Implementing Regulation for National Environmental Policy Act (NEPA): Environmental Effects of the Department of Veterans Affairs Actions

Sec. 26.20 Purpose of this subpart.

This subpart outlines the requirements and process for NEPA compliance to inform VA decision-making. Section 26.21 provides context by explaining how VA will integrate NEPA with VA planning. Remaining Sec. Sec. 26.22 through 26.73 lay out NEPA analysis options and NEPA implementation methods specific to those options.

Sec. 26.21 Integrating NEPA with VA planning.

(a) General. (1) Integration of the NEPA process with VA project and program planning will occur at the earliest relevant stage in the project life cycle to ensure that:

(i) VA minimizes delays and potential conflicts in the NEPA process;

(ii) VA decisions incorporate the environmental values and policies reflected in this part; and

(iii) VA takes no action concerning the proposal that would have an adverse environmental effect or limit the choice of reasonable alternatives until VA issues a ROD or finding of no significant impact (FONSI), or makes a CATEX determination. If VA is considering an application from a non-Federal entity and becomes aware that the applicant is about to take an action within VA's jurisdiction that would meet either of

the criteria that would have an adverse environmental effect or limit the choice of reasonable alternatives, VA will promptly notify the applicant that VA will take appropriate action to ensure that VA achieves the objectives and procedures of NEPA. This section does not preclude development by applicants of plans or designs or performance of other activities necessary to support an application for Federal, State, Tribal, or local permits or assistance. When considering a proposed action for Federal funding, VA may authorize such activities, including, but not limited to, acquisition of interests in land (for example, fee simple, rights-of-way, and conservation easements), purchase of long lead-time equipment, and purchase options made by applicants.

(2) Relevant NEPA documents, comments, and responses will accompany other decision documents through the decision-making process.

(b) Acquisition. VA will integrate the NEPA process and schedule with the acquisition and procurement process such that:

(1) Consideration of NEPA and planning for NEPA compliance begins as soon as VA identifies the need to acquire real property or materials that VA would use in implementing a major Federal action;

(2) Planning and budgeting activities include gathering data to identify relevant environmental issues and alternatives through the NEPA scoping process; and

(3) VA prepares the appropriate NEPA documents based on the entirety of the proposed action, including VA's proposed development and use of real property or materials.

(c) Construction projects--(1) Design/build. VA must align contracting decisions for design and construction with VA construction standards and requirements. VA will ensure the NEPA process is completed for all design/build actions before initiating construction or irretrievably committing resources to a construction project. Design/build actions are those actions in which VA hires one contractor to complete the design and construct the project, often shortening the time for contract completion.

(i) To prevent taking actions concerning the proposal that would have an adverse environmental effect or limit the choice of reasonable alternatives prior to completion of the NEPA process, VA will:

(A) Ensure that reasonable alternatives are not eliminated before the NEPA process is complete;

(B) Ensure the NEPA process is underway and advanced as far as possible given the available data prior to award of the design/build contract;

(C) Ensure the NEPA process is complete (as evidenced by signed CATEX determination, signed FONSI, or signed ROD) prior to initiation of on-site construction including site clearing or demolition; and

(D) Include language in design/build contracts that duly notes the project may not proceed until the NEPA process is completed (as evidenced by signed CATEX, signed FONSI, or signed ROD).

(ii) To facilitate the design/build process, VA may:

(A) Issue a request for quotations or request for proposals prior to completion of NEPA, so long as the request for quotations or request for proposals informs proposers of the status of the NEPA process and makes no commitment as to any alternative under consideration including any no action alternative;

(B) Conduct preliminary design work; and

(C) Support coordination with regulatory agencies under NHPA or other environmental laws.

(2) Design/bid/build. VA will ensure compliance with the NEPA process for design/bid/build projects. For design/bid/build projects, VA has separate contracts for the design versus construction of a project. To ensure compliance with NEPA, VA will:

(i) Ensure design and construction contractors align design and construction activities with VA construction standards and requirements; and

(ii) Not irretrievably commit resources to construction prior to completion of the NEPA analysis of all reasonable alternatives.

(3) Mitigation and monitoring. VA will ensure construction contractors follow any mitigation and monitoring measures committed to during the NEPA process. While NEPA requires consideration of mitigation, it does not mandate the form or adoption of any mitigation.

Sec. 26.22 Determining the appropriate level of NEPA review.

(a) If VA determines under Sec. 26.11 that NEPA applies to a proposed activity or decision, VA will then determine the appropriate level of NEPA review in the following sequence and manner. At all steps in the following process, VA will consider the proposed action or project at hand and its effects.

(1) If VA has established, or adopted pursuant to section 109 of NEPA (42 U.S.C. 4336c), a CATEX that covers the proposed action, VA will analyze whether to apply the CATEX to the proposed action and apply the CATEX, if appropriate, pursuant to Sec. 26.30.

(2) If another agency has already established a CATEX that covers the proposed action, VA will consider whether to adopt that CATEX pursuant to Sec. 26.31 so that it can be applied to the proposed action at issue, and to future activities or decisions of that type.

(3) If the proposed action warrants the establishment of a new CATEX, or the revision of an existing CATEX, pursuant to Sec. 26.30(d), VA will consider whether to so establish or revise, and then apply the CATEX to the proposed action pursuant to Sec. 26.30(d).

(4) If VA cannot apply a CATEX to the proposed action consistent with paragraphs (a)(1) through (3) of this section, VA will consider the proposed action's reasonably foreseeable effects consistent with paragraph (b) of this section, and then will:

(i) If the proposed action is not likely to have reasonably foreseeable significant effects or the significance of the effects is unknown, develop an environmental assessment (EA), as described in Sec. 26.40; or

(ii) If the proposed action is likely to have reasonably foreseeable significant effects, develop an environmental impact statement (EIS), as described in Sec. 26.41.

(b) When considering whether the reasonably foreseeable effects of the proposed action are significant, VA will analyze the potentially affected environment and degree of the effects of the action. VA may use any reliable data source and will not undertake new research unless it is essential to evaluating alternatives and the cost and time of obtaining it are not unreasonable.

(1) In considering the potentially affected environment, VA may consider, as appropriate to the specific action, the affected area (national, regional, or local) and its resources.

(2) In considering the degree of the effects, VA may consider the following, as appropriate to the specific action:

(i) Both short- and long-term effects.

(ii) Both beneficial and adverse effects.

(iii) Effects on public health and safety.

(iv) Economic effects.

(v) Effects on the quality of life of the American people.

