Notice of Adoption of Electric Vehicle Charging Stations Categorical Exclusion Under the National Environmental Policy Act Publication: Federal Register Agency: U.S. Department of Transportation Byline: Carlos Monje Jr. Date: 20 September 2023 Subjects: American Government , Electric Vehicles

[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Notices]
[Pages 64972-64973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20238]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary


Notice of Adoption of Electric Vehicle Charging Stations 
Categorical Exclusion Under the National Environmental Policy Act

AGENCY: Office of the Secretary, U.S. Department of Transportation.

ACTION: Notice of adoption of categorical exclusion.

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SUMMARY: The U.S. Department of Transportation (DOT) is adopting the 
Department of Energy's (DOE's) Electric Vehicle Charging Stations 
Categorical Exclusion (CE) under the National Environmental Policy Act 
to use in DOT programs and funding opportunities administered by DOT. 
This notice describes the categories of proposed actions for which DOT 
intends to use DOE's CEs and describes the consultation between the 
agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: April Marchese, Deputy Director, P-30, 
Office of Environment, by phone at 202-366-2074, or by email at 
april.marchese@dot.gov.

SUPPLEMENTARY INFORMATION:

I. Background

National Environmental Policy Act and Categorical Exclusions

    The National Environmental Policy Act (NEPA), as amended at, 42 
U.S.C. 4321-4347 (NEPA), requires all Federal agencies to assess the 
environmental impact of their actions. Congress enacted NEPA in order 
to encourage productive and enjoyable harmony between humans and the 
environment, recognizing the profound impact of human activity and the 
critical importance of restoring and maintaining environmental quality 
to the overall welfare of humankind. 42 U.S.C. 4321, 4331. NEPA's twin 
aims are to ensure agencies consider the environmental effects of their 
proposed actions in their decision-making processes and inform and 
involve the public in that process. 42 U.S.C. 4331. NEPA created the 
Council on Environmental Quality (CEQ), which promulgated NEPA 
implementing regulations, 40 CFR parts 1500 through 1508 (CEQ 
regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review--an environmental impact statement (EIS), environmental 
assessment (EA), or (CE. 42 U.S.C. 4336. If a proposed action is likely 
to have significant environmental effects, the agency must prepare an 
EIS and document its decision in a record of decision. 42 U.S.C. 4336. 
If the proposed action is not likely to have significant environmental 
effects or the effects are unknown, the agency may instead prepare an 
EA, which involves a more concise analysis and process than an EIS. 42 
U.S.C. 4336. Following the EA, the agency may conclude the process with 
a finding of no significant impact if the analysis shows that the 
action will have no significant effects. If the analysis in the EA 
finds that the action is likely to have significant effects, however, 
then an EIS is required.
    Under NEPA and the CEQ regulations, a Federal agency also can 
establish CEs--categories of actions that the agency has determined 
normally do not significantly affect the quality of the human 
environment--in their agency NEPA procedures. 42 U.S.C. 4336(e)(1); 40 
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a 
CE covers a proposed action, it then evaluates the proposed action for 
extraordinary circumstances in which a normally excluded action may 
have a significant effect. 40 CFR 1501.4(b). If no extraordinary 
circumstances are present or if further analysis determines that the 
extraordinary circumstances do not involve the potential for 
significant environmental impacts, the agency may apply the CE to the 
proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 
40 CFR 1501.4. If the extraordinary circumstances have the potential to 
result in significant effects, the agency is required to prepare an EA 
or EIS.
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to ``adopt'' or use another 
agency's CEs for a category of proposed agency actions. 42 U.S.C. 
4336(c). To use another agency's CEs under section 109, an agency must 
identify the relevant CEs listed in another agency's (``establishing 
agency'') NEPA procedures that cover its category of proposed actions 
or related actions; consult with the establishing agency to ensure that 
the proposed adoption of the CE to a category of actions is 
appropriate; identify to the public the CE that the agency plans to use 
for its proposed actions; and document adoption of the CE. Id.
    This notice documents DOT's adoption of DOE's Electric Vehicle 
Charging Stations CE under section 109 of NEPA to use in DOT programs 
and funding opportunities administered by DOT Operating 
Administrations.

II. Identification of the Categorical Exclusion

DOE's Electric Vehicle Charging Stations CE

    DOE's electric vehicle charging stations CE is codified in DOE's 
NEPA procedures as CE B5.23 of 10 CFR part 1021, subpart D, appendix B, 
as follows:
B5.23 Electric Vehicle Charging Stations
    The installation, modification, operation, and removal of electric 
vehicle charging stations, using commercially available technology, 
within a previously disturbed or developed area. Covered actions are 
limited to areas where access and parking are in accordance with 
applicable requirements (such as local land use and zoning 
requirements) in the proposed project area and would incorporate 
appropriate control technologies and best management practices.
    ``Previously disturbed or developed'' refers to land that has been 
changed such that its functioning ecological processes have been and 
remain altered by human activity. The phrase encompasses areas that 
have been transformed from natural cover to non-native species or a 
managed state, including, but not limited to, utility and electric 
power transmission corridors and rights-of-way, and other areas where 
active utilities and currently used roads are readily available. 10 CFR 
1021.410(g)(1).
    The DOE CE also includes additional conditions referred to as 
integral elements. (10 CFR part 1021 subpt. D, app. B) In order to 
apply this CE, the proposal must be one that would not
    (1) Threaten a violation of applicable statutory, regulatory, or 
permit requirements for environment, safety, and health, or similar 
requirements of DOT or Executive Orders;
    (2) Require siting and construction or major expansion of waste 
storage, disposal, recovery, or treatment facilities (including 
incinerators), but the proposal may include categorically excluded 
waste storage, disposal, recovery, or treatment actions or facilities;
    (3) Disturb hazardous substances, pollutants, contaminants, or 
CERCLA-excluded petroleum and natural gas products that preexist in the 
environment such that there would be uncontrolled or unpermitted 
releases;
    (4) Have the potential to cause significant impacts on 
environmentally sensitive resources. An environmentally sensitive 
resource is typically a resource that has been identified as needing

