments do not compel any other party to take 1318.300 Purpose and scope. any action or interfere with an action 1318.301 Public and stakeholder taken by any other party. The participation in the EA process. amendments do not change the 1318.302 EA preparation. substantive requirements of TVA 1318.303 Finding of No Significant Impact. programs that are most likely to affect 1318.304 Supplements and adoptions. small entities (e.g., TVA permitting, Subpart E—Environmental Impact economic assistance and development Statements programs). 1318.400 Purpose and scope.

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1318.401 Lead and cooperating agency (c) Environmental reviews under Official responsible for NEPA determinations. NEPA will assist decision makers in compliance refers to the TVA official 1318.402 Scoping process. making better, more knowledgeable who manages the NEPA compliance 1318.403 DEIS preparation, transmittal, and decisions that consider those reasonable staff and is responsible for overall review. alternatives to the proposed action that 1318.404 FEIS preparation and transmittal. review of TVA NEPA compliance. 1318.405 Agency decision. fulfill the purpose and need for the Practicable, as used in subpart G of 1318.406 Supplements. action, concisely present the this part, refers to the capability of an 1318.407 EIS adoption. environmental impacts and other action being performed within existing information regarding the proposed constraints. The test of what is Subpart F—Miscellaneous Procedures action and its alternatives, are practicable depends on the situation 1318.500 Public participation. consistent with the environmental and includes an evaluation of all 1318.501 Mitigation commitment importance of the action, concentrate on pertinent factors, such as environmental identification, auditing, and reporting. truly significant environmental issues, impact, economic costs, statutory 1318.502 Tiering. 1318.503 Programmatic and generic NEPA and are practicable. authority, legality, technological achievability, and engineering documents. § 1318.30 Abbreviations. 1318.504 Private applicants. constraints. 1318.505 Non-TVA EISs. (a) CE—Categorical Exclusion Wetland refers to an area inundated 1318.506 Documents. (b) CEQ—Council on Environmental by surface or ground water with a 1318.507 Reducing paperwork and delay. Quality frequency sufficient to support, and that (c) DEIS—Draft Environmental Impact 1318.508 Supplemental guidance. under normal circumstances does or 1318.509 Substantial compliance. Statement (d) EA—Environmental Assessment would support, a prevalence of 1318.510 Emergency actions. vegetation or aquatic life that requires 1318.511 Modification of assignments. (e) EIS—Environmental Impact 1318.512 Status reports. Statement saturated or seasonally saturated soil (f) EPA—Environmental Protection conditions for growth and reproduction. Subpart G—Floodplains and Wetlands Agency Wetlands do not include temporary 1318.600 Purpose and scope. (g) FEIS—Final Environmental Impact human-made ponds associated with 1318.601 Area of impact. Statement active construction projects. 1318.602 Actions that will affect (h) FONSI—Finding of No Significant floodplains or wetlands. Impact Subpart B—Initiating the NEPA 1318.603 Public notice. Process 1318.604 Disposition of real property. (i) NEPA—National Environmental 1318.605 General and class reviews. Policy Act § 1318.100 Action formulation. (j) ROD—Record of Decision Authority: 42 U.S.C. 4321 et seq. (k) TVA—Tennessee Valley Authority (a) Each office, group, or department (‘‘entity’’) within TVA is responsible for Subpart A—General Information § 1318.40 Definitions. integrating environmental The following definitions apply considerations into its planning and § 1318.10 Purpose. throughout this part. All other decision-making processes at the This part establishes procedures for applicable terms should be given the earliest possible time, to appropriately Tennessee Valley Authority (TVA) to same meaning as set forth in CEQ’s consider potential environmental use for compliance with: currently effective regulations (40 CFR effects, reduce the risk of delays, and (a) The National Environmental part 1508) unless such a reading would minimize potential conflicts. Policy Act (NEPA) of 1969, as amended make the terms inconsistent with the (b) Environmental analyses should be (42 U.S.C. 4321 et seq.); context in which they appear. included in or circulated with and (b) Other applicable guidelines, Controversial refers to scientifically reviewed at the same time as other regulations and Executive orders supported commentary that casts planning documents. This responsibility implementing NEPA; and substantial doubt on the agency’s is to be carried out in accordance with (c) The Council on Environmental methodology or data, but does not mean the environmental review procedures Quality (CEQ) regulations for commentary expressing mere contained herein. implementing the procedural provisions opposition. (c) TVA’s Chief Executive Officer and of NEPA (40 CFR parts 1500–1508). Floodplain refers to the lowland and Board of Directors are the agency’s relatively flat areas adjoining flowing primary decision makers for programs § 1318.20 Policy. inland waters and reservoirs. Floodplain and actions that are likely to be the most It is the policy of TVA that: generally refers to the base floodplain, consequential from an environmental, (a) TVA incorporates environmental i.e., that area subject to a 1 percent or financial, and policy standpoint. Other considerations into its decision-making greater chance of flooding in any given TVA officials and managers are processes to the fullest extent possible. year. responsible for and make decisions These procedures ensure that actions Important farmland includes prime about other TVA actions. are viewed in a manner to encourage farmland, unique farmland, and productive and enjoyable harmony farmland of statewide importance as § 1318.101 NEPA determination. between man and the environment. defined in 7 CFR part 657. (a) NEPA applies to proposed actions (b) Commencing at the earliest Natural and beneficial floodplain and with potential impacts on the human possible point and continuing through wetland values refer to such attributes environment that would result in a non- implementation, appropriate and careful as the capability of floodplains and trivial change to the environmental consideration of the environmental wetlands to provide natural moderation status quo. aspects of proposed actions is built into of floodwaters, water quality (b) At the earliest possible time, the the decision-making process in order maintenance, fish and wildlife habitat, TVA entity proposing an action shall that adverse environmental effects may plant habitat, open space, natural consult with the staff responsible for be avoided or minimized, consistent beauty, scientific and educational study NEPA compliance and TVA legal with the requirements of NEPA. areas, and recreation. counsel, as appropriate, to determine

