Legislative Analysis: What New NEPA Guidelines Mean for Counties

NEPA Applicability:

• NEPA is procedural only, not a source of regulatory authority.
• NEPA does not apply when:
  • There is no final agency action
  • A legal exemption exists
  • Another law overrides NEPA
  • Congress has removed agency discretion on environmental issues
  • Another statute fulfills NEPA’s purpose
  • The activity is not a “major Federal action”
    • Example: Jurisdictional determinations (e.g., if an area falls under Corps jurisdiction) are not subject to NEPA

Categorical Exclusions (CEs):

• The Corps will:
  • Use existing CEs
  • Adopt CEs from other agencies if appropriate
  • Consider creating or revising CEs
• If no CE applies, the Corps determines the necessary level of environmental review

Environmental Assessments (EAs) & Environmental Impact Statements (EISs):

• EAs:
  • Must be completed within 1 year
  • Limited to 75 pages
• EISs:
  • Must be completed within 2 years
  • Limited to 150 pages
  • Must include input from state, tribal, and local agencies
• Wherever possible, the Corps will adopt or rely on existing EAs/EISs and other environmental documents

Role of Cooperating Agencies:

• The Corps’ guidance addresses its role only as a cooperating or lead Federal agency
• State, local, and tribal governments are not explicitly included as cooperating agencies, though their participation is considered important
• As a lead agency, the Corps:
  • Manages the NEPA process
  • Determines the scope of analysis
• As a cooperating agency, the Corps:
  • Provides relevant environmental information to the lead agency

Scope and Cooperation:

• NEPA reviews must include impacts on all Federal interests
• The Corps is directed to:
  • Use environmental reviews from other agencies whenever practical
  • Reduce duplication by cooperating with State, Tribal, and local agencies
  • Incorporate by reference relevant studies, analyses, and decisions

Federal Registry Guidance

Consolidated NEPA Procedures Across USDA:

• All agency-specific NEPA regulations are rescinded and replaced with a single, department-wide NEPA regulation
• Agencies must first determine whether a proposed action is a “major federal action” subject to NEPA
• Emphasis on using the least complex level of review, such as categorical exclusions (CEs), when possible

Categorical Exclusions (CEs):

• A master list of CEs is now available for use across all USDA agencies.
• Any agency can adopt and apply any CE on this list
• New guidance provided for identifying “extraordinary circumstances” (e.g., presence of endangered species), where even CE-eligible actions may require more review

Environmental Assessments (EAs) and Environmental Impact Statements (EISs):

• Enforces page and time limits from the FRA
• Encourages use of prior analyses for similar actions
• Expands role of applicants and third parties in preparing NEPA documentation, including CEs
• EAs
  • EAs are defined as concise documents supporting a Finding of No Significant Impact (FONSI)
  • USDA agencies encouraged to document changes based on stakeholder input
  • All EAs and FONSIs will be published online for public transparency
• EISs
  • Eliminates requirements for summary, index, and list of preparers
  • Draft EISs are optional; scoping is not required
  • Removes 30-day waiting period between final EIS and Record of Decision (ROD)
  • Agencies can now move to decision-making immediately after the final EIS

Federal Registry Guidance

Categorial Exclusions (CEs):

• This rule removed large portions of prior NEPA guidance and shifts the focus to utilizing CEs as much as possible.
• The IFR encourages DOE to start reviews by looking for existing CEs and to develop new CEs if no existing CEs are relevant to applications

Local Consultation:

• There is no requirement for DOE to work with cooperating agencies such as counties when conducting NEPA reviews
• NEPA procedures will now exist in non-binding sub-regulatory guidance that is not codified in regulations
• DOE is given the discretion to change NEPA procedures without public input through a notice and comment period

Federal Registry Guidance

Emergency Responses:

• DOI retains authority to take urgent action without prior NEPA review
• Requires consideration and mitigation of environmental impacts where possible
• Alternative arrangements allowed for actions beyond immediate emergency needs

Categorical Exclusions (CEs):

• Regulations governing CEs are retained but updated:
  • Agencies can use CEs from other agencies or multiple CEs for one action.
  • Hazardous fuels reduction and post-fire rehabilitation removed from Departmental CEs (now handled at the bureau level).
  • “Extraordinary circumstances” narrowed:
    • Eliminates references to controversial effects, potential legal violations, environmental justice, and executive orders

DOI NEPA Handbook

• DOI moved most of its NEPA guidance into a nonbinding handbook that can be revised without a notice and comment period

NEPA Review Levels:

• Criteria for choosing CE, EA, or EIS retained
• Greater discretion given to Responsible Officials
• Reviews focus only on adverse effects, excluding distant or unrelated impacts

