Section 325.2 - Processing of applications.
- Standard procedures.
When an application for a permit is received the district engineer
shall immediately assign it a number for identification, acknowledge receipt
thereof, and advise the applicant of the number assigned to it. He shall
review the application for completeness, and if the application is
incomplete, request from the applicant within 15 days of receipt of the
application any additional information necessary for further processing.
- Within 15 days of receipt of an application the district engineer
will either determine that the application is complete (see 33 CFR
325.1(d)(9) and issue a public notice as described in Section 325.3 of this
Part, unless specifically exempted by other provisions of this regulation or
that it is incomplete and notify the applicant of the information necessary
for a complete application. The district engineer will issue a supplemental,
revised, or corrected public notice if in his view there is a change in the
application data that would affect the public's review of the proposal.
- The district engineer will consider all comments received in
response to the public notice in his subsequent actions on the permit
application. Receipt of the comments will be acknowledged, if appropriate,
and they will be made a part of the administrative record of the
application. Comments received as form letters or petitions may be
acknowledged as a group to the person or organization responsible for the
form letter or petition. If comments relate to matters within the special
expertise of another federal agency, the district engineer may seek the
advice of that agency. If the district engineer determines, based on
comments received, that he must have the views of the applicant on a
particular issue to make a public interest determination, the applicant will
be given the opportunity to furnish his views on such issue to the district
engineer (see 325.2(d)(5)). At the earliest practicable time other
substantive comments will be furnished to the applicant for his information
and any views he may wish to offer. A summary of the comments, the actual
letters or portions thereof, or representative comment letters may be
furnished to the applicant. The applicant may voluntarily elect to contact
objectors in an attempt to resolve objections but will not be required to do
so. District engineers will ensure that all parties are informed that the
Corps alone is responsible for reaching a decision on the merits of any
application. The district engineer may also offer Corps regulatory staff to
be present at meetings between applicants and objectors, where appropriate,
to provide information on the process, to mediate differences, or to gather
information to aid in the decision process. The district engineer should not
delay processing of the application unless the applicant requests a
reasonable delay, normally not to exceed 30 days, to provide additional
information or comments.
- The district engineer will follow Appendix B of 33 CFR Part 230 for
environmental procedures and documentation required by the National
Environmental Policy Act of 1969. A decision on a permit application will
require either an environmental assessment or an environmental impact
statement unless it is included within a categorical exclusion.
- The district engineer will also evaluate the application to
determine the need for a public hearing pursuant to 33 CFR Part 327.
- After all above actions have been completed, the district engineer
will determine in accordance with the record and applicable regulations
whether or not the permit should be issued. He shall prepare a statement of
findings (SOF) or, where an EIS has been prepared, a record of decision
(ROD), on all permit decisions. The SOF or ROD shall include the district
engineer's views on the probable effect of the proposed work on the public
interest including conformity with the guidelines published for the
discharge of dredged or fill material into waters of the United States (40
CFR Part 230) or with the criteria for dumping of dredged material in ocean
waters (40 CFR Parts 220 to 229), if applicable, and the conclusions of the
district engineer. The SOF or ROD shall be dated, signed, and included in
the record prior to final action on the application. Where the district
engineer has delegated authority to sign permits for and in his behalf, he
may similarly delegate the signing of the SOF or ROD. If a district engineer
makes a decision on a permit application which is contrary to state or local
decisions (33 CFR 320.4(j) (2) & (4)), the district engineer will
include in the decision document the significant national issues and explain
how they are overriding in importance. If a permit is warranted, the
district engineer will determine the special conditions, if any, and
duration which should be incorporated into the permit. In accordance with
the authorities specified in Section 325.8 of this Part, the district
engineer will take final action or forward the application with all
pertinent comments, records, and studies, including the final EIS or
environmental assessment, through channels to the official authorized to
make the final decision. The report forwarding the application for decision
will be in a format prescribed by the Chief of Engineers. District and
division engineers will notify the applicant and interested federal and
state agencies that the application has been forwarded to higher
headquarters. The district or division engineer may, at his option, disclose
his recommendation to the news media and other interested parties, with the
caution that it is only a recommendation and not a final decision. Such
disclosure is encouraged in permit cases which have become controversial and
have been the subject of stories in the media or have generated strong
public interest. In those cases where the application is forwarded for
decision in the format prescribed by the Chief of Engineers, the report will
serve as the SOF or ROD. District engineers will generally combine the SOF,
environmental assessment, and findings of no significant impact (FONSI),
404(b)(1) guideline analysis, and/or the criteria for dumping of dredged
material in ocean waters into a single document.
- If the final decision is to deny the permit, the applicant will be
advised in writing of the reason(s) for denial. If the final decision is to
issue the permit and a standard individual permit form will be used, the
issuing official will forward the permit to the applicant for signature
accepting the conditions of the permit. The permit is not valid until signed
by the issuing official. Letters of permission require only the signature of
the issuing official. Final action on the permit application is the
signature on the letter notifying the applicant of the denial of the permit
or signature of the issuing official on the authorizing document.
- The district engineer will publish monthly a list of permits issued
or denied during the previous month. The list will identify each action by
public notice number, name of applicant, and brief description of activity
involved. It will also note that relevant environmental documents and the
SOF's or ROD's are available upon written request and, where applicable,
upon the payment of administrative fees. This list will be distributed to
all persons who may have an interest in any of the public notices listed.
- Copies of permits will be furnished to other agencies in appropriate
cases as follows:
If the activity involves the construction of artificial islands,
installations or other devices on the outer continental shelf, to the
Director, Defense Mapping Agency, Hydrographic Center, Washington, DC
20390 Attention, Code NS12, and to the Charting and Geodetic Services,
N/CG222, National Ocean Service NOAA, Rockville, Maryland 20852.
- If the activity involves the construction of structures to enhance
fish propagation (e.g., fishing reefs) along the coasts of the United
States, to the Defense Mapping Agency, Hydrographic Center and National
Ocean Service as in paragraph (a)(9)(i) of this section and to the
Director, Office of Marine Recreational Fisheries, National Marine
Fisheries Service, Washington, DC 20235.
- If the activity involves the erection of an aerial transmission
line, submerged cable, or submerged pipeline across a navigable water of
the United States, to the Charting and Geodetic Services N/CG222, National
Ocean Service NOAA, Rockville, Maryland 20852.
- If the activity is listed in paragraphs (a)(9) (i), (ii), or (iii)
of this section, or involves the transportation of dredged material for
the purpose of dumping it in ocean waters, to the appropriate District
Commander, U.S. Coast Guard.
- Procedures for particular types of permit situation.
- Section 401 Water Quality Certification.
If the district engineer
determines that water quality certification for the proposed activity is
necessary under the provisions of section 401 of the Clean Water Act, he
shall so notify the applicant and obtain from him or the certifying agency a
copy of such certification.