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whether the action requires an (e) The use of a categorical exclusion 1. Educational or informational activities environmental review under NEPA and, for an action does not relieve TVA from undertaken by TVA alone or in conjunction if so, the level of environmental review. compliance with other statutes or with other agencies, public and private (c) The level of review will be in one entities, or the general public. consultations, including, for example, 2. Technical and planning assistance of the following categories: Categorical the Endangered Species Act or the provided to State, local and private Exclusions, Environmental National Historic Preservation Act. organizations and entities. Assessments, and Environmental Impact 3. Personnel actions. Statements. § 1318.201 Extraordinary circumstances. 4. Procurement actions. (d) The NEPA compliance staff shall (a) An action that would normally 5. Accounting, auditing, financial reports determine whether the action is already qualify as a categorical exclusion must and disbursement of funds. covered under an existing NEPA review, not be so classified if an extraordinary 6. Contracts or agreements for the sale, including a programmatic or generic circumstance is present and cannot be purchase, or interchange of electricity. mitigated, including through the 7. Administrative actions consisting solely review. Before such an action proceeds, of paperwork. the NEPA compliance staff shall application of other environmental 8. Communication, transportation, evaluate and adequately document regulatory processes. In order to computer service and office services. whether the new action is essentially determine whether extraordinary 9. Property protection activities that do not similar to the previously analyzed circumstances exist, TVA shall consider physically alter facilities or grounds, law action, the alternatives previously whether: enforcement and other legal activities. analyzed are adequate for the new (1) The action has the potential to 10. Emergency preparedness actions not involving the modification of existing action, there are significant new significantly impact environmental resources, including the following facilities or grounds. circumstances or information relevant to 11. Minor actions to address threats to environmental concerns that would resources: public health and safety, including, but not substantially change the analysis in the (i) Species listed or proposed to be limited to, temporary prohibition of existing existing NEPA review, and there are listed under the Endangered Species uses of TVA land or property, short-term effects that would result from the new Act, or the proposed or designated closures of sites, and selective removal of action that were not addressed in the Critical Habitat for these species, trees that pose a hazard. 12. Site characterization, data collection, previous analysis (ii) Wetlands or floodplains, (iii) Cultural or historical resources, inventory preparation, planning, monitoring, (e) NEPA and its implementing and other similar activities that have little to regulations (both CEQ’s and TVA’s) (iv) Areas having special designation or recognition such as wild and scenic no physical impact. provide an established, well-recognized 13. Engineering and environmental studies process for appropriately analyzing rivers, parklands, or wilderness areas, that involve minor physical impacts, environmental issues and involving the and including but not limited to, geotechnical public. (v) Important farmland; and borings, dye-testing, installation of (f) TVA may choose to conduct an (2) The significance of the monitoring stations and groundwater test environmental review when NEPA does environmental impacts associated with wells, and minor actions to facilitate access to a site. not apply. the proposed action is or may be highly controversial. 14. Conducting or funding minor research, development and demonstration projects and Subpart C—Categorical Exclusions (b) The mere presence of one or more of the resources under paragraph (a)(1) programs. § 1318.200 Purpose and scope. 15. Reserved. of this section does not by itself 16. Construction of new transmission line (a) Categories of actions addressed in preclude use of a categorical exclusion. infrastructure, including electric this section are those that do not Rather, the determination that transmission lines generally no more than 10 normally have, either individually or extraordinary circumstances are present miles in length and that require no more than cumulatively, a significant impact on depends upon the finding of a causal 125 acres of new developed rights-of-way the human environment and therefore relationship between a proposed action and no more than 1 mile of new access road do not require the preparation of an EA and the potential effect on these construction outside the right-of-way; and/or or an EIS. resource conditions, and, if such a construction of electric power substations or interconnection facilities, including (b) The TVA entity proposing to relationship exists, the degree of the switching stations, phase or voltage initiate an action must determine, in potential effect of a proposed action on conversions, and support facilities that consultation with the NEPA compliance these resource conditions. generally require the physical disturbance of staff, whether the proposed action is no more than 10 acres. categorically excluded. § 1318.202 Public notice. 17. Routine modification, repair, and (c) In order to find that a proposal can TVA may consider providing public maintenance of, and minor upgrade of and be categorically excluded, TVA will notice before a categorical exclusion is addition to, existing transmission ensure that a larger project is not used if TVA determines that the public infrastructure, including the addition, impermissibly broken down into small may have relevant and important retirement, and/or replacement of breakers, information relating to the proposal that transformers, bushings, and relays; parts such that the use of a categorical transmission line uprate, modification, exclusion for any such small part would will assist TVA in its decisionmaking. reconductoring, and clearance resolution; irreversibly and irretrievably commit Appendix A to Subpart C of Part 1318— and limited pole replacement. This exclusion TVA to a particular plan of action for Categorical Exclusions also applies to improvements of existing the larger project. access roads and construction of new access (d) The actions listed in appendix A The TVA has established the following roads outside of the right-of-way that are of this part are classes of actions that classes of actions as categorical exclusions. generally no more than 1 mile in length. TVA has determined do not Individual actions must be reviewed to 18. Construction, modification and determine whether any of the extraordinary individually or cumulatively have a operation of communication facilities and/or circumstances listed in § 1318.202 is present. equipment, including power line carriers, significant effect on the human If an extraordinary circumstance cannot be insulated overhead ground wires/fiber optic environment (categorical exclusions), mitigated sufficiently to render the action’s cables, devices for electricity transmission subject to review for extraordinary impacts not significant, an EA or an EIS must control and monitoring, VHF radios, and circumstances. be prepared. microwaves and support towers.

