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Framework for Dredged Material Management
May 2004
simultaneously, although this is unusual. The draft NEPA document, as well as public
and agency comments used in making that selection, is circulated prior to the selection of
a recommended alternative. Specific evaluations of the 404(b)(1) Guidelines and the 103
Criteria must be made and are typically prepared as appendices to the NEPA document
and circulated concurrently. For construction projects, this process may take place
months or years before actual project construction begins. In such cases, another Public
Notice is often issued immediately prior to when the actual dredging and disposal are to
begin to ensure appropriate coordination.
USEPA's environmental review program is conducted pursuant to Section
102(2)(c) of NEPA and Section 309 of the Clean Air Act. These laws establish USEPA's
responsibility to review and comment upon the "environmental impact of any matter
relating to USEPA's duties and responsibilities." Under this authority, USEPA may
choose to review and comment on EISs, EAs, and other proposed Federal actions.
USEPA comments on NEPA documents are advisory, but by USACE policy are given
great weight. In cases where USEPA and the USACE cannot resolve differences, the
dispute may be referred by USEPA to CEQ.
Section 309 of the Clean Air Act also establishes that when the Administrator
determines that any legislation proposed by a federal agency, action or regulation falling
under the purview of the Administrator's review responsibilities is "unsatisfactory from
the standpoint of public health or welfare or environmental quality, he shall publish his
determination and the matter shall be referred to the Council on Environmental Quality."
Under CWA and MPRSA, Public Notices are the formal mechanism by which
USEPA concurs or does not concur with a recommended action, whether it is a proposed
permit or USACE activity. In addition, under the CWA, a 404(q) elevation and/or a
404(c) veto of a permit may be undertaken by USEPA if differences between the
agencies cannot be resolved at an earlier stage. Under the MPRSA, if USEPA determines
that the Criteria are not met, the proposed action cannot proceed unless a waiver is
granted by USEPA.
NEPA review staff and CWA and/or MPRSA program staff are separate offices in
some USEPA regions; therefore, care should be taken to ensure that NEPA documents,
when prepared, are furnished to the appropriate program office for review as well as to
the NEPA review office. Within USEPA, NEPA reviewers and 404/103 staff also should
be coordinating closely. Often, the NEPA evaluation of the overall project may be
adequate, but program-specific information (e.g., sediment testing results and site
monitoring results) may need updating. Such updates may be accomplished by an EA and
Finding of No Significant Impact (FONSI) and/or by revision of the 404(b)(1) or 103
evaluation, rather than reopening the original EIS. It is recommended that these revisions
always be coordinated with USEPA.
64

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