38 C.F.R. § 26.30 – Categorical exclusions.

(a) Documentation and procedures—(1) Project description. For CATEXs that require documentation for each proposed action, the proponent or applicant must include the location of the project, the project number (if known), and a project description in a CATEX document. The project description is a brief statement of the project or activities proposed to occur, the existing environment at the project site, and any mitigation incorporated into the project to ensure there are no extraordinary circumstances that would prevent the application of the CATEX. If any unusual activities or potential extraordinary circumstances exist, then the description must disclose that information and whether these circumstances prevent the application of the CATEX. Where extraordinary circumstances are present, the agency should consider whether the application of the CATEX is still appropriate notwithstanding the presence of extraordinary circumstances because, even with the extraordinary circumstance, the proposed action does not have the potential to result in significant impacts. The mere presence of an extraordinary circumstance does not prevent the application of the CATEX.
(2) CATEX being applied. The CATEX document, if § 26.32 requires one, must identify the specific CATEX or CATEXs from § 26.32 for which the NEPA Specialist determines the proposed action is eligible.
(3) Level of analysis. The NEPA Specialist must indicate, and the approval authority consistent with VA policy or directive must approve, in a CATEX document, if one is required, that no EA or EIS is required and affirmatively state the intent to categorically exclude the proposed action.
(4) Integration of other laws. VA will integrate other environmental compliance requirements including NHPA into the NEPA process for CATEX actions. If the review of a CATEX action results in a determination that the proposed action complies with other environmental requirements and the proposed action, as mitigated if necessary, avoids significant impacts to those resources, then no further NEPA analysis is required under this part and VA will document this determination when required. If the level of effects related to other environmental compliance requirements is unclear, VA will determine whether to proceed to an EA or EIS.
(5) Determination. VA must make the determination of whether to issue a CATEX or proceed to an EA or EIS. If § 26.32 requires a CATEX document for a proposed action, a NEPA Specialist and decision-maker sign it to confirm the determination in the CATEX. The annotation “CXdoc” for certain CATEXs listed in § 26.32 identifies those that require a CATEX document for each proposed action.
(6) Documenting the decision to use a CATEX. When using a CATEX that requires documentation of each proposed action, VA will document the use of a CATEX prior to making a decision on the proposed action. The CATEX document will provide the information required in paragraphs (a)(1) through (3) of this section and be conducted in accordance with the requirements in paragraphs (a)(4) and (5) of this section.
(b) Extraordinary circumstances review. Examples of extraordinary circumstances include whether the action:
1. (1) Introduces and/or uses technology with unknown environmental impacts;
2. (2) Has a reasonable likelihood of violating any Federal, State, or local law or requirement imposed for the protection of the environment;
3. (3) Has an effect that has not been satisfactorily resolved through another applicable environmental review or consultation process such as Coastal Zone Management Act (16 U.S.C. 1451-1466) consistency, NHPA section 106 (54 U.S.C. 306108) consultation, Endangered Species Act section 7 (16 U.S.C. 1536) consultation, or issuance of a relevant permit;
4. (4) Involves effects on the environment that are highly uncertain, or involve unique or unknown risks; or
5. (5) Establishes a precedent (or makes decisions in principle) for future or subsequent actions that are reasonably likely to have a future significant effect.
(c) Public notice. In certain situations, VA may choose to publish a CATEX document. These situations may include, but are not limited to, proposed actions that are of national focus or otherwise involve special issues that would make the proposed action of particular interest to the public. VA may publish a CATEX document on its website, in local newspapers, or in any other manner to reach the interested public.
(d) VA review of list of categorical exclusions.
1. (1) VA may periodically review the list of CATEXs published in § 26.32 for continued relevance to VA programs and missions, additional experience on implementing actions that do not generate significant impacts, and improvements in clarity and appropriate limiting factors where needed. This review may conclude with recommendations to add, delete, or revise one or more CATEXs or to add or delete the requirement for project-specific documentation for application of a specific CATEX.
2. (2) VA may also consider revisions to the CATEX list when substantial changes or additions to VA plans, programs, or activities occur such that the current CATEX list may be inadequate or inaccurate given the current scope of VA activities. Potential triggers for revising the VA CATEX list may include:
  1. (i) VA determines a class of actions are not expected to have significant environmental effects;
  2. (ii) VA performs NEPA reviews of a class of actions and determines that, when implemented, the actions resulted in no significant environmental impacts;
  3. (iii) Mission changes occur within the VA organization; or
  4. (iv) VA acquires new responsibilities through legislation or administrative restructuring.
3. (3) To establish or revise a CATEX, VA will determine that the category of actions normally does not significantly affect the quality of the human environment. In making this determination, VA will:
  1. (i) Develop a written record containing information to substantiate its determination;
  2. (ii) Consult with CEQ on its proposed CATEX, including the written record, for a period not to exceed 30 days prior to providing public notice as described in paragraph (d)(3)(iii) of this section; and
  3. (iii) Provide public notice in the Federal Register of VA's establishment or revisions of the CATEX and the location (for example, website) of availability of the written record.