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19. Removal of conductors and structures, and sediment following natural or human- existing buildings, infrastructure systems, and/or the cessation of right-of-way caused disturbance events; installation of silt facility grounds, public use areas, recreation vegetation management, when existing fences; construction of limited access routes sites, and operating equipment at or within transmissions lines are retired; or the for purposes of routine maintenance and the immediate vicinity of TVA’s generation rebuilding of transmission lines within or management; and reintroduction or and other facilities. Covered actions are those contiguous to existing rights-of-way supplementation of native, formerly native, that are required to maintain and preserve involving generally no more than 25 miles in or established species into suitable habitat assets in their current location and in a length and no more than 125 acres of within their historic or established range. condition suitable for use for its designated expansion of the existing right-of-way. 30. Actions to maintain, restore, or purpose. Such actions will not result in a 20. Purchase, conveyance, exchange, lease, enhance terrestrial ecosystems that generally change in the design capacity, function, or license, and/or disposal of existing involve physical disturbance of no more than operation. (Routine actions that include substations, substation equipment, 125 acres, including, but not limited to, replacement or changes to major components switchyards, and/or transmission lines and establishment and maintenance of non- of buildings, facilities, infrastructure systems, rights-of-way and associated equipment invasive vegetation; bush hogging; prescribed or facility grounds, and actions requiring new between TVA and other utilities and/or fires; installation of nesting and roosting permits or changes to an existing permit(s) customers. structures, fencing, and cave gates; and are addressed in CE 37). Such actions may 21. Purchase or lease and subsequent reintroduction or supplementation of native, include, but are not limited to, the following: operation of existing combustion turbine or formerly native, or established species into a. Regular servicing of in-plant and on-site combined-cycle plants for which there is suitable habitat within their historic or equipment (including during routine outages) existing adequate transmission and established range. such as gear boxes, generators, turbines and interconnection to the TVA transmission 31. The following forest management bearings, duct work, conveyers, and air system and whose planned operation by TVA activities: preheaters; fuel supply systems; unloading is within the normal operating levels of the a. Actions to manipulate species and handling equipment for fuel; handling purchased or leased facility. composition and age class, including, but not equipment for ash, gypsum or other by- 22. Development of dispersed recreation limited to, harvesting or thinning of live trees products or waste; hydropower, navigation sites (generally not to exceed 10 acres in size) and other timber stand improvement actions and flood control equipment; water quality to support activities such as hunting, fishing, (e.g., prescribed burns, non-commercial and air emissions control or reduction primitive camping, wildlife observation, removal, chemical control), generally equipment; and other operating system or hiking, and mountain biking. Actions covering up to 125 acres and requiring no ancillary components that do not increase include, but are not limited to, installation of more than 1 mile of temporary or seasonal emissions or discharges beyond current guardrails, gates and signage, hardening and permanent road construction; permitted levels; b. Actions to salvage dead and/or dying stabilization of sites, trail construction, and b. Regular servicing of power equipment trees including, but not limited to, harvesting access improvements/controls. and structures within existing transmission of trees to control insects or disease or 23. Development of public use areas that substations and switching stations; address storm damage (including removal of generally result in the physical disturbance c. Routine testing and calibration of facility affected trees and adjacent live, unaffected of no more than 10 acres, including, but not components, subsystems, or portable trees as determined necessary to control the equipment (such as control valves, in-core limited to, construction of parking areas, spread of insects or disease), generally campgrounds, stream access points, and day covering up to 250 acres and requiring no monitoring devices, transformers, capacitors, use areas. more than 1 mile of temporary or seasonal monitoring wells, weather stations, and 24. Minor actions conducted by non-TVA permanent road construction; and flumes); entities on TVA property to be authorized c. Actions to regenerate forest stands, d. Routine cleaning and decontamination, under contract, license, permit, or covenant including, but not limited to, planting of including to surfaces of equipment, rooms, agreements, including those for utility native tree species upon site preparation, and building systems (including HVAC, crossings, agricultural uses, recreational uses, generally covering up to 125 acres and septic systems, and tanks); rental of structures, and sales of requiring no more than 1 mile of temporary e. Repair or replacement of plumbing, miscellaneous structures and materials from or seasonal permanent road construction. electrical equipment, small HVAC systems, TVA land. 32. Actions to manage invasive plants sewerage, pipes, and telephone and other 25. Transfer, lease, or disposal (sale, including, but not limited to, chemical communication service; abandonment or exchange) of (a) minor tracts applications, mechanical removal, and f. Repair or replacement of doors, of land, mineral rights, and landrights, and manual treatments that generally do not windows, walls, ceilings, roofs, floors and (b) minor rights in ownership of permanent physically disturb more than 125 acres of lighting fixtures in structures less than 50 structures. land. years old; 26. Approvals under Section 26a of the 33. Actions to protect cultural resources g. Painting and paint removal at structures TVA Act of minor structures, boat docks and including, but not limited to, fencing, gating, less than 50 years old, including actions ramps, and shoreline facilities. signing, and bank stabilization (generally up taken to contain, remove, or dispose of lead- 27. Installation of minor shoreline to 1⁄2 mile in length when along stream banks based paint when in accordance with structures or facilities, boat docks and ramps, or reservoir shoreline). applicable requirements; and actions to stabilize shoreline (generally 34. Reburial of human remains and h. Recycling and/or removal of materials, up to 1⁄2 mile in length) by TVA. funerary objects under the Native American debris, and solid waste from facilities, in 28. Minor modifications to land use Graves Protection and Repatriation Act that accordance with applicable requirements; allocations outside of a normal land planning are inadvertently discovered or intentionally i. Groundskeeping actions, including cycle to: Rectify administrative errors; excavated on TVA land. mowing and landscaping, snow and ice incorporate new information that is 35. Installation or modification (but not removal, application of fertilizer, erosion consistent with a previously approved expansion) of low-volume groundwater control and soil stabilization measures (such decision included in the land use plan; or withdrawal wells (provided that there would as