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  1. Geothermal Technologies Program Doug Hollett Geothermal Technologies Program Manager Aaron Levine NREL October1, 2013 Categorical Exclusions

  2. Categorical Exclusions-General Challenges for geothermal development under federal environmental review process (National Environmental Policy Act of 1969 (NEPA)) • May have to complete during multiple phases of geothermal development (i.e. land use, leasing, exploration, well field, power plant) • Environmental Assessments (EA) and Environmental Impact Statement (EIS) are time consuming. One approach to reduce the environmental review process timeframe • Categorical exclusions for activities that do not have a significant impact on the environment.

  3. Categorical Exclusions-General What is a categorical exclusion (CX)? • The Council on Environmental Quality (CEQ) regulations define a CX as “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations…” (40 CFR § 1507.3). • Where a category of actions falls under a CX, federal agencies are not required to complete the EA/EIS process, but may complete an EA through agency procedures. Source: CEQ Memorandum for Heads of Federal Departments and Agencies. • A CX is not an exemption or waiver from the NEPA process, but instead a type of NEPA review aimed at reducing paperwork, delay, and the more resource-intensive review required for an EA or EIS. Source: CEQ Memorandum for Heads of Federal Departments and Agencies.

  4. Categorical Exclusions-General Types of CXs • Statutory • Created by Congress through legislative process • Example: EPAct§ 390 oil and gas CXs • Not subject to CEQ NEPA regulations • May not be subject to extraordinary circumstances review • Administrative • Created by federal agencies through rulemaking process • Example: Bureau of Land Management (BLM) oil, gas, and geothermal CXs in 516 DM 11.9(b) • Subject to CEQ NEPA regulations • Subject to extraordinary circumstances review

  5. Categorical Exclusions-Extraordinary Circumstances Role of Extraordinary Circumstances • Use varies with statutory CXs • Does not currently apply to EPAct§ 390 CXs • Federal agency must determine whether an extraordinary circumstance is present before applying an administrative CX. • Through scoping (Forest Service), extraordinary circumstances checklist (BLM) • Each agency has a list of extraordinary circumstances to consider • Usually requires the activity to have a significant impact on the category rather than just some effect. • Common examples include impacts to: • Cultural/historic sites • Threatened or endangered species

  6. Categorical Exclusions-Establishing CXs How to Establish a CX • Statutory • Legislative Process • Administrative • Agency Rulemaking Process • Agency develops justification for new or revised CX • Can examine existing NEPA reviews, conduct demonstration projects, rely on agency staff or outside experts, and/or review another agency’s administrative record for an established CX. • Agency develops administrative record of findings • Agency drafts CX and completes notice and comment rulemaking process • Must consult with CEQ throughout this process

  7. Categorical Exclusions-BLM History History of BLM Geothermal CXs • 1982-1983 – DOI/BLM and portions of Mineral Management Services onshore operations merged. • Created combined list of 41 CXs application to oil, gas, and geothermal. • 1992 – DOI/BLM published a new list of categorical exclusions • List reduced from 41 to 6 CXs • Only applicable to oil and gas • Geothermal exclusion later said to be an “administrative error” in 2003 internal BLM documents.

  8. Categorical Exclusions-BLM History History of BLM Geothermal CXs • 2003 – BLM began discussions to increase the 1992 list of 6 CXs to 18 • All 18 would have been applicable to geothermal • Three geothermal specific CXs • Approval of a plan for Geothermal Production when derived from a plan of unitization which has been previously covered by an environmental document. • Approval of a plan for injection of geothermal fluids meeting the requirements of the 43 CFR 3200 (Environmental Protection Requirements). • Approval of conversion of an unsuccessful geothermal well or an exhausted producer to a water source or an observation well. • 2005 – EPAct 2005 § 390 created 5 new CXs for oil and gas. • 2003 proposed BLM CXs lost momentum

  9. Categorical Exclusions-Across Resources Categorical Exclusions Across Resources • Administrative CXs for Oil, Gas, and Geothermal are predominately the same. • BLM CXs are the same for oil, gas, and geothermal • 516 DM 11.9b • DOE CXs are the same for oil, gas, and geothermal • Appendix B to Subpart D of 10 CFR 1021.410 • USFS CXs • Predominately the same • Unique oil and gas CX: Approval of Surface Use Plan of Operations for oil and gas exploration and initial development activities including: • One mile of new road construction or one mile of road reconstruction • Three miles of individual or co-located pipelines and/or utility disturbance • Four drill sites

  10. Categorical Exclusions-Across Agencies Categorical Exclusions Across Agencies • Statutory CXs apply across all federal agencies • EPAct§ 390 • Administrative CXs cannot apply across federal agencies • Cannot blindly use another federal agency’s CX • Can use another agency’s administrative record used to develop a categorical exclusion as justification for developing a categorical exclusion for the same or a similar category of activities. • Must demonstrate that the proposed CX action is substantially similar to the other agency’s categorical exclusion.

  11. Categorical Exclusions-Across Resources and Agencies 1 DOI Department Manual 516 11 (6) 2 EPAct 2005, Title III-Oil and Gas, Sec. 390-& BLM IM 2005-247 3 36 CFR 220.6(e)(8) 4 10 CFR 1021 (b) 5 Small facilities only 6 DOI Department Manual 516 6.5 7 36 CFR 220.6(e)(17) – Surface Use Plan of Operations w/ limitations