"Outside" Review of a Categorically Excluded Project

Common CATEX problems

Typical problems with agency CatEx screening include:

  • No screening at all. Agency procedures all call for some sort of effort to determine whether extraordinary circumstances exist, but often such efforts are not carried out.
  • Inadequate direction. A checklist will be used, for example, that simply asks something like, "Will the project impact a property listed in or eligible for the National Register of Historic Places?" without informing the user of what "property," "listed," "eligible," or "National Register" mean, or how one is supposed to find out the answer to the question. A natural response is, "Well, I suppose not; doesn't look very historic to me."
  • Inadequate training. Thousands and thousands of CatEx decisions are made (explicitly or otherwise) every day by thousands and thousands of Federal employees. Few of these people receive training in how to make such decisions.

Reviewing a particular project

CatEx screening (by whatever name) takes place pretty much entirely within the agency, so it may be very difficult even to find out that a CatEx decision is being made. However, the screening work must pose questions like, "Will or will not the action knock down a historic building?" The agency has to answer this question somehow. It is reasonable to ask – either with respect to a given project or generally – how this sort of question is posed and answered.

Your first problem, of course, will be even to find out about the CatEx determination. The agency may very well not tell anybody about it. Even if you're a State Historic Preservation Officer (SHPO), or some other official person, you cannot necessarily expect agencies to consult with you when they are making CatEx decisions.

However, if you become aware of a project that you are concerned about, and if you understand something about the agency's CatEx procedures, then you may be able to prevail upon the agency to give the project a second look.

In discussing an agency's CatEx transactions, you should try to relate your comments to the logic of the agency's CatEx screening system (outlined in its NEPA procedures), and to the specific requirements of Section 106 and other authorities:

"Section X47 of your procedures says your action cannot be a CatEx if it will have adverse effects on a historic property. Under the Section 106 regulations you are supposed to consult with the SHPO and other concerned parties about whether such adverse effects will occur, but we have not heard boo from you. Can you account for this?"

If you do not know anything about the agency's CatEx procedures, you can still try asking:

  • How are you addressing the effects of demolishing this building under NEPA?

To which the agency may reply that under its NEPA procedures, the action is exempt from NEPA review, or, "We do not have to do NEPA review on that kind of project," or words to this effect. This means, whether the person you are talking with knows it or not, that the agency treats the action as categorically excluded.

You have two answers to this: one is to point out that a project that is categorically excluded under NEPA is not categorically excluded from review under Section 106 of NHPA or NAGPRA, or whatever other cultural resource statute you think may be relevant. However, this strategy essentially accepts the agency's argument that the action is a NEPA CatEx and throws away NEPA as a tool. A better approach, perhaps coupled with pointing out that NEPA is not the only law in the land, is to ask:

Oh, so it was categorically excluded? Well, let's see how you analyzed the project to make sure that no extraordinary circumstances existed. As you know, under the Council on Environmental Quality's NEPA regulations, that is supposed to be documented. May we see the pertinent documents, please?

Reviewing an agency's CatEx procedures

Particularly if you are a SHPO, a Tribal Historic Preservation Officer, or a local government's preservation office, it is perfectly appropriate to contact agencies and try to help them rationalize the way their CatEx procedures relate to historic properties. Sending a letter more or less along the following lines to the agency's NEPA coordinator (who should be identifiable upon inquiry to the agency) could have useful results. Note that "screening" may not be the terminology the agency uses for checking its CatEx determinations for extraordinary circumstances. Your letter will work best if written in the agency's language.

Dear Ms. NEPA:

We are concerned about how systematically and effectively potential impacts on historic properties (or cultural resources, if you are concerned about more than historic places) are being considered when your agency screens projects that are categorically excluded from review under the National Environmental Policy Act to ensure that no "extraordinary circumstances" exist requiring additional review. We would like to work with you to make sure that such impacts are thoroughly considered in accordance with all pertinent Federal requirements. Such consideration, of course, can avoid costly and time-consuming project delays, as well as unnecessary damage to important cultural resources. We would appreciate the opportunity to meet with you and review your Categorical Exclusion screening procedures . . .