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404 MOU Appendices B - D

APPENDIX B

NEPA EA/CE 404 PERMIT CONCURRENT PROCESS 3

PRE-ASSESSMENT

For EA or CE 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); however, the agreement points marked 00 below will be executed prior to advancing to the next stage.

00 Reaffirm/refine/develop 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 EA or CE,

§ Preliminary preferred alternative (if known), and

§ Level of agency involvement.

DRAFT EA or CE DEVELOPMENT

State DOT delineation of waters of the U.S.

00 Corps verification of jurisdictional determination.

FHWA/State DOT environmental inventory/impact evaluation.

§ State DOT informal endangered species consultation with FWS/NMFS as appropriate.

§ Develop 404 resource/endangered species mitigation options.

Corps, EPA, FWS, NMFS participation in development of draft EA or CE. 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 EA/CE review.

For EA projects, FHWA/State DOT draft EA approval.

State DOT submits application for Corps permit.

For EA projects, a copy of the approved draft EA will be included with application.

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

DRAFT EA CIRCULATION / SECTION 404 PUBLIC NOTICE

For EA projects, opportunity for FHWA/State DOT NEPA public hearing

(joint NEPA/Corps 404 hearing, if appropriate).

CE's are not circulated to the general public. Required project information will be included with the section 404 public notice. Corps 404 hearing held, if appropriate.

FINAL EA/CE DEVELOPMENT

For EA projects:

FHWA/State DOT evaluate draft EA comments received.

Corps evaluates comments received on public notice.

FHWA decision to prepare an EIS or to develop a FONSI.

If EIS, initiate EIS development process.

If FONSI or CE:

00 State DOT/Corps/FHWA identify final EA 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 EA 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 EA 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.

FHWA FONSI or CE approval.

State DOT begins 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.

Page revised 7-18-96 per Q&A 6

FHWA/State DOT approval of project plans, specifications, & estimate (PS&E) 4

(after all necessary permits/findings obtained).

State DOT advertise / award contract.

Commence construction.

Permit compliance / mitigation monitoring.

4 This approval is not applicable for FTA transit projects. Page revised 7-18-96 per Q&A 6

APPENDIX C

DISPUTE RESOLUTION

  1. INTRODUCTION The purpose of this dispute resolution procedure is to provide a process to resolve disagreements between signatory agencies or project sponsors. The intention is to expeditiously resolve disputes at the lowest level of the organizations through consensus. Alternative dispute resolution processes (e.g., facilitation or mediation) can be used.
  2. LEVELS OF DISPUTE RESOLUTION
    1. Informal dispute resolution
      1. "Informal dispute resolution" is agency staff and mid-level management coordination between parties to resolve the issue.
      2. Informal dispute resolution can be initiated by any signatory agency or a project sponsor who has formally agreed to follow the NEPA/404 process.
      3. All normal and reasonable coordination options need to be exhausted before formal dispute resolution is initiated.
    2. Formal dispute resolution
      1. If the parties agree that the informal dispute resolution process has been exhausted, the second-level panel member of a signatory party can initiate the formal dispute resolution process.
      2. The second-level panel member will invite all signatory agencies in writing to convene a meeting of the second-level panel within 45 days to resolve the issue.
      3. The inviting party will include a statement of issue and any pertinent background material in the invitation.
      4. The second-level panel may elect to raise the issue to the signatory level.
      5. The written conclusion of the formal process will be distributed to all signatory parties. MOU Signatory LevelCorps Division Engineer FWS/NMFS Regional Directors EPA/FHWA/FTA Regional Administrators State DOT Directors Second-Level Panel Corps District Engineer FWS Field Office Supervisor NMFS Field Office Supervisor EPA Division Director FHWA Division Administrator FTA Deputy Regional Administrator ADOT/NDOT State Engineer Caltrans District Director

APPENDIX D

MOU MONITORING AND EVALUATION

  1. TEAM MEMBERSHIP MOU monitoring and evaluation will be conducted by a team made up of one representative from each signatory agency. FHWA will chair the team and coordinate the meetings.
  2. FREQUENCY AND SCOPE OF MEETINGS This team shall hold quarterly meetings to consider and recommend:
    1. Minor editorial corrections to the MOU,
    2. More substantive proposals for improvement in the MOU process,
    3. How to monitor and measure the success of the MOU process,
    4. Changes to the MOU process to reflect monitoring results, and
    5. Continuation of monitoring and evaluation.
  3. PROCESS/MOU CHANGES The monitoring and evaluation team will:
    1. Present minor revisions to the MOU to their agencies for concurrence, or
    2. For more substantive issues, recommend a process for obtaining the agreement of all signatories to amend the MOU. This may require reconvening the interagency body which developed the MOU, and/or initiating the dispute resolution process at the signatory level.
  4. REPORTING
    1. Minutes of all quarterly meetings will be distributed to signatory agencies.
    2. The team will report to the signatory agencies on implementation of this MOU one calendar year after the MOU is signed and as necessary thereafter.

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