Legislative Categorical Exclusions Under the National Environmental Policy Act

Congressional research reportJul 10, 2025

Ask Donna

What actually matters in this document.

Text

Legislative Categorical Exclusions Under the

National Environmental Policy Act

July 10, 2025

Congressional Research Service

https://crsreports.congress.gov

R48595

SUMMARY

Legislative Categorical Exclusions Under the

National Environmental Policy Act

R48595

July 10, 2025

Heather McPherron

Analyst in Environmental

The National Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et seq.) establishes

Policy

procedures for federal agencies to integrate consideration of environmental impacts into federal

decisionmaking (i.e., environmental review). Most agency actions are subject to NEPA’s

environmental review requirements, and the level of review varies on the basis of the expected

significance of the environmental impact. Categorical exclusions (CEs) are used when agency

actions are expected to have little or no significant environmental impact. Thus, CEs allow

agencies to bypass preparation of the more detailed analyses of an environmental assessment (EA) or an environmental

impact statement (EIS). Federal agencies have directly established most CEs by examining their existing activities and

determining which ones have consistently shown no significant environmental impact. Congress has also played a role by

legislating CEs through two primary approaches—directing agencies to develop a CE for certain categories of action (i.e.,

“congressionally directed CE”) or enacting a CE directly in statute (i.e., “statutory CE”). Whether a CE is congressionally

directed or statutorily created affects several elements that shape its development and application.

When Congress directs an agency to develop a CE, NEPA requires that the category of actions “normally does not

significantly affect the quality of the human environment.” To develop these CEs, agencies have typically followed an

administrative process that included public notice and opportunities for the public to comment. Congressionally directed CEs

are constrained to categories of actions that do not significantly affect the quality of the human environment, allow agencies

to leverage their technical expertise in project implementation to develop the CE, consider site-specific conditions where the

CE may not be applicable, and provide flexibility to modify the CE over time. However, congressionally directed CEs may

take years to develop, may require a commitment of agency resources to develop a sufficient administrative record to support

the CE, and may be less durable or not implemented in accordance with congressional intent.

When Congress establishes a statutory CE, agencies apply the exclusion as defined in the statutory text. Statutory CEs

provide prompt availability of the CE and potentially expedite projects that Congress deems a high priority. When Congress

itself develops a CE, there is no requirement that the category of actions “normally does not significantly affect the quality of

the human environment.” These statutory CEs provide an opportunity for Congress to specify the level of environmental

review for specific policy objectives, such as infrastructure development or the need for rapid response to emergencies or

natural disasters. However, statutory CEs offer less flexibility in their application and may lack consideration of site-specific

elements that result in reasonably foreseeable significant environmental impacts. These CEs are developed through the

legislative process, in which Congress determines the extent and manner of opportunities for public comment. The durability

of statutory CEs also means they may remain in place even if the action results in significant environmental impacts or if

operational practices change.

As environmental and policy contexts evolve, the design of legislative CEs will remain important to weigh alongside policy

interests in expedited project approvals with NEPA’s underlying commitment to informed environmental decisionmaking.

Congressional considerations include balancing interests in expedited project approvals with potentially significant

environmental impacts, assessing administrative efficiency, facilitating public involvement, and providing agencies with the

ability to modify or adapt a CE.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

Contents

Introduction ..................................................................................................................................... 1

Development of Legislative CEs ..................................................................................................... 3

Congressionally Directed CEs .................................................................................................. 3

Statutory CEs ............................................................................................................................ 5

Key Elements in the Development and Application of Legislative CEs ......................................... 6

Threshold of Significant Impacts .............................................................................................. 6

Extraordinary Circumstances .................................................................................................... 7

Stakeholder Engagement Opportunities During CE Development ........................................... 8

Flexibility and Adaptability in Implementation of the CE ........................................................ 9

Issues for Congress .......................................................................................................................... 9

Considerations When Directing Agencies to Develop CEs .................................................... 10

Considerations When Establishing Statutory CEs ...................................................................11

Tables

Table 1. Selected Example of a Rulemaking in Response to a Congressionally Directed

Categorical Exclusion (CE) Within P.L. 114-94........................................................................... 4

Table 2. Selected Example of a Statutory Categorical Exclusion (CE) Within P.L. 113291 and Corresponding Agency Action to Incorporate the CE into Agency National

Environmental Policy Act (NEPA) Procedures ............................................................................ 5

Table A-1. Inventory of Congressionally Directed Categorical Exclusions (CEs) and the

Agency’s Action ......................................................................................................................... 14

Table A-2. Representative Inventory of Statutory Categorical Exclusions (CEs) ......................... 29

Appendixes

Appendix. Inventory of Legislative Categorical Exclusions (CEs)............................................... 13

Contacts

Author Information........................................................................................................................ 43

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

Introduction

The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. §§4321 et seq.) establishes a

national policy with respect to environmental quality and the basic process for integrating

environmental considerations into federal decisionmaking (i.e., “environmental reviews”).1 NEPA

is often associated with the more comprehensive analysis required for an environmental impact

statement (EIS); however, the majority of NEPA reviews do not require this level of analysis.2

Instead, when agencies determine that a category of actions does not significantly affect the

human environment, they may apply a categorical exclusion (CE) to allow the actions to proceed

with minimal documentation.3 CEs are not exemptions from the NEPA process; rather, they are

typically used for minor actions that an agency does repeatedly and expects will have no or only

minor environmental impacts.4 While most CEs are established through agency procedures,

Congress has also enacted legislative CEs to streamline review for specific types of activities.5

NEPA also created the Council on Environmental Quality (CEQ) in the Executive Office of the

President, to among other duties, provide oversight of NEPA’s implementation.6 In 1978, CEQ

issued its first NEPA implementing regulations and also directed each federal agency to establish

its own agency-specific procedures consistent with CEQ regulations while reflecting agencyspecific statutory requirements, regulations, and guidance.7 On April 11, 2025, CEQ’s NEPAimplementing regulations were rescinded.8

1 The National Environmental Policy Act (NEPA) was passed by Congress in 1969 and signed into law by President

Nixon on January 1, 1970. Codified at 42 U.S.C. §4331, NEPA states “that it is the continuing policy of the Federal

Government, in cooperation with State and local governments, and other concerned public and private organizations, to

use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster

and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive

harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

2 Under 42 U.S.C. §4336(b), an agency is required to issue an environmental impact statement (EIS) for a proposed

agency action “that has a reasonably foreseeable significant effect on the quality of the human environment” or an

environmental assessment (EA) for a proposed agency action where the effects are unknown or any reasonably

foreseeable effects are not significant (unless a categorical exclusion, or CE, applies). Furthermore, on the basis of

information provided by federal agencies, the Council on Environmental Quality (CEQ) estimates that each year

agencies apply CEs account for over 95% of all NEPA analyses.

3 42 U.S.C. §4336(a)(2). Further, 42 U.S.C. §4336e(1) defines a CE as a “category of actions that a Federal agency has

determined normally does not significantly affect the quality of the human environment.”

4 CEQ, Memorandum for Heads of Federal Departments and Agencies: Establishing, Applying, and Revising

Categorical Exclusions Under the National Environmental Policy Act, November 23, 2010, pp. 2-3,

https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf. CEQ asserts that CEs

are intended to reduce delays and paperwork, which in turn allows agencies to focus resources toward evaluating

actions that have more potential to cause environmental impacts.

5 See the Appendix for an inventory of CEs established by Congress.

6 42 U.S.C. §4344(3) states that “it shall be the duty and function of the [CEQ] ... to review and appraise the various

programs and activities of the Federal Government in the light of the policy set for in subchapter I of [NEPA] for the

purpose of determining the extent to which such programs and activities are contributing to the achievement of such

policy, and to make recommendations to the President with respect thereto.” Further, authority to promulgate

regulations to implement NEPA’s provisions was not expressly included among the duties and responsibilities given to

CEQ under NEPA. However, shortly after signing NEPA, President Nixon issued Executive Order 11514, “Protection

and Enhancement of Environmental Quality,” authorizing CEQ to issue guidelines for the implementation of the act. In

1977, President Carter issued Executive Order 11991, “Relating to Protection and Enhancement of Environmental

Quality,” which directed CEQ to issue regulations for implementation of the procedural provisions of NEPA.

7 CEQ, “National Environmental Policy Act—Regulations,” 43 Federal Register 55978, November 29, 1978, p. 56003.

8 CEQ, “Removal of NEPA Implementing Regulations,” 90 Federal Register 10610, February 25, 2025 (amending

Subchapter A of Chapter V in Title 40 of the Code of Federal Regulations by removing and reserving Parts 1500, 1501,

(continued...)

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

Unless certain conditions are met, NEPA requires that federal agencies conduct an environmental

review to consider the significance of the environmental impacts of “major federal actions.”9

NEPA’s environmental review procedures do not typically apply to actions that are exempted by

statute, conflict with another provision of federal law, or involve nondiscretionary agency

functions.10 Agencies can comply with the environmental review requirements for NEPA by

preparing an EIS or an environmental assessment (EA).11 An agency is not required to prepare an

EIS or EA if the major federal action is excluded pursuant to one of the agency’s CEs or if they

can apply another agency’s CE consistent with statute.12 When an agency applies a CE to a

proposed action, an agency does not prepare an EA or an EIS.13

Federal agencies typically establish CEs when they determine that a category of actions

“normally does not significantly affect the quality of the human environment.”14 Most CEs have

historically been established directly by federal agencies pursuant to CEQ regulations, which

have since been rescinded.15 CEs typically include defined conditions or limitations that identify

the types of actions covered and the circumstances under which the exclusion applies. They may

also incorporate conditions that preclude the use of the CE when significant environmental

impacts may be anticipated (i.e., extraordinary circumstances).16 Under the process established by

CEQ, agencies examined their existing actions to determine which ones did not consistently result

in significant environmental impacts. Agencies have typically identified actions that may be

eligible for CEs through review of existing NEPA documentation, studies, and assessments

conducted for similar actions in the past, relying on historical data and the outcomes of previous

EAs or EISs.17 In certain instances, however, Congress has passed legislation that either directs a

federal agency to establish a CE or expressly establishes a CE through statute.

1502, 1503, 1504, 1505, 1506, 1507, and 1508). See also CRS In Focus IF12960, Council on Environmental Quality

Rescinds NEPA Regulations: Legal and Policy Considerations, by Heather McPherron and Kristen Hite.

9 42 U.S.C. §4336e(10)(A) defines a major federal action as an action that is “subject to substantial Federal control and

responsibility.” Congress may also exempt specific agency actions from NEPA via statute. See, for example, in the

Building Chips in America Act of 2023 (P.L. 118-105), where Congress exempted certain types of microchip

manufacturing activities from NEPA by clarifying that certain CHIPS Act projects commenced before 2025 are not

major federal actions and therefore not subject to NEPA review.

10 42 U.S.C. §4336(a). A discretionary action refers to an action where a federal agency has the authority to choose

among different courses of action or decide whether or not to take the action at all, as opposed to an action where the

agency’s decisions are guided by a statutory or regulatory mandate. CEQ, A Citizen’s Guide to NEPA: Having Your

Voice Heard, 2021, p. 4, https://ceq.doe.gov/docs/get-involved/citizens-guide-to-nepa-2021.pdf. See 42 U.S.C.

§4336e(10)(B) for a full list of categories of actions that are excluded from the requirements of NEPA.

11 See footnote 2.

12 42 U.S.C. §4336(a)(2). Further, 42 U.S.C. §4336c allows for an agency to adopt a CE listed in another agency’s

NEPA procedures.

13 42 U.S.C. §4336(a)(2).

14 42 U.S.C. §4336e(1). Such CEs are typically established through an agency’s prior experience in assessing the

significance of impacts associated with similar types of actions. Congress also may choose to enact CEs legislatively.

Congress may enact a CE legislatively regardless of the environmental impact of the applicable action.

15 CEs were not expressly referenced in the NEPA statute until it was amended by the Fiscal Responsibility Act of 2023

(P.L. 118-5). Prior to that, their use was established through CEQ’s NEPA implementing regulations (40 C.F.R. Parts

1500-1508) and CEQ guidance.

16 CEQ defines extraordinary circumstances as factors that specify situations or site-specific conditions that are more

likely to result in significant impacts to the human environment and therefore may require an otherwise categorically

excludable action to be further analyzed in an EA or an EIS. See the “Extraordinary Circumstances” section of this

report for more information.

17 CEQ, Memorandum for Heads of Federal Departments and Agencies: Establishing, Applying, and Revising

Categorical Exclusions Under the National Environmental Policy Act, November 23, 2010, pp. 6-10,

https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

This report provides an overview and analysis of legislative approaches to establishing CEs. It

begins by describing the two primary methods Congress has used to create CEs—directing

agencies to develop CEs and establishing CEs directly by statute. The report then examines how

CEs are established under each approach, including the potential implications of the significance

of the environmental impacts, public engagement, and flexibility. It concludes with issues for

Congress to consider when legislating CEs. An inventory of legislative CEs is included in the

Appendix.

Development of Legislative CEs

Congress has generally legislated CEs (i.e., “legislative CEs”) through two primary approaches.

In some cases, Congress directs a federal agency or department to establish a CE through the

agency’s administrative processes (i.e., “congressionally directed CE”). This gives the agency

some flexibility in how to structure the CE within statutory parameters. In other cases, Congress

establishes a CE directly in law, prescribing the terms and scope (i.e., “statutory CE”). This

provides Congress with greater control over the CE’s availability and applicability.

Congressionally directed CEs and statutory CEs differ in a number of ways. The following

sections provide an overview of each approach, focusing on their general establishment process

and institutional roles associated with congressionally directed and statutory CEs.

Congressionally Directed CEs

A congressionally directed CE arises when Congress instructs a federal agency or department to

categorically exclude a specific type of action from requirements to prepare an EA or an EIS

through its regulatory processes. In this approach, Congress generally defines the overall scope of

the CE and delegates to the agency the responsibility to formally establish the exclusion. “Scope”

refers to the specific types of actions, project, or activities covered by the CE, as well as any

conditions or limitations that define when and how it may be applied. The CE then becomes part

of the agency’s NEPA implementing procedures and determines how the agency conducts

environmental reviews for applicable, categorically excluded actions.

