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MEMORANDUM OF UNDERSTANDING 

BETWEEN 

U.S. ARMY CORPS OF ENGINEERS 

AND 

U.S. NUCLEAR REGULATORY COMMISSION 

ON 

ENVIRONMENTAL REVIEWS RELATED TO THE ISSUANCE OF AUTHORIZATIONS TO 

CONSTRUCT AND OPERATE NUCLEAR POWER PLANTS 

The U.S. Army Corps of Engineers (Corps) and the U.S. Nuclear Regulatory Commission 

(NRC), as parties to this Memorandum of Understanding (MOU), hereby acknowledge and 

declare as follows: 

I. Introduction 

The Corps and the NRC developed this MOU to streamline the respective regulatory 

processes associated with the authorizations required to construct and operate nuclear 

power plants. 

II. Purpose 

The purpose of this MOU is to establish a framework for early coordination and 

participation among the signatories to this agreement to ensure the timely review of 

proposed nuclear power plant applications. Cooperation among the MOU signatories 

will ensure each agency’s review responsibilities under the National Environmental 

Policy Act (NEPA) and other related statutes are met in connection with the 

authorizations required to construct and operate nuclear power plants licensed by the 

NRC. Both parties anticipate that the Corps will act as a cooperating agency in most 

circumstances. However, there may be some circumstances where both agencies will 

be better served by a different form of coordination. This MOU does not preclude such 

arrangements. 

III. Statutory Background 

A. National Environmental Policy Act of 1969 (42 USC § 4321 et seq.) requires 

all agencies of the Federal Government to use a systematic, interdisciplinary 

approach that will insure the integrated use of the natural and social sciences in 

planning and decisionmaking that may have an impact on man’s environment. 

Prior to making any detailed statement, the responsible Federal official shall 

consult with and obtain the comments of any Federal agency that has jurisdiction 

by law or special expertise with respect to any environmental impact involved.

B. Section 10 of the Rivers and Harbors Act of 1899 (33 USC § 403) requires 

authorization from the Secretary of the Army, acting through the Corps, for the 

construction of any structure in or over any navigable water of the United States. 

Structures or work outside the limits defined for navigable waters of the United 

States require a Section 10 permit if the structure or work affects the course, 

location, or condition of the water body. The law applies to any dredging or 

disposal of dredged materials, excavation, filling, re-channelization, or any other 

modification of a navigable water of the United States, and it applies to all 
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structures, from the smallest floating dock to the largest commercial undertaking. 

It further includes, without limitation, any wharf, dolphin, weir, boom breakwater, 

jetty, groin, bank protection (e.g., riprap, revetment, bulkhead), mooring structure 

such as a piling, aerial or sub-aqueous power transmission line, intake or outfall 

pipe, permanently moored floating vessel, tunnel, artificial canal, boat ramp, aid 

to navigation, and any other permanent or semipermanent obstacle or 

obstruction. 

C. Section 404 Clean Water Act (CWA) (33 USC § 1344) requires authorization 

from the Secretary of the Army, acting through the Corps, for the discharge of 

dredged or fill material into all waters of the United States, including wetlands. 

Discharges of fill material generally include, without limitation, placement of fill 

that is necessary for the construction of any structure or impoundment requiring 

rock, sand, dirt, or other material for its construction; site-development fills for 

recreational, industrial, commercial, residential, and other uses; causeways or 

road fills; dams and dikes; artificial islands; property protection or reclamation 

devices such as riprap, groins, seawalls, breakwaters, and revetments; beach 

nourishment; levees; fill for intake and outfall pipes and sub-aqueous utility lines; 

fill associated with the creation of ponds; and any other work involving the 

discharge of fill or dredged material. A Corps permit is required whether the work 

is permanent or temporary. Examples of temporary discharges include 

dewatering of dredged material prior to final disposal, and temporary fills for 

access roadways, cofferdams, and storage and work areas. 

D. Section 103 of the Marine Protection, Research, and Sanctuaries Act of 

1972 (33 USC § 1413), as amended, requires authorization from the Secretary of 

the Army, acting through the Corps, for the transportation of dredged material for 

the purpose of dumping it in ocean waters. Discharges of dredged or fill 

materials into territorial seas also require authorization under Section 404 of the 

CWA. 

E. Outer Continental Shelf Lands Act (43 USC § 1333) extends the authority of 

the Secretary of the Army, acting through the Corps, to the prevention of 

obstruction to navigation in the navigable waters of the United States due to the 

construction of artificial islands and fixed structures on the outer continental shelf 

beyond the territorial sea. 