reseeding and revegetation), removal of implement TVA’s shoreline or land be no drawdown other than in the immediate dead or undesirable vegetation with a management policies affecting no more than vicinity of the pumping well and that there diameter of less than 3 inches (at breast 10 acres. is no potential for long-term decline of the height), and leaf and litter collection and 29. Actions to restore and enhance water table or degradation of the aquifer), or removal; wetlands, riparian, and aquatic ecosystems plugging of groundwater or other wells at the j. Repair or replacement of gates and that generally involve physical disturbance of end of their operating life. Site fences; no more than 10 acres, including, but not characterization must verify a low potential k. Maintenance of hazard buoys; limited to, construction of small water for seismicity, subsidence, and l. Maintenance of groundwater wells, control structures; revegetation actions using contamination of freshwater aquifers. discharge structures, pipes and diffusers; native materials; construction of small berms, 36. Routine operation, repair or in-kind m. Maintenance and repair of process, dikes, and fish attractors; removal of debris replacement, and maintenance actions for wastewater, and stormwater ponds and

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associated piping, pumping, and treatment 41. Actions to maintain roads, trails, and disturb no more than 10 acres of land not systems; parking areas (including resurfacing, previously disturbed by human activity or no n. Maintenance and repair of cleaning, asphalt repairs, and placing gravel) more than 25 acres of land so disturbed. subimpoundments and associated piping and that do not involve new ground disturbance 50. Financial assistance for the following water control structures; (i.e., no grading). actions: Approving and administering grants, o. Debris removal and maintenance of 42. Improvements to existing roads, trails, loans and rebates for continued operations or intake structures and constructed intake and parking areas, including, but not limited purchase of existing facilities and channels including sediment removal to to, scraping and regrading; regrading of infrastructure for uses substantially the same return them to the originally-constructed embankments; installation or replacement of as the current use; purchasing, installing, and configuration; and culverts; and other such minor expansions. replacing equipment or machinery at existing p. Clean up of minor spills as part of 43. Actions to enhance and control access facilities; and completing engineering routine operations. to TVA property including, but not limited designs, architectural drawings, surveys, and 37. Modifications, upgrades, uprates, and to, construction of new access roads and site assessments (except when tree clearing, other actions that alter existing buildings, parking areas (generally no greater than 1 geotechnical boring, or other land infrastructure systems, facility grounds, and mile in length and physically disturbing no disturbance would occur). plant equipment, or their function, more than 10 acres of land not previously performance, and operation. Such actions, disturbed by human activity or 25 acres of Subpart D—Environmental which generally will not physically disturb land so disturbed) and installation of control Assessments more than 10 acres, include but are not measures such as gates, fences, or post and limited to, the following: cable. § 1318.300 Purpose and scope. a. Replacement or changes to major 44. Small-scale, non-emergency cleanup of components of existing buildings, facilities, (a) TVA shall prepare an EA for any solid waste or hazardous waste (other than proposed action not qualifying as a infrastructure systems, facility grounds, and high-level radioactive waste and spent equipment that are like-kind in nature; nuclear fuel) to reduce risk to human health categorical exclusion to determine b. Modifications, improvements, or or the environment. Actions include whether an EIS is necessary or a FONSI operational changes to in-plant and on-site collection and treatment (such as can be prepared. An EA need not be equipment that do not substantially alter incineration, encapsulation, physical or initiated (or completed) when TVA emissions or discharges beyond current chemical separation, and compaction), determines that it will prepare an EIS. permitted limits. Examples of equipment recovery, storage, or disposal of wastes at (b) An EA shall concisely include, but are not limited to: Gear boxes, existing facilities currently handling the type generators, turbines and bearings, duct work, communicate information and analyses of waste involved in the action. about issues that are potentially conveyers, superheaters, economizers, air 45. Installation, modification, and preheaters, unloading and handling significant and reasonable alternatives. operation of the following types of renewable equipment for fuel; handling equipment for or waste-heat recovery energy projects which ash, gypsum or other by-products or waste; § 1318.301 Public and stakeholder increase generating capacity at an existing hydropower, navigation and flood control participation in the EA process. TVA facility, generally comprising of equipment; air and water quality control (a) The NEPA compliance staff, in physical disturbance to no more than 10 equipment; control, storage, and treatment acres of land not previously disturbed by consultation with the initiating TVA systems (e.g. automation, alarms, fire human activity or 25 acres of land so entity and other interested offices, may suppression, ash ponds, gypsum storage, and request public involvement in the ammonia storage and handling systems); and disturbed: other operating system or ancillary a. Combined heat and power or preparation of an EA or a revision to or components; cogeneration systems at existing buildings or a supplement thereof. The type of and c. Installation of new sidewalks, fencing, sites; and format for public involvement shall be and parking areas at an existing facility; b. Solar photovoltaic systems mounted on selected as appropriate to best facilitate d. Installation or upgrades of large HVAC the ground, an existing building or other timely and meaningful public input to systems; structure (such as a rooftop, parking lot or the EA process. In deciding the extent e. Modifications to water intake and facility and mounted to signage lighting, gates or fences). of public involvement, TVA will outflow structures provided that intake consider whether the public has already velocities and volumes and water effluent 46. Transactions (contracts or agreements) quality and volumes are consistent with for purchase of electricity from new methane been provided a meaningful opportunity existing permit limits; gas electric generating systems using to comment on the environmental f. Repair or replacement of doors, commercially available technology and impacts of a proposal through other windows, walls, ceilings, roofs, floors and installed within an area previously coordinated, regulatory processes. lighting fixtures in structures greater than 50 developed or disturbed by human activity. (b) TVA will also identify and involve years old; and 47. Modifications to the TVA rate structure Indian tribes and interested g. Painting and paint removal at structures (i.e., rate change) that result in no predicted stakeholders including local, State and greater than 50 years old, including actions increase in overall TVA-system electricity consumption. other Federal agencies. taken to contain, remove and dispose of lead- (c) A draft EA prepared for an action based paint when in accordance with 48. Financial and technical