The US Department of Agriculture (USDA) has released a final rule updating its regulations governing environmental reviews under the National Environmental Policy Act (NEPA).1 USDA’s rulemaking was prompted by several concurrent legal developments—discussed in our prior alert—including statutory amendments to NEPA in the Fiscal Responsibility Act of 2023, the US Supreme Court’s decision in Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025), and the Council on Environmental Quality’s (CEQ) rescission of its government-wide NEPA regulations.
Over the summer, USDA published an interim final rule (IFR) restructuring NEPA compliance across the department. While the IFR generated over 6,000 public comments, USDA’s final rule largely ratified the changes introduced in the IFR.
Key Features of USDA’s Final NEPA Regulations
1. Transition to USDA-wide Regulations. Prior to the IFR, individual USDA agencies had their own NEPA regulations. Accordingly, for example, the US Forest Service operated under different NEPA regulations than the Rural Development Agency. The new regulations, while dispensing with the CEQ rules, also replaced most agency-specific regulations with a unified NEPA regulatory regime that applies across all USDA agencies (also referred to as “subcomponents”). As we discussed in a prior alert, many other federal agencies have opted to relocate NEPA procedures from the Code of Federal Regulations (CFR) into departmental handbooks, consistent with CEQ direction. In its rulemaking process, USDA acknowledged that its retention of regulations bucked this trend, emphasizing that department-wide regulations will provide a range of benefits—including consistency, stability, transparency, and clear expectations—compared with guidance that could be updated at any time. Nevertheless, USDA provided that its agencies may establish their own guidance so long as they do so without creating “unnecessary process.” 7 CFR 1b.2(c). This guidance could include updated NEPA document templates, for example. Although USDA opted to retain NEPA procedures in the CFR, the new regulations reflect a broader shift away from prescriptive rules and toward greater discretion for agency officials.
2. Public Participation. Under USDA’s new regulations, the public participation process is generally limited to the statutory requirements, with substantial discretion retained by the agency decision-maker. Accordingly, the publication of a notice of intent to prepare an environmental impact statement (EIS) is now the only point at which public comment is required, which is a significant change from prior US Forest Service regulations. For example, US Forest Service regulations previously required public comments on environmental assessments (EA) and categorical exclusions. Now, whether and how to involve the public in EAs and categorical exclusions or to publish a draft EIS for comment is left to the responsible official’s discretion. And the new regulations provide flexibility in responding to public comments in EISs, stating that responsible officials must “consider and should address in writing comments that raise substantive issues and/or recommendations” but “need not address every comment individually.” 7 CFR 1b.7(f)(1).
Notwithstanding the regulations’ changes to the public participation process, other considerations point to a continued role for the public and stakeholders. For example, the US Forest Service’s administrative review process under 36 CFR Part 218 and Part 219 impose separate public involvement requirements that remain in effect (although the US Forest Service has separately proposed to shorten objection timelines under 36 CFR Part 218). Even where public comment on NEPA documents is discretionary, stakeholder strategy often still matters. As a practical matter, project proponents may continue to advocate for public participation to the extent that doing so facilitates relationships with local communities and other stakeholders, reduces litigation risk up front, and helps with the defensibility of the administrative record in the event of litigation. Stakeholder engagement, work with cooperating agencies, and compliance with other required processes (e.g., consultations under the National Historic Preservation Act and the Endangered Species Act) are important steps that can deconflict projects and insulate them from potential challenges.
3. Categorical Exclusions. The final regulations centralize categorical exclusions at the department level and make them available for use by any USDA subcomponent. 7 CFR 1b.4. Categorical exclusions that have been adopted by a USDA subcomponent from other agencies under NEPA Section 109 may also be used by any other subcomponent. 7 CFR 1b.3(c). Most categorical exclusions that were previously scattered across subcomponent-specific regulations have been consolidated into the department-wide regulations and updated with minor clarifications. Some categorical exclusions have been removed as obsolete, such as the US Forest Service categorical exclusion for ski area permit renewals, which is now statutorily exempt from NEPA. See 16 USC 497c(i).