The public notice for such activity, which will contain a
statement on certification requirements (see paragraph 325.3(a)(8)), will
serve as the notification to the Administrator of the Environmental
Protection Agency (EPA) pursuant to section 401(a)(2) of the Clean Water
Act. If EPA determines that the proposed discharge may affect the quality
of the waters of any state other than the state in which the discharge
will originate, it will so notify such other state, the district engineer,
and the applicant. If such notice or a request for supplemental
information is not received within 30 days of issuance of the public
notice, the district engineer will assume EPA has made a negative
determination with respect to Section 401(a)(2). If EPA determines another
state's waters may be affected, such state has 60 days from receipt of
EPA's notice to determine if the proposed discharge will affect the
quality of its waters so as to violate any water quality requirement in
such state, to notify EPA and the district engineer in writing of its
objection to permit issuance, and to request a public hearing. If such
occurs, the district engineer will hold a public hearing in the objecting
state. Except as stated below, the hearing will be conducted in accordance
with 33 CFR Part 327. The issues to be considered at the public hearing
will be limited to water quality impacts. EPA will submit its evaluation
and recommendations at the hearing with respect to the state's objection
to permit issuance. Based upon the recommendations of the objecting state,
EPA, and any additional evidence presented at the hearing, the district
engineer will condition the permit, if issued, in such a manner as may be
necessary to insure compliance with applicable water quality requirements.
If the imposition of conditions cannot, in the district engineer's
opinion, insure such compliance, he will deny the permit.
- No permit will be granted until required certification has been
obtained or has been waived. A waiver may be explicit, or will be deemed
to occur if the certifying agency fails or refuses to act on a request for
certification within sixty days after receipt of such a request unless the
district engineer determines a shorter or longer period is reasonable for
the state to act. In determining whether or not a waiver period has
commenced or waiver has occurred, the district engineer will verify that
the certifying agency has received a valid request for certification. If,
however, special circumstances identified by the district engineer require
that action on an application be taken within a more limited period of
time, the district engineer shall determine a reasonable lesser period of
time, advise the certifying agency of the need for action by a particular
date, and that, if certification is not received by that date, it will be
considered that the requirement for certification has been waived.
Similarly, if it appears that circumstances may reasonably require a
period of time longer than sixty days, the district engineer, based on
information provided by the certifying agency, will determine a longer
reasonable period of time, not to exceed one year, at which time a waiver
will be deemed to occur.
- Coastal Zone Management Consistency.
If the proposed activity is to
be undertaken in a state operating under a coastal zone management program
approved by the Secretary of Commerce pursuant to the Coastal Zone
Management (CZM) Act (see 33 CFR 320.3(b)), the district engineer shall
proceed as follows:
If the applicant is a federal agency, and the application involves
a federal activity in or affecting the coastal zone, the district engineer
shall forward a copy of the public notice to the agency of the state
responsible for reviewing the consistency of federal activities. The
federal agency applicant shall be responsible for complying with the CZM
Act's directive for ensuring that federal agency activities are undertaken
in a manner which is consistent, to the maximum extent practicable, with
approved CZM Programs. (See 15 CFR Part 930.) If the state coastal zone
agency objects to the proposed federal activity on the basis of its
inconsistency with the state's approved CZM Program, the district engineer
shall not make a final decision on the application until the disagreeing
parties have had an opportunity to utilize the procedures specified by the
CZM Act for resolving such disagreements.
- If the applicant is not a federal agency and the application
involves an activity affecting the coastal zone, the district engineer
shall obtain from the applicant a certification that his proposed activity
complies with and will be conducted in a manner that is consistent with
the approved state CZM Program. Upon receipt of the certification, the
district engineer will forward a copy of the public notice (which will
include the applicant's certification statement) to the state coastal zone
agency and request its concurrence or objection. If the state agency
objects to the certification or issues a decision indicating that the
proposed activity requires further review, the district engineer shall not
issue the permit until the state concurs with the certification statement
or the Secretary of Commerce determines that the proposed activity is
consistent with the purposes of the CZM Act or is necessary in the
interest of national security. If the state agency fails to concur or
object to a certification statement within six months of the state
agency's receipt of the certification statement, state agency concurrence
with the certification statement shall be conclusively presumed. District
engineers will seek agreements with state CZM agencies that the agency's
failure to provide comments during the public notice comment period will
be considered as a concurrence with the certification or waiver of the
right to concur or non-concur.
- If the applicant is requesting a permit for work on Indian
reservation lands which are in the coastal zone, the district engineer
shall treat the application in the same manner as prescribed for a Federal
applicant in paragraph (b)(2)(i) of this section. However, if the
applicant is requesting a permit on non-trust Indian lands, and the state
CZM agency has decided to assert jurisdiction over such lands, the
district engineer shall treat the application in the same manner as
prescribed for a non-Federal applicant in paragraph (b)(2)(ii) of this
section.
- Historic Properties.
If the proposed activity would involve any
property listed or eligible for listing in the National Register of Historic
Places, the district engineer will proceed in accordance with Corps National
Historic Preservation Act implementing regulations.
- Activities Associated with Federal Projects. If the proposed
activity would consist of the dredging of an access channel and/or berthing
facility associated with an authorized federal navigation project, the
activity will be included in the planning and coordination of the
construction or maintenance of the federal project to the maximum extent
feasible. Separate notice, hearing, and environmental documentation will not
be required for activities so included and coordinated, and the public
notice issued by the district engineer for these federal and associated
non-federal activities will be the notice of intent to issue permits for
those included non-federal dredging activities. The decision whether to
issue or deny such a permit will be consistent with the decision on the
federal project unless special considerations applicable to the proposed
activity are identified. (See Section 322.5(c).)
- Endangered Species. Applications will be reviewed for the potential
impact on threatened or endangered species pursuant to section 7 of the
Endangered Species Act as amended. The district engineer will include a
statement in the public notice of his current knowledge of endangered
species based on his initial review of the application (see 33 CFR
325.2(a)(2)). If the district engineer determines that the proposed activity
would not affect listed species or their critical habitat, he will include a
statement to this effect in the public notice. If he finds the proposed
activity may affect an endangered or threatened species or their critical
habitat, he will initiate formal consultation procedures with the U.S. Fish
and Wildlife Service or National Marine Fisheries Service. Public notices
forwarded to the U.S. Fish and Wildlife Service or National Marine Fisheries
Service will serve as the request for information on whether any listed or
proposed to be listed endangered or threatened species may be present in the
area which would be affected by the proposed activity, pursuant to section
7(c) of the Act. References, definitions, and consultation procedures are
found in 50 CFR Part 402.
- Reserved
- Timing of processing of applications. The district engineer will be
guided by the following time limits for the indicated steps in the evaluation
process:
The public notice will be issued within 15 days of receipt of all
information required to be submitted by the applicant in accordance with
paragraph 325.1.(d) of this Part.
- The comment period on the public notice should be for a reasonable
period of time within which interested parties may express their views
concerning the permit. The comment period should not be more than 30 days
nor less than 15 days from the date of the notice. Before designating
comment periods less than 30 days, the district engineer will consider: (i)
Whether the proposal is routine or noncontroversial, (ii) mail time and need
for comments from remote areas, (iii) comments from similar proposals, and
(iv) the need for a site visit. After considering the length of the original
comment period, paragraphs d(2)(i) through d(2)(iv) above, and other
pertinent factors, the district engineer may extend the comment period up to
an additional 30 days if warranted.
