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NEPA Update: Final Rule Released

By Mary Scott

On Wednesday, July 15, President Trump announced the final rule implementing changes to the National Environmental Protection Act (NEPA). For the first time in over 40 years, NEPA has undergone a comprehensive update covering concerns with the implementation of the statute. NACD addressed our concerns with the way NEPA was implemented previously and expressed support for several of the changes in comments submitted to the Council of Environmental Quality (CEQ) this spring.

In the process of updating the rule, CEQ released an Advanced Notice of Proposed Rulemaking in 2018 and received 12,500 comments on possible updates to the regulations. In January 2020, CEQ released a Notice of Proposed Rulemaking geared to “modernize and clarify the NEPA regulations,” which garnered over 1.1 million comments. Alongside the final rule, CEQ responded to comments from interested parties. This included a comment from NACD, listed below, in ensuring that local government entities like conservation districts are included in the scoping process.

NACD Comment:

Commenters supported the addition of “likely” to include “affected Federal, State, and Tribal, and local agencies and governments” in section 1501.9(b) and encouraged lead agencies to always consider local conservation districts when scoping a proposed action’s potential agricultural impacts.

Response:

CEQ acknowledges the support for the proposed change and notes that the final rule encourages lead agencies to involve all agencies with jurisdiction by law or special expertise at the earliest practicable time to help scope the proposal and plan necessary analyses and thus may include local conservation districts, as appropriate.

Although the changes do not affect the underlying NEPA law, the revisions offer updates to management and engagement of the NEPA process. The final rule establishes a two-year time frame to complete environmental impact statements (EISs), and a one-year time frame to complete environmental assessments (EAs). Prior to the update, a review could take six or more years to complete. Under the old rule, documents averaged 600 or more pages long. The length of the documents prohibited meaningful public engagement and feedback. The new rule calls for page limits between 150-300 pages. NACD had expressed support for time and page length limits in our public comments, as they can give conservation districts a better opportunity to truly review proposals and engage in the process.

Other changes include codifying relevant case law and determining the appropriate level of environmental review and expanding public involvement, improving coordination with states, tribes and localities. The final rule also allows agencies to establish methods to adopt the categorical exclusions (CEs) of other agencies where appropriate. More information on the changes can be found here.

NACD will continue to provide updates on NEPA as available.

Mary Scott is NACD’s Natural Resource Policy Specialist and can be reached at mary-scott[at]nacdnet.org.

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