When Congress legislatively directs an agency to develop a CE, the agency generally undertakes

an administrative process that includes public review and opportunities to comment as part of the

CE development process. In many cases, agencies have created CEs by issuing regulations, often

through publication in the Federal Register with an opportunity for public comment. Prior to the

rescission of CEQ’s NEPA implementing regulations on April 11, 2025, CEQ required agencies to

“substantiate the proposed new or revised categorical exclusion with sufficient information to

conclude that the category of actions does not have a significant effect, individually or in the

aggregate, on the human environment and provide this substantiation in a written record that is

made publicly available as part of the notice and comment process.”18 As a part of that process,

the agency made any additional determinations needed to supplement the legislative directive and

specified the category of actions to be excluded and any conditions or limitations therein. The

agency then made the determination publicly available through the notice-and-comment process,

defining the CE’s applicability, conditions, and procedure for addressing extraordinary

18 CEQ, “National Environmental Policy Act Implementing Regulations Revisions Phase 2,” 89 Federal Register

35442, May 1, 2024, p. 35574.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

circumstances. For decades, agencies have commonly published proposed CEs in the Federal

As an example of this process, Table 1 describes the development of a congressionally directed

CE under Section 11503(a) of the Fixing America’s Surface Transportation (FAST) Act (P.L. 11494), highlighting the sequence of agency actions taken by the Federal Railroad Administration to

implement the legislative directive through rulemaking.

Table 1. Selected Example of a Rulemaking in Response to a Congressionally

Directed Categorical Exclusion (CE) Within P.L. 114-94

Action Taken by

Congress or Agency

Description of Action

Congressional direction

in the Fixing America’s

Surface Transportation

(FAST) Act (P.L. 114-94)

Section 11503(a) directed the Secretary of Transportation to, among other things,

publish a notice of proposed rulemaking to propose new and existing CEs for railroad

projects within one year.

Notice by the Federal

Railroad Administration

(FRA), Department of

Transportation (DOT)a

The FRA solicited public comment on, among other things, two proposed CEs:

Supplemental notice of

proposed rulemaking

(SNPRM) by the FRA,

DOTb

DOT proposed a rule to, among other things, add FRA CEs to DOT’s National

Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et seq.) implementing procedures

at 23 C.F.R. §771.116. The CE language reflected changes based on prior public input

and interagency consultation:

Final rule by the FRA,

DOTc

•

“localized geotechnical and other investigations to provide information for

preliminary design and for environmental analyses and permitting purposes; and

•

“refinancing assistance where the project sponsor has already completed projectrelated construction activities.”

•

23 C.F.R. §771.116(c)(4): “Localized geotechnical and other investigations to

provide information for preliminary design and for environmental analyses and

permitting purposes, such as drilling test bores for soil sampling; archeological

investigations for archeology resources assessment or similar survey; and wetland

surveys.”

•

23 C.F.R. §771.116(c)(7): “Financial assistance to an applicant where the financial

assistance funds an activity already completed, such as refinancing outstanding

debt.”

DOT finalized the rule to, among other things, add the two new CEs, as described in

the SNPRM, thereby incorporating the congressionally directed CEs into 23 C.F.R.

Part 771—Environmental Impact and Related Procedures (i.e., DOT’s NEPA

implementing procedures).

Source: CRS.

Notes: Section 11503(a) of the FAST Act directed the Secretary of Transportation to propose new CEs under

NEPA for FRA. FRA, acting under delegations from the Secretary of Transportation, implemented this directive

through a multistep rulemaking process. The process included an initial notice-and-comment period, an SNPRM

to refine the proposal on the basis of comments received, and a final rule establishing two new CEs in 23 C.F.R.

§771.117(c).

a. FRA, “Categorical Exclusion Survey Review,” 81 Federal Register 35437, June 2, 2016,

https://www.federalregister.gov/documents/2016/06/02/2016-12884/categorical-exclusion-survey-review.

b. Federal Highway Administration, FRA, and Federal Transit Administration, “Environmental Impacts and

Related Procedures,” 82 Federal Register 45530, September 9, 2017,

19 NEPA’s statutory text does not explicitly reference the process by which agencies create a CE. It remains uncertain

how agencies will proceed when statute does not mandate a specific process. Future CEQ guidance or agency-specific

developments could result in changes to this process.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

https://www.federalregister.gov/documents/2017/09/29/2017-20565/environmental-impacts-and-relatedprocedures.

Federal Highway Administration, FRA, and Federal Transit Administration, “Environmental Impacts and

Related Procedures,” 83 Federal Register 54480, October 29, 2018,

https://www.federalregister.gov/documents/2018/10/29/2018-23286/environmental-impacts-and-relatedprocedures.

The notice includes a description of the types of actions covered by the CE, the environmental

analyses conducted, public comments received, and any modifications made in response to those

comments. The notice also outlines the conditions and limitations of the CE, specifying any

extraordinary circumstances under which a CE cannot be applied or requires additional

environmental analyses. Agencies often include criteria or thresholds for when a CE can or

cannot be applied, providing a structured approach to determining whether an action qualifies.

Once finalized, the CE is incorporated into the agency’s NEPA procedures. See Table A-1 for an

inventory of congressionally directed CEs.

Statutory CEs

A statutory CE is created when Congress enacts a CE directly into law, specifying the CE’s

language within legislation. Unlike congressionally directed CEs, statutory CEs do not require

agencies to conduct separate environmental significance evaluations before applying the

exclusion. The statute itself defines the actions covered, the conditions (if any) for their

applicability, and any procedural or substantive limitations. Once enacted, a statutory CE carries

the full force of law, binding agencies to its terms.

As an example of this process, Table 2 describes the development of a statutory CE within the

Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year

2015 (P.L. 113-291) and corresponding action by the Department of the Interior to incorporate the

CE into the Bureau of Land Management’s NEPA procedures.

Table 2. Selected Example of a Statutory Categorical Exclusion (CE) Within

P.L. 113-291 and Corresponding Agency Action to Incorporate the CE into Agency

National Environmental Policy Act (NEPA) Procedures

Action Taken by Congress

or Agency

Description of Action

Congressional direction in the

Carl Levin and Howard P.

“Buck” McKeon National

Defense Authorization Act for

Fiscal Year 2015 (P.L. 113-291)

Enacted on December 19, 2014, Section 3023 of P.L. 113-291 amended Section

402 of the Federal Land Policy and Management Act to categorically exclude

specific grazing permit renewals and the trailing and crossing of livestock

across public land.

Notice of revisions by the

Department of the Interior

(DOI)a

DOI issued a notice revising the Bureau of Land Management’s (BLM’s) NEPA

implementing procedures (516 Departmental Manual 11) to, among other

things, incorporate the two statutory CEs enacted in P.L. 113-291.

DOI published updated BLM

NEPA procedures

On December 12, 2020, BLM updated 516 DM 11 to, among other things,

incorporate the two statutory CEs into their NEPA procedures.b

Source: CRS.

Notes: Section 3023 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for

Fiscal Year 2015 enacted two statutory CEs for specific grazing permit renewals and the trailing and crossing of

livestock across public land. The statutory CEs were available for BLM to apply to eligible projects at the time of

enactment. DOI amended BLM’s agency NEPA procedures five years later to create a new section, entitled,

“11.10 CEs Established or Directed by Statute.”

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

BLM, “National Environmental Policy Act Implementing Procedures for the Bureau of Land Management

(516 DM 11),” 85 Federal Register 25472, May 1, 2020,

https://www.federalregister.gov/documents/2020/05/01/2020-09301/national-environmental-policy-actimplementing-procedures-for-the-bureau-of-land-management-516-dm.

DOI, “Managing the NEPA Process—Bureau of Land Management,” in Department of the Interior

Departmental Manual, December 10, 2020, pp. 20-21, https://www.doi.gov/document-library/departmentalmanual/516-dm-11-managing-nepa-process-bureau-land-management.

Statutory CEs are developed through the legislative process. Congress drafts language

establishing the CE, typically as part of bills that contain additional provisions designed to meet

broader policy objectives.20 During legislative development, opportunities for public engagement

depend on the legislative process itself—such as committee hearings, stakeholder advocacy, and

amendments—or through other constituent engagement forums, in contrast to the public comment

procedures associated with agency administrative processes.

Once enacted, agencies may issue internal guidance or operating procedures to apply the CE or

interpret ambiguous terms, but they generally lack authority to alter the CE’s scope or to

condition its application with extraordinary circumstances or other measures, absent statutory

authorization. If judicial review occurs upon the application of the CE, it typically focuses on

statutory interpretation rather than administrative compliance.21 See Table A-2 for an inventory of

statutory CEs.

Key Elements in the Development and Application

of Legislative CEs

Whether a CE is congressionally directed or statutorily created affects several elements that shape

its development and application. These elements include the threshold of significant impacts,

incorporation of extraordinary circumstances, types of opportunities for public input during CE

development, and the flexibility and adaptability of a CE. The following sections examine each of

these key elements in greater detail, focusing on how they are addressed in the development and

application of congressionally directed and statutory CEs. Understanding these dimensions may

assist Congress in evaluating the effectiveness of existing CEs and in shaping future legislative

approaches to NEPA compliance.

Threshold of Significant Impacts

Under NEPA, the core legal requirement for establishing a CE is that the agency must determine

that the category of actions “normally does not significantly affect the quality of the human

environment.”22 This determination reflects what is often referred to as the significance threshold,

or the level or intensity of potential environmental effects at which impacts are considered

20 For example, several statutory CEs have been enacted in surface transportation reauthorization acts, such as the

Fixing America’s Surface Transportation Act (P.L. 114-94) and the Infrastructure Investments and Jobs Act (P.L. 11758), or as part of appropriations acts, such as the Consolidated Appropriations Act, 2005 (P.L. 108-447); Omnibus

Appropriations Act, 2009 (P.L. 111-8); and Consolidated Appropriations Act, 2018 (P.L. 115-141).

21 See, for example, U.S. Forest Service, “Chapter 30 – Categorical Exclusion from Documentation,” in Forest Service

Handbook 1909.15 – National Environmental Policy Act Handbook, March 3, 2023, pp. 29-30,

https://www.fs.usda.gov/about-agency/regulations-policies/handbook/190915-30-categorical-exclusion-documentation.

The Forest Service lists both CEs as they were enacted in P.L. 113-291 and provides additional guidance, including that

the CE is subject to extraordinary-circumstances review and that documentation within a decision memo is required for

the application.

22 42 U.S.C. §4336e(1).

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

significant under NEPA. If the impacts of an action are expected to remain below this threshold

under normal circumstances, the action may be categorically excluded from further NEPA

analysis.

For congressionally directed CEs whereby Congress leaves the discretion to the agencies to

establish the CE, the agency must meet NEPA’s significance threshold, demonstrating this

through record evidence or a reasoned basis.23 In contrast, statutory CEs generally bypass the

agency’s evaluation of significance. While some statutory CEs are predicated on an assumption

that certain actions do not have significant impacts, others may not be predicated on this

assumption in order to account for additional policy considerations, such as speeding up

environmental review, responding to national emergencies, or promoting economic

development.24 Congress’s decision to categorically exclude certain actions is treated as

dispositive and may supersede NEPA’s general definition limiting a CE to a type of action that an

agency has determined does not result in a significant impact. In other words, a statutory CE

could include actions that exceed the threshold of significant impacts.25

Extraordinary Circumstances

Extraordinary circumstances are situations or site-specific conditions that are more likely than

typical circumstances to result in significant impacts to the human environment and therefore

may require an otherwise categorically excludable action to be further analyzed in an EA or an

EIS.26 The presence of extraordinary circumstances indicates that, despite the typical lack of

significant environmental impact associated with the action, the specific context or nature of the

proposal may lead to potentially significant impacts.27

Unless consideration of extraordinary circumstances is exempted by Congress, if extraordinary

circumstances are present for a particular action and if the effects of those actions cannot be

avoided or mitigated, the agency may need to prepare an EA or an EIS. Conversely, if the agency

conducts an analysis and determines that it can modify the proposed action to mitigate the

23 CEQ, “Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical

Exclusions Under the National Environmental Policy Act,” 75 Federal Register 75628, December 6, 2010, p. 75633

(hereinafter CEQ, “Final Guidance on Establishing, Applying, and Revising CEs Under NEPA”). This analysis often

involves a review of existing NEPA documentation, studies, and assessments conducted for similar actions in the past,

relying on historical data and previous EAs or EISs to demonstrate that these types of actions do not have individually

or cumulatively significant environmental effects.

24 See, for example, the Building Chips in America Act of 2023 (P.L. 118-105), in which Congress established new

CEs for the National Institute of Standards and Technology to expedite financial assistance for semiconductor

manufacturing. In a press release, Sen. Mark Kelly, a sponsor of the bill, stated that NEPA reviews “threaten to delay

semiconductor manufacturing projects already under construction and discourage future investments in domestic

semiconductor manufacturing, without meaningfully improving environmental protections”; Sen. Mark Kelly,

“Building Chips in America Act,” press release, July 2023, https://www.kelly.senate.gov/wp-content/uploads/2023/07/

Building-Chips-in-America-Act-Summary.pdf.

25 Mark K. Capone and John C. Ruple, “NEPA and the Energy Policy Act of 2005 Statutory CEs: What Are the

Environmental Costs of Expedited Oil and Gas Development?,” Vermont Journal of Environmental Law, vol. 18, no. 3

(Spring 2017), pp. 371-399. Capone and Ruple found that the use of the Energy Policy Act of 2005 (P.L. 109-58) CE

resulted in projects with greater surface area disturbance per well than projects that had prepared an EA or EIS.

26 CEQ, “Final Guidance on Establishing, Applying, and Revising CEs Under NEPA.”

27 Extraordinary circumstances are often related to protections enshrined by other environmental statutes (e.g., species

or habitats protected under the Endangered Species Act, historic properties protected by the National Historic

Preservation Act). However, concurrence that a CE is applicable to a certain action is specific to NEPA’s

environmental review requirements and does not waive or diminish an agency’s obligation to comply with any other

applicable environmental statutes.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

potential significant effects, it may still apply the CE.28 When Congress directs an agency to

develop a CE through its own administrative processes, the agency generally has discretion in

establishing the criteria for applying the CE, including whether there are any extraordinary

circumstances that would require preparation of an EIS or an EA.29 When CEs are created via

statute, they may or may not result in the same consideration of extraordinary circumstances.30

Congress has the discretion to specify whether extraordinary circumstances should apply to a

given CE and, if so, to define what those circumstances are. In the absence of direction regarding

when or whether to consider extraordinary circumstances, agencies may be required to apply the

CE as written. That is, the CE may be applied in situations where significant environmental

impacts are reasonably foreseeable. Use of the CE may expedite project delivery, albeit by

avoiding additional environmental review.

