Title Transfer Categorical Exclusion
Reclamation has established a new categorical exclusion to facilitate certain transfers of title of projects and facilities from the Bureau of Reclamation to qualifying non-federal entities. The Department of the Interior has published a Federal Register notice to announce the new categorical exclusion under the National Environmental Policy Act (NEPA). The new categorical exclusion can be found at the web address https://www.doi.gov/elips/browse for Reclamation’s revised procedures, at Series 31, Part 516, Chapter 14.
To initiate the title transfer process, entities should submit a written request to a Reclamation area manager or regional director. The written request must identify the specific facilities that are the subject of the title transfer.
What is a categorical exclusion?
Transfer of title is a Federal action under NEPA. NEPA requires that when a major Federal action would have significant impacts on the quality of the human environment, a statement be prepared to describe the impacts and effects on the human environment associated with the Federal action. When a Federal agency determines that a certain category of actions will not normally have an individually or cumulatively significant effect on the human environment and for which neither an environmental assessment nor an environmental impact statement is required, that category of actions may be excluded from further NEPA review (40 CFR 1508.4).
Public comment on proposed categorical exclusion
Reclamation solicited comments from the public on the new categorical exclusion through a 30-day public comment period, announced in the Federal Register on October 17, 2018 (83 FR 52503). All comments received to date have been considered.
Reclamation received 16 letters from state governments, water and irrigation districts, water user organizations, a national environmental professionals association and a consortium of conservation interests. Individual comments included several that restated the objectives, limitations, and rationale for the categorical exclusion, several that expressed general support or opposition for the categorical exclusion, and several that provided more extensive detail regarding support or opposition to establishing a new categorical exclusion and support or opposition to transferring title. Reclamation appreciates the interest and participation of all respondents.
Text of Addition to 516 DM 14, section 14.5 Categorical Exclusions
F. Title Transfer Activities
- “Transfer from Federal ownership of facilities and/or interest in lands to a qualifying entity where there are no competing demands for use of the facilities; where the facilities are not hydrologically integrated; where, at the time of transfer, there would be no planned change in land or water use, or in operation, or maintenance of the facilities; and where the transfer would be consistent with the Secretary’s responsibilities, including but not limited to existing contracts or agreements, the protection of land resources and water rights held in trust for federally recognized Indian tribes and Indian individuals, and ensuring compliance with international treaties and interstate compacts.”
CE Qualification Factors
The CE is limited to the transfer of projects and/or project facilities from Federal ownership to a qualifying entity, which means an agency of State or local government or Indian tribe, a municipal corporation, quasi-municipal corporation, or other entity such as a water district that, as determined by the Secretary, has the capacity to continue to manage the conveyed property for the same purposes for which the property has been managed under Reclamation law. Accordingly, projects involving the following considerations (CE Qualification Factors) of a qualifying non-Federal entity would generally be eligible to be considered for the title transfer CE:
- The potential transferee must demonstrate the technical capability to maintain and operate the facilities and lands on a permanent basis and an ability to meet financial obligations associated with the transferred assets.
- The potential transferee must affirm that it has no plans to change the maintenance, operations, or use of the lands and water associated with the transferred facilities.
- The potential transferee must ensure that there are no competing demands for use of the transferred facilities, with the exception of those demands accommodated by existing contractual arrangements.
- The potential transferee must ensure that the facilities proposed for transfer are not hydrologically integrated with other facilities, thereby impacting other contractors, stakeholders or activities, with the exception of those impacts accommodated by existing contractual arrangements.
- The transfer would not include lands or facilities involving Indian trust responsibilities.
- The potential transferee must ensure that issues involving existing contracts and agreements, and interstate compacts and agreements, are resolved, and treaty and international agreement obligations are fulfilled prior to transfer.
- The potential transferee must assume responsibility for all commitments and agreements into the future.
- Potentially affected state, local, and tribal governments, appropriate Federal agencies, and the public will be notified of the initiation of discussion to transfer title and will have: (a) the opportunity to comment and suggest options for remedying any problems; and (b) full access to relevant information, including proposals, analyses, and reports related to the proposed transfer. The title transfer process will be carried out in an open and public manner. If a project or facility is not eligible for transfer under Public Law 116-9, Title VIII, the transfer proponent may seek legislation to authorize the negotiated terms of the transfer of each project or facility.