The final regulations also make important changes to the “extraordinary circumstances” review—the threshold screening an agency conducts to confirm whether it is appropriate to rely on a categorical exclusion or whether the significance of effects is uncertain and requires further analysis. First, the regulations include a list of extraordinary circumstances that the responsible official may consider, but none are mandatory. 7 CFR 1b.3(f). This discretion in the extraordinary circumstances review is new and introduces both flexibility and potential legal vulnerabilities. In addition, the final regulations added “American Indian and Alaska Native religious or cultural sites” as a potential extraordinary circumstance for consideration (consistent with the prior US Forest Service regulations) and clarified how farmland and historic properties should be considered.
In NEPA practice, reliance on certain categorical exclusions “require[s] documentation,” meaning that the agency must create a written record explaining why the categorical exclusion applies to a specific action. Other categorical exclusions do not require documentation and can simply be relied upon by an agency. In the new USDA regulations, there are 48 categorical exclusions that require documentation (7 CFR 1b.4(d)) and 39 that do not (7 CFR 1b.4(c)). The regulations require responsible officials to prepare a Finding of Applicability and No Extraordinary Circumstance (FANEC) when relying on categorical exclusions that require documentation. 7 CFR 1b.3(g).
Overall, the USDA’s new provisions regarding categorical exclusions provide expanded opportunities for streamlined NEPA review for actions in more categories and with a more flexible “extraordinary circumstance” review regime. Taking these categories and resource considerations into account early in the planning, siting, and design process may result in significant savings through reliance on these categorical exclusions.
4. Applicant Preparation. The final regulations set forth procedures for applicants to prepare certain NEPA documents, including EAs and EISs. 7 CFR 1b.10. In its final rule, USDA also clarified that FANECs for categorical exclusions also can be prepared by applicants, stating that although “NEPA does not speak to documentation for [categorical exclusions,] . . . [d]isallowing sponsor preparation of a lesser form of NEPA review than an EA or EIS would seem to be inconsistent with Congress’ intent.” 91 Fed. Reg. 17,083. Applicant-prepared documentation is likely to reduce review timelines for agencies with limited resources, especially when applicants provide timely, high-quality information to facilitate the responsible official’s independent evaluation.
5. Cooperating Agencies. The final regulations require responsible officials to invite and accept cooperating agencies when those agencies have jurisdiction by law over a part of the proposed action and will need to rely on the EA or EIS. 7 CFR 1b.9(m)(3). This new requirement promotes efficient coordination and use of joint documents where multiple federal actions relate to the same proposal.
6. Transition Period. The new regulations took effect on April 3, 2026. For project developers with pending applications at USDA, the final rule provides a timeline for transition to the new regulations: The new regulations will apply to all anticipated categorical exclusions, EAs that are published more than 45 days after the final rule (i.e., after May 18, 2026), and EISs that publish a notice of intent more than 90 days after the final rule (i.e., after July 2, 2026).
Takeaways
USDA’s final department-wide NEPA regulations continue the trend of agency revisions in the wake of statutory amendments to NEPA in the Fiscal Responsibility Act of 2023, last year’s rescission of CEQ regulations, and the Supreme Court’s decision in Seven County. For example, the revised public participation requirements and focus on substantive issues align with recent case law updates and procedures established by other agencies to ground NEPA implementation in the basic statutory requirements. The new regulations also mark a significant departure from prior USDA subcomponent regulations that imposed certain requirements above the statutory floor (e.g., US Forest Service comment periods on EAs and reliance on categorical exclusions). While replacing the patchwork of subcomponent-specific regulations may increase consistency across USDA, subcomponent-specific guidance may be forthcoming to provide nuance that is now absent from the consolidated regulations, and many elements of the regulations provide wide discretion allowing for variation case by case.
Staying abreast of evolving NEPA practice across the federal government, including ongoing judicial developments and any future subcomponent-specific guidance that may supplement or interpret USDA’s finalized NEPA regulations, will be critical for project sponsors so that they can effectively advocate for efficient and defensible NEPA reviews at USDA.