Stakeholder Engagement Opportunities During CE Development

Opportunities for stakeholder engagement can shape the development of a CE, including what

categories of actions are covered, relevant environmental considerations, and how the CE is

defined. The nature of stakeholder engagement often depends on how the CE is established.

Agencies directed to develop a CE by Congress have generally used a notice-and-comment

approach. CEs developed through this process typically involve public awareness of the agency’s

intent to create a new CE and opportunities for public input on the substance and scope of the CE.

CEQ previously required agencies to give public notice and obtain public comment through

publication in the Federal Register of the proposed CE language, conditions or limitations on its

application, a description of the extraordinary circumstances or other conditions and limitations

on its application, and a rationale for why the agency believes that the CE does not result in

significant impacts.31

In contrast, the development of statutory CEs occurs through the legislative process, which

provides different forms and timing of stakeholder engagement. When Congress creates a CE

directly through statute, elected officials play a central role in shaping the scope and purpose of

the CE, often in response to constituent concerns or broader policy priorities. Opportunities for

public input come through constituent engagement and the nature of the legislative process, rather

than through agency administrative processes. Members of the public may provide input by

contacting their elected representatives directly through correspondence, phone calls, in-person

meetings, or participation in town halls and other forums. Members of Congress may consider

constituent feedback as they evaluate legislative proposals. In addition, stakeholders may engage

through formal mechanisms such as congressional hearings where invited witnesses may offer

testimony or provide written statements relevant to proposed legislation, including provisions

related to CEs. Once enacted, statutory CEs are generally implemented without a subsequent

28 Historically, CEQ’s NEPA regulations required agencies to evaluate each application of a CE for extraordinary

circumstances that may make application of the CE inappropriate. NEPA’s statutory text does not explicitly reference

the process by which agencies apply CEs or evaluate extraordinary circumstances. It remains uncertain how agencies

will proceed when statute does not mandate a specific process. Future CEQ guidance or agency-specific developments

could result in changes to this process.

29 Consideration of extraordinary circumstances may not apply when Congress statutorily creates a CE, unless

expressly noted. See, for example, Wild Watershed v. Hurlocker, 961 F.3d 1119 (10th Cir. 2020).

30 See CEQ, “Final Guidance on Establishing, Applying, and Revising CEs Under NEPA,” which states, “CEQ

encourages agencies to apply their extraordinary circumstances to categorical exclusions established by statute when

the statute is silent as to the use and application of extraordinary circumstances” (p. 75631).

31 CEQ, “Final Guidance on Establishing, Applying, and Revising CEs Under NEPA,” p. 75635.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

agency-led public development process; instead, interested parties may advocate for or against

specific provisions, including CEs, during the legislative process.

Flexibility and Adaptability in Implementation of the CE

The flexibility of a CE and an agency’s ability to adapt the CE over time depend, in part, on

whether the CE was established by the agency or through statute. This distinction affects the

degree of agency discretion in applying the CE and whether the agency can revise the CE over

time. These factors may influence how effectively a CE functions as programs evolve or as

environmental conditions change but may also introduce uncertainty or variability in how the CE

is applied over time.

Congressionally directed CEs may provide greater flexibility, as agencies can define criteria and

conditions to the applicability of a CE. Through the development process, agencies may tailor the

CE’s applicability by setting geographic and resource-specific conditions so that the action does

not result in significant environmental impacts.32 Agencies may also adapt CEs if monitoring

data, scientific advancements, policy shifts, or observed impacts suggest that the CE should be

updated.

In contrast, statutory CEs may provide greater certainty and consistency if their terms are more

prescribed by statute. Once enacted, agencies must apply the statutory CE according to its

language and generally cannot narrow, expand, or adjust its scope in response to evolving

environmental conditions or operational changes unless expressly authorized by Congress.

Modification typically requires new legislation, as agencies cannot substantively alter statutory

CEs through interpretive guidance or administrative procedures. As a result, agencies may be

required to apply statutory CEs even when project-specific environmental conditions or agency

priorities would otherwise warrant additional review. This durability may streamline project

delivery and promote the policy objectives intended by Congress. At the same time, it may also

constrain an agency’s ability to respond to changing conditions or mitigate unintended

consequences.

Issues for Congress

As Congress continues to take interest in streamlining the federal permitting process, CEs offer

one tool to expedite environmental reviews under NEPA. By allowing agencies to forgo

preparation of an EA or an EIS, CEs can reduce documentation requirements and may shorten

review timelines. This can be particularly relevant for routine or recurring actions or those with a

narrow scope. In the broader context of permitting reform, CEs may help accelerate project

delivery and improve agency efficiency while focusing resources on actions with greater potential

for significant environmental impacts. Regardless of how they are developed, CEs affect only

NEPA compliance; they do not alter an agency’s responsibilities under further statutory mandates,

such as the Endangered Species Act, National Historic Preservation Act, or other permitting

obligations under the Clean Water Act or other federal laws.

When considering whether to categorically exclude certain types of actions, Congress faces a

choice between directing an agency to develop a CE through the agency’s administrative

processes or enacting a CE directly in statute. Each approach presents distinct implications and

32 42 U.S.C. §4336e(1) defines a CE as “a category of actions that ... normally does not significantly affect the quality

of the human environment.” Agencies may also issue interpretive guidance, standard operating procedures, or internal

policies to clarify how the CE should be applied in new contexts, provided such guidance is consistent with the original

rule.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

trade-offs. Understanding these implications and trade-offs may assist Congress in structuring

CEs that advance policy goals while balancing environmental considerations, administrative

efficiency, mechanisms for stakeholder engagement, and clarity of congressional intent. The

sections below describe considerations that may inform Congress’s decision on which approach

to take and in understanding the resulting implications.

Considerations When Directing Agencies to Develop CEs

Congress may choose to direct an agency to develop a CE, rather than to establish the CE directly

through statute, for several reasons. This approach allows Congress to initiate a desired change in

an agency’s environmental review process while deferring to the agency’s expertise to determine

the appropriate parameters and implementation. Delegating CE development in this way may

result in an administratively tailored exclusion that is aligned with the agency’s existing NEPA

procedures and that includes an administrative record supporting the determination that the

actions do not typically result in significant environmental impacts. However, compared to

statutory CEs, this approach offers less certainty regarding timing and implementation. In terms

of timing, agencies can take roughly two years, on average, to finalize CEs that are

congressionally directed.33 In terms of implementation, agencies may interpret congressional

direction to establish a CE more broadly, establish it more narrowly, or implement it more slowly

than anticipated. The final CE may also differ in scope or conditions from what Congress

intended.34 The following considerations may assist Congress in evaluating when and how to

pursue this approach.

Unlike statutory CEs, congressionally directed CEs are subject to NEPA’s significance threshold,

and agencies must demonstrate through an administrative record that supports a determination

that the covered actions do not normally result in significant environmental impacts. CEs

developed by agencies also typically include provisions allowing the agency to withhold

application of the CE in cases involving extraordinary circumstances. Unless otherwise specified

in legislation, the agency will determine whether and how extraordinary circumstances apply to

the congressionally directed CE. This deliberative process may result in a defined scope and

limited applicability of the CE. If Congress intends for these circumstances to be accounted for, it

may wish to consider explicitly requiring an agency to include extraordinary circumstances when

applying any given CE, which may require agencies to evaluate potentially significant effects

through a more detailed NEPA review.

Unlike statutory CEs, which are developed through the legislative process, agency-developed

CEs typically include notice-and-comment opportunities for the public. This process may offer an

avenue for interested parties—including affected communities, industry representatives, and

advocacy groups—to directly contribute technical information or express concerns to the agency.

This engagement may incorporate regional considerations or disclose potential unintended

33 Based on CRS analysis of the inventory of congressionally directed CEs presented in Table A-1. This calculation is

based on CEs in Table A-1 for which the agency has completed the CE development process. In some cases, agencies

have not developed a CE in response to congressional direction (see, e.g., CE directed by P.L. 117-58 in Table A-1).

34 See, for example, U.S. Government Accountability Office, Energy Policy Act of 2005: Greater Clarity Needed to

Address Concerns with Categorical Exclusions for Oil and Gas Development Under Section 390 of the Act, GAO-09872, September 2009, pp. 29-50, https://www.gao.gov/assets/gao-09-872.pdf. In this report, GAO noted, among other

things, that there is disagreement as to whether the Bureau of Land Management (BLM) must screen Section 390 CEs

for extraordinary circumstances, whether the use of CEs is mandatory, whether the public can challenge the use of CEs,

and that vague or nonexistent definitions of key terms in the law and BLM guidance that describe the conditions to be

met when using a Section 390 CE—such as “individual surface disturbances” or “maintenance of a minor activity”—

have led to varied interpretations among field offices and concerns about misuse and a lack of transparency.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

consequences of the specified category of actions. Congress may consider whether such input is

necessary and whether it is likely to improve the CE’s function or acceptance.

Unlike statutory CEs, which take effect upon enactment, congressionally directed CEs typically

require the agency to initiate a public process to develop the CE. This may include internal

review, interagency consultation, and public comment. The time required for these steps may vary

considerably. Directing agencies to develop CEs requires agencies to commit resources to a

formal administrative process, which may affect the pace of implementation and the

administrative burden. This may be particularly challenging for agencies with limited

environmental NEPA personnel. Congress could exercise oversight to assess the factors that

influence agency timelines in developing congressionally directed CEs, which may help inform

the appropriate level of guidance, resources, or statutory clarification.

Unlike statutory CEs, which generally require legislative action to revise or adapt,

congressionally directed CEs may be more readily updated to accommodate changing

circumstances. Agencies retain the authority to revise or refine congressionally directed CEs as

environmental conditions, scientific understanding, or operational practices evolve. This

flexibility may allow agencies to respond to emerging information and policy shifts. Congress

may wish to consider how flexible its directions should be. Providing more flexibility has the

advantage of leveraging the agency’s expertise and allowing the CE to be adapted to specific

circumstances. Being more prescriptive gives greater confidence that the CE will be implemented

in accordance with congressional intent and will be durable.

After directing an agency to establish a CE, Congress may wish to monitor progress and evaluate

whether the agency’s implementation aligns with congressional expectations. Oversight

mechanisms could include requiring implementation updates, specifying a deadline for

finalization, or requesting periodic reports on the CE’s use and effectiveness. These mechanisms

may help ensure timely development and provide Congress with information to evaluate whether

additional legislative action is warranted.

Considerations When Establishing Statutory CEs

Congress may opt to establish a CE directly. Statutory CEs carry the full force of law and are

binding on agencies, providing greater certainty and potentially expediting project

implementation. Compared to congressionally directed CEs, a statutory CE may offer Congress

greater control over the scope and applicability of the exclusion and limit the agency’s discretion

to alter the CE. It may also avoid the delays and uncertainties associated with agency

administrative processes to establish a CE. Statutory CEs may reduce ambiguity by providing

agencies with direction to exclude specified actions from the requirements to prepare an EA or an

EIS. Thus, they may be particularly appealing when Congress identifies urgent policy priorities,

such as responding to natural disasters or facilitating infrastructure development. However, this

approach may also result in CEs being applied to projects where significant environmental effects

are reasonably foreseeable, limit opportunities for agency technical input, and constrain future

refinements. Congress may weigh these trade-offs when considering whether to statutorily enact a

CE. The following considerations may assist Congress in evaluating when and how to pursue this

approach.

A statutory CE becomes effective upon enactment, which can expedite environmental review for

eligible projects. By eliminating the need for agency CE development, statutory CEs may

accelerate project implementation timelines. However, this approach may forgo opportunities to

test the CE’s practical application or refine its terms on the basis of administrative experience.

Congress may consider whether the benefits of immediate applicability outweigh the

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

uncertainties of establishing a CE without agency-developed justification or a supporting

administrative record.

Unlike congressionally directed CEs, which typically include an administrative record and

extraordinary-circumstances provisions, statutory CEs do not need to be accompanied by an

administrative record demonstrating that the covered actions are not likely to result in significant

environmental effects. As a result, some statutory CEs could be applied to actions resulting in

significant environmental impacts. If Congress wishes the CE not to be applied when significant

environmental impacts are reasonably foreseeable, it would need to include statutory language

requiring agencies to consider whether extraordinary circumstances are present, such as impacts

to endangered species, historic resources, or sensitive habitats, among other environmental

concerns. If Congress wishes to ensure that a CE is applied in all circumstances, whether or not

significant environmental impacts are reasonably foreseeable, it would not need to require

application of extraordinary-circumstances provisions in the statute itself.

Unlike agency administrative processes, which typically include notice and public comment, the

legislative process does not include a standardized mechanism for technical or public comment.

Opportunities for engagement within the legislative process may include consulting with affected

agencies, stakeholders, and technical experts or including provisions that promote subsequent

review or oversight. Public input may provide information such as the feasibility of the CE’s

implementation or awareness of potentially unintended consequences, among other things.

Congress may consider the type and extent of engagement that would be most appropriate for

developing a particular CE.

Unlike congressionally directed CEs, which are developed and maintained through agency

administrative processes, statutory CEs generally cannot be modified, narrowed, or adapted by an

agency without further legislative action. While this may limit the ability of agencies to respond

to new information, changes in environmental conditions, or evolving policy priorities, it may

also provide greater stability and predictability in how the CE is implemented over time. If

Congress wishes to allow CEs to be modified over time while preserving congressional intent, it

may wish to consider including mechanisms within the statutory text, such as built-in sunset

provisions and periodic review requirements.

Congressional Research Service

Legislative Categorical Exclusions Under the National Environmental Policy Act

Appendix. Inventory of Legislative Categorical

Exclusions (CEs)

The following tables provide an inventory of CEs legislatively established by Congress. CRS

searched the Statutes at Large and Public Laws on Congress.gov using a range of search terms

related to CEs.35 The Statutes at Large are behind in publication on Congress.gov and are

available only through the 115th Congress. Thus, CRS searched the Statutes at Large for the 115th

Congress and earlier, and searched Public Laws for the 116th Congress to the present.

CRS made every effort to locate all such provisions; however, the inventory in this appendix may

not be an exhaustive list of every potentially relevant CE. Together, the tables highlight the

diversity of legislative approaches to CEs and illustrate how Congress has directed federal

agencies to develop CEs (i.e., “congressionally directed CEs”) and established CEs directly

through statute (i.e., “statutory CEs”) as mechanisms to streamline compliance with the National

Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et seq.) for certain categories of federal

actions.

Table A-1 presents specific instances where Congress directed federal agencies to develop CEs.