- District engineers will decide on all applications not later than 60
days after receipt of a complete application, unless (i) precluded as a
matter of law or procedures required by law (see below), (ii) the case must
be referred to higher authority (see ^F^Z325.8 of this Part), (iii) the
comment period is extended, (iv) a timely submittal of information or
comments is not received from the applicant, (v) the processing is suspended
at the request of the applicant, or (vi) information needed by the district
engineer for a decision on the application cannot reasonably be obtained
within the 60-day period. Once the cause for preventing the decision from
being made within the normal 60-day period has been satisfied or eliminated,
the 60-day clock will start running again from where it was suspended. For
example, if the comment period is extended by 30 days, the district engineer
will, absent other restraints, decide on the application within 90 days of
receipt of a complete application. Certain laws (e.g., the Clean Water Act,
the CZM Act, the National Environmental Policy Act, the National Historic
Preservation Act, the Preservation of Historical and Archeological Data Act,
the Endangered Species Act, the Wild and Scenic Rivers Act, and the Marine
Protection, Research and Sanctuaries Act) require procedures such as state
or other federal agency certifications, public hearings, environmental
impact statements, consultation, special studies, and testing which may
prevent district engineers from being able to decide certain applications
within 60 days.
- Once the district engineer has sufficient information to make his
public interest determination, he should decide the permit application even
though other agencies which may have regulatory jurisdiction have not yet
granted their authorizations, except where such authorizations are, by
federal law, a prerequisite to making a decision on the DA permit
application. Permits granted prior to other (non-prerequisite)
authorizations by other agencies should, where appropriate, be conditioned
in such manner as to give those other authorities an opportunity to
undertake their review without the applicant biasing such review by making
substantial resource commitments on the basis of the DA permit. In unusual
cases the district engineer may decide that due to the nature or scope of a
specific proposal, it would be prudent to defer taking final action until
another agency has acted on its authorization. In such cases, he may advise
the other agency of his position on the DA permit while deferring his final
decision.
- The applicant will be given a reasonable time, not to exceed 30
days, to respond to requests of the district engineer. The district engineer
may make such requests by certified letter and clearly inform the applicant
that if he does not respond with the requested information or a
justification why additional time is necessary, then his application will be
considered withdrawn or a final decision will be made, whichever is
appropriate. If additional time is requested, the district engineer will
either grant the time, make a final decision, or consider the application as
withdrawn.
- The time requirements in these regulations are in terms of calendar
days rather than in terms of working days.
- Alternative procedures. Division and district engineers are authorized
to use alternative procedures as follows:
- Letters of permission.
Letters of permission are a type of permit
issued through an abbreviated processing procedure which includes
coordination with Federal and state fish and wildlife agencies, as required
by the Fish and Wildlife Coordination Act, and a public interest evaluation,
but without the publishing of an individual public notice. The letter of
permission will not be used to authorize the transportation of dredged
material for the purpose of dumping it in ocean waters. Letters of
permission may be used:
In those cases subject to Section 10 of the Rivers and Harbors Act
of 1899 when, in the opinion of the district engineer, the proposed work
would be minor, would not have significant individual or cumulative
impacts on environmental values, and should encounter no appreciable
opposition.
- In those cases subject to section 404 of the Clean Water Act
after:
The district engineer, through consultation with Federal and
state fish and wildlife agencies, the Regional Administrator,
Environmental Protection Agency, the state water quality certifying
agency, and, if appropriate, the state Coastal Zone Management Agency,
develops a list of categories of activities proposed for authorization
under LOP procedures;
- The district engineer issues a public notice advertising the
proposed list and the LOP procedures, requesting comments and offering
an opportunity for public hearing; and
- A 401 certification has been issued or waived and, if
appropriate, CZM consistency concurrence obtained or presumed either on
a generic or individual basis.
- Regional permits.
Regional permits are a type of general permit as
defined in 33 CFR 322.2(f) and 33 CFR 323.2(n). They may be issued by a
division or district engineer after compliance with the other procedures of
this regulation. After a regional permit has been issued, individual
activities falling within those categories that are authorized by such
regional permits do not have to be further authorized by the procedures of
this regulation. The issuing authority will determine and add appropriate
conditions to protect the public interest. When the issuing authority
determines on a case-by-case basis that the concerns for the aquatic
environment so indicate, he may exercise discretionary authority to override
the regional permit and require an individual application and review. A
regional permit may be revoked by the issuing authority if it is determined
that it is contrary to the public interest provided the procedures of
Section 325.7 of this Part are followed. Following revocation, applications
for future activities in areas covered by the regional permit shall be
processed as applications for individual permits. No regional permit shall
be issued for a period of more than five years.
- Joint procedures. Division and district engineers are authorized and
encouraged to develop joint procedures with states and other Federal
agencies with ongoing permit programs for activities also regulated by the
Department of the Army. Such procedures may be substituted for the
procedures in paragraphs (a)(1) through (a)(5) of this section provided that
the substantive requirements of those sections are maintained. Division and
district engineers are also encouraged to develop management techniques such
as joint agency review meetings to expedite the decision-making process.
However, in doing so, the applicant's rights to a full public interest
review and independent decision by the district or division engineer must be
strictly observed.
- Emergency procedures. Division engineers are authorized to approve
special processing procedures in emergency situations. An "emergency" is a
situation which would result in an unacceptable hazard to life, a
significant loss of property, or an immediate, unforeseen, and significant
economic hardship if corrective action requiring a permit is not undertaken
within a time period less than the normal time needed to process the
application under standard procedures. In emergency situations, the district
engineer will explain the circumstances and recommend special procedures to
the division engineer who will instruct the district engineer as to further
processing of the application. Even in an emergency situation, reasonable
efforts will be made to receive comments from interested Federal, state, and
local agencies and the affected public. Also, notice of any special
procedures authorized and their rationale is to be appropriately published
as soon as practicable.
Section 325.3 - Public notice.
- General.
The public notice is the primary method of advising all
interested parties of the proposed activity for which a permit is sought and
of soliciting comments and information necessary to evaluate the probable
impact on the public interest. The notice must, therefore, include sufficient
information to give a clear understanding of the nature and magnitude of the
activity to generate meaningful comment. The notice should include the
following items of information:
Applicable statutory authority or authorities;
The name and address of the applicant;
The name or title, address and telephone number of the Corps
employee from whom additional information concerning the application may be
obtained;
The location of the proposed activity;
A brief description of the proposed activity, its purpose and
intended use, so as to provide sufficient information concerning the nature
of the activity to generate meaningful comments, including a description of
the type of structures, if any, to be erected on fills or pile or
float-supported platforms, and a description of the type, composition, and
quantity of materials to be discharged or disposed of in the ocean;
A plan and elevation drawing showing the general and specific site
location and character of all proposed activities, including the size
relationship of the proposed structures to the size of the impacted waterway
and depth of water in the area;
If the proposed activity would occur in the territorial seas or
ocean waters, a description of the activity's relationship to the baseline
from which the territorial sea is measured;
A list of other government authorizations obtained or requested by
the applicant, including required certifications relative to water quality,
coastal zone management, or marine sanctuaries;
If appropriate, a statement that the activity is a categorical
exclusion for purposes of NEPA (see paragraph 7 of Appendix B to 33 CFR Part
230);
A statement of the district engineer's current knowledge on historic
properties;
A statement of the district engineer's current knowledge on
endangered species (see section 325.2 (b)(5));
A statement(s) on evaluation factors (see section 325.3(c));
Any other available information which may assist interested parties
in evaluating the likely impact of the proposed activity, if any, on factors
affecting the public interest;
The comment period based on section 325.2(d)(2);
A statement that any person may request, in writing, within the
comment period specified in the notice, that a public hearing be held to
consider the application. Requests for public hearings shall state, with
particularity, the reasons for holding a public hearing;
For non-federal applications in states with an approved CZM Plan, a
statement on compliance with the approved Plan; and
In addition, for section 103 (ocean dumping) activities:
The specific location of the proposed disposal site and its
physical boundaries;
) A statement as to whether the proposed disposal site has been
designated for use by the Administrator, EPA, pursuant to section 102(c)
of the Act;
If the proposed disposal site has not been designated by the
Administrator, EPA, a description of the characteristics of the proposed
disposal site and an explanation as to why no previously designated
disposal site is feasible;
A brief description of known dredged material discharges at the
proposed disposal site;
Existence and documented effects of other authorized disposals
that have been made in the disposal area (e.g., heavy metal background
reading and organic carbon content);
An estimate of the length of time during which disposal would
continue at the proposed site; and
Information on the characteristics and composition of the dredged
material.
