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Rule2025-12353

Procedures for Implementing NEPA; Removal

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Published

July 3, 2025

Effective

July 3, 2025

Issuing agencies

Defense DepartmentEngineers Corps

Abstract

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.

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<title>Federal Register, Volume 90 Issue 126 (Thursday, July 3, 2025)</title>
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[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29461-29465]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12353]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 230

[Docket ID: COE-2025-0007]
RIN 0710-AB28

Procedures for Implementing NEPA; Removal

AGENCY: Army Corps of Engineers, Department of Defense (DoD).

ACTION: Interim final rule; request for comments.

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SUMMARY: 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.

DATES: This interim final rule is effective July 3, 2025. Comments must
be received on or before August 4, 2025.

ADDRESSES: You may submit comments, identified by docket number COE-
2025-0007 and/or 0710-AB28, by any of the following methods:
Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the
instructions for submitting comments.
Email: <a href="/cdn-cgi/l/email-protection#40030508116d0e0510010035332123256e21322d396e2d292c"><span class="__cf_email__" data-cfemail="b5f6f0fde498fbf0e5f4f5c0c6d4d6d09bd4c7d8cc9bd8dcd9">[email&#160;protected]</span></a>. Include the docket number, COE-
2025-0007, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW, 441 G Street NW,
Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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

[[Page 29462]]

disclosure is restricted by statute. Do not submit information that you
consider to be CBI, or otherwise protected, through <a href="http://regulations.gov">regulations.gov</a> or
email. The <a href="http://regulations.gov">regulations.gov</a> 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 <a href="http://regulations.gov">regulations.gov</a> 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.

FOR FURTHER INFORMATION CONTACT: Mr. Milt Boyd, 703-459-6026.

SUPPLEMENTARY INFORMATION:

I. Background

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. See Removal of National Environmental Policy Act Implementing
Regulations (90 FR 10610; Feb. 25, 2025). This action was necessitated
by and consistent with Executive Order (E.O.) 14154, Unleashing
American Energy (90 FR 8353; January 20, 2025), in which President
Trump rescinded President Carter's E.O. 11991, Relating to Protection
and Enhancement of Environmental Quality (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. See 40 CFR
1507.3(b) (2024); see also 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, Seven County Infrastructure Coalition v. Eagle County,
Colorado, 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.'' Id. 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. Id. 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.'' Id. 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, Department of Defense
National Environmental Policy Act Implementing Procedures, 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 Seven County that NEPA is a procedural statute. See 145
S. Ct. at 1507 (``NEPA is a purely procedural statute.''); see id. 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); id. at 1511 (NEPA is a purely procedural statute''); id. at
1514 (NEPA is properly understood as ``a modest procedural
requirement''); id. (``NEPA's status as a purely procedural statute'');
see also id. 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 Seven County), 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, directed all military departments to
repeal their respective NEPA implementing regulations by June 30, 2025,
per a May 21, 2025, memorandum. Thus, the Army is rescinding its NEPA
implementing regulations for Army Civil Works at 33 CFR part 230,
except Sec. Sec. 230.2 and 230.9. The Army is also rescinding

[[Page 29463]]

Engineering Regulation 200-2-2, Procedures for Implementing NEPA (Mar.
4, 1988), which contains the same provisions as Part 230. The Army
Civil Works program implemented by the Corps of Engineers, except for
the permitting programs and the 33 U.S.C. 408 request for permission
program, will follow NEPA implementation guidance issued by the DoD and
any applicable guidance issued by the Army in implementing NEPA.
Actions that were ongoing as of the effective date of this rule will
continue to use the rule in place at the time the action was started.
The NEPA implementation procedures for the Army Civil Works permitting
programs and the 33 U.S.C. 408 request for permission program will be
addressed in a separate action.
Army Civil Works is retaining its CXs and related requirements in
regulation (33 CFR 230.2 and 230.9) to avoid any uncertainty about the
continuation of its already-established CXs or the procedural mechanism
through which the Corps established them. The 2023 revisions to NEPA
and the 2025 repeal of CEQ's NEPA procedures do not require
reconsideration or repeal of the Corps' previous determinations as to
which of its actions normally do not significantly affect the quality
of the human environment, which is the basis for an agency's
establishment of a CX, see NEPA Sec. 111(1).
The Army has taken this action as part of DoD's broader approach to
revising its implementation of NEPA, in which DoD and its components
have revised their NEPA implementing procedures to conform to the 2023
statutory amendments, to respond to President Trump's direction in E.O.
14154 to, ``[c]onsistent with applicable law, prioritize efficiency and
certainty over any other objectives, including those of activist
groups, that do not align with the policy goals set forth in section 2
of [that] order or that could otherwise add delays and ambiguity to the
permitting process,'' and to address the pathologies of the NEPA
process and NEPA litigation as identified by the Supreme Court. Where
DoD and its components have retained an aspect of their preexisting
NEPA implementing procedures, it is because that aspect is compatible
with these guiding principles; where DoD and its components have
revised or removed an aspect, it is because that aspect is not so
compatible.