For each congressionally directed CE identified, CRS includes the statutory language, relevant

information related to the agency’s administrative process, and the established CE located in the

agency’s NEPA procedures. For each provision that directed an agency to establish a CE, CRS

searched the Federal Register to locate agency actions issued in response to the congressional

direction or related to the context in which the CE was established. Table A-2 lists specific

instances of statutory CEs that Congress directly established in law. For each statutory CE, CRS

includes the statutory language and the applicable agency or department. For both tables, entries

are organized chronologically by the enactment date of the relevant public law, and sections of

the statute containing text that is not directly relevant to CE direction have been omitted as noted.

35 CRS searched Congress.gov using the following terms and phrases: “categorical exclusion,” “categorically

excluded,” “categorically excluded from the requirement,” “category of actions,” “excluded,” “preparation of an

environmental assessment,” “preparation of an environmental impact statement,” “preparation of an environmental

document,” and “national environmental policy act.” CRS searched variations of these terms and phrases and searched

them in proximity to one another.

Congressional Research Service

Table A-1. Inventory of Congressionally Directed Categorical Exclusions (CEs) and the Agency’s Action

Entries are based on a search conducted on April 8, 2025

Public

Law/Statute

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

P.L. 104-59,

§316

(repealed by

P.L. 112-141,

§1108(d));

109 Stat. 568,

588

SEC. 316. STREAMLINING FOR

TRANSPORTATION ENHANCEMENT

PROJECTS.

Section 133(e) of title 23, United States Code, is

amended—

[omitted sections irrelevant to CE direction]

“(5) TRANSPORTATION ENHANCEMENT

ACTIVITIES.—

“(A) CATEGORICAL EXCLUSIONS.—To the

extent appropriate, the Secretary shall develop

categorical exclusions from the requirement

that an environmental assessment or an

environmental impact statement under section

102 of the National Environmental Policy Act of

1969 (42 U.S.C. 4332) be prepared for

transportation enhancement activities funded

from the allocation required by subsection

(d)(2).”

To implement Section 316 of P.L. 10459, the Federal Highway

Administration (FHWA) and Federal

Transit Administration (FTA)

published a notice of proposed

rulemaking (NPRM) on May 5, 2000

(65 Federal Register 33960), to update

and revise their National

Environmental Policy Act (NEPA)

implementing regulations for projects

funded or approved by FHWA and

FTA and to seek public comment on

the proposal. Among other things, the

NPRM proposed to modify one CE

and add three new CEs to incorporate

transportation enhancement activities.

On September 20, 2002, FHWA and

FTA withdrew the proposed

rulemaking (67 Federal Register 59225),

stating that “the proposed changes

generated such a diversity and

disparity of comments that substantial

further work is necessary to develop

new proposals to accommodate these

comments.”

Rulemaking was withdrawn. No new CEs were established.

In 2012, Section 1108(d) of P.L. 112-141 struck the CE

language from 23 U.S.C. §133(e).

P.L. 109-59,

§6010;

119 Stat.

1144, 1877

SEC. 6010. ENVIRONMENTAL REVIEW OF

ACTIVITIES THAT SUPPORT DEPLOYMENT

OF INTELLIGENT TRANSPORTATION

SYSTEMS.

(a) CATEGORICAL EXCLUSIONS.—Not later

than one year after the date of enactment of

To implement Section 6010 of P.L.

109-59, FHWA published an NPRM

on August 7, 2007 (72 Federal Register

44038), to, among other things,

propose adding a new CE to its NEPA

23 C.F.R. §771.117(c)(21) “Deployment of electronics,

photonics, communications, or information processing used

singly or in combination, or as components of a fully

integrated system, to improve the efficiency or safety of a

surface transportation system or to enhance security or

passenger convenience. Examples include, but are not

CRS-14

CE(s) Established by the Agency’s Action

Public

Law/Statute

P.L. 112-141,

§1315;

126 Stat. 405,

549

CRS-15

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

this Act, the Secretary shall initiate a rulemaking

process to establish, to the extent appropriate,

categorical exclusions for activities that support

the deployment of intelligent transportation

infrastructure and systems from the

requirement that an environmental assessment

or an environmental impact statement be

prepared under section 102 of the National

Environmental Policy Act of 1969 (42 U.S.C.

4332) in compliance with the standards for

categorical exclusions established by that Act.

regulations at 23 C.F.R. §771.117 and

to seek comments on the proposal.

On March 24, 2009, FHWA published

a final rule (74 Federal Register 12518)

to, among other things, revise certain

aspects of the CE based on public

comment and to incorporate the new

CE into its NEPA regulations at 23

C.F.R. §771.117(c)(21).

limited to, traffic control and detector devices, lane

management systems, electronic payment equipment,

automatic vehicle locaters, automated passenger counters,

computer-aided dispatching systems, radio communications

systems, dynamic message signs, and security equipment

including surveillance and detection cameras on roadways

and in transit facilities and on buses.”

SEC. 1315. CATEGORICAL EXCLUSIONS IN

EMERGENCIES.

(a) IN GENERAL.—Not later than 30 days after

the date of enactment of this Act, for the repair

or reconstruction of any road, highway, or

bridge that is in operation or under

construction when damaged by an emergency

declared by the Governor of the State and

concurred in by the Secretary, or for a disaster

or emergency declared by the President

pursuant to the Robert T. Stafford Disaster

Relief and Emergency Assistance Act (42 U.S.C.

5121 et seq.), the Secretary shall publish a

notice of proposed rulemaking to treat any such

repair or reconstruction activity as a class of

action categorically excluded from the

requirements relating to environmental

assessments or environmental impact

statements under section 1508.4 of title 40,

Code of Federal Regulations, and section

771.117 of title 23, Code of Federal Regulations

(as in effect on the date of enactment of this

Act) if such repair or reconstruction activity

is—

(1) in the same location with the same capacity,

dimensions, and design as the original road,

To implement Section 1315 of P.L.

112-141, FHWA and FTA published

an NPRM on October 1, 2012 (77

Federal Register 59875), to modify an

existing CE for emergency repair

projects to conform to the

descriptions in P.L. 112-141 and to

seek comments on the proposal.

On February 19, 2013, FHWA and

FTA published a final rule (78 Federal

language based on public comment

and incorporating the new CE into its

NEPA regulations at 23 C.F.R.

§771.117(c)(9) and §771.118(c)(11).

23 C.F.R. 771.117(c)(9) “The following actions for

transportation facilities damaged by an incident resulting in

an emergency declared by the Governor of the State and

concurred in by the Secretary, or a disaster or emergency

declared by the President pursuant to the Robert T. Stafford

Act (42 U.S.C. 5121):

“(i) Emergency repairs under 23 U.S.C. 125; and

“(ii) The repair, reconstruction, restoration, retrofitting, or

replacement of any road, highway, bridge, tunnel, or transit

facility (such as a ferry dock or bus transfer station),

including ancillary transportation facilities (such as

pedestrian/bicycle paths and bike lanes), that is in operation

or under construction when damaged and the action:

“(A) Occurs within the existing right-of-way and in a manner

that substantially conforms to the preexisting design,

function, and location as the original (which may include

upgrades to meet existing codes and standards as well as

upgrades warranted to address conditions that have changed

since the original construction); and

“(B) Is commenced within a 2-year period beginning on the

date of the declaration.”

CE(s) Established by the Agency’s Action

23 C.F.R. 771.118(c)11) “The following actions for

transportation facilities damaged by an incident resulting in

an emergency declared by the Governor of the State and

Public

Law/Statute

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

highway, or bridge as before the declaration

described in this section; and

(2) commenced within a 2-year period beginning

on the date of a declaration described in this

section.

(b) RULEMAKING.—

(1) IN GENERAL.—The Secretary shall ensure

that the rulemaking helps to conserve Federal

resources and protects public safety and health

by providing for periodic evaluations to

determine if reasonable alternatives exist to

roads, highways, or bridges that repeatedly

require repair and reconstruction activities.

(2) REASONABLE ALTERNATIVES.—The

reasonable alternatives described in paragraph

(1) include actions that could reduce the need

for Federal funds to be expended on such repair

and reconstruction activities, better protect

public safety and health and the environment,

and meet transportation needs as described in

relevant and applicable Federal, State, local and

tribal plans.

P.L. 112-141,

§1316-§1317;

126 Stat. 405,

549

CRS-16

SEC. 1316. CATEGORICAL EXCLUSIONS

FOR PROJECTS WITHIN THE RIGHT-OFWAY.

(a) IN GENERAL.—The Secretary shall—

(1) not later than 180 days after the date of

enactment of this Act, designate any project (as

defined in section 101(a) of title 23, United

States Code) within an existing operational

right-of-way as an action categorically excluded

from the requirements relating to

environmental assessments or environmental

impact statements under section 1508.4 of title

40, Code of Federal Regulations, and section

CE(s) Established by the Agency’s Action

concurred in by the Secretary, or a disaster or emergency

declared by the President pursuant to the Robert T. Stafford

Act (42 U.S.C. 5121):

“(i) Emergency repairs under 49 U.S.C. 5324; and

“(ii) The repair, reconstruction, restoration, retrofitting, or

replacement of any road, highway, bridge, tunnel, or transit

facility (such as a ferry dock or bus transfer station),

including ancillary transportation facilities (such as

pedestrian/bicycle paths and bike lanes), that is in operation

or under construction when damaged and the action:

“(A) Occurs within the existing right-of-way and in a manner

that substantially conforms to the preexisting design,

function, and location as the original (which may include

upgrades to meet existing codes and standards as well as

upgrades warranted to address conditions that have changed

since the original construction); and

“(B) Is commenced within a 2-year period beginning on the

date of the declaration.”

To implement Section 1316 and 1317

of P.L. 112-141, FHWA and FTA

published an NPRM on February 28,

2013 (78 Federal Register 13609), to

propose adding new CEs to its NEPA

regulations at 23 C.F.R. §771.117 and

§771.118 and to seek comments on

the proposal.

On January 13, 2014, FHWA and FTA

published a final rule (79 Federal

language based on public comment

and to incorporate the new CE into

23 C.F.R. §771.117(c)(22) “Projects, as defined in 23 U.S.C.

101, that would take place entirely within the existing

operational right-of-way. Existing operational right-of-way

refers to right-of-way that has been disturbed for an existing

transportation facility or is maintained for a transportation

purpose. This area includes the features associated with the

physical footprint of the transportation facility (including the

roadway, bridges, interchanges, culverts, drainage, fixed

guideways, mitigation areas, etc.) and other areas maintained

for transportation purposes such as clear zone, traffic

control signage, landscaping, any rest areas with direct

access to a controlled access highway, areas maintained for

safety and security of a transportation facility, parking

facilities with direct access to an existing transportation

Public

Law/Statute

CRS-17

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

771.117(c) of title 23, Code of Federal

Regulations; and

(2) not later than 150 days after the date of

enactment of this Act, promulgate regulations

to carry out paragraph (1).

SEC. 1317. CATEGORICAL EXCLUSION FOR

PROJECTS OF LIMITED FEDERAL

ASSISTANCE. Not later than 180 days after the

date of enactment of this Act, the Secretary

shall—

(1) designate as an action categorically excluded

from the requirements relating to

environmental assessments or environmental

impact statements under section 1508.4 of title

40, Code of Federal Regulations, and section

771.117(c) of title 23, Code of Federal

Regulations, any project—

(A) that receives less than $5,000,000 of Federal

funds; or

(B) with a total estimated cost of not more than

$30,000,000 and Federal funds comprising less

than 15 percent of the total estimated project

cost; and

(2) not later than 150 days after the date of

enactment of this Act, promulgate regulations

to carry out paragraph (1).

its NEPA regulations at 23 C.F.R. Part

771.

CE(s) Established by the Agency’s Action

facility, transit power substations, transit venting structures,

and transit maintenance facilities. Portions of the right-ofway that have not been disturbed or that are not maintained

for transportation purposes are not in the existing

operational right-of-way.”

23 C.F.R. §771.117(c)(23) “Federally funded projects:

“(i) That receive less than $5,000,000 of Federal funds; or

“(ii) With a total estimated cost of not more than

$30,000,000 and Federal funds comprising less than 15

percent of the total estimated project cost.”a

23 C.F.R. §771.118(c)(12) “Projects, as defined in 23 U.S.C.

101, that would take place entirely within the existing

operational right-of-way. Existing operational right-of-way

refers to right-of-way that has been disturbed for an existing

transportation facility or is maintained for a transportation

purpose. This area includes the features associated with the

physical footprint of the transportation facility (including the

roadway, bridges, interchanges, culverts, drainage, fixed

guideways, mitigation areas, etc.) and other areas maintained

for transportation purposes such as clear zone, traffic

control signage, landscaping, any rest areas with direct

access to a controlled access highway, areas maintained for

safety and security of a transportation facility, parking

facilities with direct access to an existing transportation

facility, transit power substations, transit venting structures,

and transit maintenance facilities. Portions of the right-ofway that have not been disturbed or that are not maintained

for transportation purposes are not in the existing

operational right-of-way.”

23 C.F.R. §771.118(c)(13) “Federally funded projects:

“(i) That receive less than $5,000,000 of Federal funds; or

“(ii) With a total estimated cost of not more than

$30,000,000 and Federal funds comprising less than 15

percent of the total estimated project cost.”a

Public

Law/Statute

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

CE(s) Established by the Agency’s Action

P.L. 112-141,

§1318;

26 Stat. 405,

550

SEC. 1318. PROGRAMMATIC AGREEMENTS

AND ADDITIONAL CATEGORICAL

EXCLUSIONS.

(a) IN GENERAL.—Not later than 60 days after

the date of enactment of this Act, the Secretary

shall—

(1) survey the use by the Department of

categorical exclusions in transportation projects

since 2005;

(2) publish a review of the survey that includes a

description of—

(A) the types of actions categorically excluded;

and

(B) any requests previously received by the

Secretary for new categorical exclusions; and

(3) solicit requests from State departments of

transportation, transit authorities, metropolitan

planning organizations, or other government

agencies for new categorical exclusions.

(b) NEW CATEGORICAL EXCLUSIONS.—

Not later than 120 days after the date of

enactment of this Act, the Secretary shall

publish a notice of proposed rulemaking to

propose new categorical exclusions received by

the Secretary under subsection (a), to the

extent that the categorical exclusions meet the

criteria for a categorical exclusion under section

1508.4 of title 40, Code of Federal Regulations,

and section 771.117(a) of title 23, Code of

Federal Regulations (as those regulations are in

effect on the date of the notice).

shall issue a proposed rulemaking to move the

following types of actions from subsection (d) of

section 771.117 of title 23, Code of Federal

To implement Section 1318(a) of P.L.

