Procedures for Implementing NEPA; Removal

<RULE> DEPARTMENT OF DEFENSE <SUBAGY>Department of the Army, Corps of Engineers</SUBAGY> <CFR>33 CFR Part 230</CFR> <DEPDOC>[Docket ID: COE-2025-0007]</DEPDOC> <RIN>RIN 0710-AB28</RIN> <SUBJECT>Procedures for Implementing NEPA; Removal</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Army Corps of Engineers, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule rescinds the U.S. Army Corps of Engineers' (Corps) regulations implementing the National Environmental Policy Act (NEPA) for the Army Civil Works program, except for the Categorical Exclusions contained therein, because the Council on Environmental Quality's (CEQ) NEPA regulations, which the Corps' regulations were meant to supplement, have been removed from the Code of Federal Regulations (CFR) and because the DoD is promulgating Department-wide NEPA procedures that will guide the Army Civil Works' NEPA process. In addition, this interim final rule requests comments on this action. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim final rule is effective July 3, 2025. Comments must be received on or before August 4, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by docket number COE-2025-0007 and/or 0710-AB28, by any of the following methods: <E T="03">Federal eRulemaking Portal: http://www.regulations.gov.</E> Follow the instructions for submitting comments. <E T="03">Email: CEHQ-NEPA@usace.army.mil.</E> Include the docket number, COE-2025-0007, in the subject line of the message. <E T="03">Mail:</E> U.S. Army Corps of Engineers, Attn: CECW, 441 G Street NW, Washington, DC 20314-1000. <E T="03">Hand Delivery/Courier:</E> Due to security requirements, we cannot receive comments by hand delivery or courier. <E T="03">Instructions:</E> If submitting comments through the Federal eRulemaking Portal, direct your comments to docket number COE-2025-0007. All comments received will be included in the public docket without change and may be made available on-line at <E T="03">http://www.regulations.gov,</E> including any personal information provided, unless the commenter indicates that the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through <E T="03">regulations.gov</E> or email. The <E T="03">regulations.gov</E> website is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an email directly to the Corps without going through <E T="03">regulations.gov</E> your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, we recommend that you include your name and other contact information in the body of your comment. If we cannot read your comment because of technical difficulties and cannot contact you for clarification we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Milt Boyd, 703-459-6026. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> A. Title 33 CFR part 230 provides guidance for implementing the procedural provisions of NEPA for the Army Civil Works Program. It “supplements” the CEQ regulations at 40 CFR parts 1500 through 1508 and is intended to be used only in conjunction with the CEQ regulations. See 33 CFR 230.1. The regulation is applicable to all Corps Headquarters elements and all Field Operating Activities responsible for preparing and processing environmental documents in support of Civil Works functions, except for the processing of permit applications. See 33 CFR 230.2. Section 230.9 provides a list of categorical exclusions (CXs) in current use by the Corps for Civil Works projects and for processing requests for 33 U.S.C. 408 permissions. The regulations at part 230 are not used for processing Department of the Army permits, which are addressed at 33 CFR part 325, appendix B and will be updated in another rule. The CEQ regulations, however, have been repealed, effective April 11. <E T="03">See Removal of National Environmental Policy Act Implementing Regulations</E> (90 FR 10610; Feb. 25, 2025). This action was necessitated by and consistent with Executive Order (E.O.) 14154, <E T="03">Unleashing American Energy</E> (90 FR 8353; January 20, 2025), in which President Trump rescinded President Carter's E.O. 11991, <E T="03">Relating to Protection and Enhancement of Environmental Quality</E> (42 FR 26967; May 24, 1977), which was the basis CEQ had invoked for its authority to make rules to begin with. The Corps' regulations, which were a “supplement[ ]” to those CEQ regulations, thus stand in obvious need of fundamental revision. President Trump in E.O. 14154 further directed agencies to revise their NEPA implementing procedures consistent with the E.O., including its direction to CEQ to rescind its regulations. In addition, 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, including in particular on procedural issues that CEQ and individual acting agencies had previously addressed in their own procedures. The Corps recognized the need to update its regulations in light of these significant legislative changes. Since the Corps' regulations were originally designed as a supplement to CEQ's NEPA regulations, the Corps had been awaiting CEQ action before revising its regulations, consistent with CEQ direction. <E T="03">See</E> 40 CFR 1507.3(b) (2024); <E T="03">see also</E> 86 FR 34154 (June 29, 2021). However, with CEQ's regulations now rescinded, and with the Corps' NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that the Corps move quickly to conform its procedures to the statute as amended. Finally, the Supreme Court on May 29, 2025 issued a landmark decision, <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 decisionmaking.” <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 for future projects.” <E T="03">Id.</E> at 1513. The Army, thus, is issuing this interim final rule (IFR) as part of its and DoD's effort to align its actions with the Supreme Court's decision and streamline its process of ensuring reasonable NEPA decisions. This revision has thus been called for, authorized, and directed by all three branches of government at the highest possible levels. The DoD has elected to respond to these instructions by promulgating Department-wide NEPA procedures, <E T="03">Department of Defense National Environmental Policy Act Implementing Procedures,</E> which will guide the NEPA process henceforth for the Corps' civil works program, while the Corps' permitting programs and the 33 U.S.C. 408 request for permission program will remain subject to Corps-level procedures that will be updated in a separate action. The Supreme Court could not have been clearer in <E T="03">Seven County</E> that NEPA is a procedural statute. <E T="03">See</E> 145 S. Ct. at 1507 (“NEPA is a purely procedural statute.”); <E T="03">see id.</E> at 1510 (“NEPA is purely procedural. . . . NEPA does not mandate particular results, but simply prescribes the necessary process' for an agency's environmental review of a project;”) (internal quotation omitted); <E T="03">id.</E> at 1511 (NEPA is a <E T="03">purely procedural statute”</E> ); <E T="03">id.</E> at 1514 (NEPA is properly understood as “a modest procedural requirement”); <E T="03">id.</E> (“NEPA's status as a purely procedural statute”); <E T="03">see also id.</E> at 1507 (“Simply stated, NEPA is a procedural cross-check, not a substantive roadblock.”). Mindful of this, DoD has decided that the flexibility to respond to new developments in this fast-evolving area of law, afforded by using non-codified procedures, outweighs the public-transparency virtues of codifying its regulations going forward. Notably, DoD can—and will—ensure that accessibility to the public by posting these procedures online, which removes the upside of codification. By contrast, not codifying its procedures will enable it to rapidly update these procedures in response to future court decisions (such as <E T="03">Seven County</E> ), Presidential directives, or the needs of the services. The use of non-codified procedures is, moreover, consistent with the approach that several other Federal agencies have used for decades. DoD has, correspondingly, directe ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 27k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━