assistance for applicable requirements. programs conducted by non-TVA entities to listed in § 1318.400(a), for which TVA 38. Siting, construction, and use of promote energy efficiency or water would normally prepare an EIS, shall be buildings and associated infrastructure (e.g., conservation, including, but not limited to, circulated for public review and utility lines serving the building), physically assistance for installation or replacement of comment. disturbing generally no more than 10 acres of energy efficient appliances, insulation, (d) TVA will make draft (if applicable) land not previously disturbed by human HVAC systems, plumbing fixtures, and water and final EAs and FONSIs available on activity or 25 acres of land so disturbed. heating systems. TVA’s public website and by other 39. Siting and temporary placement and 49. Financial assistance including, but not means upon request to TVA. operation of trailers, prefabricated and limited to, approving and administering modular buildings, or tanks on previously grants, loans and rebates for the renovation § 1318.302 EA preparation. disturbed sites at an existing TVA facility. or minor upgrading of existing facilities, (a) As soon as practicable after 40. Demolition and disposal of structures, established or developing industrial parks, or buildings, equipment and associated existing infrastructure; the extension of deciding to prepare an EA, the initiating infrastructure and subsequent site infrastructure; geotechnical boring; and TVA entity, in consultation with NEPA reclamation, subject to applicable review for construction of commercial and light compliance staff, shall convene an historical value, on sites generally less than industrial buildings. Generally, such internal coordination team to discuss: 10 acres in size. assistance supports actions that physically (1) Reasonable alternatives,

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(2) Permit requirements, review and comment for 30 days before potential environmental impacts (3) Coordination with other agencies a final determination is made whether associated with the proposed action, (consistent with § 1318.401), to prepare an EIS and before the alternatives, and identify any mitigation (4) Environmental issues, proposed action may begin: measures; and include a list of the major (5) Public involvement, and (1) The proposed action is, or is preparers of the EIS. (6) A schedule for EA preparation. closely similar to, an action listed in (d) The scope and detail of the EIS (b) The EA will describe the proposed § 1318.400(a), shall be reasonably related to the scope action and include brief discussions of (2) TVA has issued a Notice of Intent and the probable environmental impacts the purpose and need for action, that the proposed action would be the of the proposed action and alternative reasonable alternatives, the no-action subject of an EIS, or actions (see 40 CFR 1502.10 through alternative (consistent with (3) The nature of the proposed action 1502.18). § 1318.400(e)), the environmental is one without precedent. (e) The no-action alternative in an EIS impacts of the proposed action and (or an EA) should represent the alternatives, measures (if any) to § 1318.304 Supplements and adoptions. environmental status quo and should be mitigate such impacts, a listing of the (a) If new information concerning formulated to provide the agencies and persons consulted, and a action modifications, alternatives, or environmental baseline from which the list of permits that may be required for probable environmental effects becomes proposed action and other alternatives the proposed action. available and there are important can be assessed even when TVA is (c) As appropriate, EAs will identify components of the proposed action that legally required to take action. For alternatives that were considered, but remain to be implemented, the NEPA proposed changes to existing programs not addressed in further detail in the compliance staff and TVA legal counsel, or plans, continuation of the existing EA. in consultation with the initiating TVA program or plan and associated (d) The EA will address comments entity, will consider whether an EA environmental impacts should be made during any public comment should be supplemented based on the considered the no-action alternative. period. significance of the new information. The (e) The EA will briefly provide NEPA compliance staff will be § 1318.401 Lead and cooperating agency sufficient data and analysis for responsible for preparing supplements determinations. determining whether to prepare an EIS to EAs. (a) As soon as practicable after the or a FONSI. (b) TVA may adopt an EA prepared by decision is made to prepare an EIS (or (f) The EA will be reviewed by the another agency if it determines that the EA), the NEPA compliance staff, in NEPA compliance staff and other environmental impacts of TVA’s action consultation with the initiating TVA interested TVA entities, including TVA are adequately assessed in the EA. entity and TVA legal counsel, shall legal counsel. Public involvement must be provided determine whether inviting other (g) After the EA is finalized and with consistent with § 1318.301. The adopted Federal, State, or local agencies to the concurrence of TVA legal counsel, EA and the FONSI issued by TVA must participate in the preparation of the EIS the NEPA compliance staff will make be provided on TVA’s public website. as lead, joint lead (40 CFR 1501.5), or one of the following determinations: cooperating agencies (40 CFR 1501.6) is (1) A Finding of No Significant Subpart E—Environmental Impact necessary. Impact, Statements (b) If TVA is requested to participate in the preparation of an EIS (or EA) of (2) The action requires the § 1318.400 Purpose and scope. preparation of an EIS, or another Federal agency, the NEPA (3) The EA needs to be supplemented (a) The following actions in compliance staff, in consultation with before the significance of potential paragraphs (a)(1) through (5) normally other interested TVA entities, will impacts can be determined. will require an EIS: determine if TVA should become a (1) New large water resource cooperating agency. § 1318.303 Finding of No Significant development and water control projects Impact. such as construction and operation of § 1318.402 Scoping process. (a) If the NEPA compliance staff new dams or navigation locks. (a) As soon as practicable after the concludes, based on an EA, that a (2) The construction and operation of decision to prepare an EIS is made, the proposed action does not require the new major power generating facilities at NEPA compliance staff, in consultation preparation of an EIS, the NEPA sites not previously used for industrial with other TVA entities, will identify compliance staff, in consultation with purposes. preliminary action alternatives, TVA legal counsel and the initiating (3) The development of integrated probable environmental issues, and TVA entity, will prepare a FONSI. The resource plans for power generation. necessary environmental permits, and a official responsible for NEPA (4) The development of system-wide schedule for EIS preparation. compliance will sign the FONSI. reservoir operations plans. (b) The scoping process may include (b) A FONSI must concisely (5) Any major action whose interagency scoping sessions to summarize the proposed action and the environmental impacts are expected to coordinate an action with and obtain EA, which should be incorporated by be highly controversial. inputs from other interested agencies reference, and identify any (b) If TVA determines that an EIS will (including local, State, and other environmental mitigation measures to not be prepared for an action falling Federal agencies, as well as Indian which TVA commits. within one of these categories, the basis tribes). (c) A FONSI must be made available for the decision must be discussed in (c) The NEPA compliance staff, in to the public. the environmental assessment or in a consultation with other TVA entities, (d) In the following circumstance, the document that is made available to the will determine whether public scoping NEPA compliance staff, in consultation public. meetings should be held in addition to with TVA legal counsel and the (c) An EIS shall describe the proposed seeking comments by other means. initiating TVA entity, will make a draft action and reasonable alternatives, Meeting types and formats should be EA and draft FONSI available for public including no action; analyze the selected to facilitate timely and