F. Energy Reorganization Act of 1974 (Pub. Law 93-438(88 Stat. 1233) 

abolished the Atomic Energy Commission, and Section 201 of that Act created 

the NRC and transferred to the NRC all the licensing and related regulatory 

functions of the Atomic Energy Commission. Pursuant to the Energy 

Reorganization Act of 1974; Chapters 6, 7, 8, 10, and 16 of the Atomic Energy 

Act of 1954, as amended, 42 U.S.C 2011 et. Seq.; and the rules and regulations 

issued pursuant thereto, the NRC is authorized to license and regulate the 

construction and operation of, among other things, nuclear power plants from the 

standpoint of the common defense and security and public health and safety. 
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IV. Roles and Responsibilities 

NRC. The NRC licenses nuclear power plants in accordance with its regulations such 

that the utilization of special nuclear material will be in accord with the common defense 

and security and will provide adequate protection to the health and safety of the public. 

Corps. The Corps administers a regulatory program to protect the Nation’s aquatic 

resources, including wetlands, under Section 10 of the Rivers and Harbors Act of 1899 

and Section 404 of the CWA. Proposed nuclear power plants may require one or more 

permits from the Corps under these statutes. 

NEPA Lead Federal Agency. NEPA is the overarching environmental statute requiring 

the identification of impacts to the quality of the human environment, consideration of 

alternatives, and public involvement in the process. A primary objective of NEPA is to 

ensure that environmental information is available to public officials and citizens before 

irretrievable commitments of resources are made. This agreement supports these 

principles, and the signatory Federal agencies acknowledge their respective 

responsibilities for complying with the requirements of NEPA. To prevent the duplication 

of efforts by Federal agencies and to encourage information sharing and integration of 

agency processes, NEPA allows for the designation of a lead Federal agency for the 

preparation of environmental impact statements (EISs) when EISs are required. Other 

agencies that have an action on the same project may serve as cooperating agencies on 

the EIS.1

The issuance by the NRC of a license to construct and operate a nuclear power plant is 

an action that normally requires the preparation of an EIS.2

 As the agency with the 

approval/disapproval authority for the licensing of nuclear power plants, the NRC shall 

serve as the lead agency for the preparation of the EIS. This MOU encourages early 

involvement between the NRC and the Corps and with the public and other government 

agencies during the NEPA evaluation process. 

This MOU acknowledges that it is critically important that the NRC receive projectspecific information on waters of the United States, including wetlands, from the Corps at 

key stages of project development to foster an efficient procedure to develop 

documentation to meet both agencies’ disclosure and decisionmaking requirements. 

This Agreement establishes a process to facilitate the timely licensing and permitting of 

nuclear power plants, whereby both agencies will do the following: 

• Work together and with applicants and other stakeholders, as appropriate, 

including before complete applications for the necessary authorizations are filed. 

• Identify and resolve issues as quickly as possible. 

• Attempt to build a consensus among governmental agencies and their 

stakeholders. 

 

1

 10 CFR 51.10, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory 

Functions—Scope”; 40 CFR 1501.5, “NEPA and Agency Planning—Lead Agencies”; 40 CFR 1501.6, 

“NEPA and Agency Planning—Cooperating Agencies” 2

 10 CFR 51.20, “Criteria for and Identification of Licensing and Regulatory Actions Requiring Environmental 

Impact Statements”
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• Provide for the effective and efficient environmental review for nuclear power 

plants. 

Project purpose and need coordination. As the lead agency under NEPA responsible 

for the preparation of the analysis and decisions for the approval of new and expanded 

nuclear power plants, the NRC is responsible for determining the purpose and need of 

the energy project for purposes of the NRC’s NEPA document and the NRC licensing 

process.3

 The NRC should coordinate early on the scope of the NEPA analysis for all 

activities under Federal purview and ensure that the purpose and need, the suite of 

alternatives, and the evaluation presented in the NEPA document consider the views of 

the Corps (e.g., defining project purpose per Section 404 of the CWA [“basic” for water 

dependency and “overall” for geographic scope of alternative analysis], conducting the 

Corps’ public interest review, determining the least environmentally damaging 

practicable alternative under the CWA Section 404 (b)(1) Guidelines). The Corps will 

complete an independent permit decision in carrying out its regulatory responsibilities. 

The signatory agencies may develop additional guidance to ensure that the Corps’ 

permit documentation is prepared concurrently with the NEPA process to the maximum 

extent practicable. When the NRC provides to the Corps its preliminary draft NEPA 

documents, the Corps shall review and provide written comments on the relevant 

portions of those documents, as appropriate, in accordance with the timelines 

established under this MOU. Preliminary draft NRC NEPA documents include advance 

copies of the purpose, need, and alternatives sections of the NRC NEPA documents, as 

well as advance copies of the draft and final NEPA documents. Corps reviews of NRC 

NEPA documents will be completed and coordinated with the NRC as stated in the NRC 

EIS schedule for that project. 