II. Publication as an Interim Final Rule

A. Notice-and-Comment Rulemaking Is Not Required

The Army is repealing the Corps' prior procedures and practices for
implementing NEPA, a ``purely procedural statute'' which ```simply
prescribes the necessary process' for an agency's environmental review
of a project--a review that is, even in its most rigorous form, ``only
one input into an agency's decision and does not itself require any
particular substantive outcome.'' Seven County, 145 S. Ct. at 1507,
1511. ``NEPA imposes no substantive constraints on the agency's
ultimate decision to build, fund, or approve a proposed project,'' and
``is relevant only to the question of whether an agency's final
decision,'' i.e., that decision to authorize, fund, or otherwise carry
out a particular proposed project or activity, ``was reasonably
explained.'' Id. at 1511. As such, notice and comment procedures are
not required because this revision falls within the Administrative
Procedure Act (APA) exception for ``rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). The Corps' existing
regulations do not dictate what outcomes such consideration must
produce, nor do they impose binding legal obligations on private
citizens. The Corps' NEPA implementing regulations for the Civil Works
program at 33 CFR part 230 are procedural, outlining how District
Engineers conduct NEPA reviews for Army Civil Works projects. These
regulations describe the structure of environmental documents, specify
procedures, and guide District Engineer decision-making, rather than
establishing substantive requirements binding the public. These are
procedural provisions, not substantive environmental ones. As such,
they do not require notice and comment for removal. See 5 U.S.C.
553(b)(A).\1\
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\1\ Just so, DoD's new procedures will also be purely
procedural, guiding the Department's own compliance with NEPA.
Indeed, it is hard to see how they could be otherwise, since the
Supreme Court has recently repeatedly emphasized that ``NEPA is a
purely procedural statute.'' Seven County, 145 S. Ct. at 1507, see
id. 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;''); id.
at 1511 (NEPA is a purely procedural statute''); id. at 1513 (NEPA
is properly understood as ``a modest procedural requirement''); id.
at 1514 (``NEPA's status as a purely procedural statute''); see also
id. at 1507 (``Simply stated, NEPA is a procedural cross-check, not
a substantive roadblock.''). Procedures for implementing a purely
procedural statute must be, by their nature, procedural rules.
Surely cannot be legislative rules; as such, they do not need to be
promulgated via notice-and-comment rulemaking. See 5 U.S.C.
553(b)(A).
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Moreover, even if (and to the extent that) the Corps' regulations
were not procedural rules, they may be characterized as interpretative
rules or general statements of policy under 5 U.S.C. 553(b)(A). An
interpretative rule provides an interpretation of a statute, rather
than making discretionary policy choices that establish enforceable
rights or obligations for regulated parties under delegated
congressional authority. 33 CFR 230.2 & 230.3, for instance, may be
classified as such. General statements of policy provide notice of an
agency's intentions as to how it will enforce statutory requirements,
again without creating enforceable rights or obligations for regulated
parties under delegated congressional authority. 33 CFR 230.1
(``Purpose''), for instance, may be classified as general statements of
policy. Both of these types of agency actions are expressly exempted
from notice and comment by statute. 5 U.S.C. 553(b)(A), and do not
require notice and comment for removal. Accordingly, although the Corps
is voluntarily providing notice and an opportunity to comment on this
interim final rule, the agency has determined that notice-and-comment
procedures are not required. The fact that the Corps previously
undertook notice-and-comment rulemaking in promulgating these
regulations is immaterial: As the Supreme Court has held, where notice-
and-comment procedures are not required, prior use of them in
promulgating a rule does not bind the agency to use such procedures in
repealing it. Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 101 (2015).

B. The Army Has Good Cause for Proceeding With an Interim Final Rule

Moreover, the Army also finds that, to the extent that prior notice
and solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing rules satisfies the ``good cause'' exceptions in 5
U.S.C. 553(b)(B), (d). The APA authorizes agencies to issue regulations
without notice and public comment when an agency finds, for good cause,
that notice and comment is ``impracticable, unnecessary, or contrary to
the public interest,'' 5 U.S.C. 553(b)(B), and to make the rule
effective immediately for good cause. 5 U.S.C. 553(d)(3). As discussed
in Section I, above, the Corps' prior rules were promulgated to
supplement CEQ's NEPA regulations. Following the rescission of CEQ's
regulations, the Corps' current rules are left hanging in

[[Page 29464]]

air, supplementing a NEPA regime that no longer exists.
The Army, thus far and as a temporary, emergency measure, has been
continuing to operate under its prior procedures as if the CEQ NEPA
regime still existed. This is not, however, tenable in the long term.
As soon as proper procedures are available--which they now are, in the
form of DoD's Department-wide procedures--this makeshift regime needs
to be rescinded immediately. Because of this need for speed and
certainty, notice-and-comment is, to the extent it was required at all,
impracticable and contrary to the public interest.
For the same reasons stated in the present section, above, the Army
finds that ``good cause'' exists under 5 U.S.C. 553(d)(3) to waive the
30-day delay of the effective date that would otherwise be required.
This IFR will accordingly be effective immediately.