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meaningful public input into the EIS cooperation with the initiating TVA an appropriate format (see 40 CFR process. entity and other interested TVA entities, 1502.10). (d) As soon as practicable in the will prepare the preliminary DEIS using (c) The FEIS should address all scoping process, the NEPA compliance an appropriate format (see 40 CFR substantive comments on the DEIS that staff, in consultation with the initiating 1502.10). TVA receives before the close of the TVA entity and TVA legal counsel, will (b) During preparation of the DEIS, public comment period by responding prepare and publish in the Federal the NEPA compliance staff will involve specifically to the comments and/or by Register a notice of intent to prepare an any cooperating agencies to obtain their revising the text of the DEIS. Comments EIS. This notice will briefly describe the input. If a cooperating agency’s analysis that are substantively similar should be proposed action, possible alternatives, of an environmental issue or impact summarized and addressed together. and potentially affected environmental differs from TVA’s, those differences (d) After approval of the FEIS by the resources. In addition, the notice will should be resolved before the DEIS is official responsible for NEPA identify issues that TVA has tentatively released for public comment or the compliance, the senior manager of the determined to be insignificant and cooperating agency’s position should be initiating TVA entity, and TVA legal which will not be discussed in detail in set forth and addressed in the DEIS. counsel, the NEPA compliance staff will the EIS. The scoping process will be (c) After approval of the DEIS by the make the FEIS available to the public; described and, if a scoping meeting will official responsible for NEPA other interested Federal, State, and local be held, the notice should state where compliance, the senior manager of the agencies; and other entities and and when the meeting is to occur if that initiating TVA entity, and TVA legal individuals who have expressed an has been determined. The notice will counsel, the NEPA compliance staff will interest in the type of action or identify the person in TVA who can make the DEIS available to the public; commented on the DEIS. The NEPA supply additional information about the other interested Federal, State, and local compliance staff will then file the FEIS action and describe how to submit agencies; and other entities and with EPA for publication of its notice of comments. individuals who have expressed an availability in the Federal Register. (e) There will be a minimum public interest in the type of action or (e) TVA will make the FEIS available comment period of 30 days from the commented on the scope of the EIS. The on its public website and provide it by date of publication of the notice of NEPA compliance staff will then file the other means upon request. intent in the Federal Register to allow DEIS with EPA for publication of its § 1318.405 Agency decision. other interested agencies and the public notice of availability in the Federal an opportunity to review and comment Register. (a) TVA shall not make a decision on the proposed scope of the EIS. (d) TVA will make the DEIS available regarding a proposed action for which (f) On the basis of input received, the on its public website and provide it by an EIS has been issued until 30 days NEPA compliance staff, in consultation other means upon request. after a notice of availability of the FEIS with other TVA entities, will determine (e) A minimum of 45 days from the has been published in the Federal whether to modify the schedule or date of publication of the notice of Register or 90 days after a notice of scope of the EIS. availability in the Federal Register must availability of the DEIS has been (g) At the close of the scoping process, be provided for public comment. TVA published in the Federal Register, the NEPA compliance staff, in may extend the public comment period whichever is later. consultation with the other TVA in its discretion. (b) After release of the FEIS and after entities, will identify the following (f) Materials to be made available to TVA makes a decision about the components in paragraphs (g)(1) the public should be provided to the proposed action, a ROD must be through (8) for use in preparing the public without charge to the extent prepared by the NEPA compliance staff, DEIS: practicable. in consultation with TVA legal counsel (1) Purpose and need of the proposed and the initiating TVA entity (see 40 § 1318.404 FEIS preparation and CFR 1505.2). The ROD will normally action. transmittal. (2) Reasonable action alternatives. include the items in the following (3) Environmental issues to be (a) At the close of the DEIS public paragraphs (b)(1) through (6): addressed in detail. comment period, the NEPA compliance (1) The decision; (4) Environmental issues that should staff, in consultation with the initiating (2) The basis for the decision and be mentioned but not addressed in TVA entity and other interested TVA preferences among alternatives; detail. entities, will determine what is needed (3) The alternative(s) considered to be (5) Lead and cooperating agency roles for the preparation of an FEIS. environmentally preferable; and responsibilities. (b) If changes to the DEIS in response (4) A summary of important (6) Related environmental documents. to comments are minor and confined to environmental impacts; (7) Other environmental review and factual corrections or explanations of (5) The monitoring, reporting, and consultation requirements. why the comments do not warrant administrative arrangements that have (8) Delegation of DEIS work additional TVA response, TVA may been made; and assignments to TVA entities and other issue errata sheets instead of rewriting (6) The measures that would mitigate agencies. the DEIS. In such cases, only the or minimize adverse environmental (h) If a scoping report summarizing comments, the responses (including impacts to which TVA commits to the preceding EIS components is explanations why the comments do not implement (see 40 CFR 1505.2(c)). prepared, it must be made available to warrant changes to the DEIS), and the (c) A ROD will be made available to the public. changes need be circulated. The entire the public. document with a new cover sheet shall (d) Until a ROD is made available to § 1318.403 DEIS preparation, transmittal, be filed as the FEIS (40 CFR 1506.9). If the public, no action should be taken to and review. other more extensive changes are implement an alternative that would (a) Based on information obtained and required, the NEPA compliance staff, in have adverse environmental impacts or decisions made during the scoping cooperation with other interested TVA limit the choice of reasonable process, the NEPA compliance staff, in entities, will prepare an FEIS utilizing alternatives.