Sec. 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 Sec. 26.32 requires one, must identify the specific CATEX or CATEXs from Sec. 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 Sec. 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 Sec. 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) Introduces and/or uses technology with unknown environmental impacts;

(2) Has a reasonable likelihood of violating any Federal, State, or local law or requirement imposed for the protection of the environment;

(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) Involves effects on the environment that are highly uncertain, or involve unique or unknown risks; or

(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) VA may periodically review the list of CATEXs published in Sec. 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) 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:

(i) VA determines a class of actions are not expected to have significant environmental effects;

(ii) VA performs NEPA reviews of a class of actions and determines that, when implemented, the actions resulted in no significant environmental impacts;

(iii) Mission changes occur within the VA organization; or

(iv) VA acquires new responsibilities through legislation or administrative restructuring.

(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:

(i) Develop a written record containing information to substantiate its determination;

(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

(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.

Sec. 26.31 Adoption and application of CATEXs from another agency's NEPA procedures.

(a) VA may adopt and then apply CATEXs listed in another agency's NEPA procedures after consulting with the other agency when:

(1) VA has determined that it proposes to undertake actions for which another agency has listed a CATEX in its final NEPA procedures; and

(2) VA finds through consultation with the other agency that the adoption and application of the other agency's CATEX to a specific VA action or category of actions is appropriate.

(b) VA shall document the results of the consultation with the other agency including:

(1) How the adoption and application of the CATEX is appropriate for the VA actions;

(2) Whether the other agency identified any limiting factors or extraordinary circumstances specific to the CATEX;

(3) The extraordinary circumstances VA will consider in applying the CATEX; and

(4) Whether each application of the CATEX requires project-specific documentation.

(c) This documentation may take the form of a VA memorandum with attached concurrence of appropriate application of the CATEX to the VA activity from the other agency and VA must publish it on the VA website.

(d) When applying a CATEX adopted from another agency's NEPA procedures to a VA project, VA shall not use another agency's CATEX if there are extraordinary circumstances that would prevent the application of the CATEX.

Sec. 26.32 List of VA categorical exclusions.

(a) The following classes of major Federal actions, which VA has determined normally do not significantly affect the quality of the human environment, may be categorically excluded from further NEPA analysis. The actions in this section followed by the parenthetic notation “(CXdoc)” require preparation of a CATEX document for each action, in accordance with Sec. 26.30.

(1) VA-wide operations--(i) CATEX 1: Field exercises and training. Training with field exercises (such as for medical, police, fire, and emergency management personnel) for emergency preparedness that substantially conforms to the use of the space where the training is proposed or does not otherwise impact the proposed training area (no ground disturbance or adverse effects to air, water, historic resources, or wildlife habitat).

(ii) CATEX 2: Field studies and surveys. Site characterization studies and environmental monitoring, including siting, erecting, operating, and dismantling or closing of characterization and monitoring devices, in compliance with applicable environmental and historic preservation requirements. Such activities include, but are not limited to:

(A) Site characterization and environmental monitoring activities;

(B) Feasibility studies;

(C) Geological, geophysical, geochemical, and engineering surveys, including the establishment of survey marks;

(D) Installation and operation of ambient air monitoring equipment;

(E) Sampling and characterization of surface and ground waters, soils, rocks, spills, or contaminants;

(F) Sampling and characterization of water effluents, air emissions, or solid waste streams;

(G) Sampling of flora or fauna; and

(H) Historic property identification and evaluation studies.

(iii) CATEX 3: Special events, ceremonies, and related activities. Hosting of special events or short-term ceremonies, including erection of temporary shelters or other structures to be used for the event or ceremony at VA cemeteries, medical centers, or ancillary facilities, including but not limited to Federal holiday events. The event must not exceed applicable noise ordinances or site capacity. The associated structures must be used only for the purposes of the event or ceremony and the duration of such structures must not substantially exceed the duration of the event.

(iv) CATEX 4: Waste management. Routine waste management, including transportation, collection, storage, treatment, removal, and disposition activities for solid waste, medical waste, special hazards (for example, asbestos, polychlorinated biphenyls, lead-based paint), and hazardous waste that comply with existing Federal, State, and local laws and regulations. This CATEX is not applicable to new construction of facilities for such management purposes.

(v) CATEX 5: Transportation. Routine transportation of veterans, VA employees, and/or other eligible persons and supplies for medical care, administrative, or other mission-related purposes using existing roads and vehicles.

(2) Housing operations--(i) CATEX 6: Provision of housing. Provision of VA housing services to veterans, VA employees, or other eligible persons in existing structures on property with substantially completed infrastructure when the placement does not exceed the capacity of existing transportation, waste, energy, or water infrastructure.

(ii) [Reserved]

(3) Acquisition or disposition of land, buildings, or space--(i) CATEX 7: Acquisition of space within an existing structure (CXdoc). VA acquisition of space within an existing structure where there is no change in the general type of use and no more than a 20 percent increase in maximum occupancy level is proposed (previous occupant need not have been a Federal tenant). This also includes lease extensions, renewals, or succeeding leases for VA-occupied space provided the continued use(s) are the same as those contained in the original lease.

(ii) CATEX 8: Acquisition of land and/or buildings (CXdoc). VA acquisition of land and/or buildings in the following circumstances:

(A) Acquisition of land where there is no near-term (within approximately five years) proposed change in the general type of use; where, if the land is previously undisturbed, it will remain undisturbed for the near term; or where the continued use will not create significant impacts to the surrounding environment; or

(B) If there are structures or buildings on the land, the acquisition will not increase the previous maximum occupancy level by more than 20 percent (previous occupant need not have been a Federal tenant), although demolition in compliance with environmental and historic preservation requirements may occur.

(iii) CATEX 9: Out-leases to third party tenants (CXdoc). Out- leases to third party tenants of buildings and/or land, where there is no change in the general type of use and no more than a 20 percent increase in the previous maximum occupancy level is proposed, where the out-lease and use by third party tenants will comply with applicable environmental and historic preservation requirements.

(iv) CATEX 10: Agreements for use of VA-owned space (CXdoc). Agreements (for example, permits or licenses) for use of VA-owned space with other Federal or State agencies or entities for sharing of space and resources consistent with their previous use by either agency or entity. This includes agreement extensions, renewals, or succeeding permits or licenses provided the continued use(s) are the same as those contained in the original permit or license to other agencies or entities on VA land.

(v) CATEX 11: Disposal of real property (CXdoc). Disposal of real property to another Federal, State, or local agency; Tribe; private entity; or non-profit group, including demolition and site restoration, that conforms to the requirements of the General Services Administration Real Property Utilization and Disposal Resource Guide or subsequent similar guidance and where the reasonably foreseeable subsequent use is of similar intensity to VA's use and meets the requirements of all applicable environmental and historic preservation laws and guidance.

