The US Department of Agriculture (USDA) and its sub-agency, the US Forest Service (USFS), have taken two significant steps to modernize the regulatory framework governing hard rock mining on National Forest System (NFS) lands. USFS has proposed an overhaul of its locatable mineral regulations, while USDA has finalized updates to its NEPA implementing procedures, together reshaping how mining operations are planned, permitted, and reviewed on federal forest lands. Operators should take note of both.
On February 20, 2026, the USFS proposed a rule that would update the over 50-year-old regulations governing mining and exploration of locatable minerals on National Forest System (NFS) lands. Locatable Minerals, Proposed rule; request for public comment, 91 Fed. Reg. 8316 (Feb. 20, 2026). The proposed rule would replace the previous framework with new activity-based thresholds that USFS states are “needed to improve [ ] efficiency and transparency.” This initiative is partly a response to a 2019 petition from mining organizations, and the revision aims to better align USFS procedures with those of the Bureau of Land Management (BLM). The USFS anticipates that these revisions will reduce “confusion and frustration” “for operators who operate on lands managed by both agencies.” However, some provisions unique to NFS lands remain, so dual-jurisdiction operators should still carefully review both sets of regulations.
Some notable changes include:
- The rule introduces “reasonably incident uses” as one of twelve newly defined terms, formalizing a concept found in both the Mining Law of 1872 and the Surface Resources Act of 1955. Reasonably incident uses are the activities and infrastructure (access routes, water management facilities, processing facilities, and waste storage) necessary to support each stage of a mining operation from prospecting through reclamation. The rule expands the applicability of Section 220 to mining operations on NFS lands that are reasonably incident to mining operations on adjacent non-NFS lands.
- The rule introduces the term “limited operations” for activities that do not require notice or agency approval, formalizing a category of minimal-impact activities that previously lacked a specific designation.
- For operations requiring a plan of operations (PO), the rule proposes replacing the “likely to cause a significant disturbance of surface resources,” which many have criticized as being subjective and inconsistently applied, with more specific criteria that the operation results in surface disturbance greater than 5 acres, is not exploratory or investigative, and meets additional criteria for protection of surface resources.
- For operations not meeting the criteria for a PO or limited operations, the rule would require operators to prepare and submit an “operating notice.” USFS expects some projects currently operating under POs to qualify for this classification and anticipates reviewing operating notices quickly.
- The rule proposes adding a “pre-submittal meeting” prior to the submission of the PO or operating notice in which the operator and the USFS representative will discuss requirements and potential issues. USFS hopes these meetings will “improve workforce planning” and “reduce the length of the review process.”
The comment period closes April 21, 2026.
The proposed overhaul of the USFS’s locatable mineral regulations was not the only significant regulatory development affecting the agency in recent weeks. On April 3, USDA published a final rule overhauling the Department’s NEPA implementing regulations. National Environmental Policy Act, Final rule, 91 Fed. Reg. 17,062 (Apr. 3, 2026). The rule responds to several developments that altered the USDA’s prior NEPA framework. See our March 5 post, Recent Years Have Seen Major Shifts to the NEPA Landscape. In early 2025, the Council on Environmental Quality (CEQ) rescinded its longstanding NEPA implementing regulations at 40 C.F.R. parts 1500 through 1508 in response to Executive Order 14154, Unleashing American Energy, and court decisions calling into question CEQ’s authority to issue binding NEPA implementing regulations. Like many other federal agencies, USDA’s own NEPA rules had been expressly designed to draw upon and supplement the CEQ framework. Congress also amended NEPA through the Fiscal Responsibility Act of 2023, adding statutory page limits and deadlines for environmental assessments and environmental impact statements that USDA’s rules had never been updated to reflect. In addition, in the landmark decision Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025), the Supreme Court criticized the growth of the NEPA review process and instructed courts to give agencies substantial deference in their NEPA judgments.
Against that backdrop, USDA first issued an interim final rule in July 2025 to overhaul its NEPA regulations. USDA now adopts a final rule codifying the approach first promulgated in the interim final rule, with several notable revisions: the rule elevates the USDA Senior Agency Official responsible for departmental NEPA compliance from the Under Secretary of Natural Resources and Environment to the Deputy Secretary; adds six new USFS categorical exclusions; and establishes a new discretionary Notice of Intent framework for environmental assessments.
For operators and USFS practitioners, the final rule brings several important changes consistent with the 2025 interim final rule. Most significantly, USDA rescinded the USFS’s standalone NEPA regulations at 36 C.F.R. part 220 and consolidated USDA NEPA procedures into a single department-wide rule at 7 C.F.R. part 1b. In doing so, USDA carried forward the USFS’s categorical exclusions formerly codified at 36 C.F.R. § 220.6(d) and (e), relocating them to 7 C.F.R. § 1b.4 with generally standardized terminology and documentation rules. The rule also streamlines prior USFS practice on scoping: rather than requiring scoping across the board, USDA now leaves scoping to responsible-official discretion, subject to any separate statutory or regulatory comment requirements that still apply. The former regulatory requirement to publish a Schedule of Proposed Actions likewise has been rescinded, although the agency may continue providing project information publicly.
The final rule makes important clarifications that will allow for more efficient use of categorical exclusions (CEs), which avoid the need for preparation of an environmental assessment (EA) or environmental impact statement (EIS). As the 2023 amendments clarified, the USDA subcomponents can adopt CEs that are promulgated by other federal agencies. The final rule also clarifies that USDA subcomponents can use multiple CEs for the same actions. It further clarifies that any USDA subcomponent can rely on a CE that has been adopted by another USDA subcomponent without formally adopting that CE. For example, USFS can apply to one its actions a CE that has been formally adopted by the Rural Electric Service. These changes will allow for more frequent and efficient use of CEs to exempt from NEPA review actions that will not have significant impacts.
The USFS’s Determination of NEPA Adequacy tool does not carry forward as a named procedure, but the new rule includes a comparable prior-analysis provision at 7 C.F.R. § 1b.9(e)(8), allowing USDA subcomponents to rely on earlier analysis when the proposal, affected environment, and anticipated effects are substantially the same. Finally, practitioners should note that this rule does not revise the USFS’s 36 C.F.R. part 218 administrative review regulations, which remain in effect, and the USFS separately published a proposed rule on February 6, 2026, to revise part 218.
Given the scope of these changes, from revised permitting thresholds to an entirely new NEPA framework, mining and mineral exploration companies with operations or planned projects on NFS lands should consult with counsel to navigate the new regulatory landscape and assess any necessary adjustments to their compliance approach.
