Rule2025-12360
Procedures for Implementing NEPA; Processing of Department of the Army Permits
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 3, 2025
Effective
July 3, 2025
Issuing agencies
Defense DepartmentEngineers Corps
Abstract
This interim final rule removes the U.S. Army Corps of Engineers (Corps) National Environmental Policy Act (NEPA) implementing regulations, used for evaluating permit applications, which were promulgated to supplement now-rescinded Council on Environmental Quality (CEQ) regulations, and replaces them with a new regulation that also address requests for permission under Section 14 of the Rivers and Harbors Act of 1899. Further, the Army is also making conforming changes to its regulations to eliminate references to Appendix B and other NEPA implementation regulations. In addition, this interim final rule requests comments on this action and related matters to inform Army's decision making.
Full Text
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<title>Federal Register, Volume 90 Issue 126 (Thursday, July 3, 2025)</title>
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[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29465-29485]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12360]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Parts 320, 325, and 333
[Docket ID: COE-2025-0006]
RIN 0710-AB20
Procedures for Implementing NEPA; Processing of Department of the
Army Permits
AGENCY: Army Corps of Engineers, Department of Defense (DoD).
ACTION: Interim final rule; request for comment.
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SUMMARY: This interim final rule removes the U.S. Army Corps of
Engineers (Corps) National Environmental Policy Act (NEPA) implementing
regulations, used for evaluating permit applications, which were
promulgated to supplement now-rescinded Council on Environmental
Quality (CEQ) regulations, and replaces them with a new regulation that
also address requests for permission under Section 14 of the Rivers and
Harbors Act of 1899. Further, the Army is also making conforming
changes to its regulations to eliminate references to Appendix B and
other NEPA implementation regulations. In addition, this interim final
rule requests comments on this action and related matters to inform
Army's decision making.
DATES: This interim rule is effective July 3, 2025. Comments must be
received on or before August 4, 2025.
ADDRESSES: You may submit comments, identified by docket number COE-
2025-0006 and/or 0710-AB20, by any of the following methods:
Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the
instructions for submitting comments.
Email: <a href="/cdn-cgi/l/email-protection#81c2c4c9d0accfc4d1c0c1f4f2e0e2e4afe0f3ecf8afece8ed"><span class="__cf_email__" data-cfemail="f3b0b6bba2debdb6a3b2b38680929096dd92819e8add9e9a9f">[email protected]</span></a>. Include the docket number, COE-
2025-0006, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW, Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: If submitting comments through the Federal
eRulemaking Portal, direct your comments to docket number COE-2025-
0006. All comments received will be included in the public docket
without change and may be made available on-line at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including any personal information provided,
unless the commenter indicates that the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI, or otherwise protected,
through <a href="http://regulations.gov">regulations.gov</a> or email. The <a href="http://regulations.gov">regulations.gov</a> website is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email directly to the Corps without going through
<a href="http://regulations.gov">regulations.gov</a> your email address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the internet. If you submit an electronic comment, we
recommend that you include your name and other contact information in
the body of your comment and with any compact disc you submit. If we
cannot read your comment because of technical difficulties and cannot
contact you for clarification we may not be able to consider your
comment. Electronic comments should avoid the use of any special
characters, any form of encryption, and be free of any defects or
viruses.
FOR FURTHER INFORMATION CONTACT: Mr. Milt Boyd, 703-459-6026.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Army Civil Works Regulatory Program is authorized to issue
permits for certain activities in jurisdictional waters and wetlands
under the following statutory authorities: 33 U.S.C. 1344 (Clean Water
Act (CWA), section 404); 33 U.S.C. 401 (Rivers and Harbors Act (RHA) of
1899, section 9); 33 U.S.C. 403 (RHA of 1899, section 10); and 33
U.S.C. 1413 (Marine Protection, Research, and Sanctuaries Act of 1972,
section 103). Title 33 Code of Federal Regulations (CFR) part 325,
appendix B, outlines the NEPA implementation procedures for the
Regulatory Program of the Corps. Appendix B supplements the Council for
Environmental Quality (CEQ) NEPA regulations, 40 CFR 1500-1508, as well
as relying on the Corps NEPA regulation at 33 CFR part 230 ``[f]or
additional guidance.'' Appendix B.2. Part 230 in turn also rested on,
and supplemented, the CEQ NEPA regulations. Appendix B also provides
guidance on public involvement, the preparation of Environmental
Assessments (EA), Findings of No Significant Impact (FONSI), and
Environmental Impact Statements (EIS). The appendix also addresses the
scope of analysis for NEPA documents, including the determination of
lead and cooperating agencies.
B. CEQ's NEPA regulations been repealed, effective April 11. See
Removal of National Environmental Policy Act Implementing Regulations,
(90 FR 10610; Feb. 25, 2025). This action was necessitated by and
consistent with Executive Order (E.O.) 14154, Unleashing American
Energy (90 FR 8353; January 20, 2025), in which President Trump
rescinded President Carter's E.O. 11991, Relating to Protection and
Enhancement of Environmental Quality (42 FR 26967; May 24, 1977), which
was the basis CEQ had invoked for its authority to make rules to begin
with. The Corps' regulations, which were a supplement to those CEQ
regulations, thus stand in obvious need of fundamental revision.
President Trump in E.O. 14154 further directed agencies to revise their
NEPA implementing procedures consistent with the E.O., including its
direction to CEQ to rescind its regulations.
In addition, Congress recently amended NEPA in significant part, in
the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, signed
on June 3, 2023, in which Congress added substantial detail and
direction in Title I of NEPA, including in particular on procedural
issues that CEQ and individual acting agencies had previously addressed
in their own procedures. The Corps recognized the need to update is
regulations in light of these significant legislative changes. Since
the Corps' regulations were originally designed as a supplement to
CEQ's NEPA regulations, the Corps had been awaiting CEQ action before
revising its regulations, consistent with
[[Page 29466]]
CEQ direction. See 40 CFR 1507.3(b) (2024); see also 86 FR 34154 (June
29, 2021). However, with CEQ's regulations now rescinded, and with the
Corps' NEPA implementing procedures still unmodified more than two
years after this significant legislative overhaul, it is exigent that
the Army move quickly to conform its procedures to the statute as
amended.
Finally, the Supreme Court on May 29, 2025 issued a landmark
decision, Seven County Infrastructure Coalition v. Eagle County,
Colorado, 145 S. Ct. 1497 (2025), in which it decried the
``transform[ation]'' of NEPA from its roots as ``a modest procedural
requirement'' into a significant ``substantive roadblock'' that
``paralyze[s]'' ``agency decisionmaking.'' Id. at 1507, 1513
(quotations omitted). The Supreme Court explained that part of that
problem had been caused by decisions of lower courts, which it
rejected, issuing a ``course correction'' mandating that courts give
``substantial deference'' to reasonable agency conclusions underlying
its NEPA process. Id. at 1513-14. But the Court also acknowledged, and
through its course correction sought to address, the effect on
``litigation-averse agencies'' which, in light of judicial
``micromanage[ment],'' had been ``tak[ing] ever more time and [ ]
preparing ever longer EISs for future projects.'' Id. at 1513. The
Corps, thus, is issuing this IFR to align its actions with the Supreme
Court's decision and streamline its process of ensuring reasonable NEPA
decision. This revision has thus been called for, authorized, and
directed by all three branches of government at the highest possible
levels.
C. Therefore, the Corps is replacing 33 CFR part 325, appendix B
with 33 CFR part 333--Procedures for Complying with the National
Environmental Policy Act. Title 33 CFR part 333 will provide the
implementation procedures for the Army Civil Works Regulatory Program
and for the Army Civil Works, 33 U.S.C. 408, permission process. In
addition to the Regulatory program authorities originally covered by
appendix B, Congress also authorized the Corps to provide permission
for ``the temporary occupation or use of [Civil Works projects] . . .
when . . . such occupation or uses will not be injurious to the public
interest'' and for ``the alteration or permanent occupation or use of
any [Civil Works project] . . . when . . . such occupation or use will
not be injurious to the public interest and will not impair the
usefulness of such work.'' 33 U.S.C. 408(a). The 33 U.S.C. 408
permission program had relied on NEPA implementation procedures in 33
CFR part 230. While appendix B did not apply to 33 U.S.C. 408
authorizations, 33 CFR part 333 will be the NEPA procedures the Corps
will follow when deciding whether to grant permission under 33 U.S.C.
408(a) because the procedural aspects of NEPA analysis supporting
evaluations of requests for section 408 permissions are more like the
regulatory program than other aspects of the Civil Works program
covered by part 230. The Corps is publishing NEPA implementing
procedures consistent with NEPA as amended by the Fiscal Responsibility
Act of 2023.
The Army's new NEPA implementing procedures, as adopted via this
interim final rule, are a more faithful implementation of the statute
as amended in 2023 than its old procedures. They implement major
structural features of the 2023 amendments, such as deadlines and page
limits for environmental assessments and environmental impact
statements, as directed at NEPA Section 107(g), and provide that the
Corps will complete preparation of these documents within the maximum
length and on the timeline that Congress intends. They incorporate
Congress's definition of ``major Federal action'' and the exclusions
thereto, as codified at NEPA Section 111(10). They incorporate
Congress's mandated procedure for determining the appropriate level of
review under NEPA, as codified in NEPA Section 106. They incorporate
Congress's direction with respect to establishment, adoption, and
application of categorical exclusions, as codified at NEPA Section
111(10). They provide procedures governing project-sponsor-prepared
environmental assessments and environmental impact statements, as
directed at NEPA Section 107(f). And they incorporate Congress's
revision to the requirements for what an agency must address in its
environmental impact statements, as codified at NEPA Section 102(2)(C),
and Congress's requirement that public notice and solicitation of
comment be provided when issuing a notice of intent to prepare an
environmental impact statement, as directed at NEPA Section 107(c). All
of these are crucial features of Congress's policy design and its
purpose in the 2023 amendments that NEPA review be more efficient and
certain.
Moreover, all of these respond to the President's directive in E.O.
14154; and all of these reflect the Supreme Court's recent and
unequivocal statement that NEPA is a purely procedural statute. The
Army is conscious of the Supreme Court's admonition that NEPA review
has grown out of all proportion to its origins of a ``modest procedural
requirement,'' creating, ``under the guise of just a little more
process,'' ``[d]elay upon delay, so much so that the process seems to
`borde[r] on the Kafkaesque.' '' Seven County, 145 S. Ct. at 1513
(internal quotation omitted). These new procedures, therefore, are
intended to align NEPA with its Congressionally mandated dimensions,
reflecting the guidance given also by the President and the Supreme
Court, and making review under it faster, more flexible, and more
efficient.
The Army acknowledges that third parties may claim to have reliance
interests in the Corps' existing NEPA procedures. But revised agency
procedures will have no effect on ongoing NEPA reviews, where the Army,
following CEQ guidance, has determined it will continue to apply to
existing applications. Moreover, as the Supreme Court just explained,
NEPA ``is a purely procedural statute'' that ``imposes no substantive
environmental obligations or restrictions.'' Seven County, 145 S. Ct.
at 1507. Any asserted reliance interests grounded in substantive
environmental concerns are not in accord with the best meaning of the
law and are entitled to ``no . . . weight.'' Dep't of Homeland Sec. v.
Regents of the Univ. of California, 140 S. Ct. 1891, 1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
procedures. To the extent such interests exist, the Army concludes that
they are outweighed by other interests and policy concerns. The Army's
new NEPA procedures, is necessary to ensure efficient and predictable
reviews, with significant upsides for the economy and for projects with
activities needing Corps authorization. This set of policy
considerations drastically outweighs any claimed reliance interests in
the preexisting procedures.
The Army has taken this action as part of DoD's broader approach to
revising its implementation of NEPA, in which DoD and its components
have revised their NEPA implementing procedures to conform to the 2023
statutory amendments, to respond to President Trump's direction in E.O.
14154 to, ``[c]onsistent with applicable law, prioritize efficiency and
certainty over any other objectives, including those of activist
groups, that do not align with the policy goals set forth in section 2
of [that] order or that could otherwise add delays and ambiguity to the
permitting process,'' and to address
[[Page 29467]]
the pathologies of the NEPA process and NEPA litigation as identified
by the Supreme Court. Where Army has retained an aspect of their
preexisting NEPA implementing procedures, it is because that aspect is
compatible with these guiding principles; where the Army has revised or
removed an aspect, it is because that aspect is not so compatible.
1. The Army Is Making Conforming Amendments to Various Provisions in 33
CFR Part 320, 33 CFR Part 325, and Appendix C to That Part to Reference
the New Location for NEPA Implementing Procedures
2. Section-by-Section Overview of Part 333
Subpart A--Purpose and Policy
Section 333.1 Purpose and Policy
This section outlines the integration of NEPA into the Corps'
decision-making processes for evaluating applications from other
entities for authorization by the Corps, ensuring that impacts to the
human environment are considered early to facilitate informed decision-
making and timely reviews. It establishes procedures for Corps District
Engineers to fulfill NEPA requirements and clarifies that it does not
govern individual rights but sets forth the Corps' practices for
implementing NEPA.
Section 333.2 Applicability
This section states that the procedures apply to all Corps elements
processing Department of the Army Permit applications under 33 U.S.C.