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protection through Executive Order, statute, or regulation by Federal, 
state, or local government, or a federally recognized Indian tribe. An 
action may be categorically excluded if, although sensitive resources 
are present, the action would not have the potential to cause 
significant impacts on those resources (such as construction of a 
building with its foundation well above a sole-source aquifer or upland 
surface soil removal on a site that has wetlands). Environmentally 
sensitive resources include, but are not limited to:
    (i) Property (such as sites, buildings, structures, and objects) of 
historic, archeological, or architectural significance designated by a 
Federal, state, or local government, federally recognized Indian tribe, 
or Native Hawaiian organization, or property determined to be eligible 
for listing on the National Register of Historic Places;
    (ii) Federally listed threatened or endangered species or their 
habitat (including critical habitat) or Federally-proposed or candidate 
species or their habitat (Endangered Species Act); state-listed or 
state-proposed endangered or threatened species or their habitat; 
Federally-protected marine mammals and Essential Fish Habitat (Marine 
Mammal Protection Act; Magnuson-Stevens Fishery Conservation and 
Management Act); and otherwise Federally-protected species (such as the 
Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act);
    (iii) Floodplains and wetlands;
    (iv) Areas having a special designation such as Federally- and 
state-designated wilderness areas, national parks, national monuments, 
national natural landmarks, wild and scenic rivers, state and Federal 
wildlife refuges, scenic areas (such as National Scenic and Historic 
Trails or National Scenic Areas), and marine sanctuaries;
    (v) Prime or unique farmland, or other farmland of statewide or 
local importance, as defined at 7 CFR 658.2(a), ``Farmland Protection 
Policy Act: Definitions,'' or its successor;
    (vi) Special sources of water (such as sole-source aquifers, 
wellhead protection areas, and other water sources that are vital in a 
region); and
    (vii) Tundra, coral reefs, or rain forests; or
    (5) Involve genetically engineered organisms, synthetic biology, 
governmentally designated noxious weeds, or invasive species, unless 
the proposed activity would be contained or confined in a manner 
designed and operated to prevent unauthorized release into the 
environment and conducted in accordance with applicable requirements, 
such as those of the Department of Agriculture, the Environmental 
Protection Agency, and the National Institutes of Health.

Proposed DOT Category of Actions

    DOT intends to apply this categorical exclusion to any DOT EV 
charging station project undertaken directly by DOT, to any EV charger 
action requiring an approval by DOT, or to any project that is financed 
in whole or in part through Federal funds made available by DOT 
(including the National Electric Vehicle Infrastructure Formula Program 
or the Charging and Fueling Infrastructure Discretionary Grant 
Program).
    The CE allows for the installation, modification, operation, and 
removal of EV charging stations. DOT will consider each proposal for EV 
charging stations to ensure that the proposal is within the scope of 
the CE. DOT intends to apply this CE in a manner consistent with DOE's 
application--to the same types of proposals (which have included a wide 
variety of locations on and off Federal property, differences in local 
conditions, various numbers of EV charging stations per proposal, and 
different types of equipment and technologies including Level 1, Level 
2, and DC Fast Charging stations).

III. Consideration of Extraordinary Circumstances

    When applying this CE, DOT will evaluate the proposals to ensure 
evaluation of integral elements listed above. In addition, in 
considering extraordinary circumstances, DOT will consider whether the 
proposed action has the potential to result in significant effects as 
described in DOE's extraordinary circumstances listed at 10 CFR 
1021.410(b)(2). DOE defines extraordinary circumstances as unique 
situations presented by specific proposals, including, but not limited 
to, scientific controversy about the environmental effects of the 
proposal; uncertain effects or effects involving unique or unknown 
risks; and unresolved conflicts concerning alternative uses of 
available resources. In addition, DOT will also consider if there are 
any extraordinary circumstances with regards to section 4(f).

IV. Consultation With DOE and Determination of Appropriateness

    DOT and DOE consulted on the appropriateness of DOT's adoption of 
the CE from June 2023 through early August 2023. DOT and DOE's 
consultation included a review of DOE's experience developing and 
applying the CE, as well as the types of actions for which DOT plans to 
utilize the CE. These DOT actions are very similar to the type of 
projects that DOE funds and therefore the impacts of DOT projects will 
be very similar to the impacts of DOE projects, which are not 
significant, absent the existence of extraordinary circumstances that 
could involve potentially significant impacts. Therefore, DOT has 
determined that its proposed use of the CE as described in this notice 
would be appropriate. Additional documentation of DOE and DOT's 
consultation is available upon request.

V. Notice to the Public and Documentation of Adoption

    This notice serves to identify to the public and document DOT's 
adoption of DOE's CE for electric vehicle charging stations. The notice 
identifies the types of actions to which DOT will apply the CE, as well 
as the considerations that DOT will use in determining whether an 
action is within the scope of the CE.

    Issued under authority delegated in 49 CFR 1.25(b).
Carlos Monje, Jr.,
Under Secretary of Transportation for Policy, U.S. Department of 
Transportation.
[FR Doc. 2023-20238 Filed 9-19-23; 8:45 am]
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