(4) Services and procurement--(i) CATEX 12: Medical-related services. Provision of medical care to veterans or other eligible persons including but not limited to medical diagnostic, treatment, and care services; distribution (and return) of pharmaceuticals, prosthetics, home oxygen, and other medical supplies; and provision of home healthcare services in support of normal day-to-day activities for provision of medical care.

(ii) CATEX 13: Research. Research activities conducted within an existing laboratory or other contained facility where all applicable safety and environmental requirements are met. May include use and disposition of radionuclides or hazardous or biological materials for research purposes that comply with VA master materials license requirements and any other applicable environmental and health and safety requirements.

(iii) CATEX 14: Laundry and food services. Laundry and food services operations from existing facilities conducted on-site at VA medical centers or ancillary VA facilities in compliance with applicable environmental, historic, and health and safety requirements.

(iv) CATEX 15: Procurement, lease, transport, storage, and disposition of supplies, materials, and equipment. Procurement and/or lease, transport, storage, and disposition of materials, supplies, and equipment related to medical treatment, diagnostic support, or research; cemetery operations; and other agency functions. Materials, supplies, and equipment must comply with applicable Federal, State, and local requirements and be purchased in accordance with applicable Federal procurement policies and VA procurement requirements.

(5) Cemetery Operations--(i) CATEX 16: Interment ceremony services. Interment ceremony services including but not limited to the committal service, motorcade, burial, and rendering of military honors.

(ii) CATEX 17: Soil excavation and replacement for interments. Soil excavation and replacement for access to pre-placed crypts for interment and for direct burials in designated interment areas in compliance with applicable environmental and historic preservation requirements.

(iii) CATEX 18: Cemetery land development (CXdoc). Expansion of cemeteries where the expansion is limited to the construction and development of one or more new crypt fields or columbaria within the boundaries of an existing cemetery, and in compliance with applicable environmental and historic preservation requirements.

(6) Electronics--(i) CATEX 19: Communication systems (CXdoc for ground-disturbing actions only). Procurement, installation, operation, modification, removal, or disposal of communication systems, computers, data processing equipment, fiber optic cables, alarm systems, wiring, antennae, and other communications equipment in accordance with applicable Federal, State, and local requirements. Includes installing or modifying communications equipment by VA, a vendor, or telecommunications provider within or on existing structures, erecting free-standing antennae, and constructing buildings or additions.

(ii) [Reserved]

(7) New construction and related activities--(i) CATEX 20: New construction (CXdoc). New construction in either of the following circumstances:

(A) Construction on existing VA property with substantially developed infrastructure, in developed or undeveloped areas of the property, the use or operation of which, when completed, is consistent with existing VA use of the overall property, does not change the function of the facility or modify VA's intended land use, and does not exceed the capacity of existing transportation, waste, energy, or water infrastructure serving the property. These activities include but are not limited to new structures or additions to existing buildings that comply with applicable environmental and historic preservation requirements; associated utility extensions and connections; and installation, use, and removal of facilities such as construction trailers and use of materials laydown areas during the construction process; or

(B) Acquisition of property and subsequent construction, with construction that does not exceed a total building footprint of 75,000 square feet including by build-to-suit lease, and/or 20 acres of interment space installation to be associated with an existing cemetery, and may include installation, use, and removal of facilities such as construction trailers and use of materials laydown areas during the construction process; where use will not exceed the capacity of existing transportation, waste, energy, or water infrastructure serving the property; and construction and use will comply with applicable Federal, State, and local environmental and historic preservation laws, regulations, and ordinances.

(ii) CATEX 21: Interior renovation. Interior renovation, alteration, restoration, or rehabilitation projects that do not adversely affect properties listed on or eligible for the National Register of Historic Places and are done in accordance with applicable environmental and historic preservation requirements.

(iii) CATEX 22: Installing new or replacing or relocating onsite existing building components, site elements, utilities, and equipment (CXdoc). Installing, replacing, retrofitting, upgrading, or relocating onsite in a manner that substantially conforms to the pre-existing design, function, and location and complies with applicable environmental and historic preservation requirements. These activities include but are not limited to:

(A) Installation or replacement of building components such as windows, doors, roofs, HVAC equipment, or electrical distribution system components in existing facilities;

(B) Installation or replacement of VA facility site elements such as sidewalks, patios, fences, sheds, retaining walls, curbs, parking lots, trails, memorials, fountains, benches, roads, garages, drainage structures, signs, and entrance features;

(C) Installation or replacement of site utilities whether by VA or a third party, such as water distribution lines and storage, storm or sanitary sewer lines, system generators, tanks for heating systems and/ or generators, or primary or secondary electrical or communications lines, steam lines, and holding ponds, where the action does not exceed the site or system's capacity and including granting easements to utility companies to conduct these activities on VA property;

(D) Installation or replacement of equipment to support vehicular maintenance and operation (such as fuel storage, repair equipment);

(E) Installation or replacement of headstones, grave markers, statues, and monuments in existing VA cemeteries so long as the activity does not negatively affect the historic integrity or national shrine cemetery characteristics and is to a site that has been previously disturbed and can reasonably accommodate the activity; and

(F) Relocation of statues and monuments in existing VA cemeteries so long as the activity does not negatively affect historic integrity or national shrine cemetery characteristics and is to a site that has been previously disturbed and can reasonably accommodate the activity.

(iv) CATEX 23: Repair, renovation, and maintenance. Repair, renovation, maintenance, grounds-keeping, and custodial activities at VA facilities provided that the activities conform to pre-existing design and are performed in accordance with applicable environmental and historic preservation requirements such as those governing the use of toxic or hazardous materials. These activities include but are not limited to:

(A) Repair, renovation, and maintenance of building components such as windows, doors, roofs, HVAC equipment, and electrical distribution system components in existing facilities;

(B) Repair, renovation, and maintenance of VA facility site elements

such as sidewalks, patios, fences, sheds, retaining walls, curbs, parking lots, trails, memorials, fountains, and benches;

(C) Repair, renovation, and maintenance of site utilities such as water distribution lines and storage (including water towers), storage tanks, storm or sanitary sewer lines, primary or secondary electrical or communications lines, steam lines, and holding ponds where the action is in accordance with applicable regulations and does not exceed the site or system's capacity, including granting easements to utility companies for conducting these actions on VA property;

(D) Repair, renovation, and maintenance activities for property site elements such as roads, garages, drainage structures, signs, and entrance features;

(E) Interior and exterior facility maintenance, renovation, and custodial actions to preserve facility appearance, working conditions, and sanitation, and maintain and preserve buildings, structures, infrastructures, and equipment in a condition suitable for a facility to be used for its designed purpose such as pest management measures, window washing, surface coatings, paint, street sweeping, trash collecting, and snow removal that do not adversely impact wildlife habitat or historic resources; and safety, environmental, and historic preservation requirements are met;

(F) Grounds repairs, renovation, and maintenance activities including but not limited to use of irrigation systems where there is sufficient available water to do so; mowing and trimming of vegetation; and application of fertilizers, pesticides, and herbicides;

(G) Repair, renovation, and maintenance of VA equipment and other similar assets that are not attached to a structure; and

(H) Repair, maintenance, and treatment of headstones, grave markers, columbaria, statues, monuments, and flagpoles in existing VA cemeteries so long as the activities do not negatively affect the historic integrity or national shrine cemetery characteristics.