1344 (Clean Water Act (CWA), section 404); 33 U.S.C. 401 (Rivers and
Harbors Act (RHA) of 1899, section 9); 33 U.S.C. 403 (RHA of 1899,
section 10); and 33 U.S.C. 1413 (Marine Protection, Research, and
Sanctuaries Act of 1972, section 103) and when granting permissions
under 33 U.S.C. 408 (RHA of 1899, section 14). This section clarifies
that NEPA imposes procedural requirements and is supplementary to the
Corps' other existing legal authorities or responsibilities. This
section discusses the responsibilities of satisfying NEPA requirement
as resting with the District Engineer. This is because for most
permitting actions decision making authority has been delegated to the
District Engineer (see e.g., 33 CFR 325.8(b)). However, some decisions
are required to be elevated to the Division Engineer or other higher
authority (see e.g., 33 CFR 325.8(c)). In cases in which decision
making authority is elevated to a higher authority, the
responsibilities ascribed to the District Engineer in this Part are
similarly elevated to that higher authority making the decision.
Subpart B--NEPA and General Concepts
Section 333.11 Determining When NEPA Applies
This section outlines the circumstances under which NEPA does not
apply to proposed agency permitting actions. NEPA is not applicable
when activities do not result in final agency action, are exempted by
law, conflict with other legal requirements, or when Congress has
prescribed decisional criteria that leave no discretion for
environmental considerations. Additionally, NEPA does not apply if
another statute fulfills its function, if the action is not a ``major
Federal action,'' or if it involves non-Federal actions with minimal
Federal involvement.
This section identifies a number of Corps activities that are not
subject to NEPA: preliminary jurisdictional determinations; approved
jurisdictional determinations; determination on whether an activity
requires a Corps permit or permission; aquatic resource delineation
concurrence or non-concurrence determinations; or determinations that
the modification of unimproved real estate of a project would not
affect the function and usefulness of the project. These determinations
are not permits; they answer jurisdictional questions about whether
specific regulatory regimes apply to an area or activity. Specifically,
they address whether an area or activity is subject to Corps
jurisdiction, which is made through the application of a standard
established in statute or regulation to the physical circumstances of
the site. In each of those cases, the law or regulation limits the
factors that the Corps can use in making these determinations and does
not give the Corps authority or discretion to consider the effects on
the environment when making the determination, or to formulate and
weigh decision alternatives based upon their comparative environmental
effects. Because the Corps does not have authority or discretion to
take environmental factors into account when making these
determinations, the Corps is not required to prepare a NEPA document
(42 U.S.C. 4336(a)(4)) and 4336e(10)(vii)) when conducting these
actions.
Preliminary jurisdictional determination. A preliminary
jurisdictional determination is a written indication that there may be
waters of the United States on a parcel or indications of the
approximate location(s) of waters of the United States on a parcel (33
CFR 331.2). A preliminary jurisdictional determination identifies the
limits of all aquatic resources on a parcel without determining the
jurisdictional status of such aquatic resources (Regulatory Guidance
Letter 16-01, Subject: Jurisdictional Determinations (October 2016)). A
preliminary jurisdictional determination is a purely technical
evaluation of what constitutes an aquatic resource. There is no
discretion to consider the environmental effects of decisions about
what constitutes an aquatic resource.
Approved jurisdictional determination. An approved jurisdictional
determination is a Corps document stating the presence or absence of
waters of the United States on a parcel or a written statement and map
identifying the limits of waters of the United States on a parcel (33
CFR 331.2). What constitutes waters of the United States is defined in
regulation (33 CFR 328.3(a)) and that regulation does not allow for any
discretion to consider the environmental effects of the determination.
The regulations require a strict application of the technical standard
to the facts on the ground.
Determination of whether an activity requires a permit. The
determination whether an activity requires a Corps permit or permission
requires applying jurisdictional standards including whether an
activity constitutes a discharge of dredged material or fill material
(33 CFR 323.3), is exempted by subsection 404(f) of the Clean Water
Act, is a structure or work in or affecting navigable waters of the
United States (33 CFR 322.3), involves the transportation of dredged
material for the purpose of dumping it in ocean waters (33 CFR 324.3),
or constitutes an alteration of a Civil Works project (Engineer
Circular 1165-2-220, paragraph 9). Each of these determinations is an
evaluation of a jurisdictional standard rooted in law against the facts
of a specific circumstance. The standards do not provide for the
consideration of environmental effects. That consideration of
environmental effects occurs only after it's determined that the
activity is jurisdictional and the Corps is determining whether to
authorize the work. When a determination has been made that the
activity is not jurisdictional, the Corps can issue a letter
documenting that determination and that no permit is required.
Aquatic resource delineation. During the Corps' coordination with
potential permit applicants the Corps is sometimes asked to review
aquatic
[[Page 29468]]
resource delineations prepared by landowners or their consultations.
Aquatic resource delineation reports identify and map the extent of
aquatic resources (such as rivers, streams, and wetlands) within a
specified review area using scientific methods. This is similar to what
is documented in a preliminary jurisdictional determination but in a
different, less formal, format. Just like a preliminary jurisdictional
determination, this is a purely technical evaluation of what
constitutes an aquatic resource. There is no discretion to consider the
environmental effects of decisions about what constitutes an aquatic
resource. Any feedback provided by the Corps, including concurrence or
non-concurrence with the report, is not subject to NEPA.
Modification of unimproved real estate. The Section 408 statute
provides that ``the term `work' shall not include unimproved real
estate owned or operated by the Secretary as part of a water resources
development project if the Secretary determines that modification of
such real estate would not affect the function and usefulness of the
project'' (33 U.S.C. 408(e)). If an activity is determined to not
constitute ``work,'' then it is not subject to review and approval
under the Section 408 authority. It is a jurisdictional standard to
determine whether Section 408 applies to an activity. The law provides
that determining whether an activity is ``work'' is determined solely
on the basis of whether the activity occurs on unimproved real estate
owned or operated by the Secretary as part of a water resources
development project and whether the activity would affect the function
and usefulness of the project. The law does not give the Corps
discretion to consider the environmental effects of the activity when
determining whether it constitutes ``work.''
Section 333.12 Determining the Appropriate Level of NEPA Review
This section describes the process for determining the appropriate
level of NEPA review if NEPA applies. The District Engineer will
consider whether a particular proposed activity is excluded pursuant to
a categorical exclusion, and, if not, whether to prepare an
environmental assessment or an environmental impact statement based on
the proposed activity's potential effects. The section also details the
analysis of the affected environment and the degree of effects to
determine significance.
Section 333.13 NEPA and Agency Decision-Making
This section explains how the District Engineer incorporates public
input and existing environmental analyses into the NEPA process. It
also outlines limitations on actions during the NEPA process and
coordination with applicants to ensure compliance and information
gathering.
Section 333.14 Categorical Exclusions
This section outlines the process used by the Corps to establish,
revise, and apply categorical exclusions, including adopting exclusions
from other agencies. To establish or revise a categorical exclusion,
the Chief of Engineers must determine that the actions do not
significantly affect the human environment, and this process involves
consultation with the CEQ and public notice. The Corps can rely on a
determination from other Federal agencies that a proposed action is
excluded pursuant to a categorical exclusion if the proposed action
before the Corps and the proposed action before the other agency or
agencies are substantially the same, and this reliance must be
documented. The section also details the removal process of categorical
exclusions, which requires justification, consultation, and public
notice. This section recodifies the existing categorical exclusions
from Appendix B and includes a reference to the list of categorical
exclusions that the Corps relies on when evaluating requests for
permissions. Finally, it describes how the District Engineer evaluates
proposed actions for extraordinary circumstances and documents the
applicability of categorical exclusions to exclude a particular
proposed activity from the obligation to prepare an environmental
document.
Section 333.15 Environmental Assessments
This section outlines the procedures for preparing environmental
assessments under NEPA, specifying that if an activity is not excluded
pursuant to a categorical exclusion from the requirement to prepare an
EA or EIS, the District Engineer must prepare an assessment unless an
environmental impact statement is clearly required. The assessment
should discuss the purpose, need, and alternatives for the proposed
activity, and conclude with a finding of no significant impact or a
determination that an environmental impact statement is necessary.
Environmental assessments are typically required for activities not
excluded pursuant to categorical exclusions or involving extraordinary
circumstances where the District Engineer does not determine and
document that, notwithstanding the presence of extraordinary
circumstances, it is appropriate to exclude the proposed activity
pursuant to a categorical exclusion, and they must adhere to specific
page limits and formatting guidelines. The District Engineer is
responsible for certifying that the assessment meets NEPA's
requirements. This section also provides deadlines for preparing
environmental assessments. These deadlines derive from Congress's
establishment of deadlines in the 2023 revision of NEPA, which supplied
the measure of the ``rule of reason'' which the Supreme Court has
repeatedly held must govern NEPA analysis.
Section 333.16 Findings of No Significant Impact
This section details the preparation of a finding of no significant
impact when an environmental assessment indicates no significant
effects. It includes documentation requirements and the conclusion of
the NEPA process if no environmental impact statement is needed.
Section 333.17 Lead and Cooperating Agencies
This section discusses the roles of the Corps as a lead or
cooperating agency in the NEPA process. It outlines responsibilities
for managing the NEPA process and providing environmental information,
as well as coordination with other agencies.
Section 333.18 Notices of Intent and Scoping
This section describes the publication of a notice of intent for an
environmental impact statement and the scoping process to determine the
scope of issues for analysis. It emphasizes the District Engineer's
responsibility to define the scope based on legal authority and control
over the proposed activity. This section details what factors District
Engineers will use to determine the proper scope for NEPA documents.
The rescinded Appendix B contained a provision addressing ``scope of
analysis'' and that provision has been recodified in this section. The
``scope of analysis'' provision in the revised Corps Regulatory Program
NEPA regulations is essentially identical with the provision that has
existed in the Corps' NEPA regulations since 1988. The Corps does not
have legal authority to regulate activities outside jurisdictional
water bodies. The limited extent of the Corps' authority is an
essential consideration
[[Page 29469]]
in determining what scope of analysis to use. Therefore, the Corps is
adding the expression ``legal authority'' to the list of considerations
that Corps officials must consider as they determine the appropriate
NEPA scope of analysis to use for any particular permit application.
The section also includes language to reflect that it applies to
requests for permission under 33 U.S.C. 408.
Subpart C--Environmental Impact Statements
Section 333.20 Significance Determination
This section outlines the process for determining if an
environmental impact statement is required based on the likelihood of
significant effects. It emphasizes the timing of this determination and
the notification process to the applicant.
Section 333.21 Preparation of Environmental Impact Statements
This section details the process of preparing an environmental
impact statement, including obtaining comments from relevant agencies.
It ensures that the process does not violate deadlines and addresses
significant comments received.
Section 333.22 Purpose and Need
This section explains the requirement to state the purpose and need
for the proposed agency action, informed by the applicant's goals and
the Corps' statutory authority.
Section 333.23 Analysis Within the Environmental Impact Statement
This section specifies that the environmental impact statement must
include a detailed analysis of the reasonably foreseeable environmental
effects, reasonably foreseeable unavoidable adverse effects, and a
reasonable range of alternatives to the proposed agency action. It also
addresses the relationship between short-term uses and long-term
productivity, any irreversible commitments of resources, and potential
mitigation measures, while emphasizing the need for concise and
significant-focused discussions.
Section 333.24 Page Limits
This section sets page limits for environmental impact statements,
including the availability of an extended page limit for complex
actions, and outlines formatting requirements.
Section 333.25 Deadlines
This section provides deadlines for preparing environmental impact
statements. These deadlines derive from Congress's establishment of
deadlines in the 2023 revision of NEPA, which supplied the measure of
the ``rule of reason'' which the Supreme Court has repeatedly held must
govern NEPA analysis.
Section 333.26 Publication of the Environmental Documents
This section requires the publication of the environmental impact
statement on a public website. This section also allows District
Engineers to publish predecisional drafts where appropriate to assist
in fulfilling NEPA responsibilities, but publication of a draft is not
required.
Section 333.27 Public Hearing
This section provides guidelines for holding any public hearings
related to environmental impact statements and coordinating with other
agencies when necessary.
Section 333.28 Comments Received on the Environmental Impact Statement
This section requires the District Engineer to consider and respond
to any substantive comments on any published predecisional draft of
environmental impact statements, forwarding them to higher authorities
if needed.
Section 333.29 Review of Other Agencies' Environmental Impact
Statements.
This section addresses the Corps' review of another agencies'
environmental impact statements.
Subpart D--Efficient Environmental Reviews
Section 333.31 Tiered Environmental Documents
This section allows for tiered environmental documents for multi-
phased reviews under 33 U.S.C. 408. Multi-phased reviews are used to
analyze complex proposed alterations through successive levels of
review through an iterative process established for the particular
activity. The goal of the process is to identify larger-scale issues,
such as with project siting or basic design, early in the project
development process before investments are made in more detailed levels
of design. In this multi-phased process, the Corps evaluates each
successive level of design to determine if there are issues with the
design that would prevent authorization of the alteration. If no
impediments are identified at a given phase, the proponent is allowed
to move to the next milestone and level of development. (Approval of
earlier phases does not guarantee approval of a subsequent alteration
or further level of development.) A key consideration of the evaluation
of each phase is the likely impacts on the environment given the level
of planning and detail, and tiered levels of NEPA would be conducted
for each phase of the multi-phase review. Just as the level of design
increases with each successive phase of the multi-phase review, the
level of detail in the environmental analysis would increase and build
off earlier tiers. This multi-phase review, and the inclusion of
environmental consideration at each phase, allows the parties to
identify and avoid unnecessary impacts on the environment and better
build-in environmental considerations into the development path of the
project while acknowledging financing, scheduling, and informational
constraints along the way.
