Section 109 of NEPA, enacted as part of the Fiscal Responsibility Act of 2023, allows a Federal agency to “adopt a categorical exclusion listed in another agency's NEPA procedures for a category of proposed agency actions for which the categorical exclusion was established” (42 U.S.C. 4336c). To adopt another agency's categorical exclusion under section 109, the adopting agency: (1) identifies the relevant categorical exclusion listed in another agency's (“establishing agency”) NEPA procedures “that covers a category of proposed actions or related actions”; (2) consults with the establishing agency “to ensure that the proposed adoption of the categorical exclusion for a category of actions is appropriate”; (3) “identifies to the public the categorical exclusion that the [adopting] agency plans to use for its proposed actions”; and (4) “documents adoption of the categorical exclusion”. This process is incorporated into the CEQ regulations at 40 CFR 1501.4(e).
Additional information on DHS categorical exclusion adoption can be found here:
- DHS Adoption of DOE Categorical Exclusion for Electric Vehicle Charging Stations
- DHS Adoption of 18 DOE Categorical Exclusions
Information regarding DHS’s application of the adopted categorical exclusions above can be found here: DHS Application of Adopted Categorical Exclusions.