US Army Corps of Engineers
Sacramento District

Environmental Compliance

As detailed in Engineering Circular (EC) 1165-2-220, a decision on a Section 408 request is a federal action subject to the National Environmental Policy Act (NEPA) and other federal environmental and cultural resources compliance requirements such as Section 7 of the Endangered Species Act (ESA), Section 106 of the National Historic Preservation Act (NHPA), essential fish habitat consultation, and tribal consultation, etc. While the U.S. Army Corps of Engineers (USACE) Sacramento District is responsible for ensuring that the environmental compliance for a Section 408 request is complete, the requester is responsible for providing all supporting information and documentation that the district identifies as necessary to assess compliance. If another Federal agency is involved in the proposed project in any way (e.g., funding, permitting), the Sacramento District may designate that agency as lead Federal agency to conduct any applicable environmental consultations on USACE’s behalf. Early coordination is recommended whenever a Federal agency besides USACE is involved in a project.

National Environmental Policy Act (NEPA)

The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment (40 CFR 1500.1[c]). The NEPA requires that every Federal agency consider the effects of Federal actions on the quality of the human environment, and to consider alternatives to those actions. Per EC 1165-2-220, Section 408 NEPA reviews should consider only the No Action Alternative and the Requester’s Preferred Alternative. USACE Sacramento District Section 408 program staff will review each individual Section 408 permission request to determine NEPA compliance needs. If the 408 request fits under an established categorical exclusion (33 CFR 230), Section 408 program staff will prepare the necessary documentation. If an environmental assessment (EA) or environmental impact statement (EIS) is necessary for the proposed project, the requester (or their contractor) is responsible for preparing the EA or EIS. This is typically done in close coordination with Sacramento District staff. To facilitate NEPA document preparation and review, Sacramento District Operations Division is preparing guidelines and templates for Section 408 EA preparation. Once available, it is recommended that requesters (and their contractors) follow these guidelines when preparing an EA.

Endangered Species Act

Section 7 of the ESA requires every Federal agency, in consultation with the Secretary of the Interior, to insure that any action it authorizes, funds, or carries out, is not likely to jeopardize the continued existence of any listed species or results in the destruction or adverse modification of critical habitat (50 CFR 402.01). USACE Sacramento District Section 408 program staff will review each individual Section 408 permission request to determine Section 7 compliance needs. If a proposed project may affect a federally listed species and/or designated critical habitat, the Sacramento District (or another Federal agency formally designated as lead Federal agency by the USACE) will initiate consultation with the appropriate agency (the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service). If Section 7 consultation is necessary, a biological assessment (BA) may be required. To facilitate BA preparation and review, the Sacramento District Operations Division has prepared Biological Assessment Guidelines and Template and recommends that requesters (and their contractors) follow these guidelines when preparing a BA. For additional information regarding the Section 7 process, please visit the Sacramento District Regulatory Division Endangered Species webpage.

National Historic Preservation Act and Tribal Consultation

Section 106 of the National Historic Preservation Act of 1966, as amended, requires Federal agencies to take into account the effects of their undertakings on Historic Properties and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on such undertakings. Historic Properties are prehistoric or historic districts, sites, buildings, structures, objects, sacred sites, or traditional cultural places that are included in, or eligible for inclusion in, the National Register of Historic Places. Issuance of a Section 408 permission is considered a federal undertaking and thus must comply with the NHPA.

If a Section 408 request is determined to have the potential to affect historic properties, the Sacramento District (or another Federal agency formally designated as lead Federal agency by the USACE) will initiate consultation with the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) pursuant to Section 106 of the NHPA. Additionally, USACE will consult with Federally recognized Indian Tribes pursuant to Section 106 of the NHPA and Executive Order 13175, as appropriate. If Section 106 consultation is needed, a cultural resources report may be required. In order to comply with the NHPA, the Sacramento District Operations Division has prepared guidelines to assist requesters, their consultants, and USACE in minimizing time and effort preparing submittals to the SHPO/THPO and expediting the review process. For additional information regarding the Section 106 process, please visit the Sacramento District Regulatory Division Cultural Resources and Tribal Consultation webpages.

Other Environmental Laws

In addition to the ESA and NHPA, USACE must comply with all applicable federal environmental laws. These laws include, but are not limited to, the Clean Air Act, Wild and Scenic Rivers Act, Fish and Wildlife Coordination Act, Magnuson-Stevens Fishery Conservation Act, etc. Compliance with these laws may require USACE to consult with other federal agencies.

Section 404 and Section 10 Permitting

Sacramento District Operations Division staff coordinate closely with Regulatory Division staff throughout the Section 408 process. If both a Section 408 permission and a Section 404 (Clean Water Act) and/or Section 10 (Rivers and Harbors Act) permit are required for a proposed project, Section 408 staff and Regulatory staff will coordinate to determine which office will take the lead on environmental compliance. EC 1165-2-220 and Director’s Policy Memorandum (DPM) 2018-10 provide additional information regarding synchronization of the Section 408 and Regulatory programs. For additional information regarding Sacramento District’s Regulatory Program, please visit their website.