Section 333.32 Reliance on Existing Environmental Documents
This section permits the District Engineer to rely on existing
environmental documents if they meet NEPA standards, with modifications
as necessary. This section replaces the concept of adopting other NEPA
documents by using the term ``reliance,'' to avoid confusion with
Congress's use in the 2023 NEPA amendments of the term ``adoption'' in
new Section 109 in the special context of an agency adopting a
categorical exclusion established by another agency.
Section 333.33 Incorporation
This section allows for the incorporation of relevant materials
into environmental documents by reference to reduce bulk while ensuring
accessibility for review. The District Engineer will not use
incorporation as a means to evade the statutory page limits.
Section 333.34 Supplemental Environmental Documents
This section provides the process for the preparation of
supplemental environmental documents if significant changes to the
proposed action occur or if new relevant information arises. It
specifies that supplements are necessary only if a major Federal action
is still pending.
Section 333.35 Integrity and Completeness of Information
This section states that the District Engineer will rely on
existing data for analyses unless new research is essential and cost-
effective. It also requires the disclosure of any
[[Page 29470]]
incomplete or unavailable information in environmental documents.
Section 333.36 Integrating NEPA With Other Environmental Requirements
This section emphasizes the integration of NEPA documents with
other federal environmental requirements to minimize duplication. It
allows for the combination of NEPA documents with other agency
documents and includes a section for listing necessary consultations
and permits.
Section 333.37 Elimination of Duplication With State, Tribal, and Local
Procedures
This section encourages cooperation with State, Tribal, and local
agencies to reduce duplication in environmental documentation. It
outlines potential collaborative efforts, such as joint planning and
public hearings, to streamline processes.
Section 333.38 Unique Identification Numbers
This section requires the assignment of unique identification
numbers to all environmental documents for tracking purposes. It
ensures coordination with the CEQ and other Federal agencies for
uniformity in identification numbers.
Section 333.39 Emergency Procedures
This section outlines procedures for proposed agency actions
related to emergency response without observance of full NEPA
documentation as otherwise applicable under the provisions of these
NEPA implementing procedures, considering environmental consequences
and consulting with CEQ for actions with likely significant impacts.
This does not provide an exception from compliance with the NEPA
statute, but rather an alternative means of complying with the statute
in emergency situations.
Subpart E--Agency Decision Making
Section 333.41 Decision Documents
This section describes the preparation and publication of decision
documents at the conclusion of the NEPA process, certifying that all
relevant information has been considered. It clarifies that the record
of decision is separate from the final EIS and informs the final agency
action but is not the final action itself.
Section 333.42 Filing Requirements
This section outlines the responsibility of the District Engineer
to file environmental impact statements, along with comments and
responses, with the U.S. Environmental Protection Agency (EPA) for
publication in the Federal Register.
Subpart F--Procedures for Applicant-Prepared NEPA Documents
Section 333.51 Procedures for Applicant-Prepared Environmental
Documents
This section describes the procedures for the preparation of
environmental documents by applicants or contractors under the
supervision of the District Engineer, in accordance with NEPA section
107(f). The District Engineer is responsible for independently
evaluating the environmental document and providing guidance to
applicants and contractors. The section also details the collaboration
between the District Engineer and the applicant in defining the purpose
and need, developing alternatives, and scheduling the preparation of
the draft environmental document. Additionally, the District Engineer
may request environmental information from the applicant and require
resubmission with adequate or accurate data, documenting the Corps'
independent evaluation.
Subpart G--Definitions
Section 333.61 Definitions
This section provides definitions of terms used in this part.
Subpart H--Severability
Section 333.71 Severability
The section address severability should a court invalidate a
section of this part.
II. Publication as an Interim Final Rule
A. Notice-and-Comment Rulemaking Is Not Required
The Army is repealing, revising, and replacing its procedures and
practices for implementing NEPA, a ``purely procedural statute'' which
```simply prescribes the necessary process' for an agency's
environmental review of a project''--a review that is, even in its most
rigorous form, ``only one input into an agency's decision and does not
itself require any particular substantive outcome.'' Seven County, 145
S. Ct. at 1511. ``NEPA imposes no substantive constraints on the
agency's ultimate decision to build, fund, or approve a proposed
project,'' and ``is relevant only to the question of whether an
agency's final decision''--i.e., that decision to authorize, fund, or
otherwise carry out a particular proposed project or activity--``was
reasonably explained.'' Id. As such, notice and comment procedures are
not required because this revision falls within the Administrative
Procedure Act (APA) exception for ``rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). Procedures for
implementing a purely procedural statute must be, by their nature,
procedural rules. Surely they cannot be legislative rules; as such,
they do not need to be promulgated via notice-and-comment rulemaking.
See 5 U.S.C. 553(b)(A). And even if that were not universally true, the
new rules adopted in this notice are purely procedural.
Thus, unsurprisingly, both the prior portions of part 325 and the
new part 333 do not dictate what outcomes the Corps' consideration of
information analyzed under NEPA must produce, nor do they impose
binding legal obligations on private citizens. Rather, the Army's NEPA-
implementing regulations for the Corps Regulatory Program and the
section 408 permission program, including Appendix B and, now, part
333, are procedural, outlining how District Engineers or Division
Engineers conduct NEPA reviews. These regulations describe the
structure of environmental documents, specify procedures, and guide
District Engineer decision-making, rather than establishing substantive
requirements binding the public. These are procedural provisions, not
substantive environmental ones. As such, they do not require notice and
comment for removal or replacement. See 5 U.S.C. 553(b)(A).
Moreover, even if (and to the extent that) the regulations were not
procedural rules, they may be characterized as interpretative rules or
general statements of policy, neither of which necessitates notice and
comment under 5 U.S.C. 553(b)(A). They offer the Corps' interpretations
of NEPA, a procedural statute itself, and guidance on agency practice,
without creating enforceable rights or obligations for the regulated
public. General statements of policy provide notice of an agency's
intentions as to how it will enforce statutory requirements, again
without creating enforceable rights or obligations for regulated
parties under delegated congressional authority. The former Appendix B
contains many paragraph-length explanations of the Corps'
interpretations of NEPA and/or policies that the Corps considers in
applying it. Similarly, the definitions and policy sections of the new
Part 333 are clearly interpretive and policy statements, respectively.
All such material is expressly exempted from notice and comment by
statute, 5 U.S.C. 553(b)(A), and does not require notice and comment
for removal or replacement.
[[Page 29471]]
Accordingly, although the Army is voluntarily providing notice and
an opportunity to comment on this interim final rule, the agency has
determined that notice-and-comment procedures are not required. The
fact that the Corps previously undertook notice-and-comment rulemaking
in promulgating these regulations is immaterial: As the Supreme Court
has held, where notice-and-comment procedures are not required, prior
use of them in promulgating a rule does not bind the agency to use such
procedures in repealing it. Perez v. Mortg. Bankers Ass'n, 575 U.S. 92,
101 (2015).
B. The Corps Has Good Cause for Proceeding With an Interim Final Rule
Moreover, the Army also finds that, to the extent that prior notice
and solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing rules satisfies the ``good cause'' exceptions in 5
U.S.C. 553(b)(B) and (d). The APA authorizes agencies to issue
regulations without notice and public comment when an agency finds, for
good cause, that notice and comment is ``impracticable, unnecessary, or
contrary to the public interest,'' 5 U.S.C. 553(b)(B), and to make the
rule effective immediately for good cause. 5 U.S.C. 553(d)(3). As
discussed in Section I, above, the Corps' prior rules were promulgated
to supplement the Council on Environmental Quality's (CEQ's) NEPA
regulations. Following the rescission of CEQ's regulations, the Corps'
current rules are left hanging in air, supplementing a NEPA regime that
no longer exists. The Corps, thus far and as a temporary, emergency
measure, has been continuing to operate under its prior procedures as
if the CEQ NEPA regime still existed. This is not, however, tenable. As
soon as proper procedures are available--which they now are, in the
form of Part 333--this makeshift regime needs to be rescinded
immediately. The section 408 permission program will also now follow a
set of up-to-date NEPA implementing procedures and not 33 CFR part 230.
The status of 33 CFR part 230 will be addressed in a separate action,
but the section 408 program will follow 33 CFR part 333. Because of
this need for speed and certainty in replacing a defunct NEPA regime,
notice-and-comment is, to the extent it was required at all,
impracticable and contrary to the public interest.
For the same reasons stated in the present section, above, the Army
finds that ``good cause'' exists under 5 U.S.C. 553(d)(3) to waive the
30-day delay of the effective date that would otherwise be required.
III. Request for Comments
As explained above, comment is not required because the Corps' NEPA
procedures were procedural and because, even if comment were required
under the APA, good cause exists to forego it. Nevertheless, the Corps
has elected voluntarily to solicit comment. The Army is soliciting
comment on this interim final rule, and may make further revisions to
its NEPA implementing procedures, if the Army's review of any comments
submitted suggests that further revisions are warranted. Commenters
have 30 days from publication of this interim final rule to submit
comments.
IV. Effective Date
This rule becomes effective on the date of publication in the
Federal Register and applies to permit applications or requests for
permission submitted on or after the effective date. Permit
applications or requests for permission submitted before the effective
date of this rule will continue to use the rule in place at the time
the application or request was submitted. In situations where the Corps
has not published a notice of intent to prepare an environmental impact
statement or a public notice under 33 CFR 325.3 for applications or
requests ongoing before the effective date of these regulations, the
District Engineer may elect to follow these procedures with the
agreement of the applicant.
V. Executive Orders 12866 and 13563
This interim final rule is a significant regulatory action and,
therefore, was reviewed under E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
VI. Executive Order 14192
This interim final rule is not subject to E.O. 14192, because this
rule is not a significant regulatory action under E.O. 12866.
VII. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under the
``good cause'' exemption in 5 U.S.C. 553(b), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. In any event, this interim final rule is not
subject to that Act because it will not have a significant impact on a
substantial number of small entities. Accordingly, no regulatory
flexibility analysis is required, and none has been prepared. See 5
U.S.C. 603(a), 604(a).
VIII. Paperwork Reduction Act
The interim final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects
33 CFR Part 320
Administrative practice and procedure, Dams, Environmental
protection, Intergovernmental relations, Navigation, Water pollution
control, Waterways.
33 CFR Part 325
Administrative practice and procedure, Dams, Environmental
protection, Intergovernmental relations, Navigation, Water pollution
control, Waterways.
33 CFR Part 333
Administrative practice and procedure, Dams, Environmental
protection, Intergovernmental relations, Navigation, Water pollution
control, Waterways.
For the reasons stated in the preamble, the Corps amends 33 CFR
chapter II as set forth below:
PART 320--GENERAL REGULATORY POLICIES
0
1. The authority citation for part 320 is revised to read as follows:
Authority: 5 U.S.C. 301; 33 U.S.C. 401 et seq.: 33 U.S.C. 1344;
33 U.S.C. 1413.
0
2. Amend Sec. 320.3 by revising paragraph (d)(2) to read as follows:
Sec. 320.3 Related laws.
* * * * *
(d) * * *
(2) All agencies of the Federal Government shall * * * insure that
presently unquantified environmental amenities and values may be given
appropriate consideration in decisionmaking along with economic and
technical considerations * * *''. (See 33 CFR part 333.)
* * * * *
PART 325--PROCESSING OF DEPARTMENT OF THE ARMY PERMITS
0
3. The authority citation for part 325 is revised to read as follows:
Authority: 5 U.S.C. 301; 33 U.S.C. 401 et seq.: 33 U.S.C. 1344;
33 U.S.C. 1413.
[[Page 29472]]
0
4. Amend Sec. 325.1 by revising paragraph (b) to read as follows:
Sec. 325.1 Applications for permits.
* * * * *
(b) Pre-application consultation for major applications. The
district staff element having responsibility for administering,
processing, and enforcing federal laws and regulations relating to the
Corps of Engineers regulatory program shall be available to advise
potential applicants of studies or other information foreseeably
required for later federal action. The district engineer will establish
local procedures and policies including appropriate publicity programs
which will allow potential applicants to contact the district engineer
or the regulatory staff element to request pre-application
consultation. Upon receipt of such request, the district engineer will
assure the conduct of an orderly process which may involve other staff
elements and affected agencies (Federal, state, or local) and the
public. This early process should be brief but thorough so that the
potential applicant may begin to assess the viability of some of the
more obvious potential alternatives in the application. The district
engineer will endeavor, at this stage, to provide the potential
applicant with all helpful information necessary in pursuing the
application, including factors which the Corps must consider in its
permit decision making process. Whenever the district engineer becomes
aware of planning for work which may require a DA permit and which may
involve the preparation of an environmental document, they shall
contact the principals involved to advise them of the requirement for
the permit(s) and the attendant public interest review including the
development of an environmental document. Whenever a potential
applicant indicates the intent to submit an application for work which
may require the preparation of an environmental document, a single
point of contact shall be designated within the district's regulatory
staff to effectively coordinate the regulatory process, including the
National Environmental Policy Act (NEPA) procedures and all attendant
reviews, meetings, hearings, and other actions, including the scoping
process if appropriate, leading to a decision by the district engineer.
Effort devoted to this process should be commensurate with the
likelihood of a permit application actually being submitted to the
Corps. The regulatory staff coordinator shall maintain an open
relationship with each potential applicant or their consultants so as
to assure that the potential applicant is fully aware of the substance
(both quantitative and qualitative) of the data required by the
district engineer for use in preparing an environmental assessment (EA)
or an environmental impact statement (EIS) in accordance with 33 CFR
part 333.
* * * * *
0
5. Amend Sec. 325.2 by revising paragraph (a) to read as follows:
Sec. 325.2 Processing of applications.