(v) CATEX 24: Demolition (CXdoc). Actions involving partial or complete demolition of non-historic structures or historic structures in accordance with applicable environmental and historic preservation requirements including but not limited to parking structures, medical center buildings, and unused buildings.

(vi) CATEX 25: Environmental remediation and abatement. Actions undertaken in accordance with applicable environmental and historic preservation requirements for remediating contamination of soil, water, air, biota, structures, or other environmental components and associated disposal; waste remediation or disposal; or abatement, containment, or removal and disposal of asbestos-containing material or lead-based paint from VA-owned, leased, or operated facilities.

(8) Energy--(i) CATEX 26: Solar and wind energy (CXdoc). Installation, modification, operation, and removal on property owned or leased by VA of solar photovoltaic systems and wind turbines mounted on existing non-historic buildings or structures (for example, buildings, carports) or, if located on land, generally comprising less than 10 acres, in accordance with all applicable environmental and historic preservation requirements. For wind turbines, total height would be generally less than 200 feet (measured from ground to maximum height of blade rotation) and would comply with Federal Aviation Administration, National Weather Service, and U.S. Fish and Wildlife Service siting and design requirements and guidelines.

(ii) CATEX 27: Retro commissioning. Retro commissioning or re- commissioning of existing structures in accordance with applicable environmental and historic preservation requirements.

(iii) CATEX 28: Conservation and energy efficiency measures (CXdoc for certain project types). Actions to conserve water or energy, demonstrate potential water or energy conservation, or promote energy efficiency improvements that do not exceed capacity of system components or have the potential to change concentrations of potentially harmful substances including but not limited to:

(A) Upgrading equipment and systems with more efficient components, green-roof retrofits, weatherization, timers on hot water heaters, energy efficient lighting, low-flow plumbing fixtures, drip-irrigation systems, and efficiency rating improvements for facilities or vehicles;

(B) Ground source heat pump and combined heat and power systems (CXdoc);

(C) Beneficial landscaping;

(D) Power storage (CXdoc); and

(E) Small-scale research and development for energy efficiency and conservation (CXdoc).

(b) VA may amend this list of CATEXs by following the procedure described in Sec. 26.30(d).

Sec. 26.40 Requirements for EAs.

(a) Purpose and need. VA will briefly discuss the purpose and need for the proposed action based on VA's statutory authority. When the proposed action concerns VA's duty to act on an application for authorization, the purpose and need for the proposed action will also be informed by the goals of the applicant.

(b) Proposed action. The proponent will identify a proposed action. The proposed action could be a plan, program, policy, or a specific project. VA may incorporate avoidance or mitigation measures into the proposed action to minimize or negate adverse effects. At a minimum, the description of the proposed action will include:

(1) The proposed site location(s) or geographic extent of the proposed project, plan, or program;

(2) The proposed footprint or area of the proposed project, plan, or program;

(3) The expected duration of the project, plan, program, or policy; and

(4) A detailed description of the proposed action, including any related or connected actions.

(c) Alternatives. The EA will briefly discuss alternatives to the extent required by section 102(2)(H) of NEPA (42 U.S.C. 4332(2)(H)).

(d) Scope of analysis. The EA will briefly discuss the reasonably foreseeable effects of the proposed action and the alternatives considered.

(1) VA will focus its analysis on whether the environmental effects of the action or project at hand are significant.

(2) Similarly, VA will document in the EA where and how it drew a reasonable and manageable line relating to its consideration of any environmental effects from the action or project at hand that extend outside the geographic territory of the project or might materialize later in time.

(3) To the extent it assists in reasoned decision-making, VA may, but is not required to by NEPA, analyze environmental effects from other projects separate in time, or separate in place, or that fall outside of VA's regulatory authority, or that would have to be initiated by a third party. If VA determines that such analysis would assist it in reasoned decision-making, it will document this determination in the EA and explain where it drew a reasonable and manageable line relating to the consideration of such effects from such separate projects.

(e) Page limits. The text of an EA is strictly prohibited from exceeding 75 pages, not including citations or appendices.

(f) Deadlines. As the Supreme Court has repeatedly held, NEPA is governed

by a “rule of reason.” Congress supplied the measure of that reason in the 2023 revision of NEPA by setting the deadlines in section 107(g) of NEPA (42 U.S.C. 4336a(g)). These deadlines indicate Congress's determination that an agency, working within Congress's allocation of resources, has presumptively spent a reasonable amount of time on analysis and the document should issue, absent very unusual circumstances. In such circumstances, an extension will be given only for such time as is necessary to complete the analysis. Thus:

(1) VA will complete the EA not later than the date that is one year after the date a notice of intent to prepare the EA is published; or, if a public notice of intent is not published, the date on which it is confirmed by VA's assigned NEPA project manager for an agency- or applicant-prepared EA, or by the NEPA contractor for a contractor- prepared EA, that the proposed action is a major Federal action requiring NEPA review and is sufficiently defined to estimate that it would not have a reasonably foreseeable significant effect on the quality of the human environment.

(2) VA will define the end date for an EA as the date that either a FONSI is signed by the decision-maker or the date the VA NEPA project manager has notified the NEPA Implementation Officer that an EIS is required for the proposed action.

(3) VA will publish the EA, at the latest, on the day the one-year deadline elapses, in as substantially complete form as is possible, unless the deadline is extended pursuant to the provision in paragraph (f)(4) of this section.

(4) If VA determines it is not able to meet the deadline prescribed by section 107(g)(1)(B) of NEPA (42 U.S.C. 4336a(g)(1)(B)), it must consult with the applicant, if any, pursuant to section 107(g)(2) of NEPA (42 U.S.C. 4336a(g)(2)). After such consultation, if needed, and for cause stated, it may establish a new deadline, approved in writing by the NEPA Specialist responsible for completing the EA on schedule. Cause for establishing a new deadline is only established if the EA is so incomplete at the time at which VA determines it is not able to meet the statutory deadline, that issuance pursuant to paragraph (f)(3) of this section would, in VA's view, result in an inadequate analysis. Such new deadline must provide only so much additional time as is necessary to complete such EA. The announcement of the new deadline will specify the reason why the EA was not able to be completed under the statutory deadline and whether the applicant, if any, consented to the new deadline.