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§ 1318.406 Supplements. published in the Federal Register. A § 1318.502 Tiering. If TVA makes substantial changes in record of decision will be prepared TVA may rely on tiering for the the proposed action that are relevant to consistent with § 1318.405. environmental review of proposed environmental concerns or there is (f) TVA will provide notice of its actions. Tiering involves coverage of significant new information relevant to adoption to other interested Federal, general matters in broader EISs or EAs environmental concerns, and important State, and local agencies, other entities, on programs, plans, and policies, and components of the proposed action and individuals. subsequent narrower analyses of remain to be implemented, the NEPA implementing actions that incorporate compliance staff and TVA legal counsel, Subpart F—Miscellaneous Procedures by reference the broader analyses (see in consultation with the initiating TVA § 1318.500 Public participation. 40 CFR 1508.28). entity, will determine how the FEIS (a) TVA’s policy is to encourage should be supplemented. The NEPA § 1318.503 Programmatic and generic meaningful public participation in and NEPA documents. compliance staff will be responsible for awareness of its proposed actions and preparing a supplement to an EIS. (a) A programmatic or generic EA or decisions. This policy is implemented EIS may be prepared to address a § 1318.407 EIS adoption. through various mechanisms. proposed program, policy, or plan, or a (b) The type of and format for public (a) TVA may adopt another agency’s proposed action that has a wide participation will be selected as EIS, or a portion thereof, provided that geographic scope. the NEPA compliance staff determines appropriate to best facilitate timely and (b) A programmatic EA or EIS can meaningful public input. that the EIS or portion thereof meets the support high-level or broad (c) TVA will maintain a public standards for an adequate EIS. decisionmaking, and can provide the website at which it posts information (b) If the NEPA compliance staff foundation for the efficient review of determines that the actions covered by about TVA activities and programs, including ongoing and recently specific tiered implementing actions. the other agency’s EIS and TVA’s (c) Ongoing or previously planned completed EAs and EISs. proposed action are substantially the and approved actions that are within the same, TVA may adopt the other (d) When opportunities for public participation are provided, TVA will scope of a programmatic review may agency’s EIS as TVA’s FEIS (§ 1318.404). notify the public that comments continue during the programmatic In making this determination, the NEPA submitted to TVA on the NEPA review period, so long as the criteria at compliance staff, in consultation with document and the names and addresses 40 CFR 1506.1(c) are met. other interested TVA entities, will of those commenting may be made (d) The identification of significant consider whether the scope and available for public inspection. impacts in a programmatic EIS does not analyses in the other agency’s EIS preclude the review of specific adequately address the TVA action. § 1318.501 Mitigation commitment implementing actions in an EA that tiers TVA will also review to ensure the identification, auditing, and reporting. from the programmatic EIS if the scientific accuracy of the analysis and (a) All appropriate measures to implementing actions would not result conclusions drawn. TVA must make mitigate expected significant adverse in new or different significant impacts. this determination and the adopted EIS environmental impacts (‘‘mitigation available on its public website. measures’’) must be identified in an EA § 1318.504 Private applicants. (c) If the NEPA compliance staff or EIS. Those mitigation measures to (a) When a private applicant, determines that the actions covered by which TVA commits must be identified individual, or other non-Federal entity the other agency’s EIS and TVA’s in the associated FONSI or ROD (or the (‘‘private entity’’) proposes to undertake proposed action are not substantially documentation, if any, prepared for a an action that will require TVA’s the same, TVA will supplement the categorical exclusion). approval or involvement, the contacted other agency’s EIS and treat it as TVA’s (b) Each mitigation commitment that TVA entity will notify the NEPA DEIS, including circulating it for is not required under regulations will be compliance staff. That staff must comment (§ 1318.403). assigned by the NEPA compliance staff determine, in consultation with TVA (d) If TVA cooperated in the to the TVA entity responsible for legal counsel, whether NEPA is preparation of an EIS that TVA implementing the commitment. The triggered and the scope of the review of determines adequately addresses its NEPA compliance staff should consult TVA’s proposed action. proposed action, TVA may make a with the responsible entities to resolve (b) TVA compliance staff will provide decision about its proposed action no assignment conflicts, identify the private entity information on its sooner than 30 days after notice of supporting offices, and determine responsibilities for assisting TVA in availability of the FEIS was published in implementation schedules. conducting the necessary NEPA review. the Federal Register. A record of that (c) The responsible entity shall report At TVA’s discretion, this can include decision should be prepared consistent to the NEPA compliance staff the status providing TVA detailed information with § 1318.405. of mitigation commitments periodically about the scope and nature of the (e) If TVA did not cooperate in the or whenever a specific request is made. proposed action, environmental preparation of an EIS that TVA (d) The NEPA compliance staff must analyses and studies, and copies of determines adequately addresses its ensure that commitments are met and associated environmental permit proposed action and that it proposes to will verify commitment progress. applications submitted to other Federal, adopt, NEPA compliance staff will (e) Circumstances may arise that State, or local agencies. transmit notice of its adoption to EPA warrant modifying or cancelling (c) In identifying reasonable for publication of a notice of availability previously made commitments. The alternatives, TVA should consider the and circulate the FEIS for public decision to modify or cancel a applicant’s purpose and need, in comment as to its assessment of impacts commitment will be made by the NEPA addition to TVA’s purpose and need. as they relate to TVA’s proposed action. compliance staff in consultation with (d) A private entity may be allowed to TVA may make a decision about its TVA legal counsel, after considering the prepare draft and final EAs for TVA’s proposed action no sooner than 30 days environmental significance of such a review and approval, but TVA remains after notice of availability of the FEIS is change. responsible for the adequacy of the