(a) * * *
(4) The district engineer will follow 33 CFR part 333 for
environmental procedures and documentation required by the National
Environmental Policy Act of 1969, as amended. 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.
* * * * *
0
6. Amend Sec. 325.3 by revising paragraph (a)(9) to read as follows:
Sec. 325.3 Public notice.
(a) * * *
(9) If appropriate, a statement that the activity is included
within a categorical exclusion for purposes of NEPA;
* * * * *
Appendix B to Part 325--[Removed and Reserved]
0
7. Under the authority of 5 U.S.C. 301, remove and reserve Appendix B
to Part 325.
0
8. Amend Appendix C to Part 325 by revising paragraph 2.b. to read as
follows:
Appendix C to Part 325--Procedures for the Protection of Historic
Properties
* * * * *
2. * * *
b. In addition to the requirements of the NHPA, all historic
properties may be subject to consideration under the National
Environmental Policy Act, (33 CFR part 333), and the Corps' public
interest review requirements contained in 33 CFR 320.4. Therefore,
historic properties may be included as a factor in the district
engineer's decision on a permit application.
* * * * *
0
9. Add part 333 to read as follows:
PART 333--PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33
U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT
IMPLEMENTING PROCEDURES
Sec.
Subpart A--Purpose and Policy
333.1 Purpose and policy.
333.2 Applicability.
Subpart B--NEPA and General Concepts
333.11 Determining when NEPA applies.
333.12 Determining the appropriate level of NEPA review.
333.13 NEPA and agency decision-making.
333.14 Categorical exclusions.
333.15 Environmental assessments.
333.16 Findings of no significant impact.
333.17 Lead and cooperating agencies.
333.18 Notices of intent and scoping.
Subpart C--Environmental Impact Statements
333.20 Significance determination.
333.21 Preparation of environmental impact statements.
333.22 Purpose and need.
333.23 Analysis within the environmental impact statement.
333.24 Page limits.
333.25 Deadlines.
333.26 Publication of the environmental documents.
333.27 Public hearing.
333.28 Comments received on the environmental impact statement.
333.29 Review of other agencies' environmental impact statements.
Subpart D--Efficient Environmental Reviews
333.31 Tiered environmental documents.
333.32 Reliance on existing environmental documents.
333.33 Incorporation.
333.34 Supplemental environmental documents.
333.35 Integrity and completeness of information.
333.36 Integrating NEPA with other environmental requirements.
333.37 Elimination of duplication with State, Tribal, and local
procedures.
333.38 Unique identification numbers.
333.39 Emergency procedures.
Subpart E--Agency Decision Making
333.41 Decision documents.
333.42 Filing requirements.
Subpart F--Procedures for Applicant-Prepared NEPA Documents
333.51 Procedures for applicant-prepared environmental documents.
Subpart G--Definitions
333.61 Definitions.
Authority: 5 U.S.C. 301; 33 U.S.C. 401 et seq.; 33 U.S.C. 1344;
33 U.S.C. 1413; 42 U.S.C. 4321 et seq.
Subpart A--Purpose and Policy
Sec. 333.1 Purpose and policy.
(a) The purpose of these procedures is to integrate the National
Environmental Policy Act (NEPA) into the U.S. Army Corps of Engineers'
(Corps) decision-making processes for evaluating applications from
other, non-Corps entities for authorization by the Corps. Specifically,
the procedures: describe the process by which a District or
[[Page 29473]]
Division Engineer determines what actions are subject to NEPA's
procedural requirements and the applicable level of NEPA review; ensure
that relevant environmental information is identified and considered
early in the process in order to ensure informed decision making;
enable District Engineers to conduct coordinated, consistent,
predictable and timely environmental reviews; reduce unnecessary
burdens and delays; and implement NEPA's mandates regarding lead and
cooperating agency roles, page and time limits, and sponsor preparation
of environmental documents.
(b) This part sets forth the Corps procedures and practices for
implementing NEPA when considering Department of the Army permit
applications under 33 U.S.C. 1344 (Clean Water Act, section 404); 33
U.S.C. 401 (Rivers and Harbors Act of 1899, section 9); 33 U.S.C. 403
(Rivers and Harbors Act of 1899, section 10); and 33 U.S.C. 1413
(Marine Protection, Research, and Sanctuaries Act of 1972, section 103)
and requests for permission under 33 U.S.C. 408 (Rivers and Harbors Act
of 1899, section 14). The Regulatory Program of the Corps implements 33
U.S.C. 1344, 33 U.S.C. 401, and 33 U.S.C. 1413 and references to the
Regulatory Program in this part refer to the processing of permit
applications under those authorities. As used in this part, ``permit''
means an authorization under any of the authorities in this paragraph,
and ``application'' means any request for authorization under any of
the above identified authorities. This part further explains the Corps'
interpretation of certain key terms in NEPA. It does not, nor does it
intend to, govern the rights and obligations of any party outside the
government. It does, however, establish the procedures under which
Corps District Engineers will typically fulfill requirements under NEPA
for decisions under the authorities in this paragraph. The
responsibilities of the District Engineer, as described in this part,
may be elevated to a higher authority consistent with existing
delegations and authorities and in such cases the role of the District
Engineer described in the part will be assumed by the entity with
decision making authority.
(c) Consultation with the Council on Environmental Quality
(``CEQ''). In addition to the process for establishing or revising
categorical exclusions set forth in Sec. 333.14(b) and (d), the Corps
will consult with CEQ while developing or revising their proposed NEPA
implementing procedures, in accord with NEPA section 102(2)(B), 42
U.S.C. 4332(B).
Sec. 333.2 Applicability.
(a) Applicability. This Part applies to all Corps elements
processing applications for Department of the Army Permits or requests
for permission under the authorities listed in 33 CFR 333.1(b).
(b) Authority. NEPA imposes certain procedural requirements on the
exercise of the Corps' existing legal authority in relevant
circumstances. Nothing contained in these procedures is intended or
should be construed to limit the Corps' other authorities or legal
responsibilities.
Subpart B--NEPA and General Concepts
Sec. 333.11 Determining when NEPA applies.
District Engineers will determine that NEPA does not apply to a
proposed agency permitting action when:
(a) The activities or decision do not result in final agency action
under the Administrative Procedure Act, 5 U.S.C. 704, or any other
relevant statute that includes a finality requirement;
(b) The proposed activity or decision is exempted from NEPA by law;
(c) Compliance with NEPA would clearly and fundamentally conflict
with the requirements of another provision of law;
(d) In circumstances where Congress by statute has prescribed
decisional criteria with sufficient completeness and precision such
that the Corps retains no residual discretion to alter its action based
on the consideration of environmental factors, then that function of
the Corps is nondiscretionary within the meaning of NEPA section
106(a)(4) and/or section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and
4336e(10)(B)(vii), respectively), and NEPA does not apply to the action
in question;
(e) The proposed action is an action for which another statute's
requirements serve the function of agency compliance with the Act; or
(f) The proposed action is not a ``major Federal action,'' which is
defined at 42 U.S.C. 4336e(10). Additionally, the terms ``major'' and
``Federal action'' each have independent force. NEPA applies only when
both of these two criteria are met. Such a determination is specific to
the facts and circumstances of each individual situation and is
reserved to the judgment of the District Engineer in each instance. In
addition to the illustrative general categories in NEPA section
111(10), 42 U.S.C. 4336e(10), the Corps has determined that the
following non-exhaustive list of Corps activities related to the
Regulatory Program and 33 U.S.C. 408 are presumptively not subject to
NEPA as not meeting the definition of a major Federal action:
(1) Preliminary Jurisdictional Determinations;
(2) Approved Jurisdictional Determinations;
(3) Determination of whether an activity requires a Corps permit or
permission;
(4) Aquatic resource delineation concurrence or non-concurrence
determinations; or
(5) Determination that the modification of unimproved real estate
of a project would not affect the function and usefulness of the
project.
(g) NEPA does not apply to ``non-Federal actions.'' Therefore,
under the terms of the statute, NEPA does not apply to actions with no
or minimal Federal funding, or with no or minimal Federal involvement
where a Federal agency cannot control the outcome of the project. NEPA
Sec. 111(10)(B)(i), 42 U.S.C. 4336e(10)(B)(i). A but-for causal
relationship is insufficient to make the Corps responsible for a
particular action under NEPA.
(h) The issuance or update of the Corps' NEPA procedures is not
subject to NEPA review.
(i) In determining whether NEPA applies to a proposed action, the
Corps will consider only the project at hand.
Sec. 333.12 Determine the appropriate level of NEPA review.
(a) If the District Engineer determines under Sec. 333.11 that
NEPA applies to a proposed activity or decision, the District Engineer
will then determine the appropriate level of NEPA review in the
following sequence and manner. At all steps in the following process,
the Corps will consider the proposed activity and its effects.
(1) If the Corps has established, or adopted pursuant to NEPA
section 109, 42 U.S.C. 4336c, a categorical exclusion that covers the
proposed activity, the District Engineer will analyze whether to apply
the categorical exclusion to the proposed activity and apply the
categorical exclusion, if appropriate, pursuant to Sec. 333.14(e).
(2) If another agency has already established a categorical
exclusion that covers the proposed activity, the District Engineer will
consider whether to recommend that the Headquarters, U.S. Army Corps of
Engineers adopt that exclusion pursuant to Sec. 333.14(c) so that it
can be applied to the proposed activity at issue, and so that
Headquarters may consider applying to future activities of that type.
(3) If the proposed activity warrants the establishment of a new
categorical
[[Page 29474]]
exclusion, or the revision of an existing categorical exclusion,
pursuant to Sec. 333.14(b), the Chief of Engineers will consider
whether to so establish or revise, and then apply the categorical
exclusion to the proposed action pursuant to Sec. 333.14(e).
(4) If the District Engineer cannot apply a categorical exclusion
to the proposed activity consistent with paragraphs (a)(1)-(3), the
District Engineer will determine the appropriate level of review, i.e.,
whether the proposed activity warrants preparation of an environmental
assessment or an environmental impact statement. Most activities
requiring a Corps permit that are not otherwise covered by a
categorical exclusion normally require only an environmental
assessment. In determining the level of review, the District Engineer
will consider the proposed action's reasonably foreseeable effects
consistent with paragraph (b), and then will:
(i) develop an environmental assessment, as described in Sec.
333.15, if the proposed activity is not likely to have reasonably
foreseeable significant effects or the significance of the effects is
unknown; or
(ii) develop an environmental impact statement, as described in
Sec. 333.21, if the proposed activity is likely to have reasonably
foreseeable significant effects.
(b) When considering whether the reasonably foreseeable effects of
the proposed activity are significant, the District Engineer will
analyze the potentially affected environment and degree of the effects
of the activity within their jurisdiction or control. The District
Engineer may use any reliable data source, but will not undertake new
research of any type unless it is essential to evaluating alternatives
and the cost and time of obtaining it are not unreasonable. District
Engineers should not determine that a proposed activity is significant
based solely on public interest or opposition.
(1) In considering the potentially affected environment, the
District Engineer may consider, as appropriate to the specific
activity, the affected area (national, regional, or local) and its
resources. The District Engineer may, as appropriate, consider the
regulated activity's effect on factors such as conservation, economics,
aesthetics, general environmental concerns, wetlands, historic
properties, fish and wildlife values, flood hazards, floodplain values,
land use, navigation, shore 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.
(2) In considering the degree of the effects, the District Engineer
may consider the following, as appropriate to the specific action:
(i) Both short- and long-term effects.
(ii) Both beneficial and adverse effects.
(iii) Effects on public health and safety.
(iv) Economic effects.
Sec. 333.13 NEPA and agency decision-making.
(a) Process. The District Engineer will consider input received in
response to the public notice, where public notice is required by the
legal authority governing the proposed activity for which authorization
is sought, advising interested parties of the proposed activity for
which authorization is sought when determining the environmental
effects that should be considered in the NEPA analysis. District
Engineers will promote efficiency through the adoption or incorporation
of existing applicable EAs and EISs and other relevant environmental
analysis to the extent practicable. Information developed through the
NEPA process will inform the District Engineer's decision on the permit
application or request for permission.
(b) Limitations on actions during the NEPA process. Except as
provided in paragraph (c) of this section, until the Corps issues a
record of decision or a finding of no significant impact, or makes a
categorical exclusion determination, as applicable, the permit
applicant should take no action concerning their application that
would:
(1) have an adverse environmental effect within an area under the
jurisdiction of the Corps; or
(2) limit the choice of reasonable alternatives.
(c) If the Corps is considering an application from a non-Federal
entity and becomes aware that the applicant is about to take an action
within the Corps' jurisdiction that would meet either of the criteria
in Sec. 333.13(b), the Corps will promptly notify the applicant that
the Corps will take appropriate action to ensure that the objectives
and procedures of NEPA are achieved.
(d) Coordination with the Applicant.
(1) The District Engineer will:
(i) Coordinate at the earliest reasonable time in the application
review process to inform the applicant what information the District
Engineer might need to comply with NEPA and, if the lead agency,
establish a schedule for completing steps in the NEPA review process,
consistent with NEPA's statutory deadlines and any internal agency NEPA
schedule requirements; and
(ii) Begin the NEPA process by determining whether NEPA applies, as
described in Sec. 333.11, and if it does, determine the appropriate
level of NEPA review, as described in Sec. 333.12, as soon as
practicable after receiving the complete application
(2) The District Engineer may require the applicant to furnish
appropriate information that the District Engineer considers necessary
for the preparation of an EA or EIS. An applicant or a contractor hired
by the applicant may prepare an environmental assessment or
environmental impact statement under the District Engineer's
supervision. The Corps procedures for applicant-prepared environmental
assessments and environmental impact statement are included in Sec.
