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NEPA 404 MOU - Appendix A

NEPA EIS 404 PERMIT CONCURRENT PROCESS 1

PRE-SCOPING

For EIS projects likely to require an individual permit, impact "special aquatic sites," or impact greater than five acres of other waters of the U.S., State DOT invites Corps, EPA, FWS, and NMFS (when marine and anadromous fish resources are involved) to actively participate in the project development process.

§ State DOT invitation letter will include pre-scoping information (e.g., "project assessment" in Arizona and Nevada; "project study report" in California) and a pre-assessment of waters of the U.S. (i.e., area of jurisdiction and aquatic resource impact).

The Corps, EPA, FWS, and NMFS will each choose to participate in the project development process at an appropriate level of involvement depending on the quality and quantity of resource involved (e.g., choose not to participate in some or all of the project meetings and/or in the first agreement point (marked 0 below)); however, the remaining agreement points (marked 00 below) will be executed prior to advancing to the next stage.

0 Reaffirm/refine/develop Corps, EPA, FWS, NMFS, State DOT, FHWA preliminary agreement on:

§ NEPA purpose and need/404 basic and overall project purpose,

Criteria for alternative selection,

§ Project alternatives to be evaluated in draft EIS, and

§ Level of agency involvement and cooperating agency role.

SCOPING

§ FHWA notice of intent.

§ State DOT public information meetings.

§ Corps pre-application meetings may be a forum to further address issues.

§ FHWA invite Federal agencies to be cooperating agencies.

DRAFT EIS DEVELOPMENT

00 Final Corps, EPA, FWS, NMFS, State DOT, FHWA agreement on:

§ NEPA purpose and need/404 basic and overall project purpose,

§ Criteria for alternative selection,

§ Project alternatives to be evaluated in draft EIS,

§ Preliminary preferred alternative (if known), and

§ Cooperating agencies (develop agreement/MOU for cooperating agency involvement).

State DOT delineation of waters of the U.S.

00 Corps verification of jurisdictional determination.

FHWA/State DOT environmental inventory/impact evaluation.

§ State DOT requests threatened and endangered species list from FWS/NMFS, begins informal consultation, and prepares biological assessment for any identified species.

§ Develop 404 resource/endangered species mitigation options.

1 For transit projects, any references to FHWA and State DOT in this appendix can be replaced with FTA and FTA grantees, respectively.

Corps, EPA, FWS, NMFS participation in development of draft EIS. Such activities could include, as appropriate:

§ Informal staff coordination,

§ Interagency coordination meeting,

§ Corps pre-application meeting,

§ Draft biology and/or other technical report review, and/or

§ Pre-draft EIS review.

State DOT submits application for Corps permit

(allowing enough time for Corps to prepare the public notice for a joint draft EIS/PN transmittal).

FHWA/State DOT draft EIS approval.

DRAFT EIS CIRCULATION / SECTION 404 PUBLIC NOTICE OF EIS DOCUMENT

Note: The draft EIS circulation and 404 public notice must be closely coordinated.

FHWA/State DOT NEPA public hearing (joint NEPA/Corps 404 hearing, if appropriate).

FINAL EIS DEVELOPMENT

FHWA/State DOT evaluate draft EIS comments received.

Corps evaluates comments received on public notice.

00 State DOT/Corps/FHWA identify final EIS NEPA preferred/section 404 least environmentally damaging practicable alternative alignment (w/ design concept) to achieve NEPA project purpose and need/404 basic project purpose.

00 Preliminary agreement of preferred alternative compliance with the section 404(b)(1) guidelines. The following documents are to be obtained by FHWA/State DOT for inclusion in the final EIS as a preliminary agreement of section 404(b)(1) compliance:

  1. Written FWS preliminary agreement in the project mitigation plan as a result of earlier Fish & Wildlife Coordination Act consultation.
  2. If FWS/NMFS threatened and endangered species list identifies listed species potentially in project area, written FWS/NMFS documentation: species not present, not likely to be affected, or non-jeopardy biological opinion.
  3. Section 401 certification or waiver from State Water Quality Management Agency.
  4. Written Corps and EPA preliminary agreement that:

§the final EIS NEPA preferred/section 404 least environmentally damaging practicable alternative,

§project will not significantly degrade the aquatic environment, and

§the project mitigation plan and implementation schedule is adequate.

Cooperating agency review/participation in development of final EIS (e.g., cooperating agency review of draft EIS comments and responses).

FHWA/State DOT final EIS approval.

FINAL EIS CIRCULATION / SECTION 404 PUBLIC NOTICE OF PROPOSED PERMIT

DEVELOPMENT OF RECORD OF DECISION

FHWA/State DOT evaluate any final EIS comments received.

Corps evaluates comments received on public notice.

Opportunity for cooperating agency review of the draft record of decision for consistency with the above preliminary agreement of section 404(b)(1) compliance.

FHWA record of decision approval.

State DOT develops final project design, finalizes mitigation plan and implementation schedule, and initiates right-of-way acquisition.

CORPS PERMIT DECISION

§ Corps determination of compliance with the section 404(b)(1) guidelines.

§ Corps public interest review/determination.

FHWA/State DOT approval of project plans, specifications, & estimate (PS&E) 2

(after all necessary permits/findings obtained).

State DOT advertise / award contract.

Commence construction.

Permit compliance / mitigation monitoring.

2 This approval is not applicable for FTA transit projects.


Appendices B-D >>

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