(g) Scoping. Scoping is a process used to help determine the scope of issues for analysis during the NEPA process. VA may determine to publish a notice of intent to prepare the EA and accept public comments on the scope of the EA. In such case, VA would follow the procedures described in Sec. 26.42.

Sec. 26.41 Requirements for EISs.

(a) Purpose and need. The EIS will include the purpose and need for the proposed action based on VA's statutory authority. When the proposed action concerns VA's duty to act on an application for authorization, the purpose and need for the proposed action will also be informed by the goals of the applicant.

(b) Proposed action. The proponent will identify a proposed action. The proposed action could be a plan, program, policy, or a specific project. VA may incorporate avoidance or mitigation measures into the proposed action to minimize or negate adverse effects. At a minimum, the description of the proposed action will include:

(1) The proposed site location(s) or geographic extent of the proposed project, plan, or program;

(2) The proposed footprint or area of the proposed project, plan, or program;

(3) The expected duration of the project, plan, program, or policy; and

(4) A detailed description of the proposed action, including any related or connected actions.

(c) Alternatives. The EIS will include a detailed statement on a reasonable range of alternatives to the proposed action, including an analysis of any adverse environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are, in VA's expert judgment, technically and economically feasible, and meet the purpose and need of the proposal.

(d) Analysis within the EIS. (1) The EIS will include a detailed statement on:

(i) Reasonably foreseeable environmental effects of the proposed action;

(ii) Any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented;

(iii) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity;

(iv) Any irreversible and irretrievable commitments of Federal resources that would be involved in the proposed action should it be implemented; and

(v) Any means identified to mitigate adverse environmental effects of the proposed action. VA is mindful in this respect that NEPA itself does not require or authorize VA to impose any mitigation measures.

(2)(i) In preparing the EIS, VA will focus its analysis on the environmental effects of the action or project at hand that are significant.

(ii) Similarly, VA will document in the EIS where and how it drew a reasonable and manageable line relating to its consideration of any environmental effects from the action or project at hand that extend outside the geographic territory of the project or might materialize later in time.

(iii) To the extent it assists in reasoned decision-making, VA may, but is not required to by NEPA, analyze environmental effects from other projects separate in time, or separate in place, or that fall outside of VA's regulatory authority, or that would have to be initiated by a third party. If VA determines that such analysis would assist it in reasoned decision-making, it will document this determination in the EIS and explain where it drew a reasonable and manageable line relating to the consideration of such effects from such separate projects.

(3) EISs will discuss effects in proportion to their significance. With respect to issues that are not of a substantive nature and do not meaningfully inform the consideration of environmental effects and the resulting decision on how to proceed, there will be no more than the briefest possible discussion to explain why those issues are not substantive and therefore not worthy of any further analysis. EISs will be analytic, concise, and no longer than necessary to comply with NEPA in light of the congressionally mandated page limits and deadlines.

(e) Format and page limits. (1) Except as provided in paragraph (e)(2) of this section, the text of an EIS will not exceed 150 pages, not including citations or appendices.

(2) An EIS for a proposed action of extraordinary complexity is strictly prohibited from exceeding 300 pages, not including any citations or appendices. VA will determine at the earliest possible stage of preparation of an EIS whether the conditions for exceeding the page limit in paragraph (e)(1) of this section are present.

(f) Deadlines. As the Supreme Court has repeatedly held, NEPA is governed by a “rule of reason.” Congress supplied the measure of that reason in the 2023 revision of NEPA by setting the deadlines in section 107(g) of NEPA (42 U.S.C. 4336a(g)). These deadlines indicate Congress's determination that

an agency, working within Congress's allocation of resources, has presumptively spent a reasonable amount of time on analysis and the document should issue, absent very unusual circumstances. In such circumstances, an extension will be given only for such time as is necessary to complete the analysis. Thus:

(1) VA will complete the EIS not later than the date that is two years after the sooner of, as applicable, the date a notice of intent to prepare the EIS is published; or the date on which it is confirmed by VA's assigned NEPA project manager for an agency- or applicant- prepared EIS, or by the NEPA contractor for a contractor-prepared EIS, that the proposed action is a major Federal action requiring NEPA review and is sufficiently defined to estimate that the reasonably foreseeable effects on the quality of the human environment would be significant.

(2) VA will define the end date for an EIS as the date the EIS is published or, in the case of a NEPA process in which VA first publishes a Draft EIS for public comment, the date the Final EIS is published.

(3) The EIS will publish (unless the deadline is extended pursuant to the provision in paragraph (f)(4) of this section) on the day the deadline elapses, in as substantially complete form as is possible.

(4) If VA determines it is not able to meet the deadline prescribed by section 107(g)(1)(A) of NEPA (42 U.S.C. 4336a(g)(1)(A)), it must consult with the applicant, if any, pursuant to section 107(g)(2) of NEPA (42 U.S.C. 4336a(g)(2)). After such consultation, if needed, and for cause stated, it may establish a new deadline, approved in writing by the NEPA Specialist responsible for completing the EIS on schedule, by means of a notice published to the same VA website where the original notice of intent for the EIS was posted. Cause for establishing a new deadline is only established if the EIS is so incomplete at the time at which VA determines it is not able to meet the statutory deadline, that issuance pursuant to paragraph (f)(3) of this section would, in VA's view, result in an inadequate analysis. Such new deadline must provide only so much additional time as is necessary to complete such EIS. The announcement of the new deadline will specify the reason why the EIS was not able to be completed under the statutory deadline and whether the applicant, if any, consented to the new deadline.

(g) Publication of the EIS. (1) VA will publish the entire EIS on a publicly accessible agency website.

(2) VA will file EISs together with comments and any responses with the Environmental Protection Agency, Office of Federal Activities, for publication in the Federal Register.

Sec. 26.42 Public engagement procedures.

(a) As a preliminary step to determining, in connection with a proposal that is not excluded pursuant to a CATEX, whether VA will prepare an EA or an EIS, VA will determine and document the scope of the project at hand.

(b) As soon as practicable after determining that a proposal is sufficiently developed to allow for meaningful public comment and requires an EIS, VA will publish a notice of intent to prepare an EIS. If VA determines that it will prepare an EA for a proposed action, VA may publish a notice of intent to publish an EA.

(1) The notice of intent for an EIS will include a request for public comment on alternatives or effects and on relevant information, studies, or analyses with respect to the proposed agency action. See section 107(c) of NEPA (42 U.S.C. 4336a(c)).