333.51 of this part.
Sec. 333.14 Categorical exclusions.
(a) Generally. This section describes the process the Corps uses
for establishing and revising categorical exclusions, for adopting
other agencies' categorical exclusions, and for applying categorical
exclusions to a proposed agency action. The Corps categorical
exclusions, including Corps categorical exclusions specifically
applicable to evaluating applications from other entities for
authorization by the Corps established consistent with its NEPA
procedures, any legislative categorical exclusions, and categorical
exclusions adopted from other agencies, are listed in paragraph (g) in
this section.
(b) Establishing and revising categorical exclusions. To establish
or revise a categorical exclusion, the Chief of Engineers will
determine that the category of actions normally does not significantly
affect the quality of the human environment. In making this
determination, the Headquarters, U.S. Army Corps of Engineers will:
(1) Develop a written record containing information to substantiate
its determination;
(2) Consult with CEQ on its proposed categorical exclusion,
including the written record, for a period not to exceed 30 days prior
to providing public notice as described in paragraph (b)(3) of this
section;
(3) Provide public notice in the Federal Register of the Corps'
establishment or revisions of the categorical exclusion and where the
record is available; and
(4) Document the establishment or revision of the categorical
exclusion in
[[Page 29475]]
the Corps' implementing procedures at Sec. 333.14(g).
(c) Adopting categorical exclusions from other Federal agencies.
(1) Consistent with NEPA section 109, 42 U.S.C. 4336c, the Corps may
adopt a categorical exclusion listed in another agency's NEPA
procedures. When adopting a categorical exclusion, the Headquarters,
U.S. Army Corps of Engineers, in coordination with any recommending
Districts, will:
(i) Identify the categorical exclusion listed in another agency's
NEPA procedures that covers its category of proposed or related
actions;
(ii) Consult with the agency that established the categorical
exclusion to ensure that the proposed adoption of the categorical
exclusion is appropriate;
(iii) Provide public notification of the categorical exclusion that
the Corps is adopting, including a brief description of the proposed
action or category of proposed actions to which the Corps intends to
apply the adopted categorical exclusion; and
(iv) Document the adoption of the categorical exclusion in the
Corps' implementing procedures at Sec. 333.14(g).
(2) The Corps may rely on another agency's determination that a
categorical exclusion applies to a specific proposed activity if the
specific activity covered by the original categorical exclusion
determination and the Corps' proposed regulatory activity are
substantially the same. For the Corps, actions occurring at essentially
the same time and place are considered substantially the same when a
proposed action would result in a categorical exclusion determination
by one agency and an environmental assessment and a finding of no
significant impact by another agency. For example, this would be the
case when another agency's action may be a funding decision for a
proposed project covered by a categorical exclusion established by the
funding agency, and the Corps' proposed regulatory action is to
consider a permit for construction activities with less than
significant adverse environmental effects for that same project. When
relying on another agency's determination that a categorical exclusion
applies to a specific proposed Corps regulatory activity, the District
Engineer will document the reliance on the agency's categorical
exclusion determination in the administrative record for the proposal
under Corps review.
(d) Removal of categorical exclusions. The Assistant Secretary of
the Army for Civil Works must approve the removal of a categorical
exclusion from Sec. 333.14(g) and, in coordination with the Corps,
will:
(1) Develop a written justification for the removal;
(2) Consult with CEQ on its proposed removal of the categorical
exclusion, including a description of the rationale for the removal,
for a period not to exceed 30 days prior to providing public notice as
described in paragraph (d)(3) of this section;
(3) Provide public notice of the Corps' removal of the categorical
exclusion and a summary of the justification in the Federal Register;
and
(4) Document the removal of the categorical exclusion in the Corps'
implementing procedures at Sec. 333.14(g).
(e) Applying categorical exclusions. (1) If the District Engineer
determines that a categorical exclusion covers a proposed agency
action, they should evaluate the presence of extraordinary
circumstances where normally excluded actions could have reasonably
foreseeable significant environmental effects. If an extraordinary
circumstance is not present, the District Engineer will determine that
the categorical exclusion applies to the proposed agency action and
conclude review.
(2) If an extraordinary circumstance is present, the District
Engineer will determine that the categorical exclusion applies to the
proposed agency action and conclude review if the permit applicant
modifies the proposed agency action to avoid those effects or if the
District Engineer determines that, notwithstanding the extraordinary
circumstance, the proposed action is not likely to result in reasonably
foreseeable significant effects. If the District Engineer determines
that they cannot apply the categorical exclusion to the proposed
action, the District Engineer will prepare an environmental assessment
or environmental impact statement, as appropriate.
(3) In cases where a single action's constituent parts are covered
by multiple categorical exclusions, the District Engineer may conclude
the entire action is categorically excluded when there are no
extraordinary circumstances present that are likely to result in
reasonably foreseeable significant effects, or there are extraordinary
circumstances present, but the District Engineer determines that
applying a categorical exclusion is appropriate consistent with
paragraph (e)(2) of this section.
(4) Documentation of categorical exclusion determinations. The
District Engineer will document its evaluation of the applicability of
a categorical exclusion in the statement of findings supporting the
permit or permission decision.
(5) The documentation of evaluation of the applicability of a
categorical exclusion does not have a prescribed format but should
briefly address consideration of any potential extraordinary
circumstances and any mitigation measures that reduce the level of
impact. The level of analysis should reflect the sensitivity of the
resources being impacted and the scale of the activity.
(f) Reliance on categorical exclusion determinations of other
agencies. The District Engineer may also rely on another agency's
determination that a categorical exclusion applies to a particular
proposed activity if the agency action covered by that determination
and the proposed activity are substantially the same. The District
Engineer will document its reliance on another agency's categorical
exclusion determination in the statement of findings supporting the
permit or permission decision.
(g) List of categorical exclusions. The following activities
normally do not significantly affect the quality of the human
environment t and are therefore categorically excluded from NEPA
documentation:
(1) For permit applications for Clean Water Act, Section 404, River
and Harbors Act of 1899, Section 10, and Marine Protection, Research,
and Sanctuaries Act of 1972, section 103:
(i) Fixed or floating small private piers, small docks, boat hoists
and boathouses.
(ii) Minor utility distribution and collection lines including
irrigation;
(iii) Minor maintenance dredging using existing disposal sites;
(iv) Boat launching ramps;
(v) All applications which qualify as letters of permission (as
described at 33 CFR 325.5(b)(2)).
(2) In addition to those listed for other permit applications in
this section, the District Engineer can rely on the categorical
exclusions at 33 CFR 230.9 for requests for permission under 33 U.S.C.
408.
Sec. 333.15 Environmental assessments.
(a) Generally. If an activity is subject to NEPA, as determined
following the procedures in Sec. 333.11, and unless the District
Engineer finds that the proposed activity is excluded from having to
prepare an environmental assessment or environmental impact statement
pursuant to a categorical exclusion as determined following the
procedures in Sec. 333.14, or by another provision of law, the
District Engineer will prepare an environmental assessment with respect
[[Page 29476]]
to the proposed activity that does not have a reasonably foreseeable
significant effect on the quality of the human environment, or if the
significance of such effect is unknown. District Engineers must follow
Congress' direction that environmental assessments are to be
``concise.'' NEPA section 106(b)(2); 42 U.S.C. 4336(b)(2). The
environmental assessment should normally be combined with any other
required documents including Clean Water Act, section 404(b)(1)
guidelines documentation, any applicable public interest review, any
statement of findings, a finding of no significant impact or a
determination that an environmental impact statement is required.
Environmental assessment as used throughout this part normally refers
to this combined document. When the environmental assessment is a
separate document, it must be completed prior to completion of the
statement of finding. The District Engineer may delegate the signing of
the NEPA document. Should the environmental assessment demonstrate that
an environmental impact statement is necessary, the District Engineer
shall follow the procedures outlined in subpart C of this part. In
those cases where an environmental impact statement is required, an
environmental assessment is not required. However, the District
Engineer must document their reasons for requiring an environmental
impact statement.
(b) Elements. For the purpose of providing evidence and analysis
for determining whether to prepare an environmental impact statement or
a finding of no significant impact, environmental assessments will:
(1) Briefly discuss the:
(i) Purpose and need for the proposed activity based on the Corps'
statutory authority. The purpose and need for the proposed activity
will also be informed by the applicant's goals (See 33 CFR 333.22 for
considerations in developing purpose and need);
(ii) Alternatives to the extent required by NEPA section 102(2)(H),
42 U.S.C. 4332(2)(H).
(A) If 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, and, for activities evaluated
under section 404 of the Clean Water Act, 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.
(B) In all other cases where the district engineer determines that
there are unresolved conflicts concerning alternative uses of available
resources, the EA shall include a discussion of the reasonable
alternatives which are to be considered. 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) or
within the scope of authority under Section 408. The decision option to
deny the permit results in the ``no action'' alternative (i.e. no
activity requiring a Corps permit).
(iii) The reasonably foreseeable effects of the proposed activity
and the alternatives considered.
(iv) The combined document shall conclude with a finding of no
significant impact or a determination that an environmental impact
statement is required.
(c) Agency actions normally requiring an environmental assessment.
Most permits or permissions under the authorities identified in Sec.
333.1(b) normally require environmental assessments, but likely do not
require an environmental impact statement.
(d) Page limits. (1) The text of an environmental assessment is
strictly prohibited from exceeding 75 pages, not including citations or
appendices.
(2) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations, and
the like, which substantiate the analysis provided in the environmental
assessment. Appendices are not to be used to provide additional
substantive analysis, because that would circumvent the Congressionally
mandated page limits.
(3) Environmental assessments will be formatted for an 8.5''x11''
page with one-inch margins using a word processor with 12-point
proportionally spaced font, single spaced. Footnotes may be in 10-point
font. Such size restrictions do not apply to explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information, although pages containing such
material do count towards the page limit. When an item of graphical
material is larger than 8.5''x11'', each such item will count as one
page.
(4) Certification related to page limits. The breadth and depth of
analysis in an environmental assessment will be tailored to ensure that
the environmental analysis does not exceed this page limit. As part of
the finalization of the environmental assessment, the District Engineer
will certify (and the certification will be incorporated into the
environmental assessment) that the District Engineer has considered the
factors mandated by NEPA; that the environmental assessment represents
the Corps' good-faith effort to prioritize documentation of the most
important considerations required by the statute within the
congressionally mandated page limits; that this prioritization reflects
the District Engineer's expert judgment; and that any considerations
addressed briefly or left unaddressed were, in the District Engineer's
judgment, comparatively not of a substantive nature that meaningfully
informed the consideration of environmental effects and the resulting
decision on how to proceed.
(e) Deadlines. (1) NEPA is governed by a rule of reason. Congress
supplied the measure of that reason in the 2003 revision of NEPA by
setting the deadlines in NEPA 107(g), 42 U.S.C. 4336a(g). These
deadlines indicate Congress's determination that an agency has
presumptively spent a reasonable amount of time on analysis and the
document should issue, absent very unusual circumstances. In such
circumstances, an extension will be given only for such time as is
necessary to complete the analysis. Thus, unless otherwise specified in
statute, the District Engineer will complete the environmental
assessment not later than the date that is one year after the date on
which they determine the preparation of an environmental assessment for
the proposed activity is required. The District Engineer will typically
make this decision at the start of the comment period for the public
notice of the permit application, request for permission, or proposed
general permit.
(2) The end date is either:
(i)When the District Engineer reaches a permit decision and
initially proffers the permit to the applicant or provides permission
to the requestor under 33 U.S.C. 408;
(ii) When the District Engineer denies the permit or denies
permission under 33 U.S.C. 408 with or without prejudice; or
(iii) When the District Engineer publishes a general permit or
categorical permission; or
(iv) When the District Engineer reaches a decision on the
mitigation instrument and provides the bank or in-lieu fee program
sponsor with an instrument signed by the Corps.
(3) The District Engineer may publish notification of the
environmental assessment (unless the deadline is extended pursuant to
the provision
[[Page 29477]]
below), within a reasonable time after the deadline elapses or the
completion of the document, whichever comes first.
(4) Deadline extensions. If the District Engineer determines they
are not able to meet the deadline prescribed by NEPA section
107(g)(1)(B), 42 U.S.C. 4336a(g)(1)(B), they must consult with the
applicant pursuant to NEPA section 107(g)(2), 42 U.S.C. 4336a(g)(2).
After such consultation, if needed, and for cause stated, the District
Engineer may establish a new deadline. Cause for establishing a new
deadline is only established if the environmental assessment is so
incomplete, at the time at which the District Engineer determines it is
not able to meet the statutory deadline, that issuance pursuant to
Sec. 333.15(e)(3) above would, in the Corps' view, result in an
inadequate analysis. Such new deadline must provide only so much
additional time as is necessary to complete such environmental
assessment. The District Engineer will document in the administrative
record for the proposed action the new deadline the reason why the
environmental assessment was not able to be completed under the
statutory deadline and whether the applicant consented to the new
deadline.
(5) Certification related to deadline. When the environmental
assessment is complete, the District Engineer will certify (and the
certification will be incorporated into the environmental assessment)
that the resulting environmental assessment represents the Corps' good-
faith effort to fulfill NEPA's requirements within the Congressional
timeline; that such effort is substantially complete; that, in the
District Engineer's expert opinion, they have thoroughly considered the
factors mandated by NEPA; and that, in the District Engineer's
judgment, the analysis contained therein is adequate to inform and
reasonably explain the District Engineer's final decision regarding the
proposed Federal activity.
Sec. 333.16 Findings of no significant impact.