112-141, FHWA and FTA published a

notice of availability on December 13,

2012 (77 Federal Register 74266) of the

results of the congressionally directed

survey to identify CEs used in

transportation projects since 2005

and the solicitation of requests for

new CEs from state departments of

transportation, transit authorities,

metropolitan planning organizations,

and other government agencies.

To implement Section 1318(b) of P.L.

112-141, FHWA and FTA published

an NPRM on September 19, 2013 (78

Federal Register 57587), to, among

other things, propose adding four new

CEs to FHWA’s list at 23 C.F.R.

§771.117(c) and three new CEs to

FTA’s list at 23 C.F.R. §771.118(c). To

implement Section 1813(c) of P.L.

112-141, FHWA and FTA’s NPRM

also proposed moving three CEs from

23 C.F.R. §771.117(d) to §771.117(c).b

The proposed rule sought public

comments on the proposed changes.

On October 6, 2014, FHWA and FTA

published a final rule (79 Federal

things, revise certain aspects of the

CEs based on public comment,

incorporate the new CEs into its

NEPA regulations at 23 C.F.R.

§771.117(c) and §771.118(c), and

make conforming amendments to 23

C.F.R. §771.117(d).

New CEs added to 23 C.F.R. §771.117(c) include the

following:

“(24) Localized geotechnical and other investigation to

provide information for preliminary design and for

environmental analyses and permitting purposes, such as

drilling test bores for soil sampling; archeological

investigations for archeology resources assessment or

similar survey; and wetland surveys.

“(25) Environmental restoration and pollution abatement

actions to minimize or mitigate the impacts of any existing

transportation facility (including retrofitting and construction

of stormwater treatment systems to meet Federal and State

requirements under sections 401 and 402 of the Federal

Water Pollution Control Act (33 U.S.C. 1341; 1342))

carried out to address water pollution or environmental

degradation.

“(29) Purchase, construction, replacement, or rehabilitation

of ferry vessels (including improvements to ferry vessel

safety, navigation, and security systems) that would not

require a change in the function of the ferry terminals and

can be accommodated by existing facilities or by new

facilities which themselves are within a CE.

“(30) Rehabilitation or reconstruction of existing ferry

facilities that occupy substantially the same geographic

footprint, do not result in a change in their functional use,

and do not result in a substantial increase in the existing

facility's capacity. Example actions include work on

pedestrian and vehicle transfer structures and associated

utilities, buildings, and terminals.”

New CEs added to 23 C.F.R. §771.118(c) include the

following:

“(14) Bridge removal and bridge removal related activities,

such as in-channel work, disposal of materials and debris in

accordance with applicable regulations, and transportation

facility realignment.

CRS-18

Public

Law/Statute

P.L. 113-121,

§1005;

128 Stat.

1193, 1211

CRS-19

Statutory Language Directing an Agency

to Establish a CE

Regulations (as in effect on the date of

enactment of this Act), to subsection (c) of that

section, to the extent that such movement

complies with the criteria for a categorical

exclusion under section 1508.4 of title 40, Code

of Federal Regulations (as in effect on the date

of enactment of this Act):

(1) Modernization of a highway by resurfacing,

restoration, rehabilitation, reconstruction,

adding shoulders, or adding auxiliary lanes

(including parking, weaving, turning, and

climbing).

(2) Highway safety or traffic operations

improvement projects, including the installation

of ramp metering control devices and lighting.

(3) Bridge rehabilitation, reconstruction, or

replacement or the construction of grade

separation to replace existing at-grade railroad

crossings.

SEC. 1005. PROJECT ACCELERATION.

(a) PROJECT ACCELERATION.—

(1) AMENDMENT.—Section 2045 of the Water

Resources Development Act of 2007 (33 U.S.C.

2348) is amended to read as follows:

[omitted sections irrelevant to CE direction]

“(l) CATEGORICAL EXCLUSIONS.—

“(1) IN GENERAL.—Not later than 180 days

after the date of enactment of the Water

Resources Reform and Development Act of

2014, the Secretary shall—

“(A) survey the use by the Corps of Engineers

of categorical exclusions in projects since 2005;

“(B) publish a review of the survey that includes

a description of—

Agency Action in Response to

the Congressional Direction

CE(s) Established by the Agency’s Action

“(15) Preventative maintenance, including safety treatments,

to culverts and channels within and adjacent to

transportation right-of-way to prevent damage to the

transportation facility and adjoining property, plus any

necessary channel work, such as restoring, replacing,

reconstructing, and rehabilitating culverts and drainage

pipes; and, expanding existing culverts and drainage pipes.

“(16) Localized geotechnical and other investigations to

provide information for preliminary design and for

environmental analyses and permitting purposes, such as

drilling test bores for soil sampling; archeological

investigations for archeology resources assessment or

similar survey; and wetland surveys.”

According to the July 2024 U.S.

Government Accountability Office

(GAO) report entitled, Army Corps of

Engineers: Additional Steps Needed to

Implement Acceleration Reforms, the

Corps has not fully addressed these

provisions, which relate to the

agency’s civil works project studies

(e.g., its water resources studies).c

Specifically, the GAO report states,

“[a]ccording to Corps officials, the

Corps intends to submit new

categorical exclusions to the Council

[on] Environmental Quality (CEQ)

when it submits its revised NEPA

procedures in July or August 2024 for

The Corps had not established new CEs following the

congressional direction in P.L. 113-121.

Public

Law/Statute

P.L. 114-94,

§11503;

129 Stat.

1312, 1691

CRS-20

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

“(i) the types of actions that were categorically

excluded or could be the basis for developing a

new categorical exclusion; and

“(ii) any requests previously received by the

Secretary for new categorical exclusions; and

“(C) solicit requests from other Federal

agencies and project sponsors for new

categorical exclusions.

“(2) NEW CATEGORICAL EXCLUSIONS.—

Not later than 1 year after the date of

enactment of the Water Resources Reform and

Development Act of 2014, if the Secretary has

identified a category of activities that merit

establishing a categorical exclusion that did not

exist on the day before the date of enactment

of the Water Resources Reform and

Development Act of 2014 based on the review

under paragraph (1), the Secretary shall publish

a notice of proposed rulemaking to propose

that new categorical exclusion, to the extent

that the categorical exclusion meets the criteria

for a categorical exclusion under section 1508.4

of title 40, Code of Federal Regulations (or

successor regulation).”

SEC. 11503. EFFICIENT ENVIRONMENTAL

REVIEWS.

(a) AMENDMENT.—Title 49, United States

Code, is amended by inserting after chapter 241

the following new chapter:

“CHAPTER 242—PROJECT DELIVERY

[omitted sections irrelevant to CE direction]

“(b) ADDITIONAL CATEGORICAL

EXCLUSIONS.—Not later than 6 months after

the date of enactment of the Passenger Rail

CEQ approval as a part of its required

revisions of its NEPA procedures.”d

To implement Section 11503(a) of P.L.

114-94, the Federal Railroad

Administration (FRA) published a

notice on June 2, 2016 (81 Federal

survey to identify CEs used in

transportation projects since 2005

and a solicitation for public comment

of new CEs for the FRA to consider.

On September 29, 2017, FHWA, FTA,

and FRA published a supplemental

NPRM (82 Federal Register 45530) to,

CE(s) Established by the Agency’s Action

FRA added 22 new CEs for the FRA. Types of action

covered by new CEs included

•

administrative actions (e.g., administrative

procurement; personnel actions; planning or design

activities; establishing internal policies and procedures;

certain rulemakings, hearings, meetings, or public

affairs);

•

“planning or design activities that do not commit to a

particular course of action”;

•

financial assistance for already completed actions (e.g.,

refinancing outstanding debt);

Public

Law/Statute

P.L. 115-254,

§1220;

132 Stat.

3186, 3453

CRS-21

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

Reform and Investment Act of 2015, the

Secretary shall—

“(1) survey the use by the Federal Railroad

Administration of categorical exclusions in

transportation projects since 2005; and

“(2) publish in the Federal Register for notice

and public comment a review of the survey that

includes a description of—

“(A) the types of actions categorically excluded;

and

“(B) any actions the Secretary is considering for

new categorical exclusions, including those that

would conform to those of other modal

administrations.

“(c) NEW CATEGORICAL EXCLUSIONS.—

Not later than 1 year after the date of

enactment of the Passenger Rail Reform and

Investment Act of 2015, the Secretary shall

publish a notice of proposed rulemaking to

propose new and existing categorical exclusions

for railroad projects that require the approval of

the Secretary under the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et seq.),

including those identified under subsection (b),

and develop a process for considering new

categorical exclusions to the extent that the

categorical exclusions meet the criteria for a

categorical exclusion under section 1508.4 of

title 40, Code of Federal Regulations.”

SEC. 1220. UNIFIED FEDERAL

ENVIRONMENTAL AND HISTORIC

PRESERVATION REVIEW.

(a) REVIEW AND ANALYSIS.—Not later than

180 days after the date of enactment of this Act,

the Administrator shall review the Unified

Federal Environmental and Historic

among other things, establish NEPA

implementing procedures, which

included 22 new CEs for FRA at 23

C.F.R. §771.116.

•

maintenance, repair, or operating assistance for certain

existing railroad facilities;

•

emergency repair or replacement of certain existing rail

facilities damaged by natural disaster or catastrophic

failure;

On October 29, 2019, FHWA, FTA,

and FRA published a final rule (83

Federal Register 54480) to, among

other things, add the FRA to existing

FHWA and FTA NEPA implementing

regulations, establish CEs for the FRA,

revise certain aspects of the CEs

based on public comment, and

incorporate the new CEs into its

NEPA regulations at 23 C.F.R.

§771.116(c).

•

certain activities within existing rail rights-of-way (e.g.,

research and development, minor rail line additions,

accessibility modifications, upgrades for safety);

•

“acquisition or transfer of real property or existing

railroad facilities”;

•

environmental restoration, remediation, and other

mitigation activities; and

On July 2, 2024, the Department of

Homeland Security (DHS) published a

notice (89 Federal Register 54850)

adopting 18 CEs established by the

Department of Energy.e

DHS and the Federal Emergency Management Agency

(FEMA) NEPA procedures are contained in Instruction

Manual 023-01-001-01, Revision 01, Implementation of

NEPA. DHS’s NEPA procedures were last updated in 2014,

prior to enactment of P.L. 115-254. Publication of the

Federal Register notice makes the CEs available for DHS and

FEMA.

CE(s) Established by the Agency’s Action

•

other activities that “do not result in a major change in

traffic density” or result in “less than ten acres of

surface disturbance” (e.g., storage and maintenance

facilities, freight or passenger loading, parking facilities).

For the full list, see 23 C.F.R. §771.116(c).

Public

Law/Statute

Statutory Language Directing an Agency

to Establish a CE

Preservation review process established

pursuant to section 429 of the Robert T.

Stafford Disaster Relief and Emergency

Assistance Act (42 U.S.C. 5189g), and submit a

report to the Committee on Transportation

and Infrastructure of the House of

Representatives and the Committee on

Homeland Security and Governmental Affairs of

the Senate that includes the following:

(1) An analysis of whether and how the unified

process has expedited the interagency review

process to ensure compliance with the

environmental and historic requirements under

Federal law relating to disaster recovery

projects.

(2) A survey and analysis of categorical

exclusions used by other Federal agencies that

may be applicable to any activity related to a

major disaster or emergency declared by the

President under section 401 or 501,

respectively, of the Robert T. Stafford Disaster

Relief and Emergency Assistance Act (42 U.S.C.

5170, 5191).

(3) Recommendations on any further actions,

including any legislative proposals, needed to

expedite and streamline the review process.

(b) REGULATIONS.—After completing the

review, survey, and analyses under subsection

(a), but not later than 2 years after the date of

enactment of this Act, and after providing notice

and opportunity for public comment, the

Administrator shall issue regulations to

implement any regulatory recommendations,

including any categorical exclusions identified

under subsection (a), to the extent that the

categorical exclusions meet the criteria for a

categorical exclusion under section 1508.4 of

CRS-22

Agency Action in Response to

the Congressional Direction

CE(s) Established by the Agency’s Action

As a result of P.L. 115-254, DHS and FEMA added 18 new

CEs. Types of actions covered by new CEs, included

•

facility maintenance and structural modifications (e.g.,

removal of asbestos-containing materials);

•

modifications to traffic patterns within existing rightsof-way;

•

site characterization, environmental monitoring, and

testing activities (e.g., well drilling, air and water

sampling, geophysical and ecological surveys, and

outdoor testing of material and equipment);

•

aviation-based monitoring and surveillance (e.g.,

unmanned aircraft systems);

•

research, development, and pilot projects (e.g., smallscale research and development [R&D], renewable

energy R&D, and installation of solar photovoltaic

systems);

•

electrical transmission infrastructure projects (e.g.,

maintenance and upgrades to existing transmission

facilities, decommissioning transmission rights-of-way,

construction or modification of power substations and

interconnection facilities, construction of certain new

powerlines); and

•

construction, operation, and decommissioning of

energy storage systems (e.g., battery or flywheel

systems).

For the full list, see 89 Federal Register 54850.f

Public

Law/Statute

P.L. 117-58,

§11301;

135 Stat. 429,

529

CRS-23

Statutory Language Directing an Agency

to Establish a CE

title 40, Code of Federal Regulations, and

section II of DHS Instruction Manual 023–01–

001–01.

SEC. 11301. CODIFICATION OF ONE

FEDERAL DECISION.

(a) IN GENERAL.—Section 139 of title 23,

United States Code, is amended—

[omitted sections irrelevant to CE direction]

“(q) DEVELOPMENT OF CATEGORICAL

EXCLUSIONS.—

“(1) IN GENERAL.—Not later than 60 days

after the date of enactment of this subsection,

and every 4 years thereafter, the Secretary

shall—

“(A) in consultation with the agencies described

in paragraph (2), identify the categorical

exclusions described in section 771.117 of title

23, Code of Federal Regulations (or successor

regulations), that would accelerate delivery of a

project if those categorical exclusions were

available to those agencies;

“(B) collect existing documentation and

substantiating information on the categorical

exclusions described in subparagraph (A); and

“(C) provide to each agency described in

paragraph (2)—

“(i) a list of the categorical exclusions identified

under subparagraph (A); and

“(ii) the documentation and substantiating

information under subparagraph (B).