(2) In addition to a request for comment required for notices of intent for EISs, notice of intent for any environmental document may include:

(i) The purpose and need for the proposed action;

(ii) A preliminary description of the proposed action and alternatives the environmental document will consider;

(iii) A brief summary of expected effects;

(iv) Anticipated permits and other authorizations (that is, anticipated related actions);

(v) A schedule for the decision-making process;

(vi) A description of the public scoping process, including any scoping meeting(s);

(vii) Contact information for a person within VA who can answer questions about the proposed action and the environmental document; and

(viii) Identification of any cooperating and participating agencies (that is, agencies responsible for related actions), and any information that such agencies require in the notice to facilitate their decisions or authorizations.

(c) VA may use an early and open process to determine the scope of issues for analysis in an environmental document, including identifying substantive issues that meaningfully inform the consideration of environmental effects and the resulting decision on how to proceed, eliminating from further study non-substantive issues, and determining whether connected actions should be addressed in the same environmental document. Scoping may begin as soon as practicable after the proposed action is sufficiently developed for consideration. Scoping may include appropriate pre-application procedures or work conducted prior to publication of the notice of intent.

Sec. 26.50 Mitigation and monitoring.

(a) VA will consider possible mitigation measures to avoid, minimize, or compensate for adverse effects caused by a proposed action or alternatives as described in the NEPA document, and that have a connection to those adverse effects. While NEPA requires consideration of mitigation, it does not mandate the form or adoption of any mitigation. NEPA documents will state the authority for any mitigation adopted and any applicable monitoring or enforcement provisions.

(b) Possible mitigation measures for effects generated by the VA action may include, but are not limited to, avoiding the effect by not taking a certain action or parts of an action; minimizing the effect by limiting the degree or magnitude of the action and its implementation; rectifying the effect by repairing, rehabilitating, or restoring the affected environment; reducing or eliminating the effect over time by preservation and maintenance operations during the life of the action; or compensating for the effect by replacing or providing substitute resources or environments.

(c) Mitigation shall be enforceable when the proposed action incorporates the mitigation measure(s) or conclusions about the significance of reasonably foreseeable adverse effects are based on implementation of mitigation measure(s).

(d) If VA finds no significant effects based on mitigation, the mitigated FONSI will state any mitigation requirements enforceable by VA or voluntary mitigation commitments that will be undertaken to avoid significant effects. VA may require a monitoring and compliance plan that includes:

(1) A basic description of the mitigation measure or measures;

(2) The parties responsible for monitoring and implementing the mitigation;

(3) The anticipated timeframe for implementing and completing mitigation;

(4) As applicable, the standard(s) for determining effectiveness of mitigation and steps to be taken when a measure is determined to be not sufficiently effective; and

(5) How the mitigation will be funded if other than by project construction funds.

(e) VA will include the cost of the mitigation and monitoring measures as part of the budget for the project when the agency has such discretion.

(f) For grant awards, lease contracts, or land transfer agreements, VA may include mitigation measure(s) as conditions, contract terms, or agreement terms, respectively, that require the applicant, awardee, or land transfer recipient to provide for their implementation.

Sec. 26.60 The decision: documentation and initiation of action.

(a) Decision documents. VA will prepare a FONSI or ROD at the conclusion of the EA or EIS process to evidence the EA- or EIS-level NEPA analysis and the decision that VA made after sufficient consideration of alternatives and input from the public, as applicable. VA will make the FONSI or ROD available to the public.

(1) FONSI. After preparing an EA, VA will prepare a FONSI when VA determines a not otherwise categorically excluded proposed action does not have the potential to cause significant impacts.

(i) VA shall include the EA in the FONSI or incorporate it by reference.

(ii) VA shall include any mitigation requirements or commitments in the FONSI (see Sec. 26.50).

(iii) VA will make the EA and FONSI available to the public on an agency website.

(2) ROD. After completing an EIS, VA will issue a ROD that summarizes the findings of the EIS and identifies VA's selected alternative for implementation.

(i) The ROD will:

(A) State the decision.

(B) Identify the alternatives considered by VA in reaching its decision.

(C) Identify and discuss all relevant factors that VA balanced in making its decision and how their consideration entered into its decision, including, as relevant, environmental, economic, technical, considerations; VA's statutory mission; and essential considerations of national policy.

(D) State whether VA has adopted all practicable means to mitigate environmental harm from the selected alternative and, if not, why it has not.

(E) Identify any enforceable mitigation requirements or commitments (see Sec. 26.50).

(ii) VA will publish a notice of availability in the same manner as the notice of intent to prepare the EIS was published, to notify the public of the existence of the ROD.

(iii) VA may issue a decision concurrently with or at any time after making an EIS publicly available, or making an EA publicly available if a FONSI is deemed appropriate.

(b) Signatories. The VA decision-maker must sign the FONSI or ROD. See Sec. 26.13(e) for information on the responsibilities and designation of VA decision-makers.

(c) Initiation of VA action. With the exception of interim actions and actions that would not have an adverse environmental effect or limit the choice of reasonable alternatives:

(1) VA will not undertake actions evaluated in an EA until after VA signs a FONSI; and

(2) VA will not undertake actions evaluated in an EIS until after VA signs a ROD.

Sec. 26.70 Programmatic NEPA documents.

(a) Programmatic NEPA documents allow VA to conduct broad or holistic evaluations of effects or policy alternatives, evaluate widely applicable measures, or avoid duplicative analysis by considering all or some of the environmental effects of a policy, program, plan, group of projects or related types of projects, national or regional actions, or otherwise related actions. Programmatic NEPA documents support efficiency of NEPA review at the site-, action-, and project-specific level. VA may evaluate the proposal(s) in one of the following ways:

(1) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area.

(2) Generically, including actions that have relevant similarities, such as common timing, effects, alternatives, methods of implementation, media, or subject matter.

(3) By stage of technological development.

(b) Consistent with section 108 of NEPA (42 U.S.C. 4336b), after completing a programmatic NEPA document, VA may rely on that document for five years if there are not substantial new circumstances or information about the significance of adverse effects that bear on the analysis. After five years, as long as VA reevaluates the analysis in the programmatic NEPA document and any underlying assumption to ensure reliance on the analysis remains valid and briefly documents its reevaluation and explains why the analysis remains valid considering any new and substantial information or circumstances, VA may continue to rely on the document.

(c) VA need not wait until the initiation of a specific project to begin a programmatic review.

(d) VA may prepare a NEPA analysis specific to a unique program or project that has aspects different from or not sufficiently evaluated within a larger programmatic analysis. To tier an analysis to a previous programmatic EIS or EA, VA must:

(1) Incorporate the programmatic EIS or EA by reference in the tiered analysis, and

(2) Analyze all specific reasonably foreseeable environmental effects and a reasonable range of alternatives not covered at the programmatic level.

Sec. 26.71 Reliance on existing NEPA documents.