(a) The District Engineer will prepare a finding of no significant
impact if the District Engineer determines, based on the environmental
assessment, not to prepare an environmental impact statement because
the proposed activity will not have significant effects. The finding of
no significant impact will:
(1) Be included in the environmental assessment;
(2) Document the reasons why the District Engineer has determined
that the selected alternative will not have a significant effect on the
quality of the human environment;
(3) If the District Engineer finds no significant effects based on
mitigation, the mitigated finding of no significant impact will state
any mitigation requirements enforceable by the agency or voluntary
mitigation commitments that will be undertaken by the applicant to
avoid significant effects;
(4) Identify any other documents related to the finding of no
significant impact; and
(5) State that the District Engineer will not prepare an
environmental impact statement, concluding the NEPA process for that
permit application, request for permission, or mitigation instrument.
(b) The District Engineer may publish notification of the
environmental assessment and finding of no significant impact on a
public website.
Sec. 333.17 Lead and cooperating agencies.
(a) Corps as lead agency. In many instances, a proposed activity or
decision is undertaken in the context which entails activities or
decisions undertaken by other Federal agencies (e.g., where multiple
Federal authorizations are required with respect to a project sponsor's
overall purpose and goal). These activities and decisions may be
``related actions,'' in that they are each the responsibility of a
particular agency and they may be all related in a matter relevant to
NEPA, e.g., by their relationship with one overarching project. In such
instances, Congress has provided that the multiple agencies involved
shall determine which of them will be the lead agency pursuant to the
criteria identified in NEPA section 107(a)(1)(A), 42 U.S.C.
4336a(a)(1)(A), or any other applicable statute. When serving as the
lead agency, the Corps is responsible for managing the NEPA process,
including those portions of a non-Federal applicant's proposed project
which come under the jurisdiction of other Federal agencies. When
serving as the lead agency, the Corps will also determine and document
the scope of analysis. When a joint lead relationship is established
pursuant to NEPA section 107(a)(1)(B), 42 U.S.C. 4336a(a)(1)(B), the
Corps and the other joint lead agency or agencies are collectively
responsible for completing the NEPA process. The Corps may reimburse,
under agreement, staff support from other Federal agencies beyond the
immediate jurisdiction of those agencies.
(b) Corps as cooperating agency. As a cooperating agency the Corps
will be responsible to the lead agency for providing environmental
information which is directly related to the regulatory matter involved
and which is required for the preparation of the NEPA documentation.
This in no way shall be construed as lessening the District Engineer's
ability to request the applicant to furnish appropriate information as
discussed in Sec. 333.51 of this part. The District Engineer will
identify to the lead agency the information and analysis that is
required to be included in the resulting NEPA documentation so that it
can be relied on by the Corps for purposes of exercising its permitting
authority. When the Corps is a cooperating agency because of a
regulatory responsibility, the district engineer should make available
staff support at the lead agency's request to enhance the latter's
interdisciplinary capability provided the request pertains to the Corps
regulatory action covered by the NEPA document, to the extent this is
practicable. Beyond this, Corps staff support will generally be made
available to the lead agency to the extent practicable within its own
responsibility and available resources. Any assistance to a lead agency
beyond this will normally be by written agreement with the lead agency
providing for the Corps expenses on a cost reimbursable basis. If the
District Engineer believes a public hearing should be held and another
agency is lead agency, the District Engineer should request such a
hearing and provide their reasoning for the request. The District
Engineer should suggest a joint hearing and offer to take an active
part in the hearing and ensure coverage of the Corps concerns. When the
applicant's proposed activities qualify for an existing general permit
or categorical permission, the Corps' obligations under NEPA were
satisfied when the Corps issued the general permit or categorical
permission. On this basis, Corps contributions as a cooperating agency
on an environmental impact statement or environmental assessment should
be limited to assisting the lead agency with accurate information
pertaining to the proposed impacts under Corps authorities.
Sec. 333.18 Notices of intent and scoping.
(a) Notice of intent. As soon as practicable after determining that
a proposed activity for which Corps authorization is sought is
sufficiently developed to allow for meaningful public comment and
requires an environmental impact statement, the District Engineer will
publish a notice of intent to prepare an environmental impact
statement.
(1) The notice of intent for an environmental impact statement will
include a request for public comment on alternatives or effects and on
relevant
[[Page 29478]]
information, studies, or analyses with respect to the proposed agency
action.
(2) In addition to a request for comment required for notices of
intent for environmental impact statements, notice of intent for any
environmental document may include:
(i) The purpose and need for the proposed action;
(ii) A preliminary description of the proposed action and
alternatives the environmental impact statement will consider;
(iii) A brief summary of expected effects;
(iv) Anticipated permits and other authorizations (i.e.,
anticipated related actions);
(v) A schedule for the decision-making process;
(vi) A description of the public scoping process, including any
scoping meeting(s);
(vii) Contact information for the project manager handling the
permit application, who can answer questions about the proposed action
and the environmental impact statement; and
(viii) Identification of any cooperating and participating agencies
(i.e., agencies responsible for related actions), and any information
that such agencies require in the notice to facilitate their decisions
or authorizations
(b) Scoping. In addition to the notice of intent process described
above, the District Engineer may also use other early and open
processes to determine the scope of issues for analysis in an
environmental document, including substantive issues that meaningfully
inform the consideration of environmental effects and the resulting
decision on how to proceed, eliminating from further study non-
substantive issues, and determining whether connected actions should be
addressed in the same environmental document. Scoping may begin as soon
as practicable after the proposal for action is sufficiently developed
for consideration. Scoping may include appropriate pre-application
procedures, public meetings, or work conducted prior to publication of
the notice of intent.
(c) Scope of analysis. It is the exclusive responsibility of the
District Engineer to determine the appropriate scope of analysis for
the applicant's proposed activity based on the Corps' legal authority
over the activity and whether the Corps has sufficient control and
responsibility over any aspect of the applicant's proposed activity
beyond the Corps' limited statutory authorities. When determining the
scope of an environmental assessment or an environmental impact
statement, the District Engineer must consider the following:
(1) 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 larger project (e.g., construction
of an oil refinery on an upland area). The district engineer should
establish the scope of the Corps' NEPA review to address the impacts of
the specific activity requiring a DA permit or 33 U.S.C. 408 permission
and those portions of the entire project over which the district
engineer has sufficient control, responsibility, and legal authority to
warrant Federal review.
(2) The District Engineer is considered to have control,
responsibility, and legal authority 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,
consistent with Congress's exclusions from the definition of ``major
Federal action'' at NEPA Section 111(10) and the Supreme Court's
holding in Seven County that NEPA does not require an agency to analyze
effects from actions beyond the action the agency itself is taking or
authorizing.. These are cases where the environmental consequences of
the larger project are essentially products of the Corps permit or 33
U.S.C. 408 permission action. Typical factors to be considered in
determining whether sufficient control, responsibility, and legal
authority exist to turn an essentially private action occurring outside
of Corps jurisdiction into a Federal action include:
(i) Whether or not the regulated activity comprises merely a link
in a corridor type project (e.g., a transportation or utility
transmission project).
(ii) 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.
(iii) The extent to which the entire project will be within Corps
jurisdiction.
(iv) The extent of cumulative Federal control, responsibility, and
legal authority.
(A) Federal control, responsibility, and legal authority 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. These 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 actions).
(B) In determining whether sufficient cumulative Federal
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 their statutory authorities, and/or other
environmental review laws and executive orders.
(C) The District Engineer should also refer to Sec. 333.17 of this
part for guidance on determining whether the Corps should be the lead
or a cooperating agency in these situations.
(3) Examples:
(i) 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 or 33 U.S.C. 408 permission requirement relates to a
connecting pipeline, supply loading terminal, or fill road, that
pipeline, 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 affect the
location and configuration of the regulated activity.
Similarly, if an applicant seeks a DA permit to fill waters or
wetlands or 33 U.S.C. 408 permission to alter a covered project on
which other construction or work is proposed, the control,
responsibility, and legal authority 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 or within the boundary of
the project covered by 33 U.S.C. 408. However, the NEPA review would be
extended to the entire project, including portions outside waters of
the United States or the project area covered by 33 U.S.C. 408, only if
sufficient Federal control, responsibility, and legal authority 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
[[Page 29479]]
analysis has been defined, the NEPA analysis for that action should
include the effects or impacts from the proposed action or alternatives
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, State, Tribal,
and local agencies.
(ii) 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 or 33 U.S.C. 408 permission and any other portion
of the project that is within the control, responsibility, and legal
authority 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 nor the destination of the
cable, nor 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, responsibility, or legal authority of the Corps.
Those matters would not be included in the Corps' scope of analysis
which, in this case, would address the impacts of the specific cable
crossing.
As another example, the same 50-mile electrical transmission cable
crossing a Corps civil works project requires a 33 U.S.C. 408
permission. As with the previous example, neither the origin nor the
destination of the cable, nor its route to and from the civil works
project, except as the route applies to the location and configuration
of the crossing within the civil works project, are within the control,
responsibility, or legal authority of the Corps. Those matters would
not be included in the Corps' scope of analysis which, in this case,
would address the impacts of the specific cable crossing on the Corps
civil works project.
Conversely, for those activities that require a DA permit or 33
U.S.C. 408 permission for a major portion of a transportation or
utility transmission project, such that the Corps permit or 33 U.S.C.
408 permission bears upon the origin and destination as well as the
route of the project outside the Corps regulatory boundaries (including
those covered by 33 U.S.C. 408), the scope of analysis should include
those portions of the project outside the boundaries of the Corps
jurisdiction. To use the same example, if 30 miles of the 50-mile
transmission line would cross jurisdictional wetlands, other ``waters
of the United States,'' or Corps civil works boundaries covered by 33
U.S.C. 408, the scope of analysis should reflect impacts of the whole
50-mile transmission line.
(iii) 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 dredged material in order to function. Permits for such
activities are normally considered sufficient Federal control,
responsibility, and legal authority to warrant extending the scope of
analysis to include the upland portions of the facility.
(4) 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.
(5) In preparing the environmental assessment or environmental
impact statement, the District Engineer will focus its analysis on
whether the environmental effects of the regulated activity are
significant.
(i) Similarly, the District Engineer will document in the
environmental assessment or environmental impact statement where and
how it drew a reasonable and manageable line relating to its
consideration of any environmental effects from the regulated activity
that extend outside the geographical territory of the project or might
materialize later in time.
(ii) To the extent it assists in reasoned decision-making, the
District Engineer may, but is not required to by NEPA, analyze
environmental effects from other projects separate in time, or separate
in place, or that fall outside of the Corps' regulatory authority, or
that would have to be initiated by a third party. If the District
Engineer determines that such analysis would assist it in reasoned
decisionmaking, it will document this determination in the
environmental assessment and explain where it drew a reasonable and
manageable line relating to the consideration of such effects from such
separate projects.
Subpart C--Environmental Impact Statements
Sec. 333.20 Significance determination.
(a) General. Prior to initiating an environmental impact statement,
the District Engineer must determine the proposed activity is likely to
have reasonably foreseeable significant effects on the quality of the
human environment, after consideration of any mitigation the Corps may
require. As described in Sec. 333.12(a)(5)(i) and Sec. 333.15 of this
part, this determination can be made following the completion of an
environmental assessment in cases where that environmental assessment
cannot conclude in a finding of no significant impact; in other
situations, it can be made without first preparing an environmental
assessment in instances where initial consideration as to the
appropriate level of review as described indicates that the proposed
activity is likely to have reasonably foreseeable significant effects.
In cases where it is obvious that the proposed activity is likely to
result in reasonably foreseeable significant effects and an
environmental assessment terminating in a finding of no significant
impact is therefore not prepared, the District Engineer must make a
determination that an environmental impact statement is required due to
the likely significant effects of the activity. This determination will
be made in accordance with Sec. 333.12(b) and documented. Whether an
impact rises to the level of significant is a matter of the District
Engineer's expert judgment.
(b) Timing. The determination to prepare an environmental impact
statement should be made as soon as the Corps has sufficient
information to consider on whether the project would result in
significant effects on the human environment, after consideration of
any mitigation the Corps would require. In many cases this is soon
after the receipt of a complete DA permit application or request for
permission, although in some cases a determination may not be made
until after an environmental assessment has been prepared. After a
determination has been made to prepare an environmental impact
statement as the lead agency, the Corps will notify the applicant in
writing as soon as practicable.
Sec. 333.21 Preparation of environmental impact statements.
(a) During the process of preparing an environmental impact
statement, the District Engineer:
(1) Will contact all appropriate Federal agencies to determine
their respective role(s), i.e., that of lead agency or cooperating
agency consistent with Sec. 333.17 of this part.
(2) Will obtain the comments of:
(i) Any Federal agency that has specific statutory jurisdiction or
special expertise identified in statute with respect to any
environmental impact involved or is authorized to develop and enforce
environmental standards. The District Engineer shall only consider
comments directly tied to the commenting Federal agency's specific
[[Page 29480]]
statutory jurisdiction or special expertise identified in statute and
relevant to impacts or issues within the scope of analysis as
determined by the District Engineer. The District Engineer shall only
include those comments in the permit or 33 U.S.C. 408 permission
administrative file and record.
(ii) Appropriate State, Tribal, and local agencies that are
authorized to develop and enforce environmental standards.
(3) May request the comments of:
(i) State, Tribal, or local governments that may be affected by the
proposed action;
(ii) Any Federal agency that has requested it receive statements on
actions of the kind proposed to the extent the comments are directly
tied to that agency's statutory jurisdiction or special expertise as
identified in statute;
(iii) The applicant, and
(iv) The public, including by affirmatively soliciting comments in
a manner designed to inform those persons or organizations who may be
interested in or affected by the proposed action.
