CARH’s BROADCAST EMAIL—Regulatory Alert

August 16, 2024

CARH’s General Counsel, Arnall Golden Gregory, LLP, prepared the following information regarding the “categorical exclusions” Rural Development (RD) intends to adopt regarding the National Environmental Policy Act (NEPA).

NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making “major federal actions.” A major federal action is an action that a federal agency determines is subject to significant federal control and responsibility. However, categorical exclusion applies to a defined category of actions that are determined to normally not have a significant effect on the human environment and therefore do not require preparation of an environmental assessment or environmental impact statement, which generally require a higher level of information and analysis.

RD has announced its intention to adopt three categorical exclusions to use in its programs and funding opportunities. The proposed adoptions include the following:

  • B5.4 Repair or replacement of pipelines. A categorical exclusion would include “[r]epair, replacement, upgrading, rebuilding, or minor relocation of pipelines within existing rights-of-way, provided that the actions are in accordance with applicable requirements (such as Army Corps of Engineers permits under section 404 of the Clean Water Act).” This could provide some relief with respect to utilities servicing a project.
  • B5.5 Short pipeline segments. “Construction and subsequent operation of short…pipeline segments conveying materials…between existing source facilities and existing receiving facilities…, provided that the pipeline segments are within previously disturbed or developed rights-of-way.” An example of a project type where an RD may apply this exclusion includes, but is not limited to, the construction of short pipelines in a utility corridor to provide natural gas to an existing power plant operated by a rural utility cooperative.
  • 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.” However, “[c]overed 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.” This categorical exclusion could have a material impact on RD that anticipates enhanced green energy efforts.

Each of these proposed efforts, which follow similar types of projects already implemented by the Department of Energy, will enhance the effectiveness of the RD’s mission, saving costs and time.

If you need further information on these potential categorical exclusions, contact Nicholas P. Tsimortos of AGG, at nick.tsimortos@agg.com. For other news and information affecting the affordable rural housing industry, please visit the Newsroom on CARH’s website, www.carh.org.