“(2) AGENCIES DESCRIBED.—The agencies

referred to in paragraph (1) are—

“(A) the Department of the Interior;

“(B) the Department of the Army;

Agency Action in Response to

the Congressional Direction

To implement Section 11301(a) of P.L.

117-58, Department of

Transportation (DOT) states that it

“provided the CE substantiation

information to the Federal Agencies

for 4 CEs on January 14, 2022.”g

CRS did not identify any subsequent

federal agency action by the

Departments of the Interior, Army,

Commerce, Agriculture, Energy, or

Defense rulemaking to establish four

CEs in response to the congressional

direction in P.L. 117-58.

CE(s) Established by the Agency’s Action

CRS was unable to identify the four CEs that DOT provided

to the federal agencies or to find that any CEs were

established in response to Section 11301(a) of P.L. 117-58.

Public

Law/Statute

P.L. 118-63,

§230;

138 Stat.

1025, 1064

CRS-24

Statutory Language Directing an Agency

to Establish a CE

“(C) the Department of Commerce;

“(D) the Department of Agriculture;

“(E) the Department of Energy;

“(F) the Department of Defense; and

“(G) any other Federal agency that has

participated in an environmental review process

for a project, as determined by the Secretary.

“(3) ADOPTION OF CATEGORICAL

EXCLUSIONS.—

“(A) IN GENERAL.—Not later than 1 year after

the date on which the Secretary provides a list

under paragraph (1)(C), an agency described in

paragraph (2) shall publish a notice of proposed

rulemaking to propose any categorical

exclusions from the list applicable to the agency,

subject to the condition that the categorical

exclusion identified under paragraph (1)(A)

meets the criteria for a categorical exclusion

under section 1508.1 of title 40, Code of

Federal Regulations (or successor regulations).

“(B) PUBLIC COMMENT.—In a notice of

proposed rulemaking under subparagraph (A),

the applicable agency may solicit comments on

whether any of the proposed new categorical

exclusions meet the criteria for a categorical

exclusion under section 1508.1 of title 40, Code

of Federal Regulations (or successor

regulations).”

SEC. 230. REVIEW AND UPDATES OF

CATEGORICAL EXCLUSIONS.

(a) REVIEW.—Not later than 1 year after the

date of enactment of this Act, the Secretary

shall identify each categorical exclusion under

the jurisdiction of the Department of

Agency Action in Response to

the Congressional Direction

CRS did not identify any agency

rulemaking in response to the

congressional direction in P.L. 118-63,

§230.h

CE(s) Established by the Agency’s Action

The Federal Aviation Administration (FAA) has not

established new CEs in response to the congressional

direction in P.L. 118-63.

Public

Law/Statute

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

P.L. 118-63,

§953;

138 Stat.

1025, 1376

Transportation, including any operating

administration within the Department.

(b) NEW CATEGORICAL EXCLUSIONS FOR

AIRPORT PROJECTS.—Not later than 2 years

after the date of enactment of this Act, the

Administrator shall—

(1) review the categorical exclusions applied by

other operating administrations identified in

subsection (a); and

(2) take such action as may be necessary to

adopt, as relevant and appropriate, new

categorical exclusions that meet the

requirements of section 1508.4 of title 40, Code

of Federal Regulations, from among categorical

exclusions reviewed by the Secretary in

paragraph (1) for use by the FAA.

SEC. 953. APPLICATION OF NATIONAL

ENVIRONMENTAL POLICY ACT

CATEGORICAL EXCLUSIONS FOR

VERTIPORT PROJECTS.

In considering the environmental impacts of a

proposed vertiport project on an airport for

purposes of compliance with the National

Environmental Policy Act of 1969 (42 U.S.C.

4321 et seq.), the Administrator shall—

(1) apply any applicable categorical exclusions in

accordance with the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et seq.) and

subchapter A of chapter V of title 40, Code of

Federal Regulations; and

(2) after consultation with the Council on

Environmental Quality, take steps to establish

additional categorical exclusions, as appropriate,

for vertiports on an airport, in accordance with

the National Environmental Policy Act of 1969

(42 U.S.C. 4321 et seq.) and subchapter A of

CRS did not identify any agency

rulemaking in response to the

congressional direction in P.L. 118-63,

§953.h

CRS-25

CE(s) Established by the Agency’s Action

The FAA has not established new CEs in response to the

congressional direction in P.L. 118-63.

Public

Law/Statute

P.L. 118-159,

§3511;

138 Stat.

1773, 2307

CRS-26

Statutory Language Directing an Agency

to Establish a CE

chapter V of title 40, Code of Federal

Regulations.

SEC. 3511. PORT INFRASTRUCTURE

DEVELOPMENT PROGRAM.

[omitted sections irrelevant to CE direction]

CATEGORICAL EXCLUSIONS.—

(1) IN GENERAL.—Not later than 1 year after

the date of enactment of this section, the

Maritime Administrator shall issue a notice in

the Federal Register including the categorical

exclusions in use as of the date of enactment of

this section by the Maritime Administration for

actions or projects the Maritime Administration

oversees. The Maritime Administrator may

subsequently update such categorical exclusions.

Nothing in this section shall be interpreted to

limit any existing authority of the Maritime

Administration to approve, promulgate, or

publish categorical exclusions consistent with

the National Environmental Policy Act of 1969

(42 U.S.C. 4321 et seq.) or any other applicable

law.

(2) SURVEY AND PROPOSED

RULEMAKING.—Not later than 1 year after

the date of enactment of this section, the

Maritime Administrator shall—

(A) survey the use of categorical exclusions by

the Maritime Administration with respect to

projects initiated during or after 2015;

(B) publish on a public website the results of

that survey, which shall include a description of

the types of actions categorically excluded and

any additional categorical exclusions that were

legally available to the Maritime Administrator

from other operating administrations and the

Agency Action in Response to

the Congressional Direction

CRS did not identify any agency

rulemaking in response to the

congressional direction in P.L. 118159, §3511.i

CE(s) Established by the Agency’s Action

The Maritime Administration has not established new CEs in

response to the congressional direction in P.L. 118-159.

Public

Law/Statute

P.L. 118-234,

§312;

138 Stat.

2836, 2898

CRS-27

Statutory Language Directing an Agency

to Establish a CE

Department of the Army but were or were not

adopted; and

propose new Maritime Administration

categorical exclusions for projects and a process

by which the Maritime Administration will

update the list of categorical exclusions to

reflect lessons learned in grant administration

and project construction.

SEC. 312. PERMITTING PROCESS

IMPROVEMENTS.

[omitted sections irrelevant to CE direction]

(b) ENVIRONMENTAL REVIEWS.—

(1) IN GENERAL.—The Secretary concerned

shall, to the maximum extent practicable, utilize

available tools, including tiering to existing

programmatic reviews, as appropriate, to

facilitate an effective and efficient environmental

review process for activities undertaken by the

Secretary concerned relating to the issuance of

special recreation permits.

(2) CATEGORICAL EXCLUSIONS.—Not later

than 2 years after the date of the enactment of

this title, the Secretary concerned shall—

(A) evaluate whether existing categorical

exclusions available to the Secretary concerned

on the date of the enactment of this title are

consistent with the provisions of this title;

(B) evaluate whether a modification of an

existing categorical exclusion or the

establishment of 1 or more new categorical

exclusions developed in compliance with the

National Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.) is necessary to undertake

an activity described in paragraph (1) in a

Agency Action in Response to

the Congressional Direction

CRS did not identify any agency

rulemaking in response to the

congressional direction in P.L. 118234, §312.h

CE(s) Established by the Agency’s Action

The Departments of Agriculture and the Interior had not

established new CEs in response to the congressional

direction in P.L. 118-234, §312.

Public

Law/Statute

Statutory Language Directing an Agency

to Establish a CE

Agency Action in Response to

the Congressional Direction

CE(s) Established by the Agency’s Action

manner consistent with the authorities and

requirements in this title; and

statements and guidance documents, as

necessary, to modify existing categorical

exclusions or incorporate new categorical

exclusions based on evaluations conducted

under this paragraph.

Source: CRS.

Notes: This table compiles congressionally directed CEs identified through a review of federal statutes in which Congress instructed an agency to establish a CE. For

each provision, the table includes the congressional directive, relevant information on the agency’s action in response to congressional direction, and the CE as codified in

the Code of Federal Regulations or the agency’s NEPA procedures. In some instances, portions of the statutory text that are not relevant to the CE direction have been

omitted for clarity and conciseness. CRS attempted to locate all such provisions and corresponding agency actions in the Federal Register; however, the table may not be

exhaustive. Some directives may be embedded in broader statutory language or agency-specific legislation that does not explicitly identify the action as related to NEPA.

As a result, the table should be viewed as a representative, but potentially incomplete, inventory.

a. 23 C.F.R. §771.117(c)(23) and 23 C.F.R. §771.118(c)(13) were subsequently amended by P.L. 114-94, which adjusted the monetary limits annually for inflation based

on the Consumer Price Index prepared by the Department of Labor, and by P.L. 117-58, which raised the monetary limits from $5,000,000 to $6,000,000 and total

estimated costs from $30,000,000 to $35,000,000.

b. CEs classified under 23 C.F.R. §771.117(d) require approval from FHWA prior to application. Applicants must submit documentation that demonstrates that specific

conditions or criteria are satisfied. CEs classified under 23 C.F.R. §771.117(c) normally do not require any further NEPA approvals by FHWA.

c. U.S. Government Accountability Office, Army Corps of Engineers: Additional Steps Needed to Implement Acceleration Reforms, GAO-24-107072, July 17, 2024, p. 11,

https://www.gao.gov/assets/gao-24-107072.pdf.

d. CRS was unable to locate any record of the Corps subsequently updating its NEPA procedures to reflect additional or new CEs.

e. 42 U.S.C. §4336c allows a federal agency to adopt a CE listed in another agency’s NEPA procedures for a category of proposed agency actions for which the CE was

established. To adopt another agency’s CE, an agency must identify the relevant CE listed in that agency’s NEPA procedures that cover its category of proposed

actions or related actions; consult with that agency to ensure that the proposed adoption of the CE to a category of actions is appropriate; identify to the public the

CE that the agency plans to use for its proposed actions; and document adoption of the CE.

DHS, “Notice of Adoption of Department of Energy Categorical Exclusions Pursuant to Section 109 of the National Environmental Policy Act,” 89 Federal Register

54850, July 2, 2024.

g. FHWA, “Environmental Review Provisions in BIL/IIJA: Questions and Answers (Q&A),” September 8, 2022, https://www.environment.fhwa.dot.gov/legislation/

authorizations/bil/bil_qa.aspx.

h. At the time of publication of this report, less than two years have elapsed since this law was enacted.

At the time of publication of this report, less than one year has elapsed since this law was enacted.

CRS-28

Table A-2. Representative Inventory of Statutory Categorical Exclusions (CEs)

Entries are based on a search conducted on April 8, 2025

Public

Law/Statute

Department

or Agency

P.L. 108-148, §404;

117 Stat. 1887, 1910

Agriculture,

Forest Service

(FS)

SEC. 404.

(d) CATEGORICAL EXCLUSION.—

(1) IN GENERAL.—Applied silvicultural assessment and research treatments carried out under this section on not more than

1,000 acres for an assessment or treatment may be categorically excluded from documentation in an environmental impact

statement and environmental assessment under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(2) ADMINISTRATION.—Applied silvicultural assessments and research treatments categorically excluded under paragraph

(1)—

(A) shall not be carried out in an area that is adjacent to another area that is categorically excluded under paragraph (1) that is

being treated with similar methods; and

(B) shall be subject to the extraordinary circumstances procedures established by the Secretary pursuant to section 1508.4 of

title 40, Code of Federal Regulations. (3) MAXIMUM CATEGORICAL EXCLUSION.—The total number of acres categorically

excluded under paragraph (1) shall not exceed 250,000 acres.

(4) NO ADDITIONAL FINDINGS REQUIRED.—In accordance with paragraph (1), the Secretary shall not be required to

make any findings as to whether an applied silvicultural assessment project, either individually or cumulatively, has a significant

effect on the environment.

P.L. 108-447, §339;

118 Stat. 2809, 3103

Agriculture

SEC. 339. For fiscal years 2005 through 2007, a decision made by the Secretary of Agriculture to authorize grazing on an

allotment shall be categorically excluded from documentation in an environmental assessment or an environmental impact

statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321et seq.) if:

(1) the decision continues current grazing management of the allotment;

(2) monitoring indicates that current grazing management is meeting, or satisfactorily moving toward, objectives in the land and

resource management plan, as determined by the Secretary; and

(3) the decision is consistent with agency policy concerning extraordinary circumstances. The total number of allotments that

may be categorically excluded under this section may not exceed 900.a

P.L. 109-58, §390;

119 Stat. 594, 747

Agriculture, FS,

Interior, Bureau

of Land

Management

(BLM)

SEC. 390. NEPA REVIEW.

(a) NEPA REVIEW.—Action by the Secretary of the Interior in managing the public lands, or the Secretary of Agriculture in

managing National Forest System Lands, with respect to any of the activities described in subsection (b) shall be subject to a

rebuttable presumption that the use of a categorical exclusion under the National Environmental Policy Act of 1969 (NEPA)

would apply if the activity is conducted pursuant to the Mineral Leasing Act for the purpose of exploration or development of

oil or gas.

(b) ACTIVITIES DESCRIBED.—The activities referred to in subsection (a) are the following:

CRS-29

Text of the Provision Establishing a CE

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

(1) Individual surface disturbances of less than 5 acres so long as the total surface disturbance on the lease is not greater than

150 acres and site-specific analysis in a document prepared pursuant to NEPA has been previously completed.

(2) Drilling an oil or gas well at a location or well pad site at which drilling has occurred previously within 5 years prior to the

date of spudding the well.

(3) Drilling an oil or gas well within a developed field for which an approved land use plan or any environmental document

prepared pursuant to NEPA analyzed such drilling as a reasonably foreseeable activity, so long as such plan or document was

approved within 5 years prior to the date of spudding the well.

(4) Placement of a pipeline in an approved right-of-way corridor, so long as the corridor was approved within 5 years prior to

the date of placement of the pipeline.

(5) Maintenance of a minor activity, other than any construction or major renovation or a building or facility.

P.L. 111-8, §423;

123 Stat. 524, 748

Agriculture, FS

SEC. 423. LAKE TAHOE BASIN HAZARDOUS FUEL REDUCTION PROJECTS.

