National Environmental Policy Act

<RULE> DEPARTMENT OF AGRICULTURE <CFR>7 CFR Parts 1b, 372, 520, 650, 799, 1970, and 2407</CFR> <CFR>36 CFR Part 220</CFR> <DEPDOC>[USDA-2025-0008]</DEPDOC> <RIN>RIN 0503-AA86</RIN> <SUBJECT>National Environmental Policy Act</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Agriculture (USDA). <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for public comment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule modifies the U.S. Department of Agriculture (USDA) regulations implementing the National Environmental Policy Act (NEPA) and removes various USDA agency regulations for implementing NEPA. USDA is taking this action in response to the Council on Environmental Quality's rescission of its NEPA implementing regulations (which USDA's NEPA regulations were designed to supplement), statutory changes to NEPA, executive orders, and case law. Comments are voluntarily requested on this action to inform USDA's decision-making. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective July 3, 2025. Comments concerning this rule must be received by July 30, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Comments, identified by USDA-2025-0008, should be sent via one of the following methods: • <E T="03">Federal eRulemaking Portal:</E> <E T="03">https://www.regulations.gov.</E> Follow the instructions for submitting comments. • <E T="03">Mail:</E> USDA, 1400 Independence Ave. SW, Washington, DC 20250-0108. Comments should be confined to issues pertinent to the interim final rule, explain the reasons for any recommended changes, and reference the specific section and wording being addressed, where possible. All timely comments will be placed in the record and be available for public inspection at <E T="03">https://www.regulations.gov,</E> including any personal information provided. Do not submit any information you consider to be private, confidential business information, or other information whose disclosure is restricted by statute. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Scott Vandegrift, Chief Environmental Review and Permitting Officer, Office of the Secretary, 202-720-5166, <E T="03">SM.OSEC.NRE.NEPA@usda.gov.</E> Individuals who use telecommunications devices for the hearing-impaired may call 711 to reach the Telecommunications Relay Service, 24 hours a day, every day of the year, including holidays. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> On February 25, 2025, CEQ issued an interim final rule rescinding their regulations in response to Executive Order (E.O.) 14154, <E T="03">Unleashing American Energy.</E> CEQ's interim final rule rescinded its NEPA implementing regulations, including 40 CFR parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508. The effective date of CEQ's interim rule was April 11, 2025. The background of CEQ's regulations, recent litigation, and relevant executive orders leading up to their February 25, 2025, interim final rule support the rationale underlying this interim final rule. The Department of Agriculture (USDA) is issuing this interim final rule to revise, move and republish, or remove portions of USDA's existing regulations for implementing the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321-4347, as amended by the Fiscal Responsibility Act of 2023, as well as add new portions to the USDA NEPA implementing regulations for three independent reasons. First, CEQ's regulations were repealed effective April 11, 2025; see <E T="03">Removal of National Environmental Policy Act Implementing Regulations,</E> 90 FR 10610 (Feb. 25, 2025). USDA and its agencies' regulations were promulgated as a “supplement” that “incorporates and adopts” the CEQ's NEPA regulations, see 7 CFR 1b.1(a). However, the CEQ regulations (40 CFR parts 1500 through 1508) no longer provide a valid foundation for USDA NEPA regulations. Second, Congress recently amended NEPA in significant part, in the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, signed on June 3, 2023, in which Congress added substantial detail and direction in Title I of NEPA regarding procedural issues that CEQ and individual acting agencies had previously addressed in their own procedures. USDA recognized the need to update its regulations considering these significant legislative changes. Since USDA's regulations were originally designed as a supplement to CEQ's NEPA regulations, USDA had been awaiting CEQ action before revising its regulations, consistent with CEQ direction. <E T="03">See</E> 40 CFR 1507.3(b) (2024); see also 86 FR 34154 (June 29, 2021). However, with CEQ's regulations now rescinded, and with USDA's NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that USDA move quickly to conform its procedures to the statute as amended. And third, the U.S. Supreme Court recently issued a landmark decision in <E T="03">Seven County Infrastructure Coalition</E> v. <E T="03">Eagle County, Colorado,</E> 145 S. Ct. 1497 (2025), in which it decried the “transform[ation]” of NEPA from its roots as “a modest procedural requirement,” into a significant “substantive roadblock” that “paralyze[s]” “agency decision-making.” <E T="03">Id.</E> at 1507, 1513 (quotations omitted). The Supreme Court explained that part of that problem had been caused by decisions of lower courts, which it rejected, issuing a “course correction” mandating that courts give “substantial deference” to reasonable agency conclusions underlying its NEPA process. <E T="03">Id.</E> at 1513-14. But the Court also acknowledged, and through its course correction sought to address, the effect on “litigation-averse agencies” which, in light of judicial “micromanage[ment],” had been “tak[ing] ever more time and [ ] prepar[ing] ever longer EISs [environmental impact statements] for future projects.” <E T="03">Id.</E> at 1513. USDA incorporated this case's holdings into these procedures, availing itself of the latest information and guidance from the Court for its future NEPA application. These reasons now prompt USDA to publish this interim final rule to revise, move and republish, or remove portions of the USDA NEPA implementing regulations, as well as add new portions, given the CEQ NEPA regulations no longer provide a foundation for USDA NEPA regulations and leave the Department without necessary interpretation of, and implementing procedures for, NEPA. NEPA is a vital part of Federal agency planning and decision-making, and USDA agencies need clear standards and guidelines as soon as possible to conduct the work of providing critical services and funds to Americans, as directed by Congress. Conducting a standard rulemaking process would impede USDA's planning and decision-making for longer than necessary and would be impracticable and contrary to the public interest. For these reasons, USDA is using the interim final rule process. (Also see discussion under Section III. for additional rationale for using the interim rule process.) <HD SOURCE="HD2">National Environmental Policy Act</HD> Congress enacted NEPA to declare a national policy “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and [to] fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a). As amended by the Fiscal Responsibility Act of 2023, Public Law 118-5, NEPA furthers this national policy by requiring Federal agencies to prepare a “detailed statement” for proposed “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. 4332(2)(C). This statement must address: (1) the reasonably foreseeable environmental impacts of the proposed agency action; (2) the reasonably foreseeable adverse environmental impacts that cannot be avoided; (3) a reasonable range of alternatives to the proposed agency action that are technically and economically feasible and meet the purpose and need of the proposal, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative; (4) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action (or action alternatives). 42 U.S.C. 4332(2)(C). NEPA further mandates that Federal agencies ensure the professional and scientific integrity of environmental documents; use reliable data and resources when carrying out NEPA; and study, develop, and describe technically and economically feasible alternatives. 42 U.S.C. 4332(2)(D)-(F). NEPA provides procedures for making threshold determinations about whether an environmental document must be prepared and, if so, which type of environmental document. 42 U.S.C. 4336(a)-(b). NEPA identifies three levels of review—categorical exclusion, environmental assessment, and environmental impact statement. NEPA § 107, 42 U.S.C. 4336a. A categorical exclusion is a “a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of [NEPA] section 102(2)(C).” NEPA § 111(1), 42 U.S.C. 4336e(1). An environmental assessment is a “concise” document “set[ting] forth the basis of [an] agency's finding of no significant impact or determination that an environmental impact statement is necessary,” prepared in connection with a proposed agency action that does not have a significant impac ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 313k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━