C. The Army Solicits Comment

As explained above, comment is not required because the Corps' NEPA
procedures were procedural and because, even if comment were required
under the APA, good cause exists to forego it. Nevertheless, the Corps
has elected voluntarily to solicit comment. The Army is soliciting
comment on this interim final rule, and may make further revisions to
this action, if the Army's review of any comments submitted suggests
that further revisions are warranted. Commenters have 30 days from the
date of publication of this interim final rule to submit comments.

III. Regulatory Compliance Analysis

A. E.O. 12866, ``Regulatory Planning and Review,'' and E.O. 13563,
``Improving Regulation and Regulatory Review''

This interim final rule is not a significant regulatory action and,
therefore, was not subject to review under section 6(b) of E.O. 12866,
``Regulatory Planning and Review,'' dated September 30, 1993. This rule
is not a major rule under 5 U.S.C. 804.

B. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule, because it
is a rule of agency procedure or under the ``good cause'' exemption in
5 U.S.C. 553(b)(A), the analytical requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly,
no regulatory flexibility analysis is required, and none has been
prepared.

C. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. 3501 et
seq.)

The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).

D. Congressional Review Act (5 U.S.C. 801 et seq.)

The Office of Information and Regulatory Affairs has determined
that this rulemaking does not meet the criteria set forth in 5 U.S.C.
804(2) under Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (also known as the Congressional Review Act), and,
in any event, is not a rule at all under 5 U.S.C. 804(3)(C). Therefore,
this rule is not major under the Congressional Review Act.

E. E.O. 14192, ``Unleashing Prosperity Through Deregulation''

E.O. 14192 was issued on January 31, 2025, and requires that ``any
new incremental costs associated with new regulations shall, to the
extent permitted by law, be offset by the elimination of existing costs
associated with at least 10 prior regulations.'' This rule is expected
to be an E.O. 14192 deregulatory action. Rescinding this part will
enable the Army to update its internal Army procedures, ensuring
consistent and streamlined implementation of NEPA responsibilities
across all Army operations. This action will allow the Army Civil Works
program to finalize the establishment of previously-proposed and
publicly-reviewed CXs that will reduce government spending on
environmental compliance and will shorten project timelines for those
activities that do not need a detailed analysis. The Army Civil Works
program currently prepares approximately 10,000 CXs annually. The Army
Civil Works program expects the new and revised CXs to increase use of
CXs and to shorten project-approval timelines.

F. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess anticipated costs and benefits before
issuing any rule that mandates spending in any one year of $100 million
in 1995 dollars, updated annually for inflation. This rulemaking will
not result in an expenditure by State, local, or Tribal Governments, in
the aggregate, or by the private sector, in excess of the above
threshold. Thus, no written assessment of unfunded mandates is
required.

G. E.O. 13132, ``Federalism''

This interim final rule will not have substantial direct effects on
the States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with E.O. 13132,
the Acting Assistant Secretary of the Army for Civil Works has
determined that this rulemaking does not have sufficient federalism
implications to warrant preparation of a federalism assessment.

H. E.O. 13175, ``Consultation and Coordination With Indian Tribal
Governments''

E.O. 13175 establishes certain requirements that an agency must
meet when it promulgates a rule that imposes substantial direct
compliance costs on one or more Indian Tribes, preempts Tribal law, or
affects the distribution of power and responsibilities between the
Federal Government and Indian Tribes. This interim final rule will not
have a substantial effect on Indian Tribal Governments.

I. E.O. 14192, ``Unleashing Prosperity Through Deregulation''

List of Subjects in 33 CFR Part 230

Administrative practice and procedure, Environmental impact
statements, Environmental protection.

For the reasons state in the preamble, the Army Corps of Engineers
amends 33 CFR part 230 as follows:

PART 230--PROCEDURES FOR IMPLEMENTING NEPA

0
1. The authority citation for part 230 is revised to read as follows:

Authority: National Environmental Policy Act (NEPA) (42 U.S.C.
4321 et seq.); 5 U.S.C. 301

Sec. 230.1 [Removed and reserved]

0
2. Remove and reserve Sec. 230.1.

0
3. Revise Sec. 230.2 to read as follows:

Sec. 230.2 Applicability.

This regulation is applicable to the U.S. Army Corps of Engineers
Civil Works program, except the permitting programs and the 33 U.S.C.
408 request

[[Page 29465]]

for permission program covered in 33 CFR part 333.

Sec. Sec. 230.3 through 230.8 [Removed and reserved]

0
4. Remove and reserve Sec. Sec. 230.3 through 230.8.

Sec. Sec. 230.10 through 230.26 [Removed]

0
5. Remove Sec. Sec. 230.10 through 230.26.

Appendix A to Part 230 Through Appendix C to Part 230 [Removed]

0
6. Remove Appendix A to Part 230 through Appendix C to Part 230.

Approved by:
D. Lee Forsgren,
Acting Assistant Secretary of the Army, (Civil Works).
[FR Doc. 2025-12353 Filed 7-1-25; 2:30 pm]
BILLING CODE 3720-58-P

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