District Engineers will determine that NEPA does not apply to a proposed agency permitting action when:

(a) The activities or decision do not result in final agency action under the Administrative Procedure Act, 5 U.S.C. 704, or any other relevant statute that includes a finality requirement;

(b) The proposed activity or decision is exempted from NEPA by law;

(c) Compliance with NEPA would clearly and fundamentally conflict with the requirements of another provision of law;

(d) In circumstances where Congress by statute has prescribed decisional criteria with sufficient completeness and precision such that the Corps retains no residual discretion to alter its action based on the consideration of environmental factors, then that function of the Corps is nondiscretionary within the meaning of NEPA section 106(a)(4) and/or section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and 4336e(10)(B)(vii), respectively), and NEPA does not apply to the action in question;

(e) The proposed action is an action for which another statute's requirements serve the function of agency compliance with the Act; or

(f) The proposed action is not a “major Federal action,” which is defined at 42 U.S.C. 4336e(10). Additionally, the terms “major” and “Federal action” each have independent force. NEPA applies only when both of these two criteria are met. Such a determination is specific to the facts and circumstances of each individual situation and is reserved to the judgment of the District Engineer in each instance. In addition to the illustrative general categories in NEPA section 111(10), 42 U.S.C. 4336e(10), the Corps has determined that the following non-exhaustive list of Corps activities related to the Regulatory Program and 33 U.S.C. 408 are presumptively not subject to NEPA as not meeting the definition of a major Federal action:

(1) Preliminary Jurisdictional Determinations;

(2) Approved Jurisdictional Determinations;

(3) Determination of whether an activity requires a Corps permit or permission;

(4) Aquatic resource delineation concurrence or non-concurrence determinations; or

(5) Determination that the modification of unimproved real estate of a project would not affect the function and usefulness of the project.

(g) NEPA does not apply to “non-Federal actions.” Therefore, under the terms of the statute, NEPA does not apply to actions with no or minimal Federal funding, or with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project. NEPA § 111(10)(B)(i), 42 U.S.C. 4336e(10)(B)(i). A but-for causal relationship is insufficient to make the Corps responsible for a particular action under NEPA.

(h) The issuance or update of the Corps' NEPA procedures is not subject to NEPA review.

(i) In determining whether NEPA applies to a proposed action, the Corps will consider only the project at hand.