- Public notice for general permits. District engineers will publish a
public notice for all proposed regional general permits and for significant
modifications to, or reissuance of, existing regional permits within their
area of jurisdiction. Public notices for statewide regional permits may be
issued jointly by the affected Corps districts. The notice will include all
applicable information necessary to provide a clear understanding of the
proposal. In addition, the notice will state the availability of information
at the district office which reveals the Corps' provisional determination that
the proposed activities comply with the requirements for issuance of general
permits. District engineers will publish a public notice for nationwide
permits in accordance with 33 CFR 330.4.
- Evaluation factors. A paragraph describing the various evaluation
factors on which decisions are based shall be included in every public notice.
Except as provided in paragraph (c)(3) of this section, the
following will be included:
"The decision whether to issue a permit will be based on an
evaluation of the probable impact including cumulative impacts of the
proposed activity on the public interest. That decision will reflect the
national concern for both protection and utilization of important
resources. The benefit which reasonably may be expected to accrue from the
proposal must be balanced against its reasonably foreseeable detriments.
All factors which may be relevant to the proposal will be considered
including the cumulative effects thereof; among those are conservation,
economics, aesthetics, general environmental concerns, wetlands, historic
properties, fish and wildlife values, flood hazards, floodplain values,
land use, navigation, shoreline erosion and accretion, recreation, water
supply and conservation, water quality, energy needs, safety, food and
fiber production, mineral needs, considerations of property ownership and,
in general, the needs and welfare of the people."
If the activity would involve the discharge of dredged or fill
material into the waters of the United States or the transportation of
dredged material for the purpose of disposing of it in ocean waters, the
public notice shall also indicate that the evaluation of the impact of the
activity on the public interest will include application of the guidelines
promulgated by the Administrator, EPA, (40 CFR Part 230) or of the criteria
established under authority of section 102(a) of the Marine Protection,
Research and Sanctuaries Act of 1972, as amended (40 CFR Parts 220 to 229),
as appropriate. (See 33 CFR Parts 323
and 324).
- In cases involving construction of artificial islands, installations
and other devices on outer continental shelf lands which are under mineral
lease from the Department of the Interior, the notice will contain the
following statement:
"The decision as to whether a permit will be issued will be
based on an evaluation of the impact of the proposed work on navigation
and national security."
Distribution of public notices.
Public notices will be distributed for posting in post offices or
other appropriate public places in the vicinity of the site of the proposed
work and will be sent to the applicant, to appropriate city and county
officials, to adjoining property owners, to appropriate state agencies, to
appropriate Indian Tribes or tribal representatives, to concerned Federal
agencies, to local, regional and national shipping and other concerned
business and conservation organizations, to appropriate River Basin
Commissions, to appropriate state and areawide clearing houses as prescribed
by OMB Circular A-95, to local news media and to any other interested party.
Copies of public notices will be sent to all parties who have specifically
requested copies of public notices, to the U.S. Senators and Representatives
for the area where the work is to be performed, the field representative of
the Secretary of the Interior, the Regional Director of the Fish and Wildlife
Service, the Regional Director of the National Park Service, the Regional
Administrator of the Environmental Protection Agency (EPA), the Regional
Director of the National Marine Fisheries Service of the National Oceanic and
Atmospheric Administration (NOAA), the head of the state agency responsible
for fish and wildlife resources, the State Historic Preservation Officer, and
the District Commander, U.S. Coast Guard.
- In addition to the general distribution of public notices cited above,
notices will be sent to other addressees in appropriate cases as follows:
If the activity would involve structures or dredging along the
shores of the seas or Great Lakes, to the Coastal Engineering Research
Center, Washington, DC 20016.
- If the activity would involve construction of fixed structures or
artificial islands on the outer continental shelf or in the territorial
seas, to the Assistant Secretary of Defense (Manpower, Installations, and
Logistics (ASD(MI&L)), Washington, D.C. 20310; the Director, Defense
Mapping Agency (Hydrographic Center) Washington, DC 20390, Attention, Code
NS12; and the Charting and Geodetic Services, N/CG222, National Ocean
Service NOAA, Rockville, Maryland 20852, and to affected military
installations and activities.
- If the activity involves the construction of structures to enhance
fish propagation (e.g., fishing reefs) along the coasts of the United
States, to the Director, Office of Marine Recreational Fisheries, National
Marine Fisheries Service, Washington, D.C. 20235.
- If the activity involves the construction of structures which may
affect aircraft operations or for purposes associated with seaplane
operations, to the Regional Director of the Federal Aviation Administration.
- If the activity would be in connection with a foreign-trade zone, to
the Executive Secretary, Foreign-Trade Zones Board, Department of Commerce,
Washington, D.C. 20230 and to the appropriate District Director of Customs
as Resident Representative, Foreign-Trade Zones Board.
It is presumed that all interested parties and agencies will wish to
respond to public notices; therefore, a lack of response will be interpreted
as meaning that there is no objection to the proposed project. A copy of the
public notice with the list of the addresses to whom the notice was sent will
be included in the record. If a question develops with respect to an activity
for which another agency has responsibility and that other agency has not
responded to the public notice, the district engineer may request its
comments. Whenever a response to a public notice has been received from a
member of Congress, either in behalf of a constituent or himself, the district
engineer will inform the member of Congress of the final decision.
- District engineers will update public notice mailing lists at least
once every two years.
Section 325.4 - Conditioning of permits.
District engineers will add special conditions to Department of the
Army permits when such conditions are necessary to satisfy legal requirements
or to otherwise satisfy the public interest requirement. Permit conditions
will be directly related to the impacts of the proposal, appropriate to the
scope and degree of those impacts, and reasonably enforceable.
Legal requirements which may be satisfied by means of Corps permit
conditions include compliance with the 404(b)(1) guidelines, the EPA ocean
dumping criteria, the Endangered Species Act, and requirements imposed by
conditions on state Section 401 water quality certifications.