(b) This process of obtaining and requesting comments pursuant to
paragraph (a) of this section may be undertaken at any time that is
reasonable in the process of preparing the environmental impact
statement. The District Engineer will ensure the process of obtaining
and request comments pursuant to paragraph (a) of this part, and the
District Engineers' analysis of and response to those comments, does
not cause the Corps to violate the congressionally mandated deadline
for completion of an environmental impact statement.
(c) The District Engineer will address any substantive and
significant comments received consistent with paragraph (a) of this
section in the environmental impact statement. Such responses to
comments will be documented and may include:
(1) Modifying alternatives, including the proposed activity.
(2) Developing and evaluating alternatives not previously given
serious consideration.
(3) Supplementing, improving, or modifying analyses, to include
consideration of science or literature not previously considered.
(4) Making factual corrections.
(5) No action needed. The agency may provide a brief rationale for
taking no action, such as:
(i) The comment is outside the scope of what is being proposed;
(ii) There is no cause-effect relationship between the actions the
agency is proposing and the issue raised and/or recommendation made;
(iii) The commenter misinterpreted the information provided; or
(iv) The recommendation made does not comply with applicable laws
or regulations and/or are not feasible to implement (technically or
economically), etc.
(d) In those instances in which the District Engineer solicits
comments from the public, the request for comments will provide clear
instructions on how comments should be submitted, including electronic
submission, and the dates during which comments will be accepted. The
solicitation of comments should include requests for comments on
specific questions or issues or for information that would be helpful
in informing the District Engineer's decision.
(e) If the District Engineer determines that an environmental
impact statement is not required after a notice of intent has been
published, the District Engineer shall terminate the environmental
impact statement preparation and withdraw the notice of intent. The
District Engineer shall notify in writing the appropriate Division
Engineer; Headquarters U.S. Army Corps of Engineers; any appropriate
federal agencies; and the public of the determination.
Sec. 333.22 Purpose and need.
(a) The statement will include the purpose and need for the
proposed agency action based on the Corps' statutory authority and
independent judgment. The purpose and need for the proposed agency
action must be informed by the goals of the applicant. The applicant
may provide a statement of the purpose and need from their perspective,
but the District Engineer will exercise independent judgment in
defining the purpose and need for the project.
(b) If the scope of analysis for the NEPA document (see Sec.
333.18(b) of this part) covers only the proposed specific activity
requiring a Department of the Army permit or 33 U.S.C. 408 permission,
then the underlying purpose and need for that specific activity should
be stated. (For example, ``The purpose and need for the pipe is to
obtain cooling water from the river for the electric generating
plant.'')
(c) If the scope of analysis covers a more extensive project, only
part of which may require a DA permit or 33 U.S.C. 408 permission, then
the underlying purpose and need for the entire project should be
stated. (For example, ``The purpose and need for the electric
generating plant is to provide increased supplies of electricity to the
(named) geographic area.'')
Sec. 333.23 Analysis within the environmental impact statement.
(a) The Corps is neither an opponent nor proponent of the
applicant's proposal; therefore, the applicant's final proposal will be
identified as the ``applicant's preferred alternative'' in the final
EIS. Decision options available to the District Engineer, which embrace
all of the applicant's alternatives, are issue the permit, issue with
modifications or conditions, or deny the permit.
(b) The environmental impact statement will include a detailed
statement on:
(1) Reasonably foreseeable environmental effects of the applicant's
preferred alternative;
(2) Any reasonably foreseeable adverse environmental effects which
cannot be avoided should the applicant's preferred alternative be
implemented;
(3) A reasonable range of alternatives to the applicant's preferred
alternative, including an analysis of any negative environmental
impacts of not implementing the applicant's preferred alternative in
the case of a no action alternative.
(i) Only reasonable alternatives need be considered in detail.
Reasonable alternatives must be those that are, in the District
Engineer's expert judgment, technically, legally, and economically
feasible and such feasibility must focus on the accomplishment of the
underlying purpose and need.
(ii) The alternatives analysis should be thorough enough to use the
404(b)(1) guidelines (40 CFR part 230) where applicable.
(iii) Those alternatives that are unavailable to the applicant,
whether or not they require Federal action (permits), should normally
be included in the analysis of the no-Federal-action (denial)
alternative.
(iv) The EIS should discuss geographic alternatives, e.g., changes
in location and other site-specific variables, and functional
alternatives, e.g., project substitutes and design modifications.
(v) The ``no-action'' alternative is one which results in no
construction requiring a Corps permit or permission. It may be brought
by either the applicant electing to modify their proposal to eliminate
work under the jurisdiction of the Corps or by the denial of the permit
or permission. District engineers, when evaluating this alternative,
should discuss, when appropriate, the consequences of other
[[Page 29481]]
likely uses of a project site, should the permit be denied.
(4) The relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity; and
(5) Any irreversible and irretrievable commitments of Federal
resources which would be involved in the proposed agency action should
it be implemented; and
(6) Any means identified to mitigate adverse environmental effects
of the proposed action. (To note, NEPA itself does not require or
authorize the Corps to impose any mitigation measures); and
(7) Such alternatives should be evaluated only to the extent
necessary to allow a complete and objective evaluation and a fully
informed decision regarding the permit application or request for
permission.
(b) Environmental impact statements will discuss effects in
proportion to their significance. With respect to issues that are not
of a substantive nature and do not meaningfully inform the
consideration of environmental effects and the resulting decision on
how to proceed, there will be no more than the briefest possible
discussion to explain why those issues are not substantive and
therefore not worthy of any further analysis. Environmental impact
statements will be analytic, concise, and no longer than necessary to
comply with NEPA in light of the congressionally mandated page limits
and deadlines.
(c) The District Engineer will not include a cost-benefit analysis
for projects requiring a Corps permit or permission, but may indicate
any cost considerations relevant to the permit decision or 33 U.S.C.
408 permission decision.
Sec. 333.24 Page limits.
(a) Page limits. Except as provided in paragraph (b) of this
section, the text of an environmental impact statement will not exceed
150 pages, not including citations or appendices.
(b) An environmental impact statement for a proposed agency action
of extraordinary complexity is strictly prohibited from not exceeding
300 pages, not including any citations or appendices. The District
Engineer will determine at the earliest possible stage of preparation
of an environmental impact statement whether the conditions for
exceeding the page limit in paragraph (a) of this section are present.
Factors that may indicate extraordinary complexity include: a
geographically expansive project that affects multiple resource types;
numerous alternatives that must be considered; involves a long time
period for implementation; impacts multiple sensitive resources;
involve authorization decisions by multiple agencies.
(c) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations, and
the like, which substantiate the analysis provided in the environmental
assessment. Appendices are not to be used to provide additional
substantive analysis, because that would circumvent the Congressionally
mandated page limits.
(d) Format. Environmental impact statements will be formatted for
8.5''x11'' paper with one-inch margins using a word processor with 12-
point proportionally spaced font, single spaced. Footnotes may be in
10-point font. Such size restrictions do not apply to explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information. When an item of graphical
material is larger than 8.5''x11'', each such item will count as one
page.
(e) Certification related to page limits. The breadth and depth of
analysis in an environmental impact statement will be tailored to
ensure that the environmental impact statement does not exceed these
page limits. In this regard, as part of the finalization of the
environmental impact statement, a responsible official will certify
that the Corps has considered the factors mandated by NEPA; that the
environmental impact statement represents the Corps' good-faith effort
to prioritize documentation of the most important considerations
required by the statute within the congressionally mandated page
limits; that this prioritization reflects the District Engineer's
expert judgment; and that any considerations addressed briefly or left
unaddressed were, in the District Engineer's judgment, comparatively
unimportant or frivolous.
Sec. 333.25 Deadlines.
(a) NEPA is governed by a ``rule of reason.'' Congress supplied the
measure of that reason in the 2023 revision of NEPA by settling the
deadlines in NEPA 107(g), 42 U.S.C. 4336a(g). These deadlines indicate
Congress's determination that an agency, working with Congress's
allocation of resources has presumptively spent a reasonable amount of
time on analysis and the document should issue, absent very unusual
circumstances. In such circumstances, an extension will be given only
for such time as is necessary to complete the analysis. Thus, unless
otherwise specified in statute, the District Engineer will complete the
environmental impact statement not later than the date that is two
years after the date on which the District Engineer determines that the
activity requires the issuance of an environmental impact statement.
(b) The end date is either:
(1) When the District Engineer reaches a decision and initially
proffers the permit to the applicant or provides the requestor 33
U.S.C. 408 permission; or
(2) When the District Engineer denies the permit or denies
permission under 33 U.S.C. 408 with or without prejudice.
(c) The District Engineer will publish the environmental impact
statement.
(d) If the District Engineer determines they are not able to meet
the deadline prescribed by NEPA section 107(g)(1)(A), 42 U.S.C.
4336a(g)(1)(A), they must consult with the applicant pursuant to NEPA
section 107(g)(2), 42 U.S.C. 4336a(g)(2). After such consultation, if
needed, and for cause stated, the District Engineer may establish a new
deadline and must notify the Division Engineer and Headquarters, U.S.
Army Corps of Engineers of the deadline extension. Cause for
establishing a new deadline is only established if the environmental
impact statement is so incomplete, at the time at which the District
Engineer determines they are not able to meet the statutory deadline,
that issuance pursuant to paragraph (c) of this section above would, in
the District Engineer's view, result in an inadequate analysis. Such
new deadline must provide only so much additional time as is necessary
to complete such environmental impact statement. The District Engineer
will document in the administrative record for the proposed action the
new deadline, the reason why the environmental impact statement was not
able to be completed under the statutory deadline, when the District
Engineer consulted with the applicant on the new deadline, and whether
the applicant consented to the new deadline.
(e) When the environmental impact statement is published, the
District Engineer will certify (and the certification will be
incorporated into the environmental impact statement) that the
resulting environmental impact statement represents the Corps' good-
faith effort to fulfill NEPA's requirements within the Congressional
timeline; that such effort is substantially complete; and that, in the
District Engineer's expert opinion, they have thoroughly considered the
factors mandated by NEPA; and that, in the District Engineer's
judgment, the analysis contained therein is adequate to inform and
reasonably explain the
[[Page 29482]]
District Engineer's decision regarding the proposed Federal activity. .
Sec. 333.26 Publication of the environmental impact statement.
The District Engineer will publish the entire environmental impact
statement on a publicly available website. During the process of
preparing the environmental impact statement, the District Engineer may
publish a draft statement or other materials that in their judgment may
assist in fulfilling their NEPA responsibilities.
Sec. 333.27 Public hearing.
If a public hearing is to be held pursuant to 33 CFR part 327, or
any other authority, for a permit application requiring an
environmental impact statement, the actions analyzed by the
environmental impact statement should be considered at the public
hearing. The District Engineer can, but need not, make a draft of the
environmental impact statement available to the public and, in
instances where the District Engineer does so, should do so at least 15
days in advance of the hearing. If a hearing request is received from
another agency having jurisdiction over an element of the applicant's
activity, the district engineer should coordinate a joint hearing with
that agency whenever appropriate.
Sec. 333.28 Comments received on an environmental impact statement.
For permit applications or requests for permissions to be decided
at the district level, the District Engineer should consider incoming
comments and provide responses in the environmental impact statement
when substantive issues are raised. For permit applications or requests
for permissions to be decided at a higher authority, the District
Engineer shall forward any comment letters together with appropriate
responses to the higher authority.
Sec. 333.29 Review of other agencies' environmental impact
statements.
District Engineers should provide comments directly to the
requesting agency specifically related to the Corps jurisdiction by law
or special expertise. If the District Engineer determines that another
agency's environmental impact statement which involves a Corps permit
or permission action is inadequate with respect to the Corps permit or
permission action, the district engineer should attempt to resolve the
differences concerning the Corps permit or permission action prior to
the filing of the environmental impact statement by the other agency.
Subpart D--Efficient Environmental Reviews
Sec. 333.31 Tiered and programmatic environmental documents.
(a) Activities that require Corps authorization under 33 U.S.C.
1344, 33 U.S.C. 401, 33 U.S.C. 403, and 33 U.S.C. 1413 are reviewed
(and when applicable, permitted) on a site-specific basis based upon an
application containing a complete description of the proposed activity,
and all activities which the applicant plans to undertake which are
reasonably related to the same project and for which a Corps permit
will be required. See 33 CFR 325.1(d)(1)-(2). However, only for reviews
of activities under 33 U.S.C. 408, the District Engineer may prepare
tiered environmental documents when conducting multi-phased reviews of
proposed alterations or in other appropriate circumstances. Multi-
phased reviews under 33 U.S.C. 408 evaluate proposed alterations in
multiple successive iterations of progressively greater detail. Each
successive review must be accompanied by a NEPA document that considers
the potential impacts of the alteration at the level of detail of the
given phase of review to help inform the development of the proposed
alteration. The analysis in each environmental document will reflect
the level of planning in each tier. For example, the first tier may
consider the differing impacts of selecting different sites for the
alteration, the second tier may consider different project
configurations, and the final tier may consider the impacts from
different construction methods. Each successive analysis should build
off the previous analysis, formally incorporating the prior
environmental documents.
(b) After completing a programmatic environmental assessment or
environmental impact statement for a review under 33 U.S.C. 408, the
District Engineer may rely on that document for 5 years if there are
not substantial new circumstances or information about the significance
of adverse effects that bear on the analysis. After 5 years, as long as
the District Engineer reevaluates the analysis in the programmatic
environmental document and any underlying assumption to ensure reliance
on the analysis remains valid and briefly documents its reevaluation
and explains why the analysis remains valid considering any new and
substantial information or circumstances, the District Engineer may
continue to rely on the document.
