Section 109: Adopting Categorical Exclusions

Section 109: Adopting Classes of Categorical Exclusions

The Amendments to NEPA from the Fiscal Responsibility Act of 2023 established a process for adopting another agency's categorical exclusions. Section 109 of NEPA, as amended, states: 

An agency may 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 consistent with this paragraph. The agency shall-

(1) identify the categorical exclusion listed in another agency’s NEPA procedures that covers a category of proposed actions or related actions; 
(2) consult with the agency that established the categorical exclusion to ensure that the proposed adoption of the categorical exclusion to a category of actions is appropriate;
(3) identify to the public the categorical exclusion that the agency plans to use for its proposed actions; and
(4) document adoption of the categorical exclusion.

Citation: National Environmental Policy Act of 1969, as amended. (Sec. 109; 42 U.S.C. § 4336c).

DOE Notices of Adoption of Other Agencies' Categorical Exclusions

Categorical exclusions that DOE has adopted from other agencies' NEPA procedures can be found in Appendix C to DOE's NEPA Implementing Procedures (January 2026).

DOE Use of Adopted Categorical Exclusions

Below are links to DOE determinations that an adopted categorical exclusion (Appendix C of DOE’s NEPA implementing procedures) applies to a proposed agency action.

USDA-34d-USFS (formerly USFS (e)(11)) - Post-fire rehabilitation activities
USDA-35d-USFS (formerly USFS (e)(12)) - Harvest of live trees
USDA-36d-USFS (formerly USFS (e)(13)) - Salvage of dead and/or dying trees
USDA-37d-USFS (formerly USFS (e)(14)) - Commercial and noncommercial sanitation harvest of trees
USDA-40d-USFS (formerly USFS (e)(18)) - Restoring wetlands, streams, riparian areas or other water bodies
USDA-41d-USFS (formerly USFS (e)(19)) - Removing and/or relocating debris and sediment following disturbance
USDA-42d-USFS (formerly USFS (e)(20)) - Activities that restore, rehabilitate, or stabilize lands occupied by roads and trails

Other Agency Notices of Adoption of DOE Categorical Exclusions