U.S. Army Corps of Engineers - NEPA Review (9-FD-k)
The Council on Environmental Quality (CEQ) has established general regulations governing all NEPA actions, which can be found at 40 C.F.R. § 1500 - 1518. In addition, 40 C.F.R. § 1507.3 requires federal agencies to establish procedures that implement the CEQ regulations.
The appropriate level of NEPA documentation may fall within one of three categories (discussed in more detail below):
- a Categorical Exclusion (CX)
- an Environmental Assessment (EA)
- an Environmental Impact Statement (EIS)
U.S. Army Corps of Engineers - NEPA Review Process
9-FD-k.1 to 9-FD-k.3 – Is the Project or Action Categorically Excluded?
Certain actions are categorically excluded from NEPA documentation requirements because when considered individually and cumulatively, do not have significant effects on the quality of the human environment. ER 200-2-2, p. 3. The following activities are categorically excluded from NEPA documentation requirements:
- Activities at completed USACE projects which carry out the authorized project purposes;
- Minor maintenance dredging using existing disposal sites;
- Planning and technical studies which do not contain recommendations for authorization or funding for construction, but may recommend further study;
- All Operations and Maintenance grants, general plans, agreements, etc. necessary to carry out land use, development and other measures proposed in project authorization documents, project design memoranda, master plans, or reflected in the project NEPA documents;
- Real estate grants for use of excess or surplus real property;
- Real estate grants for Government-owned housing;
- Exchanges of excess real property and interests therein for property required for project purposes;
- Real estate grants for rights-of-way which involve only minor disturbances to earth, air, or water;
- Real estate grants of consent to use government-owned easement areas;
- Real estate grants for archeological and historical investigations compatible with the USACE Historic Preservation Act responsibilities;
- Renewal and minor amendments of existing real estate grants evidencing authority to use government-owned real property;
- Reporting excess real property to the General Services Administration for disposal;
- Boundary line agreements and disposal of lands or release of deed restrictions to cure encroachments;
- Disposal of excess easement interest to the underlying fee owner;
- Disposal of existing buildings and improvements for off-site removal;
- Sale of existing cottage site areas;
- Return of public domain lands to the Department of Interior;
- Transfer and grants of lands to other federal agencies.
In addition, the following activities are categorically excluded from NEPA documentation requirements, under Appendix B of the regulations for Processing of Department of the Army Permits:
- Fixed or floating small private piers, small docks, boat hoists and boathouses;
- Minor utility distribution and collection lines including irrigation;
- Minor maintenance dredging using existing disposal sites;
- Boat launching ramps;
- All applications which qualify as letters of permission.
USACE may determine that extraordinary circumstances exist where normally excluded actions could have substantial environmental effects and thus require an EA or EIS. 33 C.F.R. § 325, Appendix B.6(b).
9-FD-k.4 - Conduct On-Site Evaluation
If an on-site evaluation has not yet been completed, it is conducted to evaluate the potential impacts from the activity. An on-site evaluation may not be required for activities covered under casual use or categorical exclusion (CE). 40 C.F.R. § 1508.4.
9-FD-k.5 – Is the Action One that Normally Requires an EIS?
Certain actions are deemed to normally require the preparation of an Environmental Impact Statement (EIS) due to the fact that they normally involve a significant impact to the environment. Such actions include the following:
- Feasibility reports for authorization and construction of major projects;
- Proposed changes in projects which increase size substantially or add additional purposes; and
- Proposed major changes in the operation and/or maintenance of completed projects.
9-FD-k.6 – Environmental Assessment (EA)
USACE must prepare an Environmental Assessment (EA). An EA is a document which provides sufficient information on the potential environmental effects of the proposed action and any alternatives if necessary. ER 200-2-2, page 5. USACE will use the information contained in the EA to determine whether to prepare an Environmental Impact Statement (EIS) of a Finding of No Significant Impact (FONSI). 40 C.F.R. § 1508.9.
Certain actions normally require the preparation of an EA, but not necessarily an EIS. Such actions include:
- Regulatory actions (most permits will normally require only an EA);
- Authorized projects and projects under construction (changes which may be approved under the discretionary authority of the Secretary of the Army);
- Continuing Authorities Program (projects recommended for approval of the Chief of Engineers under certain authorities);
- Construction and operations and maintenance (changes in environmental impacts which were not considered in the project EIS or EA); and
- Real estate management and disposal actions.
9-FD-k.7 – Provide Public Notice of EA
USACE must provide public notice of the EA in the Federal Register.
9-FD-k.8 – Comment on EA
Any implicated agency and the public may comment on the EA.
9-FD-k.9 – Are Environmental Impacts Likely to be Significant?
If the environmental impacts are likely to be significant, then an EIS will be required. If the environmental impacts are not likely to be significant, then a Finding of No Significant Impact (FONSI) must be prepared.
9-FD-k.10 – Finding of No Significant Impact (FONSI)
If USACE determines based on the EA that an EIS is not necessary, then it must issue a Finding of No Significant Impact (FONSI). 40 C.F.R. § 1501.4(e). A FONSI must present why an action will not have a significant effect on the human environment and why an EIS will not be prepared. It must include the EA or a summary of it and must note any other environmental documents related to it. 40 C.F.R. § 1508.13.
9-FD-k.11 – Provide Public Notice of FONSI
USACE must provide public notice of the FONSI. 40 C.F.R. § 1501.4(e)(1).