Categorical Exclusions (CEs):

• Operational procedures now only in the Handbook
• Reflects regulatory changes: easier adoption, use across agencies, narrowed exceptions

Environmental Assessments (EAs):

• 75-page limit, 1-year deadline (with limited extensions)
• Focus only on significant impacts
• Encourages use of existing data over new research unless necessary

Environmental Impact Statements (EISs):

• 150-page limit (300 for complex actions), 2-year deadline
• Streamlined public comment process
• Proportionate analysis only on significant effects

Public Engagement:

• Scoping and notices of intent are still required
• More flexibility in timing/methods of public involvement

Local Consultation:

• Emphasis on early coordination with state, tribal, and local governments
• Encourages joint planning and formal agreements

Cooperating Agency Provisions Removed from Regulation:

• Removed from CFR, now appear only in the Handbook
• No longer legally enforceable — guidance only
• Greater discretion for DOI officials in inviting/coordinating with other agencies
• Reduces legal durability and procedural guarantees previously provided by regulation

Federal Agency Guidance

In addition to the IFRs issued for the Federal Highway Administration (FHWA), Federal Transit Administration (FTA) and Federal Railroad Administration (FRA), USDOT issued a department-wide order instructing all DOT agencies to:

• Be proactive in using existing CEs
• Clarify what constitutes a “major Federal action”
• Reduce paperwork and consolidate documents
• Cooperate with State, Tribal, and local agencies to avoid duplicative reviews, including by using local studies and decisions

Interim Final Rule for FHWA, FTA, and FRA

Categorical Exclusions (CEs):

• Agencies can now:
  • Adopt CEs from other federal agencies more easily
  • Rely on another agency’s CE decision for similar actions
• Reflects statutory changes from the Fiscal Responsibility Act

Environmental Assessments (EAs):

• EAs are:
  • Limited to 75 pages
  • Must be completed within 1 year
  • Must be made public and shared with impacted local officials, though public comment is not required

Environmental Impact Statements (EISs):

• Page limits:
  • 150–200 pages for most projects
  • Up to 300 pages for complex projects
• Must be completed within 2 years.
• Draft EISs are still required, but:
  • Drafting is simplified
  • Only a “reasonable range of alternatives” needs to be considered
• Draft EISs must be circulated with public officials and other agencies

Local Consultation:

• Confirms compliance with Executive Order 13132 - Federalism
• Encourages coordination with State, Tribal, and local agencies

Federal Aviation Administration (FAA) Guidance

Categorical Exclusions (CEs):

• FAA may adopt CEs from other USDOT and federal agencies
• However, the process is more complex than for other modal administrations

Environmental Assessments (EAs):

• Same as other agencies: 75-page limit, 1-year deadline
• Lists specific actions requiring EAs, such as:
  • New or relocated Airport Traffic Control Towers
  • Relocated Approach Lighting Systems (ALS)

Environmental Impact Statements (EISs):

• Required for major projects, such as:
  • New commercial airports
  • Major runway extensions
• EISs are limited to 150–200 pages, or 300 for complex projects

Local Consultation:

• FAA must collect comments from agencies with environmental regulatory authority
• Not required to seek comments from state, Tribal, or local governments that are merely affected
• Encourages coordination to reduce duplication using local analyses and decisions

Federal Registry Guidance

Categorical Exclusions (CEs):

• FERC can:
  • Use its own existing CEs
  • Adopt CEs from other agencies
  • Recommend or develop new CEs
• Before using a CE, staff must:
  • Assess for “extraordinary circumstances” that could trigger further review
  • Consult with the approving agency
  • Publish public notice in the Federal Register

Environmental Assessments (EAs):

• Must:
  • Be completed within 1 year
  • Be limited to 75 pages
  • Analyze purpose, need, alternatives, and environmental impacts
  • Include certification of compliance with statutory mandates
  • Be published online with supporting findings

Environmental Impact Statements (EISs):

• Required for projects with significant environmental impact
• Page limits:
  • 150 pages standard
  • 300 pages for complex projects
• Must be completed within 2 years
• Indexes and summaries are no longer required
• Final EISs must be published online with a Record of Decision (ROD)

Local and Tribal Coordination:

• Encourages early cooperation with State, Tribal, and local agencies
• Supports reducing duplication by using existing studies, analyses, and decisions from those entities

New Staff Guidance Manual:

• Becomes the primary framework for NEPA compliance at FERC
• Guides staff on:
  1. Determining whether NEPA review is required and the appropriate level of analysis
  2. Including environmental information early in the decision-making process
  3. Conducting efficient, timely, and coordinated reviews
  4. Implementing NEPA rules for roles, timelines, and applicant-prepared documents

Federal Registry Guidance