- Where appropriate, the district engineer may take into account the
existence of controls imposed under other federal, state, or local programs
which would achieve the objective of the desired condition, or the existence
of an enforceable agreement between the applicant and another party
concerned with the resource in question, in determining whether a proposal
complies with the 404(b)(1) guidelines, ocean dumping criteria, and other
applicable statutes, and is not contrary to the public interest. In such
cases, the Department of the Army permit will be conditioned to state that
material changes in, or a failure to implement and enforce such program or
agreement, will be grounds for modifying, suspending, or revoking the
permit.
- Such conditions may be accomplished on-site, or may be accomplished
off-site for mitigation of significant losses which are specifically
identifiable, reasonably likely to occur, and of importance to the human or
aquatic environment.
District engineers are authorized to add special conditions, exclusive
of paragraph (a) of this section, at the applicant's request or to clarify the
permit application.
- If the district engineer determines that special conditions are
necessary to insure the proposal will not be contrary to the public interest,
but those conditions would not be reasonably implementable or enforceable, he
will deny the permit.
- Bonds. If the district engineer has reason to consider that the
permittee might be prevented from completing work which is necessary to
protect the public interest, he may require the permittee to post a bond of
sufficient amount to indemnify the government against any loss as a result of
corrective action it might take.
Section 325.5 - Forms of permits.
- General discussion.
DA permits under this regulation will be in the form of individual
permits or general permits. The basic format shall be ENG Form 1721, DA
Permit (Appendix A).
- The general conditions included in ENG Form 1721 are normally
applicable to all permits; however, some conditions may not apply to certain
permits and may be deleted by the issuing officer. Special conditions
applicable to the specific activity will be included in the permit as
necessary to protect the public interest in accordance with Section 325.4 of
this Part.
- Individual permits.
- Standard permits.
A standard permit is one which has been processed
through the public interest review procedures, including public notice and
receipt of comments, described throughout this Part. The standard individual
permit shall be issued using ENG Form 1721.
- Letters of permission. A letter of permission will be issued where
procedures of paragraph 325.2(e)(1) have been followed. It will be in letter
form and will identify the permittee, the authorized work and location of
the work, the statutory authority, any limitations on the work, a
construction time limit and a requirement for a report of completed work. A
copy of the relevant general conditions from ENG Form 1721 will be attached
and will be incorporated by reference into the letter of permission.
- General permits.
- Regional permits.
Regional permits are a type of general permit.
They may be issued by a division or district engineer after compliance with
the other procedures of this regulation. If the public interest so requires,
the issuing authority may condition the regional permit to require a
case-by-case reporting and acknowledgment system. However, no separate
applications or other authorization documents will be required.
- Nationwide permits. Nationwide permits are a type of general permit
and represent DA authorizations that have been issued by the regulation (33
CFR Part 330) for certain specified activities nationwide. If certain
conditions are met, the specified activities can take place without the need
for an individual or regional permit.
- Programmatic permits. Programmatic permits are a type of general
permit founded on an existing state, local or other Federal agency program
and designed to avoid duplication with that program.
- Section 9 permits.
Permits for structures in interstate navigable
waters of the United States under Section 9 of the Rivers and Harbors Act of
1899 will be drafted at DA level.
Section 325.6 - Duration of
permits.
- General.
DA permits may authorize both the work and the resulting use.
Permits continue in effect until they automatically expire or are modified,
suspended, or revoked.
- Structures. Permits for the existence of a structure or other activity
of a permanent nature are usually for an indefinite duration with no
expiration date cited. However, where a temporary structure is authorized, or
where restoration of a waterway is contemplated, the permit will be of limited
duration with a definite expiration date.
- Works. Permits for construction work, discharge of dredged or fill
material, or other activity and any construction period for a structure with a
permit of indefinite duration under paragraph (b) of this section will specify
time limits for completing the work or activity. The permit may also specify a
date by which the work must be started, normally within one year from the date
of issuance. The date will be established by the issuing official and will
provide reasonable times based on the scope and nature of the work involved.
Permits issued for the transport of dredged material for the purpose of
disposing of it in ocean waters will specify a completion date for the
disposal not to exceed three years from the date of permit issuance.
- Extensions of time. An authorization or construction period will
automatically expire if the permittee fails to request and receive an
extension of time. Extensions of time may be granted by the district engineer.
The permittee must request the extension and explain the basis of the request,
which will be granted unless the district engineer determines that an
extension would be contrary to the public interest. Requests for extensions
will be processed in accordance with the regular procedures of Section 325.2
of this Part, including issuance of a public notice, except that such
processing is not required where the district engineer determines that there
have been no significant changes in the attendant circumstances since the
authorization was issued.
- Maintenance dredging. If the authorized work includes periodic
maintenance dredging, an expiration date for the authorization of that
maintenance dredging will be included in the permit. The expiration date,
which in no event is to exceed ten years from the date of issuance of the
permit, will be established by the issuing official after evaluation of the
proposed method of dredging and disposal of the dredged material in accordance
with the requirements of 33 CFR Parts 320 to 325. In such cases, the district
engineer shall require notification of the maintenance dredging prior to
actual performance to insure continued compliance with the requirements of
this regulation and 33 CFR Parts 320 to 324. If the permittee desires to
continue maintenance dredging beyond the expiration date, he must request a
new permit. The permittee should be advised to apply for the new permit six
months prior to the time he wishes to do the maintenance work.
Section 325.7 - Modification, suspension, or
revocation of permits.
- General.
The district engineer may reevaluate the circumstances and
conditions of any permit, including regional permits, either on his own
motion, at the request of the permittee, or a third party, or as the result of
periodic progress inspections, and initiate action to modify, suspend, or
revoke a permit as may be made necessary by considerations of the public
interest. In the case of regional permits, this reevaluation may cover
individual activities, categories of activities, or geographic areas. Among
the factors to be considered are the extent of the permittee's compliance with
the terms and conditions of the permit; whether or not circumstances relating
to the authorized activity have changed since the permit was issued or
extended, and the continuing adequacy of or need for the permit conditions;
any significant objections to the authorized activity which were not earlier
considered; revisions to applicable statutory and/or regulatory authorities;
and the extent to which modification, suspension, or other action would
adversely affect plans, investments and actions the permittee has reasonably
made or taken in reliance on the permit. Significant increases in scope of a
permitted activity will be processed as new applications for permits in
accordance with Section 325.2 of this Part, and not as modifications under
this section.
- Modification. Upon request by the permittee or, as a result of
reevaluation of the circumstances and conditions of a permit, the district
engineer may determine that the public interest requires a modification of the
terms or conditions of the permit. In such cases, the district engineer will
hold informal consultations with the permittee to ascertain whether the terms
and conditions can be modified by mutual agreement. If a mutual agreement is
reached on modification of the terms and conditions of the permit, the
district engineer will give the permittee written notice of the modification,
which will then become effective on such date as the district engineer may
establish. In the event a mutual agreement cannot be reached by the district
engineer and the permittee, the district engineer will proceed in accordance
with paragraph (c) of this section if immediate suspension is warranted. In
cases where immediate suspension is not warranted but the district engineer
determines that the permit should be modified, he will notify the permittee of
the proposed modification and reasons therefor, and that he may request a
meeting with the district engineer and/or a public hearing. The modification
will become effective on the date set by the district engineer which shall be
at least ten days after receipt of the notice by the permittee unless a
hearing or meeting is requested within that period. If the permittee fails or
refuses to comply with the modification, the district engineer will proceed in
accordance with 33 CFR Part 326. The district engineer shall consult with
resource agencies before modifying any permit terms or conditions, that would
result in greater impacts, for a project about which that agency expressed a
significant interest in the term, condition, or feature being modified prior
to permit issuance.