9-FD-k.12 – Notice of Intent to Prepare an EIS
After USACE determines that an EIS is necessary, they must provide public notice in the Federal Register of their intent to prepare an EIS. 40 C.F.R. § 1501.7. The notice of intent must briefly:
- Describe the proposed action and possible alternatives;
- Describe USACE’s proposed scoping process including whether, when, and where any scoping meeting will be held;
- State the name and address of a person within USACE who can answer questions about the proposed action and the EIS.
9-FD-k.13 – Commence NEPA Scoping
Scoping under NEPA is an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action. 40 C.F.R. § 1501.7. USACE will invite the participation of affected federal, state, and local agencies, any affected Indian tribe, the developer, and other interested persons. 40 C.F.R. § 1501.7(a)(1). Scoping is also used to identify and eliminate from detailed study the issues which are not significant or which have been covered by previous environmental review. 40 C.F.R. § 1501.7(a)(3). Public concerns on issues, studies needed, alternatives to be examined, procedures and other related matters will be addressed during scoping. ER 200-2-2, page 6. USACE is responsible for the following during scoping:
- Determine the scope and the significant issues to be analyzed in depth in the EIS;
- Allocate assignments for preparation of the EIS among the lead and cooperating agencies, with the lead agency retaining responsibility for the statement;
- Indicate any public environmental assessments and other EISs which are being or will be prepared that are related to but are not part of the scope of the impact statement under construction; and
- Indicate the relationship between the timing of the preparation of environmental analyses and USACE’s tentative planning and decision-making schedule.
9-FD-k.14 – Draft EIS
USACE must prepare a draft EIS. The draft EIS must be prepared in accordance with the scope decided on in the scoping process. 40 C.F.R. § 1502.9(a). The draft EIS must fulfill and satisfy to the fullest extent possible the requirements established for final statements. 40 C.F.R. § 1502.9(a).
An EIS is used as an action-forcing device to insure that the policies and goals defined in NEPA are carried out. The EIS must provide full and fair discussion of significant environmental impacts and must inform decision-makers and the public of the reasonable alternatives that would avoid or minimize adverse impacts or enhance the quality of the human environment. 40 C.F.R. § 1502.1. The draft EIS must list all federal permits, licenses, and other entitlements which must be obtained in implementing the proposal. 40 C.F.R. § 1502.25(b).
9-FD-k.15 – Provide Notice of Draft EIS
USACE must provide five copies of the draft EIS to the Environmental Protection Agency. USACE must also provide notice of the draft EIS to agencies, organizations and members of the public known to have an interest in the document. ER 200-2-2, p. A-1.
9-FD-k.16 – Comment on Draft EIS
USACE must request comments of any federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved or which is authorized to develop and enforce environmental standards. 40 C.F.R. § 1503.1(a)(1). USACE must request the comments of:
- Appropriate state and local agencies which are authorized to develop and enforce environmental standards;
- Indian tribes, when the effects may be on a reservation; and
- Any agency which has requested that it receive statements on actions of the kind proposed. 40 C.F.R. § 1503.1(a)(2).
In addition, USACE must request comments from the developer and the public. 40 C.F.R. § 1503.1(b). Any lack of response may be presumed to indicate that the party has no comment to make. ER 200-2-2, p. 9.
9-FD-k.17 – Final EIS
USACE must prepare a final EIS or hire a third party to prepare a final EIS. The final EIS must respond to comments and discuss any responsible opposing view which was not adequately discussed in the draft EIS. USACE must respond in the final EIS to any issues raised in comments. 40 C.F.R. § 1503.4(b). Possible responses to comments include:
- Modify alternatives including the proposed action;
- Develop and evaluate alternatives not previously given serious consideration by USACE;
- Supplement, improve, or modify its analyses;
- Make factual corrections;
- Explain why the comments do not warrant further USACE response, citing sources, authorities, or reasons which support USACE’s position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response.
9-FD-k.18 – Provide Public Notice of Final EIS
USACE must provide public notice of the final EIS. 40 C.F.R. § 1506.6(b). USACE must mail notice to any entities or individuals who have requested notification on an individual action. 40 C.F.R. § 1506.6(b)(1). If the action involves effects of national concern, then USACE must provide public notice in the Federal Register and by mail to national organizations reasonably expected to be interested in the matter. 40 C.F.R. § 1506.6(b)(2).
9-FD-k.19 – Comment on Final EIS
Any entity and the public may comment on the final EIS. 40 C.F.R. § 1503.1(a). The District Commander of USACE must answer any letters of comment on the final EIS.
9-FD-k.20 – Record of Decision
USACE must prepare a Record of Decision. ER 200-2-2, p. 7. After review of the NEPA documents and letters, the appropriate approving official within USACE will sign the Record of Decision. ER 200-2-2, p. A-4. The Record of Decision must:
- State what the decision was;
- Identify all alternatives considered by USACE in reaching its decision, specifying the alternative or alternatives which were considered to be environmentally preferable; and
- State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not.
Developers may be required to comply with monitoring requirements to ensure that mitigation and other conditions are carried out. 40 C.F.R. § 1505.3.
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- 42 U.S.C. §§ 4321-4370m, National Environmental Policy Act,
- 33 C.F.R. §§ 325 et seq., Appendix B Processing of Department of the Army Permits
- 40 C.F.R. §§ 1501 et seq., NEPA and Agency Planning
- 40 C.F.R. §§ 1502 et seq., Environmental Impact Statement
- 40 C.F.R. §§ 1503 et seq., Commenting
- 40 C.F.R. §§ 1505 et seq., NEPA and Agency Decisionmaking
- 40 C.F.R. §§ 1506 et seq., Other Requirements of NEPA
- 40 C.F.R. §§ 1507 et seq., Agency Compliance
- 40 C.F.R. §§ 1508 et seq., Terminology and Index