(a) Generally. If the action covered by an original NEPA document from another Federal agency and VA's action are substantially the same, VA may rely on the other agency's NEPA document to satisfy or complete part of the NEPA analysis or to fulfill other Federal requirements integrated into the NEPA process. Existing documents are prepared for a purpose other than the proposed VA action. VA will only rely on another agency's NEPA document after the VA NEPA Implementation Officer or their delegate conducts and documents an independent review and creates a decision document to finalize the reliance on the other agency's NEPA document The document may be an EIS, EA, or CATEX. When relying on a NEPA document, or portion thereof, VA will cite, briefly describe the content and relevance to VA's proposed action, and may make modifications that are necessary to render the relied-upon document, or portion thereof, fit for fulfilling NEPA's analytic requirements for the action at hand.

(b) Substantial similarity. (1) If the actions covered by an original EIS or EA and the proposed action are substantially the same, VA will republish the relied-upon EIS or EA.

(2) If the actions are not substantially the same, VA may modify the EIS or EA as necessary to render the document fit for fulfilling NEPA's analytic requirements for the action at hand, and publish the relied-upon EIS or EA, as modified. Where appropriate, VA may solicit comment to the extent that solicitation of comment will assist VA in expeditiously adapting the relied-upon EIS or EA so that it is fit for VA purposes.

Sec. 26.72 Combining documents.

Whenever practicable, VA will reduce duplication and paperwork by combining NEPA analyses for two or

more VA actions or combining NEPA documents with other VA documents, to the fullest extent practicable. Circumstances in which VA may combine documents include but are not limited to actions located at the same site or region, similar actions (such as construction of similar types of facilities), and actions within the same program.

Sec. 26.73 Supplemental analyses.

VA will prepare a supplemental analysis if a major Federal action is incomplete or ongoing and if there are substantial changes to the proposed action that are relevant to environmental concerns or there are substantial new circumstances or information about the significance of adverse effects that bear on the analysis. VA may also prepare a supplemental analysis when the purposes of NEPA will be furthered by doing so. A supplemental analysis may be completed at any stage of an EIS or EA. If, following internal agency review of an existing NEPA document, VA finds that changes to the proposed action or new circumstances or information relevant to environmental concerns are not substantial and therefore do not require a supplement, a NEPA Specialist will prepare a memorandum-to-file detailing the review process and analysis, with concurrence from either the decision-maker (or their successor) who signed the original NEPA document (EA or EIS) or the current VA NEPA Implementation Officer.

(a) Supplemental EA. VA may publish for public comment a supplemental EA to a draft or final EA, as appropriate to the stage of the EA involved, in consideration of whether public comments on the EA were previously solicited and the nature of any comments received as relevant to the new information or circumstances.

(b) Supplemental EIS. VA may publish for public comment a supplemental EIS to a draft or final EIS, as appropriate to the stage of the EIS involved, in consideration of whether public comments on the EIS were previously solicited and the nature of any comments received as relevant to the new information or circumstances.

(c) Administrative record. VA must add any supplemental analysis, or memorandum-to-file concluding supplemental analysis is not required, to the administrative record of the original EA or EIS to which the supplement applies. VA will integrate the supplemental EA or EIS using a format and technology compatible with the administrative record for the original EA or EIS. If an index for the original administrative record exists, VA will update or supplement it to list the supplemental EA or EIS.

Sec. 26.80 Purpose of this subpart.

This subpart outlines the relationship between VA and Federal, Tribal, State, and local environmental agencies; identifies the role of VA in actions initiated by other Federal agencies and the role other Federal agencies may play in VA actions; and describes the role of applicants in VA's NEPA process.

Sec. 26.81 Relationships with third parties.

Although VA is ultimately responsible for ensuring the NEPA process is completed for VA actions, VA may share responsibility with third parties for the completion of a NEPA analysis. VA will participate as a lead agency, joint lead agency, or cooperating agency during the NEPA process for VA actions and actions taken by third parties. See sections 111(2) and (9) of NEPA (42 U.S.C. 4336e(2) and (9)) for the definitions of cooperating agency and lead agency.

(a) Cooperating agencies. Cooperating agencies assist the lead agency during the NEPA process. VA may request Tribes and Federal, State, and local agencies to participate in the NEPA process as a cooperating agency for a VA action. Other agencies and Tribes may request to participate in a VA action as cooperating agencies or may request VA to participate in their NEPA processes as a cooperating agency.

(1) Requests for another agency to participate as a cooperating agency in a VA action. VA may request and approve another agency to participate in the NEPA process for a VA action as a cooperating agency when the other agency possesses specialized knowledge or jurisdiction by law applicable to the VA action, VA makes the request early in the NEPA process, and granting cooperating agency status will not create undue delay.

(2) VA acting as a cooperating agency in another agency's action. If another agency with a proposed action requests VA to participate in the NEPA process as a cooperating agency, VA will participate in the requesting agency's NEPA process whenever practicable. VA may request to participate as a cooperating agency in another agency's NEPA process when the other agency's proposed action overlaps with VA authority or actions.

(b) Joint lead agencies. VA may share lead agency status with one or more other agencies. Joint lead agencies can be Federal or non- Federal entities. Ordinarily, the lead agency follows its own regulations implementing NEPA when preparing an environmental document in the NEPA analysis. However, when there are joint lead agencies, they will each ensure consistency with their own NEPA procedures to ensure they can rely on the environmental document. For each specific procedure, they will typically need to follow the most conservative agency procedure for each step.

(c) Lead agency designation. All requests from another agency for VA to participate as a lead agency should be sent to the Senior Agency Official.

(d) Documentation. VA will work with the other agencies participating in the NEPA process to separate and establish responsibilities among the agencies and will document these decisions in accordance with departmental policy.

Sec. 26.82 State, Tribal, and local requirements.

State, Tribal, and local agencies may have programs in place that apply to the implementation or planning of a VA action, including but not limited to a State permitting system. When possible, VA will eliminate duplicate documentation of compliance with State, Tribal, and local procedures that involve similar analysis or information gathering to what NEPA requires by producing one NEPA document to satisfy environmental requirements at the Federal, State, Tribal, and local levels.

Sec. 26.83 Applicants for Federal assistance.

(a) Procedures for applicant-prepared NEPA documents. (1) In accordance with section 107(f) of NEPA (42 U.S.C. 4336a(f)), VA has established procedures allowing applicants, or contractors hired by applicants, to prepare environmental documents under VA's supervision.

(2) A VA NEPA Specialist will independently evaluate the environmental document and VA will take responsibility for its contents.

(3) VA will assist applicants and applicant-hired contractors by providing guidance and outlining the types of information required for the preparation of the environmental document. VA may also provide appropriate guidance and assist in environmental document preparation, to the extent that VA's resources and policy priorities permit. VA will work with the applicant to define the purpose and need and, when appropriate, to develop a reasonable range of alternatives to meet that purpose and need.