- Suspension. The district engineer may suspend a permit after preparing
a written determination and finding that immediate suspension would be in the
public interest. The district engineer will notify the permittee in writing by
the most expeditious means available that the permit has been suspended with
the reasons therefor, and order the permittee to stop those activities
previously authorized by the suspended permit. The permittee will also be
advised that following this suspension a decision will be made to either
reinstate, modify, or revoke the permit, and that he may within 10 days of
receipt of notice of the suspension, request a meeting with the district
engineer and/or a public hearing to present information in this matter. If a
hearing is requested, the procedures prescribed in 33 CFR Part 327 will be
followed. After the completion of the meeting or hearing (or within a
reasonable period of time after issuance of the notice to the permittee that
the permit has been suspended if no hearing or meeting is requested), the
district engineer will take action to reinstate, modify, or revoke the permit.
- Revocation. Following completion of the suspension procedures in
paragraph (c) of this section, if revocation of the permit is found to be in
the public interest, the authority who made the decision on the original
permit may revoke it. The permittee will be advised in writing of the final
decision.
- Regional permits. The issuing official may, by following the
procedures of this section, revoke regional permits for individual activities,
categories of activities, or geographic areas. Where groups of permittees are
involved, such as for categories of activities or geographic areas, the
informal discussions provided in paragraph (b) of this section may be waived
and any written notification nay be made through the general public notice
procedures of this regulation. If a regional permit is revoked, any permittee
may then apply for an individual permit which shall be processed in accordance
with these regulations.
Section 325.8 - Authority to issue or deny
permits.
- General.
Except as otherwise provided in this regulation, the
Secretary of the Army, subject to such conditions as he or his authorized
representative may from time to time impose, has authorized the Chief of
Engineers and his authorized representatives to issue or deny permits for dams
or dikes in intrastate waters of the United States pursuant to Section 9 of
the Rivers and Harbors Act of 1899; for construction or other work in or
affecting navigable waters of the United States pursuant to section 10 of the
Rivers and Harbors Act of 1899; for the discharge of dredged or fill material
into waters of the United States pursuant to Section 404 of the Clean Water
Act; or for the transportation of dredged material for the purpose of
disposing of it into ocean waters pursuant to Section 103 of the Marine
Protection, Research and Sanctuaries Act of 1972, as amended. The authority to
issue or deny permits in interstate navigable waters of the United States
pursuant to Section 9 of the Rivers and Harbors Act of March 3, 1899 has not
been delegated to the Chief of Engineers or his authorized representatives.
- District engineer's authority. District engineers are authorized to
issue or deny permits in accordance with these regulations pursuant to
Sections 9 and 10 of the Rivers and Harbors Act of 1899; Section 404 of the
Clean Water Act; and Section 103 of the Marine Protection, Research and
Sanctuaries Act of 1972, as amended, in all cases not required to be referred
to higher authority (see below). It is essential to the legality of a permit
that it contain the name of the district engineer as the issuing officer.
However, the permit need not be signed by the district engineer in person but
may be signed for and in behalf of him by whomever he designates. In cases
where permits are denied for reasons other than navigation or failure to
obtain required local, state, or other federal approvals or certifications,
the Statement of Findings must conclusively justify a denial decision.
District engineers are authorized to deny permits without issuing a public
notice or taking other procedural steps where required local, state, or other
federal permits for the proposed activity have been denied or where he
determines that the activity will clearly interfere with navigation except in
all cases required to be referred to higher authority (see below). District
engineers are also authorized to add, modify, or delete special conditions in
permits in accordance with Section 325.4 of this Part, except for those
conditions which may have been imposed by higher authority, and to modify,
suspend and revoke permits according to the procedures of Section 325.7 of
this Part. District engineers will refer the following applications to the
division engineer for resolution:
When a referral is required by a written agreement between the head
of a Federal agency and the Secretary of the Army;
- When the recommended decision is contrary to the written position of
the Governor of the state in which the work would be performed;
- When there is substantial doubt as to authority, law, regulations,
or policies applicable to the proposed activity;
- When higher authority requests the application be forwarded for
decision; or
- When the district engineer is precluded by law or procedures
required by law from taking final action on the application (e.g. Section 9
of the Rivers and Harbors Act of 1899, or territorial sea baseline changes).
- Division engineer's authority. Division engineers will review and
evaluate all permit applications referred by district engineers. Division
engineers may authorize the issuance or denial of permits pursuant to Section
10 of the Rivers and Harbors Act of 1899; Section 404 of the Clean Water Act;
and Section 103 of the Marine Protection, Research and Sanctuaries Act of
1972, as amended; and the inclusion of conditions in accordance with Section
325.4 of this Part in all cases not required to be referred to the Chief of
Engineers. Division engineers will refer the following applications to the
Chief of Engineers for resolution:
When a referral is required by a written agreement between the head
of a Federal agency and the Secretary of the Army;
- When there is substantial doubt as to authority, law, regulations,
or policies applicable to the proposed activity;
- When higher authority requests the application be forwarded for
decision; or
- When the division engineer is precluded by law or procedures
required by law from taking final action on the application.
Section 325.9 - Authority to determine
jurisdiction.
District engineers are authorized to determine the area defined by the terms
"navigable waters of the United States" and "waters of the United States"
except:
When a determination of navigability is made pursuant to 33 CFR 329.14
(division engineers have this authority); or
- When EPA makes a Section 404 jurisdiction determination under its
authority.
Section 325.10 - Publicity.
The district engineer will establish and maintain a program to assure that
potential applicants for permits are informed of the requirements of this
regulation and of the steps required to obtain permits for activities in waters
of the United States or ocean waters. Whenever the district engineer becomes
aware of plans being developed by either private or public entities which might
require permits for implementation, he should advise the potential applicant in
writing of the statutory requirements and the provisions of this regulation.
Whenever the district engineer is aware of changes in Corps of Engineers
regulatory jurisdiction, he will issue appropriate public notices.
Appendix A - Permit Form and Special
Conditions
A. PERMIT FORM
DEPARTMENT OF THE ARMY PERMIT
Permittee _______________________________________________
Permit No. _______________________________________________
Issuing Office ___________________________________________
NOTE. The term "you" and its derivatives, as used in this permit, means the
permittee or any future transferee. The term "this office" refers to the
appropriate district or division office of the Corps of Engineers having
jurisdiction over the permitted activity or the appropriate official of that
office acting under the authority of the commanding officer.
You are authorized to perform work in accordance with the terms and conditions
specified below.
Project Description: (Describe the permitted activity and its intended use
with references to any attached plans or drawings that are considered to be a
part of the project description. Include a description of the types and
quantities of dredged or fill materials to be discharged in jurisdictional
waters.)
Project Location: (Where appropriate, provide the names of and the locations
on the waters where the permitted activity and any off-site disposals will take
place. Also, using name, distance, and direction, locate the permitted
activity in reference to a nearby landmark such as a town or city.)
Permit Conditions:
General Conditions:
1. The time limit for completing the work authorized ends on
________________. If you find that you need more time to complete the
authorized activity, submit your request for a time extension to this office
for consideration at least one month before the above date is reached.
