Introduction to ACHP's NEPA Compliance Update
Effective September 18, 2026, the Advisory Council on Historic Preservation (ACHP) has announced a significant update to its procedures under the National Environmental Policy Act (NEPA). The agency has formally adopted a categorical exclusion (CE) previously established by the Department of the Interior (DOI). This action, detailed in a recent Federal Register notice, allows the ACHP to streamline its environmental review process for specific types of internal actions, potentially reducing the need for extensive environmental assessments or impact statements while maintaining provisions for environmental scrutiny under extraordinary circumstances. This development marks a procedural adjustment for the ACHP, aligning its NEPA compliance with a framework already in use by another federal entity.
Understanding NEPA and Categorical Exclusions
The National Environmental Policy Act, enacted in 1969, serves as a foundational statute in US environmental law. It mandates that federal agencies consider the environmental impacts of their proposed actions before making decisions, aiming to foster a productive relationship between humans and the environment. A core tenet of NEPA is the requirement for agencies to prepare either an Environmental Assessment (EA) or a more comprehensive Environmental Impact Statement (EIS) for actions that could significantly affect the quality of the human environment.
However, NEPA also provides for Categorical Exclusions (CEs). These are categories of actions that an agency has determined do not normally have significant individual or cumulative environmental effects. When a proposed action falls under an established CE, an EA or EIS is generally not required, thereby streamlining the review process. Section 109 of NEPA specifically permits one agency to adopt a CE from another agency's procedures, provided certain conditions are met, including inter-agency consultation and public notification. The ACHP, which previously lacked agency-specific NEPA regulations, is now leveraging this provision.
The Adopted Department of the Interior Categorical Exclusion
The ACHP has adopted a specific CE from the DOI, codified at 43 CFR 46.210(i). This particular exclusion applies to policies, directives, regulations, and guidelines that are primarily of an administrative, financial, legal, technical, or procedural nature. It also covers actions whose environmental effects are considered too broad, speculative, or conjectural for meaningful immediate analysis, with the understanding that these may be subject to later NEPA review, either collectively or on a case-by-case basis. The ACHP intends to apply this CE to its own promulgation of similar internal policies and guidance.
This adoption signifies that for a range of its internal operational and policy-setting activities, the ACHP will now be able to proceed without initiating a full EA or EIS, provided no extraordinary circumstances are present. The efficiency gained is intended to allow the agency to focus its NEPA resources on actions with a greater potential for environmental impact.
Ensuring Environmental Safeguards Through Extraordinary Circumstances
Crucially, the adoption of a CE does not grant agencies a carte blanche to bypass environmental review entirely. Even for actions covered by a CE, agencies must still evaluate for "extraordinary circumstances." These are conditions under which a normally excluded action might still have a significant environmental effect, thereby triggering the need for an EA or EIS.
To ensure consistency and robust environmental protection, the ACHP will apply the DOI's list of extraordinary circumstances, found at 43 CFR 46.215. This comprehensive list includes considerations such as impacts on public health and safety, natural resources, unique geographic characteristics, historic or cultural resources (a particularly relevant point for the ACHP), park or refuge lands, wilderness areas, sole source aquifers, prime farmlands, wetlands, floodplains, listed species or critical habitat, and potential impacts on Indian sacred sites. If the responsible official identifies an extraordinary circumstance that could lead to significant effects, the CE cannot be relied upon, and a full EA or EIS would be required. This mechanism serves as a critical safeguard against unintended environmental consequences.
Inter-Agency Consultation and Rationale
Prior to formal adoption, the ACHP engaged in consultation with the Department of the Interior in July 2026. This consultation focused on reviewing the DOI's experience with establishing and applying this specific CE, as well as discussing the ACHP's intended uses for it. The outcome of this inter-agency dialogue was a determination by the ACHP that its proposed actions under the CE are "substantially similar" to those for which the DOI has successfully applied the exclusion. This similarity in action types led to the conclusion that the environmental impacts, if any, of ACHP's actions would likewise be non-significant, barring extraordinary circumstances. This consultation process underscores the collaborative nature of federal environmental policy implementation and provides a basis for the ACHP's decision.