(4) VA will develop and modify, as appropriate, a schedule for preparation of the environmental document. VA will document major changes to the schedule or related matters through written correspondence.

(5) VA may request from an applicant environmental information for use by VA in preparing or evaluating an environmental document. This may include a decision file consisting of any factual, scientific, or technical information used, developed, or considered by the applicant or applicant-hired contractor in the course of preparing an environmental document, including any correspondence with VA or third parties.

(6) Project sponsors intending to pay a fee for an expedited EIS or EA deadline pursuant to section 112 of NEPA (as amended through Pub. L. 119-21, July 4, 2025) for which VA would be the lead agency should consult with VA before submitting a request to CEQ. VA will use such consultation to assist the project sponsor in providing an accurate description of the project as it relates to the anticipated EIS- or EA- associated costs and understanding the anticipated scope of the environmental review including whether to prepare an EA or an EIS.

(b) Grants. Third parties may apply for VA grants. Where VA can identify similar types of grants, such as with the establishment of a new grant program, a programmatic NEPA analysis may be appropriate. Program applicants, including but not limited to entities such as a State veterans agency, may have to provide information to VA to support an environmental analysis of the project. Examples of grant actions include but are not limited to State veterans home construction grants and State cemetery grants.

(c) Discretionary benefits. VA may conduct a programmatic NEPA analysis for any benefit program that constitutes a major Federal action as defined in section 111(10) of NEPA (42 U.S.C. 4336e(10)).

(d) Entitlements. Entitlements are defined as assistance provided to a veteran or veteran's beneficiary over which VA has no discretion. VA's role in entitlements is purely administrative in nature. Since VA actions on entitlements are non-discretionary, entitlement awards do not meet the definition of a major action in section 111(10) of NEPA (42 U.S.C. 4336e(10)), are outside of the scope of this part, and NEPA does not apply. Examples of VA entitlements include but are not limited to pensions and survivor benefits.

(e) Plans for VA assistance. Applicants for VA grants and discretionary benefits may develop preliminary plans, designs, and other work to support an application to VA. Preliminary plans do not violate the purpose of this part.

Sec. 26.84 Non-compliance by applicants.

VA will promptly notify the applicant that VA requires appropriate action to comply with NEPA when VA becomes aware that an applicant is about to take action that would have an adverse environmental effect or limit the choice of reasonable alternatives prior to the issuance of a CATEX, FONSI, or ROD.

Subpart D--Unique Procedures: Emergencies, Protected Information, and International Actions

Sec. 26.90 Purpose of this subpart.

This subpart provides the VA procedures for complying with NEPA during emergencies, how VA will handle sensitive or classified information, and how VA will consider the international effects of VA actions.

Sec. 26.91 Emergencies.

An emergency is a situation in which human life or the human environment is in jeopardy and urgent or immediate action is necessary to prepare for or respond to the situation. Emergencies include natural disasters and human-caused events such as terrorist attacks, oil spills, and industrial explosions. Emergencies do not include a failure to plan for a project or program or a failure to adequately prepare for a NEPA analysis or other environmental requirements. During an emergency, VA will comply with the NEPA process as established in this part or implement alternative arrangements for compliance with NEPA to the extent feasible, and only for actions necessary to control the immediate impacts of the emergency; other actions remain subject to NEPA review in accordance with this part.

(a) EISs. Alternative arrangements are alternatives to the traditional documentation requirements for EISs in NEPA. VA creates alternative arrangements based on specific facts and circumstances. Alternative arrangements are limited to actions necessary to control the immediate impacts of the emergency. The long-term response or recovery actions remain subject to the regular NEPA process. When VA is contemplating an emergency action with alternative arrangements to the NEPA process, relevant factors include the nature and scope of the emergency, whether the action is necessary to control the immediate effects of the emergency, potential adverse effects of the proposed action, components of the NEPA process that VA can follow and provide value to decision-making, the duration of the emergency, and potential mitigation measures.

(b) CATEXs. VA may respond to an emergency with an action that is categorically excluded from further NEPA analysis. When a CATEX applies in an emergency situation, no alternative arrangements are necessary.

(c) EAs. For VA emergency actions that are not expected to have significant environmental impacts and are not categorically excluded, VA prepares an EA. VA will waive its own procedural requirements for actions normally subject to an EA if an emergency necessitates an action to save human life and property. In such an emergency, VA will develop alternative arrangements. VA will consider factors including but not limited to the nature and scope of the emergency, whether the action is necessary to control the immediate effects of the emergency, potential adverse effects of the proposed action, aspects of the NEPA process that VA may follow during the emergency response, the duration of the emergency, and potential mitigation measures.

(d) Consultation with CEQ. VA consults with CEQ as early as possible when VA determines alternative arrangements for compliance with section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)) may be necessary to respond to an emergency for an action with reasonably foreseeable significant environmental effects. The NEPA Implementation Officer will contact CEQ when VA makes such a determination.

Sec. 26.92 Sensitive or classified information.

(a) Policy. VA will not disclose information that is protected from disclosure under the Freedom of Information Act. Although VA will not release protected information to the public, VA may in some cases use sensitive or classified information in preparing NEPA analyses. VA policy for withholding sensitive and classified information will not contravene VA's commitment to public engagement under NEPA. When a NEPA analysis relies on sensitive or classified information, VA must withhold the protected information from intentional disclosure while releasing the environmental analysis to the public. VA will not disclose sensitive information, including an individual veteran's medical records, personal information, or other information considered personal. Generally, VA will

use veterans' information in the aggregate in a NEPA analysis to identify trends, needs, levels, types, and locations of services or benefits that VA provides. VA must protect classified information for national security reasons. See the Freedom of Information Act for an explanation of classified information.

(b) Documentation. VA must assess and document the environmental effects of its proposed action despite the presence of sensitive or classified environmental information. If only part of the environmental information is sensitive or classified, VA will segregate the sensitive or classified information from the remainder of the environmental information. VA will disclose the non-sensitive and non-classified information to the public in the NEPA analysis.

Sec. 26.93 International actions or effects.

(a) Customary international law. VA programs and benefits extend to veterans of the United States who live abroad. VA is committed to pursuing an active role in addressing environmental quality issues in VA relations with neighboring communities in foreign countries and assuring that consideration of the environment is an integral part of all decisions.

(b) VA actions abroad. Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, does not rely upon NEPA for its authority but does further the purpose of NEPA and provides guidance for analyzing the environmental impacts of VA actions abroad. VA will act in accordance with the requirements of Executive Order 12114 and document potential environmental effects of VA actions abroad to the extent consistent with law.

[FR Doc. 2026-11973 Filed 6-12-26; 8:45 am] BILLING CODE 8320-01-P