C.F.R. » Title 33 » CHAPTER II—CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE › PART 230—PROCEDURES FOR IMPLEMENTING NEPA

33 C.F.R. § 230.9

Categorical exclusions

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Actions listed below when considered individually and cumulatively do not have significant effects on the quality of the human environment and are categorically excluded from NEPA documentation. However, district commanders should be alert for extraordinary circumstances which may dictate the need to prepare an EA or an EIS. Even though an EA or EIS is not indicated for a Federal action because of a “categorical exclusion”, that fact does not exempt the action from compliance with any other Federal law. For example, compliance with the Endangered Species Act, the Fish and Wildlife Coordination Act, the National Historic Preservation Act, the Clean Water Act, etc., is always mandatory, even for actions not requiring an EA or EIS.

(a) For a period of one year from the effective date of these regulations, district commanders should maintain an information list on the type and number of categorical exclusion actions which due to extraordinary circumstances triggered the need for an EA and finding of no significant impact (FONSI) or an EIS. If a district commander determines that a categorical exclusion should be modified, the information will be furnished to the division commander, who will review and analyze the actions and circumstances to determine if there is a basis for recommending a modification to the list of categorical exclusions. HQUSACE (CECW-RE) will review recommended changes for Corps-wide consistency and revise the list accordingly. See 33 CFR part 325, appendix B for categorical exclusions for regulatory actions.

(b) Activities at completed Corps projects which carry out the authorized project purposes. Examples include routine operation and maintenance actions, general administration, equipment purchases, custodial actions, erosion control, painting, repair, rehabilitation, replacement of existing structures and facilities such as buildings, roads, levees, groins and utilities, and installation of new buildings utilities, or roadways in developed areas.

(c) Minor maintenance dredging using existing disposal sites.

(d) Planning and technical studies which do not contain recommendations for authorization or funding for construction, but may recommend further study. This does not exclude consideration of environmental matters in the studies.

(e) All Operations and Maintenance grants, general plans, agreements, etc., necessary to carry out land use, development and other measures proposed in project authorization documents, project design memoranda, master plans, or reflected in the project NEPA documents.

(f) Real estate grants for use of excess or surplus real property.

(g) Real estate grants for Government-owned housing.

(h) Exchanges of excess real property and interests therein for property required for project purposes.

(i) Real estate grants for rights-of-way which involve only minor disturbances to earth, air, or water:

(1) Minor access roads, streets and boat ramps.

(2) Minor utility distribution and collection lines, including irrigation.

(3) Removal of sand, gravel, rock, and other material from existing borrow areas.

(4) Oil and gas seismic and gravity meter survey for exploration purposes.

(j) Real estate grants of consent to use Government-owned easement areas.

(k) Real estate grants for archeological and historical investigations compatible with the Corps Historic Preservation Act responsibilities.

(l) Renewal and minor amendments of existing real estate grants evidencing authority to use Government-owned real property.

(m) Reporting excess real property to the General Services Administration for disposal.

(n) Boundary line agreements and disposal of lands or release of deed restrictions to cure encroachments.

(o) Disposal of excess easement interest to the underlying fee owner.

(p) Disposal of existing buildings and improvements for off-site removal.

(q) Sale of existing cottage site areas.

(r) Return of public domain lands to the Department of the Interior.

(s) Transfer and grants of lands to other Federal agencies.

Notes of Decisions
Cited in 17 cases, 1985–2006 · leading case: Eva Fritiofson v. Clifford Alexander, Jr., Sec'y of the Army, 772 F.2d 1225 (5th Cir. 1985).
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Eva Fritiofson v. Clifford Alexander, Jr., Sec'y of the Army, 772 F.2d 1225 (5th Cir. 1985). · cites it 3× “9(a)(1); see also 33 C.F.R. § 230.9 (a). An EA, moreover, will result in one of two findings: (1) a finding that an EIS must, because of potentially significant environmental impacts, be prepared for the proposed action or (2) a FONSI — a finding that the proposed action “will…”
River Road All., Inc. v. Corps of Engineers of United States Army, Nat'l Marine Serv. Inc., Defendant-Intervenor-Appellant, 764 F.2d 445 (7th Cir. 1985). “9 , which under the Corps of Engineers’ regulations is normally not to exceed 15 pages, see 33 C.F.R. § 230.9 , and which here was only 4 pages long but was supplemented by 17 pages of additional findings.”
United States of Am., United States Army Corps of Engineers, Movant-Appellant v. City of Detroit, 329 F.3d 515 (6th Cir. 2003). “See 33 C.F.R. § 230.9 . Indeed, the governing authorities explicitly indicate that this action normally does require an EA.”
Raymond Proffitt Found. v. U.S. Army Corps of Engineers, 175 F. Supp. 2d 755 (E.D. Pa. 2001). · cites it 2× “See 33 C.F.R. § 230.9 (b) (West Supp.2001). However, “the mere fact that the project was initiated prior to January 1, 1970, will not insulate all future *771 action pursuant to that project from the requirements of NEPA.”
North Carolina v. Hudson, 665 F. Supp. 428 (E.D.N.C. 1987). “33 C.F.R. § 230.9 (c) and 33 C.F.R. pt. 230, app.”
Sierra Club v. United States Army Corps of Engineers, 464 F. Supp. 2d 1171 (M.D. Fla. 2006). “Some proposed activities may fall into "a categorical exclusion,” (see 33 C.F.R. § 230.9 ; 33 C.F.R. Pt. 325, App.”
North Carolina v. Hudson, 731 F. Supp. 1261 (E.D.N.C. 1990). “33 C.F.R. § 230.9 (c) and 33 C.F.R. pt. 230, app.”
Raymond Proffitt Found. v. U.S. Army Corps of Engineers, 128 F. Supp. 2d 762 (E.D. Pa. 2000). · cites it 2× “Under 33 C.F.R. § 230.9 , certain actions are "excluded from NEPA documentation,” such as “[activities at completed Corps projects which cany out authorized project purposes.”
Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986). “See 33 C.F.R. § 230.9 . The EA concluded that with the required mitigation, the permit would have “no significant impact on the human environment” and that, therefore, “no Environmental Impact Statement (“EIS”) was needed”.”
California Ex Rel. Van De Kamp v. Marsh, 687 F. Supp. 495 (N.D. Cal. 1988). “9 (b) (1987); 33 C.F.R. § 230.9 (a) (1987)]. The Corps did not evaluate the alternative of relocating some or all of the air cargo project at nearby airports, including San Francisco International, and San Jose airport.”
State of Miss., Ex Rel. Moore v. Marsh, 710 F. Supp. 1488 (S.D. Miss. 1989). “33 C.F.R. § 230.9 (9-1-88 ed.); West Houston Air Committee, 784 F.”
Sierra Club v. United States Army Corps of Engineers, 771 F.2d 409 (8th Cir. 1985). “See 33 C.F.R. § 230.9 and App. B. 8. c. . Sierra Club also alleges that the Corps violated its own NEPA-implementing regulations, including the regulation requiring it to give "great weight” to the views of federal and state conservation agencies.”
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