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documents and the conduct of § 1318.510 Emergency actions. as soon as practicable in the planning associated EA process. (a) The NEPA compliance staff may process, will request the appropriate (e) A private entity normally will be consolidate, modify, or omit provisions TVA staff with expertise in floodplain required to reimburse TVA for its costs of these procedures for actions or wetland impact evaluations (‘‘TVA in reviewing the private entity’s necessary in an emergency. staff’’) to determine whether the proposed action. (b) Where emergency circumstances proposed action will occur in or affect (f) Participation of a private entity in make it necessary to take an action with a wetland or floodplain and the level of a TVA NEPA review, including significant environmental impact impact, if any, on the wetland or reimbursement of TVA’s costs, does not without observing the provisions of floodplain. commit TVA to favorable action on a these regulations, TVA will consult with (b) Further floodplain or wetland request. CEQ about alternative arrangements for evaluation is unnecessary if the TVA those actions necessary to control the staff determines that the proposed § 1318.505 Non-TVA EISs. immediate impacts of the emergency. action: (a) The NEPA compliance staff, in Other actions remain subject to NEPA (1) Is outside the floodplain or consultation with other interested TVA review (see 40 CFR 1506.11). wetland, entities, will coordinate the review of (c) The NEPA compliance staff, with the concurrence of TVA legal counsel, (2) Has no identifiable impacts on a any EIS provided by another Federal floodplain or wetland, and agency to TVA for comment. must determine whether such changes would substantially comply with the (3) Does not directly or indirectly (b) The NEPA compliance staff, in support floodplain development or consultation with TVA legal counsel as intent of these procedures. (d) The official responsible for NEPA wetland alteration. appropriate, will prepare comments on compliance shall document the any such EIS and transmit them to the § 1318.602 Actions that will affect determination that an emergency exists initiating agency (see 40 CFR 1503.2 and floodplains or wetlands. and describe the responsive action(s) 1503.3). taken at the time the emergency exists. (a) When a proposed action can § 1318.506 Documents. The form of that documentation is otherwise be categorically excluded within the discretion of that official. under § 1318.200, no additional The NEPA compliance staff must keep floodplain or wetland evaluation is on file all final and approved § 1318.511 Modification of assignments. required if: environmental documents either in The assignments and responsibilities (1) The initiating TVA entity paper form or electronically, in identified for TVA entities in these determines that there is no practicable accordance with TVA’s records procedures can be modified by alternative that will avoid affecting retention policy. agreement of the entities involved or by floodplains or wetlands and that all § 1318.507 Reducing paperwork and delay. the direction of TVA’s Chief Executive practicable measures to minimize Officer. impacts of the proposed action to (a) These procedures are to be floodplains or wetlands are interpreted and applied with the aim of § 1318.512 Status reports. incorporated and reducing paperwork and the delay of Information on the status of EISs and (2) The TVA staff determines that both the assessment and EAs under development shall be impacts on the floodplain or wetland implementation of a proposed action. published on TVA’s public website. would be minor. (b) Data and analyses should be commensurate with the importance of Subpart G—Floodplains and Wetlands (b) If the action requires an EA or an EIS, the evaluation must consider: associated impacts. Less important § 1318.600 Purpose and scope. material should be summarized, (1) The effect of the proposed action (a) The review of a proposed action consolidated, or referenced. on natural and beneficial floodplain and undertaken in accordance with (c) An environmental document may wetland values and §§ 1318.200, 1318.300, and 1318.400 (2) Alternatives to the proposed action be combined with any other document that potentially affects floodplains or to reduce duplication and paperwork. that would eliminate or minimize such wetlands must include a floodplain or effects. (d) Review of a proposed action under wetlands evaluation that is consistent (c) The initiating TVA entity must these procedures may be consolidated with Executive Order 11988 (Floodplain determine if there is no practicable with other reviews where such Management) and Executive Order alternative to siting in a floodplain or consolidation would reduce duplication 11990 (Protection of Wetlands) constructing in a wetland. Upon or increase efficiency. pertaining to floodplains or wetlands, concurrence by the NEPA compliance § 1318.508 Supplemental guidance. respectively, as required by this section. (b) Floodplain evaluations must apply staff in consultation with TVA legal The NEPA compliance staff, in any existing Federal flood risk counsel and TVA staff with expertise in consultation with interested TVA management standard to federally- floodplain or wetland impact entities and with concurrence of TVA funded projects. evaluations, this determination shall be legal counsel, may issue supplemental (c) A wetland evaluation under final. If a determination of no or explanatory guidance to these Executive Order 11990 is not required practicable alternative is made, all procedures. for the issuance of permits, licenses, or practicable measures to minimize impacts of the proposed action on the § 1318.509 Substantial compliance. allocations to private parties for activities involving wetlands on non- floodplain or wetland must be Substantial compliance with these Federal lands. implemented. If at any time prior to procedures must be achieved. Minor commencement of the action it is deviations approved by the official § 1318.601 Area of impact. determined that there is a practicable responsible for NEPA compliance do (a) If a proposed action will alternative that will avoid affecting not give rise to any independent cause potentially occur in or affect wetlands floodplains or wetlands, the proposed of action. or floodplains, the initiating TVA entity, action must not proceed.

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§ 1318.603 Public notice. (4) State when appropriate whether will not result in disturbance of the (a) Once a determination of no the action conforms to applicable floodplain or wetland, a floodplain or practicable alternative is made in Federal, State or local floodplain wetland evaluation is not required. The accordance with § 1318.602, the protection standards; conveyance document, however, must: initiating office must notify the public (5) Specify a reasonable period of time (a) Require the other party to comply of a proposed action’s potential impact within which the public can comment with all applicable Federal, State or on floodplains or wetlands if the on the proposal; and local floodplain and wetland proposed action is subject to executive (6) Identify the TVA official who can regulations, and order and not already covered by class provide additional information on the review. Public notice of actions affecting proposed action and to whom (b) Identify other appropriate floodplains or wetlands may be comments should be sent. restrictions to minimize destruction, combined with any notice published by (c) Such notices must be issued in a loss, or degradation of floodplains and TVA or another Federal agency if such manner designed to bring the proposed wetlands and to preserve and enhance a notice generally meets the minimum action to the attention of those members their natural and beneficial values, requirements set forth in this section. of the public likely to be interested in except when prohibited by law or Issuance of a draft or final EA or EIS for or affected by the action’s potential unenforceable by TVA, or otherwise, the public review and comment will satisfy impact on the floodplain or wetland. property must be withheld from this notice requirement. (d) TVA must consider all relevant conveyance or use. (b) Public notices must at a minimum: and timely comments received in § 1318.605 General and class reviews. (1) Briefly describe the proposed response to a notice and reevaluate the action and the potential impact on the action as appropriate to take such In lieu of site-specific reviews, TVA floodplain or wetland; comments into consideration before the may conduct general or class reviews of (2) Briefly identify alternative actions proposed action is implemented. similar or repetitive activities that occur considered and explain why a in floodplains. determination of no practicable § 1318.604 Disposition of real property. alternative has been proposed; When TVA property in a floodplain or Rebecca C. Tolene, (3) Briefly discuss measures that wetland is proposed for lease, easement, Vice President, Environment. would be taken to minimize or mitigate right-of-way, or disposal to non-federal [FR Doc. 2020–05964 Filed 3–26–20; 8:45 am] floodplain or wetland impacts; public or private parties and the action BILLING CODE 8120–08–P

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