Sec. 333.32 Reliance on existing environmental documents.
(a) Generally. The District Engineer may rely on an environmental
impact statement, environmental assessment, or portion thereof,
provided that the statement, assessment, or portion thereof meets the
standards for an adequate statement or assessment under these
procedures. When relying on an environmental impact statement,
environmental assessment, or portion thereof, the District Engineer
will cite, briefly describe the content and relevance to the
environmental document, and may make modifications that are necessary
to render the relied-upon document, or portion thereof, fit for
fulfilling NEPA's analytic requirements for the action. If the District
Engineer finds that the other agency's environmental impact statement
or environmental assessment is inadequate with respect to the Corps
permit or permission action, the District Engineer should incorporate
the other agency's NEPA document or a portion thereof and prepare an
appropriate and adequate NEPA document to address the Corps involvement
with the proposed action.
(b) Substantial similarity. (1) If the actions covered by the
original environmental impact statement or environmental assessment and
the proposed action are substantially the same, the District Engineer
will document their reliance on the statement or assessment.
(2) If the actions are not substantially the same, the District
Engineer may modify the statement or assessment as necessary to render
the statement fit for fulfilling NEPA's analytic requirements for the
action at hand, and document the reliance on the statement or
assessment, as modified, or may incorporate relevant portions in the
District Engineer's own NEPA document. Where appropriate, the District
Engineer may solicit comment to the extent that solicitation of comment
will assist the District Engineer in expeditiously adapting the relied-
upon statement or assessment so that it is fit for the District
Engineer's purposes.
Sec. 333.33 Incorporation.
The District Engineer may incorporate material, such as planning
studies, analyses, or other relevant information, into environmental
documents by reference when the effect will be to cut down on bulk
without impeding the Corps review of the action. When incorporating
material by reference, the District Engineer will cite, briefly
describe the content and relevance to
[[Page 29483]]
the environmental document, and make the materials reasonably available
for review by potentially interested parties. The District Engineer
will not use incorporation as a means to evade the statutory page
limits.
Sec. 333.34 Supplements to environmental documents.
The District Engineer will prepare supplements to environmental
documents only if a major Federal action remains to occur, and:
(a) The applicant makes substantial changes to the proposed action
that are relevant to environmental concerns; or
(b) The District Engineer decides, in their discretion, that there
are substantial significant new circumstances or information about the
significance of the adverse effects that bear on the proposed action or
its effects.
Sec. 333.35 Integrity and completeness of information.
(a) The District Engineer will not undertake new scientific and
technical research to inform their analyses unless that is essential to
a reasoned choice among alternatives and the overall costs and time
frame of such undertaking are not unreasonable. Rather, the District
Engineer will make use of reliable existing data and resources.
(b) When the District Engineer is evaluating an action's reasonably
foreseeable effects on the human environment, and there is incomplete
or unavailable information that cannot be obtained at a reasonable cost
or the means to obtain it are unknown, the District Engineer will make
clear in the relevant environmental document that such information is
lacking.
Sec. 333.36 Integrating NEPA with other environmental requirements.
(a) To the fullest extent possible, the District Engineer will
prepare environmental documents concurrently with and integrated with
analyses and related surveys and studies required by other Federal
statutes. In appropriate instances, the District Engineer may
participate in preparing single environmental assessment, finding of no
significant impact, environmental impact statement, and Record of
Decision documents.
(b) The District Engineer will combine an environmental document
prepared in compliance with NEPA with any other agency document to
reduce duplication and paperwork. Thus, the District Engineer may
combine an environmental document with related plans, rules, or
amendments as a single consolidated document.
(c) If comments on a notice of intent or other aspects of a scoping
process identify consultations, permits, or licenses necessary under
other environmental laws, the environmental document may contain a
section briefly listing the applicable requirements and how the
applicant has or will meet them (e.g., permits applied for or received,
consultations initiated or concluded).
Sec. 333.37 Elimination of duplication with State, Tribal, and local
procedures.
(a) The District Engineer will, where appropriate, cooperate with
State, Tribal, and local agencies that are responsible for preparing
environmental documents.
(b) To the fullest extent practicable unless specifically
prohibited by law, the District Engineer will cooperate with State,
Tribal, and local agencies to reduce duplication between NEPA and
State, Tribal, and local requirements, including through use of
studies, analysis, and decisions developed by State, Tribal, or local
agencies. Such cooperation may include:
(1) Joint planning processes;
(2) Joint environmental research and studies;
(3) Joint public hearings (except where otherwise provided by
statute); or
(4) Joint environmental documents.
Sec. 333.38 Unique identification numbers.
For all environmental documents, the District Engineer will provide
a unique identification number for tracking purposes, which the
District Engineer will reference on all associated environmental review
documents prepared for the proposed agency action and in any database
or tracking system for such documents. The District Engineer will
coordinate with the CEQ and other Federal agencies to ensure uniformity
of such identification numbers across Federal agencies.
Sec. 333.39 Emergency procedures.
In responding to emergency situations to prevent or reduce imminent
risk of life, health, property, or severe economic losses, district
commanders may proceed without the specific documentation and
procedural requirements of other sections of this regulation. District
Engineers shall consider the probable environmental consequences in
determining appropriate emergency actions and when requesting approval
to proceed on emergency actions, will describe proposed NEPA
documentation or reasons for exclusion from documentation. NEPA
documentation should be accomplished prior to initiation of emergency
work if time constraints render this practicable. Such documentation
may also be accomplished after the completion of emergency work, if
appropriate. When possible, emergency actions considered major in scope
with potentially significant environmental impacts shall be referred
through the Division Engineers to Headquarters, U.S. Army Corps of
Engineers for consultation with CEQ about NEPA alternative
arrangements.
Subpart E--Agency Decision Making
Sec. 333.41 Decision documents.
At the time of its decision on its proposed action, the Corps may
prepare and timely publish a concise public decision document notifying
the public that the District Engineer has certified that the Corps has
considered all relevant information raised in the NEPA process and that
the NEPA process has closed. To avoid duplication, a finding of no
significant impact may reference the environmental assessment and a
record of decision may reference the environmental impact statement.
The decision document prepared for NEPA compliance informs the final
agency action of making the decision on the permit application or the
request for permission under 33 U.S.C. 408(a) but is not the final
agency action.
Sec. 333.42 Filing requirements.
The District Engineer will file environmental impact statements
together with comments and any responses with the Environmental
Protection Agency (EPA), Office of Federal Activities for publication
in the Federal Register.
Subpart F--Procedures for Applicant-Prepared NEPA Documents
Sec. 333.51 Procedures for applicant-prepared environmental
documents.
The District Engineer may require the applicant to furnish
appropriate information that the district engineer considers necessary
for the preparation of an EA or EIS. The District Engineer may prepare
an EA or an EIS, or may obtain information needed to prepare an EA or
an EIS, either with Corps staff or by third-party contract. In
accordance with NEPA section 107(f), 42 U.S.C. 4336a(f), the Corps has
established procedures allowing applicants, or contractors hired by
applicants, to prepare environmental assessments and environmental
impact statements documents under the District Engineer supervision.
(a) The District Engineer will independently evaluate the
environmental document and will take
[[Page 29484]]
responsibility for its contents. The District Engineer is responsible
for ensuring that the information provided by the applicant-hired
contractor is consistent with Corps' need to take a hard, objective
look at the public interest and environmental factors consistent with
its statutory requirements.
(b) The District Engineer will assist applicants and applicant-
hired contractors by providing guidance and outlining the types of
information required for the preparation of the environmental document.
Third party contracting is the primary method for preparing all or part
of environmental impact statements covered by this part. The District
Engineer may also provide appropriate guidance and assist in
environmental document preparation, to the extent that the District
Engineer's resources and policy priorities allow. The District Engineer
will work with the applicant to define the purpose and need, and, when
appropriate, to develop a reasonable range of alternatives to meet that
purpose and need.
(c) The District Engineer will work develop and modify, as
appropriate, a schedule for preparation of the environmental document.
Major changes to the schedule or related matters will be documented
through written correspondence.
(d) The District Engineer may request from an applicant
environmental information for use by the Corps in preparing or
evaluating an environmental document. This may include a decision file
consisting of any factual, scientific, or technical information used,
developed, or considered by the applicant or applicant-hired contractor
in the course of preparing the environmental document, including any
correspondence with the Corps or with third parties.
(e) The applicant may accept or reject the District Engineer's
guidance. The District Engineer, however, may after specifying the
information in contention, require the applicant to resubmit any
previously submitted data which the District Engineer considers
inadequate or inaccurate. The District Engineer must document in the
record the Corps' independent evaluation of the information and its
accuracy.
Subpart G--Definitions
Sec. 333.61 Definitions.
As used in these implementing procedures, terms have the meanings
provided in NEPA section 111, 42 U.S.C. 4336e. In addition:
(a) NEPA means the National Environmental Policy Act, as amended
(42 U.S.C. 4321, et seq.).
(b) Authorization means a permit or permission.
(c) Connected action means a separate Federal action within the
Corps' authority that is closely related to the proposed agency action
and should be addressed in a single environmental document because the
proposed agency action:
(1) Automatically triggers the separate Federal action, which
independently would require the preparation of additional environmental
documents;
(2) Cannot proceed unless the separate Federal action is taken
previously or simultaneously; or
(3) Is an interdependent part of a larger Federal action that
includes a separate Federal action, which mutually depend on the larger
Federal action for their justification.
(d) Effects or impacts means changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives.
(1) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic (such as
the effects on employment), social, or health effects. Effects
appropriate for analysis under NEPA may be either beneficial or
adverse, or both, with respect to these values.
(2) A ``but for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects should
generally not be considered if they are remote in time, geographically
remote, or the product of a lengthy causal chain. Effects do not
include those effects that the agency has no ability to prevent due to
the limits of its regulatory authority, or that would occur regardless
of the proposed action, or that would need to be initiated by a third
party.
(e) Human environment means comprehensively the natural and
physical environment and the relationship of Americans with that
environment. (See also the definition of ``effects or impacts'' in
paragraph (c) of this section.)
(f) Jurisdiction means the specific legal authority to approve an
activity, such as 33 U.S.C. 1344 (Clean Water Act, section 404); 33
U.S.C. 401 (Rivers and Harbors Act of 1899, section 9); 33 U.S.C. 403
(Rivers and Harbors Act of 1899, section 10); and 33 U.S.C. 1413
(Marine Protection, Research, and Sanctuaries Act of 1972, section 103)
or 33 U.S.C. 408 (Rivers and Harbors Act of 1899, section 14).
(g) Mitigation for the purposes of NEPA means measures that avoid,
minimize, or compensate for effects caused by a proposed action or
alternatives as described in an environmental document or record of
decision and that have a nexus to those effects. While NEPA requires
consideration of mitigation, it does not mandate the form or adoption
of any mitigation. Mitigation includes:
(1) Avoiding the impact altogether by not taking a certain action
or parts of an action.
(2) Minimizing effects by limiting the degree or magnitude of the
action and its implementation.
(3) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(5) Compensating for the impact by replacing or providing
substitute resources or environments.
(h) NEPA process means all measures necessary for compliance with
the requirements of NEPA section 102(2), 42 U.S.C. 4332(2).
(i) Notice of intent means a public notice that an agency will
prepare and consider an environmental document.
(j) Participating agency means a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(k) Permit, as used in this part, is the authorization described in
33 CFR 325.5 or the document granting Corps permission under 33 U.S.C.
408(a). A permit decision is the final agency action.
(l) Publish and publication mean methods found by the agency to
efficiently and effectively make environmental documents and
information available for review by interested persons, including
electronic publication.
(m) Reasonable alternatives means a reasonable range of
alternatives that are technically, legally, and economically feasible,
meet the purpose and need for the proposed action, and, where
applicable, meet the goals of the applicant.
(n) Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
(o) Related action means an action undertaken by an agency, e.g., a
permitting action, some other type of authorization action, an analysis
required by statute, or the like, that
[[Page 29485]]
bears a relationship to other actions undertaken by other agencies
relevant to NEPA, e.g., that a set of related actions are all related
to one overarching project.
(p) Scope consists of the range of actions, alternatives, and
effects subject to the Corps legal authority or subject to the Corps
control and responsibility that should be considered in an
environmental document. This part addresses the considerations for use
by District Engineers when determining scope for NEPA compliance in
Sec. 333.18 of this part.
(q) Tiering when used for the purposes of multi-phased reviews of
activities under 33 U.S.C. 408, refers to the coverage of general
matters in broader environmental impact statements or environmental
assessments (such as a general plan to address a need that identifies
different conceptual options) with subsequent narrower or more detailed
statements or environmental analyses (such as an analysis of how one of
those conceptual options could be implemented at a specific site)
incorporating by reference the general discussions and concentrating
solely on the issues specific to the statement subsequently prepared.
Subpart H--Severability
Sec. 333.71 Severability.
The sections of this part are separate and severable from one
another. If any section or portion therein is stayed or determined to
be invalid, or the applicability of any section to any person or entity
is held invalid, it is the Corps' intention that the validity of the
remainder of those parts will not be affected. The remaining sections
or portions, and all applications thereof, shall continue to be in
effect.
Approved by:
D. Lee Forsgren,
Acting Assistant Secretary of the Army (Civil Works).
[FR Doc. 2025-12360 Filed 7-1-25; 2:30 pm]
BILLING CODE 3720-58-P
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