2. You must maintain the activity authorized by this permit in good
condition and in conformance with the terms and conditions of this permit. You
are not relieved of this requirement if you abandon the permitted activity,
although you may make a good faith transfer to a third party in compliance with
General Condition 4 below. Should you wish to cease to maintain the
authorized activity or should you desire to abandon it without a good faith
transfer, you must obtain a modification of this permit from this office, which
may require restoration of the area.
3. If you discover any previously unknown historic or archeological
remains while accomplishing the activity authorized by this permit, you must
immediately notify this office of what you have found. We will initiate the
Federal and state coordination required to determine if the remains warrant a
recovery effort or if the site is eligible for listing in the National Register
of Historic Places.
4. If you sell the property associated with this permit, you must obtain
the signature of the new owner in the space provided and forward a copy of the
permit to this office to validate the transfer of this authorization.
5. If a conditioned water quality certification has been issued for your
project, you must comply with the conditions specified in the certification as
special conditions to this permit. For your convenience, a copy of the
certification is attached if it contains such conditions.
6. You must allow representatives from this office to inspect the
authorized activity at any time deemed necessary to ensure that it is being or
has been accomplished in accordance with the terms and conditions of your
permit.
Special Conditions: (Add special conditions as required in this space with
reference to a continuation sheet if necessary.)
Further Information:
1. Congressional Authorities: You have been authorized to undertake the
activity described above pursuant to:
( ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).
( ) Section 404 of the Clean Water Act (33 U.S.C. 1344).
( ) Section 103 of the Marine Protection, Research and Sanctuaries Act
of 1972 (33 U.S.C. 1413).
2. Limits of this authorization.
a. This permit does not obviate the need to obtain other Federal, state,
or local authorizations required by law.
b. This permit does not grant any property rights or exclusive
privileges.
c. This permit does not authorize any injury to the property or rights
of others.
d. This permit does not authorize interference with any existing or
proposed Federal project.
3. Limits of Federal Liability. In issuing this permit, the Federal
Government does not assume any liability for the following:
a. Damages to the permitted project or uses thereof as a result of other
permitted or unpermitted activities or from natural causes.
b. Damages to the permitted project or uses thereof as a result of
current or future activities undertaken by or on behalf of the United States in
the public interest.
c. Damages to persons, property, or to other permitted or unpermitted
activities or structures caused by the activity authorized by this permit.
d. Design or construction deficiencies associated with the permitted
work.
e. Damage claims associated with any future modification, suspension, or
revocation of this permit.
4. Reliance on Applicant's Data: The determination of this office that
issuance of this permit is not contrary to the public interest was made in
reliance on the information you provided.
5. Reevaluation of Permit Decision. This office may reevaluate its
decision on this permit at any time the circumstances warrant. Circumstances
that could require a reevaluation include, but are not limited to, the
following:
a. You fail to comply with the terms and conditions of this permit.
b. The information provided by you in support of your permit application
proves to have been false, incomplete, or inaccurate (See 4 above).
c. Significant new information surfaces which this office did not
consider in reaching the original public interest decision.
Such a reevaluation may result in a determination that it is appropriate to
use the suspension, modification, and revocation procedures contained in 33 CFR
325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and
326.5. The referenced enforcement procedures provide for the issuance of an
administrative order requiring you to comply with the terms and conditions of
your permit and for the initiation of legal action where appropriate. You will
be required to pay for any corrective measures ordered by this office, and if
you fail to comply with such directive, this office may in certain situations
(such as those specified in 33 CFR 209.170) accomplish the corrective measures
by contract or otherwise and bill you for the cost.
6. Extensions. General condition 1 establishes a time limit for the
completion of the activity authorized by this permit. Unless there are
circumstances requiring either a prompt completion of the authorized activity
or a reevaluation of the public interest decision, the Corps will normally give
favorable consideration to a request for an extension of this time limit.
Your signature below, as permittee, indicates that you accept and agree
to comply with the terms and conditions of this permit.
__________________________________ ___________________________________
(Permittee) (Date)
This permit becomes effective when the Federal official, designated to act for
the Secretary of the Army, has signed below.
_________________________________ ___________________________________
(District Engineer) (Date)
When the structures or work authorized by this permit are still in existence
at the time the property is transferred, the terms and conditions of this
permit will continue to be binding on the new owner(s) of the property. To
validate the transfer of this permit and the associated liabilities associated
with compliance with its terms and conditions, have the transferee sign and
date below.
_________________________________ ___________________________________
(Transferee) (Date)
B. SPECIAL CONDITIONS.
No special conditions will be preprinted on the permit form. The following
and other special conditions should be added, as appropriate, in the space
provided after the general conditions or on a referenced continuation sheet:
1. Your use of the permitted activity must not interfere with the
public's right to free navigation on all navigable waters of the United States.
2. You must have a copy of this permit available on the vessel used for
the authorized transportation and disposal of dredged material.
3. You must advise this office in writing, at least two weeks before you
start maintenance dredging activities under the authority of this permit.
4. You must install and maintain, at your expense, any safety lights and
signals prescribed by the United States Coast Guard (USCG), through
regulations or otherwise, on your authorized facilities. The USCG may be
reached at the following address and telephone number:
______________________________
______________________________
______________________________
______________________________
5. The condition below will be used when a Corps permit authorizes an
artificial reef, an aerial transmission line, a submerged cable or pipeline, or
a structure on the outer continental shelf.
National Ocean Service (NOS) has been notified of this authorization. You
must notify NOS and this office in writing, at least two weeks before you begin
work and upon completion of the activity authorized by this permit. Your
notification of completion must include a drawing which certifies the location
and configuration of the completed activity (a certified permit drawing may be
used). Notifications to NOS will be sent to the following address:
The Director
National Ocean Service (N/CG 222)
Rockville, Maryland 20852
6. The following condition should be used for every permit where legal
recordation of the permit would be reasonably practicable and recordation could
put a subsequent purchaser or owner of property on notice of permit
conditions.
You must take the actions required to record this permit with the Registrar of
Deeds or other appropriate official charged with the responsibility for
maintaining records of title to or interest in real property.
Appendix B - NEPA
Implementation
Procedures for the Regulatory Program
- Introduction
- General
- Development
of Information Data>
- Elimination
of Duplication with State and Local Procedures
- Public
Involvement
- Categorical
Exclusions
- EA/FONSI
Document
- Environmental
Impact Statement-General
- Organization
and Content of Draft EISs
- Notice
of Intent
- Public
Hearing
- Organization
and Content of Final EIS
- Comments
Received on the Final EIS
- EIS
Supplement
- Filing
Requirement
- Timing
- Expedited
Filing
- Record
Of Decision
- Predecision
Referrals by Other Agencies
- Review
of Other Agencies' EISs
- Monitoring
- Introduction.
In keeping with the Executive Order 12291 and 40 CFR
1500.2, where interpretive problems arise in implementing this regulation, and
consideration of all other factors do not give a clear indication of a
reasonable interpretation, the interpretation (consistent with the spirit and
intent of NEPA) which results in the least paperwork and delay will be used.
