cfr_sections
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 33:33:3.0.1.1.27.1.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | A | Subpart A—Purpose and Policy | § 333.1 Purpose and policy. | USACE | (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 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 th… | |||||
| 33:33:3.0.1.1.27.1.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | A | Subpart A—Purpose and Policy | § 333.2 Applicability. | USACE | (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. | |||||
| 33:33:3.0.1.1.27.2.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.11 Determining when NEPA applies. | USACE | 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 delineati… | |||||
| 33:33:3.0.1.1.27.2.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.12 Determine the appropriate level of NEPA review. | USACE | (a) If the District Engineer determines under § 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 § 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 § 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 exclusion, or the revision of an existing categorical exclusion, pursuant to § 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 § 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… | |||||
| 33:33:3.0.1.1.27.2.1.3 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.13 NEPA and agency decision-making. | USACE | (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 § 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) Begi… | |||||
| 33:33:3.0.1.1.27.2.1.4 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.14 Categorical exclusions. | USACE | (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 the Corps' implementing procedures at § 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… | |||||
| 33:33:3.0.1.1.27.2.1.5 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.15 Environmental assessments. | USACE | (a) Generally. If an activity is subject to NEPA, as determined following the procedures in § 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 § 333.14, or by another provision of law, the District Engineer will prepare an environmental assessment with respect 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 … | |||||
| 33:33:3.0.1.1.27.2.1.6 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.16 Findings of no significant impact. | USACE | (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. | |||||
| 33:33:3.0.1.1.27.2.1.7 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.17 Lead and cooperating agencies. | USACE | (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 § 333.51 of this part. The District Engineer will identify to the lead agency the information and analysis that is required to be … | |||||
| 33:33:3.0.1.1.27.2.1.8 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.18 Notices of intent and scoping. | USACE | (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 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 action… | |||||
| 33:33:3.0.1.1.27.3.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.20 Significance determination. | USACE | (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 § 333.12(a)(5)(i) and § 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 § 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 applica… | |||||
| 33:33:3.0.1.1.27.3.1.10 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.29 Review of other agencies' environmental impact statements. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.3.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.21 Preparation of environmental impact statements. | USACE | (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 § 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 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… | |||||
| 33:33:3.0.1.1.27.3.1.3 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.22 Purpose and need. | USACE | (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 § 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.”) | |||||
| 33:33:3.0.1.1.27.3.1.4 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.23 Analysis within the environmental impact statement. | USACE | (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… | |||||
| 33:33:3.0.1.1.27.3.1.5 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.24 Page limits. | USACE | (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 i… | |||||
| 33:33:3.0.1.1.27.3.1.6 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.25 Deadlines. | USACE | (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 mu… | |||||
| 33:33:3.0.1.1.27.3.1.7 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.26 Publication of the environmental impact statement. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.3.1.8 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.27 Public hearing. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.3.1.9 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.28 Comments received on an environmental impact statement. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.4.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.31 Tiered and programmatic environmental documents. | USACE | (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 briefl… | |||||
| 33:33:3.0.1.1.27.4.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.32 Reliance on existing environmental documents. | USACE | (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. | |||||
| 33:33:3.0.1.1.27.4.1.3 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.33 Incorporation. | USACE | 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 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. | |||||
| 33:33:3.0.1.1.27.4.1.4 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.34 Supplements to environmental documents. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.4.1.5 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.35 Integrity and completeness of information. | USACE | (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. | |||||
| 33:33:3.0.1.1.27.4.1.6 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.36 Integrating NEPA with other environmental requirements. | USACE | (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). | |||||
| 33:33:3.0.1.1.27.4.1.7 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.37 Elimination of duplication with State, Tribal, and local procedures. | USACE | (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. | |||||
| 33:33:3.0.1.1.27.4.1.8 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.38 Unique identification numbers. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.4.1.9 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.39 Emergency procedures. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.5.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | E | Subpart E—Agency Decision Making | § 333.41 Decision documents. | USACE | 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. | |||||
| 33:33:3.0.1.1.27.5.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | E | Subpart E—Agency Decision Making | § 333.42 Filing requirements. | USACE | 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 . | |||||
| 33:33:3.0.1.1.27.6.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | F | Subpart F—Procedures for Applicant-Prepared NEPA Documents | § 333.51 Procedures for applicant-prepared environmental documents. | USACE | 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 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… | |||||
| 33:33:3.0.1.1.27.7.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | G | Subpart G—Definitions | § 333.61 Definitions. | USACE | 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 com… | |||||
| 33:33:3.0.1.1.27.8.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | H | Subpart H—Severability | § 333.71 Severability. | USACE | 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. |
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