(a) Hereafter, subject to subsection (b), a proposal to authorize a hazardous fuel reduction project, not to exceed 5,000 acres,

including no more than 1,500 acres of mechanical thinning, on the Lake Tahoe Basin Management Unit may be categorically

excluded from documentation in an environmental impact statement or an environmental assessment under the National

Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) if the project:

(1) is consistent with the Lake Tahoe Basin Multi-Jurisdictional Fuel Reduction and Wildfire Prevention Strategy published in

December 2007 and any subsequent revisions to the Strategy;

(2) is not conducted in any wilderness areas; and

(3) does not involve any new permanent roads.

(b) A proposal that is categorically excluded under this section shall be subject to—

(1) the extraordinary circumstances procedures established by the Forest Service pursuant to section 1508.4 of title 40, Code

of Federal Regulations; and

(2) an opportunity for public input.

P.L. 112-95, §213;

126 Stat. 11, 49

Transportation,

Federal Aviation

Administration

(FAA)

(1) IN GENERAL.—Navigation performance and area navigation procedures developed, certified, published, or implemented

under this section shall be presumed to be covered by a categorical exclusion (as defined in section 1508.4 of title 40, Code of

Federal Regulations) under chapter 3 of FAA Order 1050.1E unless the Administrator determines that extraordinary

circumstances exist with respect to the procedure.

(2) NEXTGEN PROCEDURES.—Any navigation performance or other performance based navigation procedure developed,

certified, published, or implemented that, in the determination of the Administrator, would result in measurable reductions in

fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow

existing instrument flight rules procedures in the same airspace, shall be presumed to have no significant [e]ffect on the quality

of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure.

CRS-30

Public

Law/Statute

Department

or Agency

P.L. 113-24, §2;

127 Stat. 498, 498

Interior, Bureau

of Reclamation

SEC. 2. AUTHORIZATION. Section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)) is amended—

[omitted sections irrelevant to CE direction]

(5) by adding at the end the following:

[omitted sections irrelevant to CE direction]

“(3) The Bureau of Reclamation shall apply its categorical exclusion process under the National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.) to small conduit hydropower development under this subsection, excluding siting of associated

transmission facilities on Federal lands.”

P.L. 113-79, §8204;

128 Stat. 649, 916

Agriculture, FS

SEC. 8204. INSECT AND DISEASE INFESTATION. Title VI of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6591 et

seq.) is amended by adding at the end the following:

[omitted sections irrelevant to CE direction]

“SEC. 603. ADMINISTRATIVE REVIEW.

“(a) IN GENERAL.—Except as provided in subsection (d), a project described in subsection (b) that is conducted in

accordance with section 602(d) may be—

“(1) considered an action categorically excluded from the requirements of Public Law 91–190 (42 U.S.C. 4321 et seq.); and

“(2) exempt from the special administrative review process under section 105.

“(b) COLLABORATIVE RESTORATION PROJECT.—

“(1) IN GENERAL.—A project referred to in subsection (a) is a project to carry out forest restoration treatments that—

“(A) maximizes the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees

promote stands that are resilient to insects and disease;

“(B) considers the best available scientific information to maintain or restore the ecological integrity, including maintaining or

restoring structure, function, composition, and connectivity; and

“(C) is developed and implemented through a collaborative process that—

“(i) includes multiple interested persons representing diverse interests; and

“(ii)(I) is transparent and nonexclusive; or

“(II) meets the requirements for a resource advisory committee under subsections (c) through (f) of section 205 of the Secure

Rural Schools and Community Self-Determination Act of 2000 (16 U.S.C. 7125).

“(2) INCLUSION.—A project under this subsection may carry out part of a proposal that complies with the eligibility

requirements of the Collaborative Forest Landscape Restoration Program under section 4003(b) of the Omnibus Public Land

Management Act of 2009 (16 U.S.C. 7303(b)).

“(c) LIMITATIONS.—

“(1) PROJECT SIZE.—A project under this section may not exceed 3000 acres.

CRS-31

Text of the Provision Establishing a CE

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

“(2) LOCATION.—A project under this section shall be limited to areas—

“(A) in the wildland-urban interface; or

“(B) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, outside the wildland-urban interface.

“(3) ROADS.—

“(A) PERMANENT ROADS.—

“(i) PROHIBITION ON ESTABLISHMENT.—A project under this section shall not include the establishment of permanent

roads.

“(ii) EXISTING ROADS.—The Secretary may carry out necessary maintenance and repairs on existing permanent roads for

the purposes of this section.

“(B) TEMPORARY ROADS.—The Secretary shall decommission any temporary road constructed under a project under this

section not later than 3 years after the date on which the project is completed.

“(d) EXCLUSIONS.—This section does not apply to—

“(1) a component of the National Wilderness Preservation System;

“(2) any Federal land on which, by Act of Congress or Presidential proclamation, the removal of vegetation is restricted or

prohibited;

“(3) a congressionally designated wilderness study area; or

“(4) an area in which activities under subsection (a) would be inconsistent with the applicable land and resource management

plan.

“(e) FOREST MANAGEMENT PLANS.—All projects and activities carried out under this section shall be consistent with the

land and resource management plan established under section 6 of the Forest and Rangeland Renewable Resources Planning

Act of 1974 (16 U.S.C. 1604) for the unit of the National Forest System containing the projects and activities.

“(f) PUBLIC NOTICE AND SCOPING.—The Secretary shall conduct public notice and scoping for any project or action

proposed in accordance with this section.”

P.L. 113-121, §1005;

128 Stat. 1193, 1212

CRS-32

Defense

SEC. 1005. PROJECT ACCELERATION. (a) PROJECT ACCELERATION.—

[omitted sections irrelevant to CE direction]

(b) CATEGORICAL EXCLUSIONS IN EMERGENCIES.—For the repair, reconstruction, or rehabilitation of a water resources

project that is in operation or under construction when damaged by an event or incident that results in a declaration by the

President of a major disaster or emergency pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act

(42 U.S.C. 5121 et seq.), the Secretary shall treat such repair, reconstruction, or rehabilitation activity as a class of action

categorically excluded from the requirements relating to environmental assessments or environmental impact statements

under section 1508.4 of title 40, Code of Federal Regulations (or successor regulations), if the repair or reconstruction activity

is—

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

(1) in the same location with the same capacity, dimensions, and design as the original water resources project as before the

declaration described in this section; and

(2) commenced within a 2-year period beginning on the date of a declaration described in this subsection.

P.L. 113-291, §3023;

128 Stat. 3292, 3763

Agriculture, FS,

Interior, BLM

SEC. 3023. GRAZING PERMITS AND LEASES.

Section 402 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1752) is amended—

[omitted sections irrelevant to CE direction]

(3) by inserting after subsection (g) the following:

“(h) NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.—

“(1) IN GENERAL.—The issuance of a grazing permit or lease by the Secretary concerned may be categorically excluded from

the requirement to prepare an environmental assessment or an environmental impact statement under the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if—

“(A) the issued permit or lease continues the current grazing management of the allotment; and

“(B) the Secretary concerned—

“(i) has assessed and evaluated the grazing allotment associated with the lease or permit; and

“(ii) based on the assessment and evaluation under clause (i), has determined that the allotment—

“(I) with respect to public land administered by the Secretary of the Interior—

“(aa) is meeting land health standards; or

“(bb) is not meeting land health standards due to factors other than existing livestock grazing; or

“(II) with respect to National Forest System land administered by the Secretary of Agriculture—

“(aa) is meeting objectives in the applicable land and resource management plan; or

“(bb) is not meeting the objectives in the applicable land resource management plan due to factors other than existing livestock

grazing.

“(2) TRAILING AND CROSSING.—The trailing and crossing of livestock across public land and National Forest System land

and the implementation of trailing and crossing practices by the Secretary concerned may be categorically excluded from the

requirement to prepare an environmental assessment or an environmental impact statement under the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et seq.).”

P.L. 114-322, §3603;

130 Stat. 1628, 1783

Agriculture, FS

SEC. 3603. LAKE TAHOE RESTORATION.

[omitted sections irrelevant to CE direction]

Restoration Act (Public Law 106-506; 114 Stat. 2353) is amended—

(1) in subsection (b)(3), by striking “basin” and inserting “Basin”; and

CRS-33

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

(2) by adding at the end the following:

“(c) FOREST MANAGEMENT ACTIVITIES.—

[omitted sections irrelevant to CE direction]

“(4) AVAILABILITY OF CATEGORICAL EXCLUSION FOR CERTAIN FOREST MANAGEMENT PROJECTS.—A forest

management activity conducted in the Lake Tahoe Basin Management Unit for the purpose of reducing forest fuels is

categorically excluded from the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if the

forest management activity—

“(A) notwithstanding section 423 of the Department of the Interior, Environment, and Related Agencies Appropriations Act,

2009 (division E of Public Law 111–8; 123 Stat. 748), does not exceed 10,000 acres, including not more than 3,000 acres of

mechanical thinning;

“(B) is developed—

“(i) in coordination with impacted parties, specifically including representatives of local governments, such as county

supervisors or county commissioners; and

“(ii) in consultation with other interested parties; and

“(C) is consistent with the Lake Tahoe Basin Management Unit land and resource management plan.”

P.L. 115-141, §202;

132 Stat. 348, 1062

CRS-34

Agriculture, FS

SEC. 202. WILDFIRE RESILIENCE PROJECTS. Insert at the end of the Healthy Forests Restoration Act of 2003 (16 U.S.C.

6511) the following new section:

“SEC. 605. WILDFIRE RESILIENCE PROJECTS.

“(a) IN GENERAL.—Hazardous fuels reduction projects, as defined in the Healthy Forests Restoration Act of 2003

(16 U.S.C. 6511(2)) may be—

“(1) carried out in accordance with subsections (b), (c), and (d) of section 102 and sections 104 and 105;

“(2) considered an action categorically excluded from the requirements of Public Law 91–190 (42 U.S.C. 4321 et seq.); and

“(3) exempt from the special administrative review process under section 105.

“(b) COLLABORATIVE RESTORATION PROJECT.—

“(1) IN GENERAL.—A project referred to in subsection (a) is a project to carry out forest restoration treatments that—

“(A) maximizes the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees

promote stands that are resilient to insects and disease, and reduce the risk or extent of, or increase the resilience to,

wildfires;

“(B) considers the best available scientific information to maintain or restore the ecological integrity, including maintaining or

restoring structure, function, composition, and connectivity; and

“(C) is developed and implemented through a collaborative process that—

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

“(i) includes multiple interested persons representing diverse interests; and

“(ii)(I) is transparent and nonexclusive; or

“(II) meets the requirements for a resource advisory committee under subsections (c) through (f) of section 205 of the Secure

Rural Schools and Community Self-Determination Act of 2000 (16 U.S.C. 7125).

“(2) INCLUSION.—A project under this subsection may carry out part of a proposal that complies with the eligibility

requirements of the Collaborative Forest Landscape Restoration Program under section 4003(b) of the Omnibus Public Land

Management Act of 2009

“(16 U.S.C. 7303(b)).

“(c) LIMITATIONS.—

“(1) PROJECT SIZE.—A project under this section may not exceed 3000 acres.

“(2) LOCATION.—A project under this section shall be—

“(A) Prioritized within the wildland-urban interface;

“(B) If located outside the wildland-urban interface, limited to areas within Condition Classes 2 or 3 in Fire Regime Groups I,

II, or III that contain very high wildfire hazard potential; and

“(C) Limited to areas designated under section 602(b) as of the date of enactment of this Act.

“(3) ROADS.—

“(A) PERMANENT ROADS.—

“(i) PROHIBITION ON ESTABLISHMENT.—A project under this section shall not include the establishment of permanent

roads.

“(ii) EXISTING ROADS.—The Secretary may carry out necessary maintenance and repairs on existing permanent roads for

the purposes of this section.

“(B) TEMPORARY ROADS.—The Secretary shall decommission any temporary road constructed under a project under this

section not later than 3 years after the date on which the project is completed.

“(4) EXTRAORDINARY CIRCUMSTANCES.—The Secretary shall apply the extraordinary circumstances procedures under

section 220.6 of title 36, code of Federal regulations (or successor regulations), when using the categorical exclusion under this

section.

“(d) EXCLUSIONS.—This section does not apply to—

“(1) a component of the National Wilderness Preservation System;

“(2) any Federal land on which, by Act of Congress or Presidential proclamation, the removal of vegetation is restricted or

prohibited;

“(3) a congressionally designated wilderness study area; or

CRS-35

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

“(4) an area in which activities under subsection (a) would be inconsistent with the applicable land and resource management

plan.

“(e) FOREST MANAGEMENT PLANS.—All projects and activities carried out under this section shall be consistent with the

land and resource management plan established under section 6 of the Forest and Rangeland Renewable Resources Planning

Act of 1974 (16 U.S.C. 1604) for the unit of the National Forest System containing the projects and activities.

“(f) PUBLIC NOTICE AND SCOPING.—The Secretary shall conduct public notice and scoping for any project or action

proposed in accordance with this section.”

P.L. 115-334, §8611;

132 Stat. 4490, 4847

CRS-36

Agriculture, FS,

Interior, BLM

SEC. 8611. CATEGORICAL EXCLUSION FOR GREATER SAGE-GROUSE AND MULE DEER HABITAT.

(a) IN GENERAL.—Title VI of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6591 et seq.) is amended by adding at

the end the following:

“SEC. 606. CATEGORICAL EXCLUSION FOR GREATER SAGE-GROUSE AND MULE DEER HABITAT.

[omitted definitions section]

“(b) CATEGORICAL EXCLUSION.—

“(1) IN GENERAL.—Not later than 1 year after the date of enactment of this section, the Secretary concerned shall develop a

categorical exclusion (as defined in section 1508.4 of title 40, Code of Federal Regulations (or a successor regulation)) for

covered vegetation management activities carried out to protect, restore, or improve habitat for greater sage-grouse or mule

deer.

“(2) ADMINISTRATION.—In developing and administering the categorical exclusion under paragraph

(1), the Secretary concerned shall—

“(A) comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

“(B) with respect to National Forest System land, apply the extraordinary circumstances procedures under section 220.6 of

title 36, Code of Federal Regulations (or successor regulations), in determining whether to use the categorical exclusion;

“(C) with respect to public land, apply the extraordinary circumstances procedures under section 46.215 of title 43, Code of

Federal Regulations (or successor regulations), in determining whether to use the categorical exclusion; and

“(D) consider—

“(i) the relative efficacy of landscape-scale habitat projects;

“(ii) the likelihood of continued declines in the populations of greater sage-grouse and mule deer in the absence of landscapescale vegetation management; and

“(iii) the need for habitat restoration activities after wildfire or other natural disturbances.