Specific examples of ways to reduce paperwork in the NEPA process are found at
40 CFR 1500.4. Maximum advantage of these recommendations should be taken.
General. This appendix sets forth the implementing procedures for the
Corps regulatory program. For additional guidance see the Corps NEPA
regulation 33 CFR Part 230 and for general policy guidance, see the CEQ
regulations 40 CFR 1500-1508.
EA/FONSI Document. (See 40 CFR 1508.9 and 1508.13 for definitions)
- Environmental Assessment (EA) and Findings of No Significant Impact
(FONSI).
The EA should normally be combined with other required
documents (EA/404(b)(1)/ SOF/FONSI). "EA" as used throughout this Appendix
normally refers to this combined document. The district engineer should
complete an EA as soon as practicable after all relevant information is
available (i.e. after the comment period for the public notice of the permit
application has expired) and when the EA is a separate document it must be
completed prior to the completion of the statement of finding (SOF). When
the EA confirms that the impact of the applicant's proposal is not
significant and there are no "unresolved conflicts concerning alternative
uses of available resources" (section 102(2)(E) of NEPA), and the proposed
activity is a water dependent" activity as defined in 40 CFR 230.10(a)(3),
the EA need not include a discussion on alternatives. In all other cases
where the district engineer determines that there are unresolved conflicts
concerning alternatives uses of available resources, the EA shall include a
discussion of the reasonable alternatives which are to be considered by the
ultimate decision-maker. The decision options available to the Corps, which
embrace all of the applicant's alternatives, are issue the permit, issue
with modifications or deny the permit. Modifications are limited to those
project modifications within the scope of established permit conditioning
policy (See 33 CFR 325.4). The decision option to deny the permit results in
the "no action" alternative (i.e. no activity requiring a Corps permit). The
combined document should not exceed 15 pages and shall conclude with a FONSI
(See 40 CFR 1508.13) or a determination that an EIS is required. The
district engineer may delegate the signing of the NEPA document. Should the
EA demonstrate that an EIS is necessary, the district engineer shall follow
the procedures outlined in paragraph 8 of this Appendix. In those cases
where it is obvious an EIS is required, an EA is not required. However, the
district engineer should document his reasons for requiring an EIS.
- Scope of Analysis.
In some situations, a permit applicant may propose to conduct a
specific activity requiring a Department of the Army (DA) permit (e.g.,
construction of a pier in a navigable water of the United States) which is
merely one component of a large project (e.g., construction of an oil
refinery on an upland area). The district engineer should establish the
scope of the NEPA document (e.g., the EA or EIS) to address the impacts of
the specific activity requiring the DA permit and those portions of the
enitre project over which the district engineer has sufficient control and
responsibility to warrant Federal review.
- The district engineer is considered to have control and
responsibility for portions of the project beyond the limits of Corps
jurisdiction where the Federal involvement is sufficient to turn an
essentially private action into a federal action. Theses are cases where
the environmental consequences are essentially products of the Corps
permit action. Typical factors to be considered in determining whether
sufficient "control and responsibility" exists include:
Whether or not the regulated activity compromises "merely a
link" in a corridor type project (e.g. a transportation or utility
transmission project).
Whether there are aspects of the upland facility in the
immediate vicinity of the regulated activity which affect the location
and configuration of the regulated activity.
The extent to which the entire project will be within Corps
jurisdiction.
The extent of cumulative control and responsibility.
Federal control and responsibility will include the portions
of the project beyond the limits of Corps jurisdiction where the
cumulative Federal involvement of the Corps and other Federal agencies
is sufficient to grant legal control over such additional portions of
the project. There are cases where the environmental consequences of
the additional portions of the projects are essentially products of
Federal financing, assistance, direction, regulation, or approval(not
including funding assistance solely in the form of general revenue
sharing funds, with no Federal agency control over the subsequent use
of such funds, and not including judicial or administrative civil or
criminal enforcement action).
In determining whether sufficient cumulative involvement
exists to expand the scope of Federal action the district engineer
should consider whether other Federal agencies are required to take
Federal action under the Fish and Wildlife Coordination Act (16 U.S.C.
661 et. seq.), the National Historic Preservation Act of 1966 (U.S.C.
470 et seq.), The Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.), Executive Order 11990, Protection of Wetlands, (42 U.S.C. 4321
91977), and other environmental review laws and executive orders.
The district engineer should also refer to paragraphs 8(b) and
8(c) of this appendix for guidance on determining whether it should be
the lead or cooperating agency in these situations. These factors will
be added to or modified through guidance as additional field
experience develops.
Examples. If a non-Federal oil refinery, electric generating
plant, or industrial facility is proposed to be built on an upland site
and the only DA permit requirement relates to a connecting pipeline,
supply loading terminal or fill road permit, in and of itself, normally
would not constitute sufficient overall Federal involvement with the
project to justify expanding the scope of a Corps NEPA document to cover
upland portions of the facility beyond the structures in the immediate
vicinity of the regulated activity that would effect the location and
configuration of the regulated activity.
Similarly, if an applicant seeks a DA permit to fill waters or wetlands
on which other construction or work is proposed, the control and
responsibility of the Corps, as well as its overall Federal involvement
would extend to the portions of the project to be located on the permitted
fill. However, the NEPA review would be extended to the entire project,
including portions outside waters of the United States, only if sufficient
Federal control and responsibility over the entire project is determined
to exist; that is, if the regulated activities, and those activities
involving regulation, funding, etc. by other Federal agencies, comprise a
substantial portion of the overall project. In any case, once the scope of
analysis has been defined, the NEPA analysis for that action should
include direct, indirect and cumulative impacts on all Federal interests
within the purview of the NEPA statute. The district engineer should,
whenever practicable, incorporate by reference and rely upon the reviews
of other Federal and State agencies.
For those regulated activities that comprise merely a link in a
transportation or utility transmission project, the scope of analysis
should address the Federal action, i.e., the specific activity requiring a
DA permit and any other portion of the project that is within the control
or responsibility of the Corps of Engineers (or other Federal agencies).
For example, a 50-mile electrical transmission cable crossing a 1 1/4
mile wide river that is a navigable water of the United States requires a
DA permit. Neither the origin and destination of the cable not its route
to and from the navigable water, except as the route applies to the
location and configuration of the crossing, are within the control of the
Corps of Engineers. Those matters would not be included in the scope of
analysis which, in this case, would address the impacts of the specific
cable crossing.
Conversely, for those activities that require a DA permit for a major
portion of a transportation or utility transmission project, so that the
Corps permit bears upon the origin and destination as well as the route of
the project outside the Corps regulatory boundaries, the scope of analysis
should include those portions of the project outside the boundaries of the
Corps section 10/404 regulatory jurisdiction. To use the same example, if
30 miles of the 50-mile transmission line crossed wetlands or other
"waters of the United States," the scope of analysis should reflect
impacts on the whole 50-mile transmission line.
For those activities that require a DA permit for a major portion of a
shoreside facility, the scope of analysis should extend to upland portions
of the facility. For example, a shipping terminal normally requires
dredging, wharves, bulkheads, berthing areas and disposal of dredge
material in order to function. Permits for such activities are normally
considered sufficient Federal control and responsibility to warrant
extending the scope of analysis to include the upland portions of the
facility.
In all cases, the scope of analysis used for analyzing both impacts and
alternatives should be the same scope of analysis used for analyzing the
benefits of a proposal.