U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
NEPA EA/CE 404 PERMIT CONCURRENT PROCESS 3
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.
Permit compliance / mitigation monitoring.
4 This approval is not applicable for FTA transit projects. Page revised 7-18-96 per Q&A 6
MOU MONITORING AND EVALUATION