“(c) IMPLEMENTATION OF COVERED VEGETATIVE MANAGEMENT ACTIVITIES WITHIN THE RANGE OF GREATER

SAGE-GROUSE AND MULE DEER.—If the categorical exclusion developed under subsection (b) is used to implement a

covered vegetative management activity in an area within the range of both greater sage-grouse and mule deer, the covered

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

vegetative management activity shall protect, restore, or improve habitat concurrently for both greater sage-grouse and mule

deer.

“(d) LONG-TERM MONITORING AND MAINTENANCE.—Before commencing any covered vegetation management activity

that is covered by the categorical exclusion under subsection (b), the Secretary concerned shall develop a long-term

monitoring and maintenance plan, covering at least the 20-year period beginning on the date of commencement, to ensure that

management of the treated area does not degrade the habitat gains secured by the covered vegetation management activity.

“(e) DISPOSAL OF VEGETATIVE MATERIAL.—Subject to applicable local restrictions, any vegetative material resulting from a

covered vegetation management activity that is covered by the categorical exclusion under subsection (b) may be—

“(1) used for—

“(A) fuel wood; or

“(B) other products; or

“(2) piled or burned, or both.

“(f) TREATMENT FOR TEMPORARY ROADS.—

“(1) IN GENERAL.—Notwithstanding subsection (a)

(1)(B)(xi), any temporary road constructed in carrying out a covered vegetation management activity that is covered by the

categorical exclusion under subsection (b)—

“(A) shall be used by the Secretary concerned for the covered vegetation management activity for not more than 2 years; and

“(B) shall be decommissioned by the Secretary concerned not later than 3 years after the earlier of the date on which—

“(i) the temporary road is no longer needed; and

“(ii) the project is completed.

“(2) REQUIREMENT.—A treatment under paragraph

(1) shall include reestablishing native vegetative cover—

“(A) as soon as practicable; but

“(B) not later than 10 years after the date of completion of the applicable covered vegetation management activity.

“(g) LIMITATIONS.—

“(1) PROJECT SIZE.—A covered vegetation management activity that is covered by the categorical exclusion under subsection

(b) may not exceed 4,500 acres.

“(2) LOCATION.—A covered vegetation management activity carried out on National Forest System land that is covered by

the categorical exclusion under subsection (b) shall be limited to areas designated under section 602(b), as of the date of

enactment of this section.”b

CRS-37

Public

Law/Statute

Department

or Agency

P.L. 117-58, §11318;

135 Stat. 429, 543

Interior, BLM,

and Bureau of

Indian Affairs

CRS-38

Text of the Provision Establishing a CE

SEC. 11318. CERTAIN GATHERING LINES LOCATED ON FEDERAL LAND AND INDIAN LAND.

[omitted definitions section]

(b) CERTAIN GATHERING LINES.—

(1) IN GENERAL.—Subject to paragraph (2), the issuance of a sundry notice or right-of-way for a gathering line and associated

field compression or pumping unit that is located on Federal land or Indian land and that services any oil or gas well may be

considered by the Secretary to be an action that is categorically excluded (as defined in section 1508.1 of title 40, Code of

Federal Regulations (as in effect on the date of enactment of this Act)) for purposes of the National Environmental Policy Act

of 1969 (42 U.S.C. 4321 et seq.) if the gathering line and associated field compression or pumping unit—

(A) are within a field or unit for which an approved land use plan or an environmental document prepared pursuant to the

National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) analyzed transportation of oil, natural gas, or produced

water from 1 or more oil or gas wells in the field or unit as a reasonably foreseeable activity;

(B) are located adjacent to or within—

(i) any existing disturbed area; or

(ii) an existing corridor for a right-of-way; and

(i) in the case of a gathering line and associated field compression or pumping unit transporting methane, the total quantity of

methane that would otherwise be vented, flared, or unintentionally emitted from the field or unit; or

(ii) in the case of a gathering line and associated field compression or pumping unit not transporting methane, the vehicular

traffic that would otherwise service the field or unit.

(2) APPLICABILITY.—Paragraph (1) shall apply to Indian land, or a portion of Indian land—

(A) to which the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) applies; and

(B) for which the Indian Tribe with jurisdiction over the Indian land submits to the Secretary a written request that paragraph

(1) apply to that Indian land (or portion of Indian land).

(1) affects or alters any requirement—

(A) relating to prior consent under—

(i) section 2 of the Act of February 5, 1948 (62 Stat. 18, chapter 45; 25 U.S.C. 324); or

(ii) section 16(e) of the Act of June 18, 1934 (48 Stat. 987, chapter 576; 102 Stat. 2939; 114 Stat. 47; 25 U.S.C. 5123(e))

(commonly known as the “Indian Reorganization Act”);

(B) under section 306108 of title 54, United States Code; or

(C) under any other Federal law (including regulations) relating to Tribal consent for rights-of-way across Indian land; or

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

(2) makes the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) applicable to land to which that Act

otherwise would not apply.

P.L. 117-58, §40806;

135 Stat. 429, 1110

CRS-39

Agriculture, FS,

Interior, BLM

SEC. 40806. ESTABLISHMENT OF FUEL BREAKS IN FORESTS AND OTHER WILDLAND VEGETATION.

[omitted definitions section]

(b) CATEGORICAL EXCLUSION ESTABLISHED.—Forest management activities described in subsection (c) are a category of

actions designated as being categorically excluded from the preparation of an environmental assessment or an environmental

impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if the categorical exclusion is

documented through a supporting record and decision memorandum.

(1) IN GENERAL.—The category of forest management activities designated under subsection (b) for a categorical exclusion

are forest management activities described in paragraph

(2) that are carried out by the Secretary concerned on public lands (as defined in section 103 of the Federal Land Policy and

Management Act of 1976 (43 U.S.C. 1702)) administered by the Bureau of Land Management or National Forest System land

the primary purpose of which is to establish and maintain linear fuel breaks that are—

(A) up to 1,000 feet in width contiguous with or incorporating existing linear features, such as roads, water infrastructure,

transmission and distribution lines, and pipelines of any length on Federal land; and

(B) intended to reduce the risk of uncharacteristic wildfire on Federal land or catastrophic wildfire for an adjacent at-risk

community.

(2) ACTIVITIES.—Subject to paragraph (3), the forest management activities that may be carried out pursuant to the

categorical exclusion established under subsection (b) are—

(A) mowing or masticating;

(B) thinning by manual and mechanical cutting;

(D) selling of vegetation products, including timber, firewood, biomass, slash, and fenceposts;

(E) targeted grazing;

(F) application of—

(i) pesticide;

(ii) biopesticide; or

(iii) herbicide;

(G) seeding of native species;

(H) controlled burns and broadcast burning; and

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

(I) burning of piles, including jackpot piles.

(3) EXCLUDED ACTIVITIES.—A forest management activity described in paragraph (2) may not be carried out pursuant to

the categorical exclusion established under subsection (b) if the activity is conducted—

(A) in a component of the National Wilderness Preservation System;

(B) on Federal land on which the removal of vegetation is prohibited or restricted by Act of Congress, Presidential

proclamation (including the applicable implementation plan), or regulation;

(D) in an area in which carrying out the activity would be inconsistent with the applicable land management plan or resource

management plan.

(4) EXTRAORDINARY CIRCUMSTANCES.—The Secretary concerned shall apply the extraordinary circumstances

procedures under section 220.6 of title 36, Code of Federal Regulations (or a successor regulation), in determining whether to

use a categorical exclusion under subsection (b).

(d) ACREAGE AND LOCATION LIMITATIONS.—Treatments of vegetation in linear fuel breaks covered by the categorical

exclusion established under subsection (b)—

(1) may not contain treatment units in excess of 3,000 acres;

(2) shall be located primarily in—

(A) the wildland-urban interface or a public drinking water source area;

(B) if located outside the wildland-urban interface or a public drinking water source area, an area within Condition Class 2 or 3

in Fire Regime Group I, II, or III that contains very high wildfire hazard potential; or

(3) shall consider the best available scientific information.

(e) ROADS.—

(1) PERMANENT ROADS.—A project under this section shall not include the establishment of permanent roads.

(2) EXISTING ROADS.—The Secretary concerned may carry out necessary maintenance and repairs on existing permanent

roads for the purposes of this section.

(3) TEMPORARY ROADS.—The Secretary concerned shall decommission any temporary road constructed under a project

under this section not later than 3 years after the date on which the project is completed.

(f) PUBLIC COLLABORATION.—To encourage meaningful public participation during the preparation of a project under this

section, the Secretary concerned shall facilitate, during the preparation of each project—

(1) collaboration among State and local governments and Indian Tribes; and

(2) participation of interested persons.

CRS-40

Public

Law/Statute

Department

or Agency

P.L. 118-63, §788;

138 Stat. 1025, 1314

Transportation,

FAA

SEC. 788. CATEGORICAL EXCLUSIONS.

(a) CATEGORICAL EXCLUSION FOR PROJECTS OF LIMITED FEDERAL ASSISTANCE.—An action by the Administrator to

approve, permit, finance, or otherwise authorize any airport project that is undertaken by the sponsor, owner, or operator of

a public-use airport shall be presumed to be covered by a categorical exclusion under FAA Order 1050.1F (or any successor

document), if such project—

(1) receives less than $6,000,000 (as adjusted annually by the Administrator to reflect any increases in the Consumer Price

Index prepared by the Department of Labor) of Federal funds or funds from charges collected under section 40117 of title 49,

United States Code; or

(2) has a total estimated cost of not more than $35,000,000 (as adjusted annually by the Administrator to reflect any increases

in the Consumer Price Index prepared by the Department of Labor) and Federal funds comprising less than 15 percent of the

total estimated project cost.

(b) CATEGORICAL EXCLUSION IN EMERGENCIES.—An action by the Administrator to approve, permit, finance, or

otherwise authorize an airport project that is undertaken by the sponsor, owner, or operator of a public-use airport shall be

presumed to be covered by a categorical exclusion under FAA Order 1050.1F (or any successor document), if such project

is—

(1) for the repair or reconstruction of any airport facility, runway, taxiway, or similar structure that is in operation or under

construction when damaged by an emergency declared by the Governor of the State with concurrence of the Administrator

or for a disaster or emergency declared by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency

Assistance Act (42 U.S.C. 5121 et seq.);

(2) in the same location with the same capacity, dimensions, and design as the original airport facility, runway, taxiway, or

similar structure as before the declaration described in this section; and (3) commenced within a 2-year period beginning on

the date of a declaration described in this section.

subsections (a) and (b) shall not apply if the Administrator determines

P.L. 118-105, §2;

138 Stat. 1587, 1588

Commerce,

National

Institute of

Standards and

Technology

SEC. 2. SEMICONDUCTOR PROGRAM.

Title XCIX of division H of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (15

U.S.C. 4651 et seq.) is amended—

(1) in section 9902 (15 U.S.C. 4652)—

(A) by redesignating subsections (h) and (i) as subsections (i) and (j), respectively; and

(B) by inserting after subsection (g) the following:

[omitted sections irrelevant to CE direction]

“(d) CATEGORICAL EXCLUSIONS.—

[omitted sections directing the National Institute of Standards and Technology to adopt existing CEs from other agencies]

CRS-41

Text of the Provision Establishing a CE

Public

Law/Statute

Department

or Agency

Text of the Provision Establishing a CE

“(2) ADDITIONAL CATEGORICAL EXCLUSIONS.—Notwithstanding any other provision of law, each of the following shall

be treated as a category of action categorically excluded from the requirements relating to environmental assessments and

environmental impact statements under section 1501.4 of title 40, Code of Federal Regulations, or any successor regulation:

“(A) The provision by the Secretary of any Federal financial assistance for a project described in section 9902, if the facility that

is the subject of the project is on or adjacent to a site—

“(i) that is owned or leased by the covered entity to which Federal financial assistance is provided for that project; and

“(ii) on which, as of the date on which the Secretary provides that Federal financial assistance, substantially similar

construction, expansion, or modernization is being or has been carried out, such that the facility would not more than double

existing developed acreage or on-site supporting infrastructure.

“(B) The provision by the Secretary of Defense of any Federal financial assistance relating to—

“(i) the creation, expansion, or modernization of one or more facilities described in the second sentence of section 9903(a)(1);

“(ii) carrying out section 9903(b), as in effect on the date of enactment of this subsection.

“(C) Any activity undertaken by the Secretary relating to carrying out section 9906, as in effect on the date of enactment of

this subsection.”

Source: CRS.

Notes: This table presents statutory CEs identified through a review of enacted federal legislation. It includes provisions in which Congress has explicitly categorically

excluded federal actions from some of the procedural requirements of the National Environmental Policy Act (NEPA). Each entry identifies the statutory citations and

language establishing the CE, where available. While CRS attempted to identify and include all relevant statutory CEs in effect as of April 8, 2025, the table may not be

exhaustive. Some provisions may be embedded in broader legislative texts or agency-specific authorizations that are not readily identifiable as CEs. The table should be

viewed as a representative, but potentially incomplete, inventory.

a. P.L. 110-161 subsequently amended P.L. 108-447 to extend the CE through 2008 and to prohibit its applicability in designated wilderness. P.L. 113-291 codified in

statute an amended version of this CE in Section 402 of the Federal Land Policy and Management Act (43 U.S.C. §1752).

b. Although the text of the categorical exclusion established by P.L. 115-334 states, “the Secretary concerned shall develop a CE,” implying a congressionally directed

CE, both the Departments of Agriculture and the Interior list the CE as statutorily established in their NEPA procedures. See U.S. Forest Service, “Chapter 30 –

Categorical Exclusion from Documentation,” in Forest Service Handbook 1909.15 – National Environmental Policy Act Handbook, March 3, 2023, pp. 29-30,

https://www.fs.usda.gov/about-agency/regulations-policies/handbook/190915-30-categorical-exclusion-documentation, and Department of the Interior, “Managing the

NEPA Process—Bureau of Land Management,” in Department of the Interior Departmental Manual, December 10, 2020, https://www.doi.gov/documentlibrary/departmental-manual/516-dm-11-managing-nepa-process-bureau-land-management.

CRS-42

Legislative Categorical Exclusions Under the National Environmental Policy Act

Author Information

Heather McPherron

Analyst in Environmental Policy

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or

material from a third party, you may need to obtain the permission of the copyright holder if you wish to

copy or otherwise use copyrighted material.

Congressional Research Service

R48595 · VERSION 2 · NEW

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.