The Corps and the NRC hereby agree to work with each other and with other 

participating agencies or entities, as appropriate, to ensure that timely decisions are 

made and that the responsibilities of each agency are met. Specifically, each agency 

agrees to do the following: 

A. Commit to Early Involvement 

1. Conduct an early initial review. As soon as practicable when a prospective 

applicant or an agency makes a request for involvement in connection with a 

project under development, each agency will assess its role in the review and 

issuance of approvals for the project. 

a. Identify agency contacts for the proposed project. If a prospective 

applicant or agency needs assistance in determining regional, local, or 

project specific contacts, then the identified contacts will assist in 

identifying additional contacts. The initial agency contacts are the 

following: 

 

3

 10 CFR Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory 

Functions,” Subpart A, “National Environmental Policy Act—Regulations Implementing Section 102(2)” 
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Department of the Army

Office of the Assistant Secretary of the Army (Civil Works) 

108 Army Pentagon 2E641 

Washington, DC 20310-0108 

Regulatory Branch 

Headquarters, U.S. Army Corps of Engineers 

441 G Street, NW 

Washington, DC 20314 

Nuclear Regulatory Commission

Office of New Reactors 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Division of Site and Environmental Reviews 

Office of New Reactors 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

b. Meet with prospective applicants and other agencies, when requested by 

the prospective applicant, the lead agency, or at its own initiative, to 

identify areas of potential concern to other agencies and to assess the 

need for and availability of agency resources to address issues related to 

the proposed project. 

c. Consult with the NRC, as the lead agency, in establishing a schedule. 

The NRC will notify the Corps as early as possible of upcoming 

applications for the construction and operation of nuclear power plants 

and identify those projects that will be subject to this agreement. The 

lead agency will then, taking into consideration the relative priorities of 

other projects subject to this agreement, establish a commensurate 

schedule for the project review process. In establishing this schedule, the 

NRC and the Corps will strive to ensure that the individual permitting 

processes and related permit review activities occur on a concurrent, 

rather than sequential, basis, with the objective of avoiding unnecessary 

delays in the process and the schedule established by the NRC. If at any 

point during the consultation process the Corps or the NRC anticipates an 

inability to comply with the agreed-upon schedule, it will communicate the 

reason for this inability as soon as possible. The agencies will then work 

together to help avoid the anticipated delay when appropriate. The NRC 

will include in any Notice of Intent to Prepare an EIS guidance to the 

public regarding the process set forth in this Agreement. 

B. Proactive participation. After an application is submitted to the NRC, the Corps 

will do the following: 

1. Identify and inform the NRC and the applicant which statutes, regulations, 

and policies apply to each permit evaluation. 
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2. Identify the issues and concerns related to the proposed project that need to 

be addressed in order for the Corps to meet its obligations. 

3. Provide the prospective applicant, the applicant, and/or other agency with 

relevant studies, data (such as maps showing features over which the agency 

may have jurisdiction), and any other information concerning the status of 

matters the agency considers relevant (including matters that may be under 

consideration, such as the results of threatened and endangered species 

consultation, or essential fish habitat consultation). 

4. Identify issues and concerns and attempt to resolve them while draft 

documentation is being developed. 

C. Sharing of data. The agencies will share the information gathered, considered, 

and relied upon by each of them with all other relevant agencies. Specifically, 

the NRC and the Corps agree to do the following: 

1. Cooperate in the preparation of requests for additional studies or data to 

avoid duplicative requests and to compile a consistent set of information on 

which all of the agencies will rely. 

2. Cooperate in identifying and developing the information at the level of detail 

required to complete environmental and cultural resources project review. 

The NRC will be responsible for drafting sections and requesting additional 

information to the extent that the NRC believes the analysis is needed and would 

normally be required by the NRC if the Corps were not involved. If the Corps 

believes that additional analysis is needed, but the NRC does not agree that 

such analysis would be required under the regulatory procedures of the NRC, 

such analysis will be the responsibility of the Corps. 

D. Communicate informally. The agencies agree to informally communicate with 

each other and other relevant agencies throughout the process to ensure that 

issues are raised as soon as possible and shared among all agencies. The lead 

agency will coordinate and share information with all relevant participating 

agencies. 

E. Hearings. On request, each agency will participate in any public hearings4,5 held 

by the other agency. Particularly in the case of NRC hearings, the Corps may 

provide expert testimony, as required, in those areas or sections covered in the 

NRC EIS in whose preparation the Corps participated and in those areas of 

special Corps expertise. The Corps’ participation in the NRC hearing process 

 

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 33 CFR 327.3(a)—Public hearing means a public proceeding conducted for the purpose of acquiring 

information or evidence which will be considered in evaluating a proposed Department of the Army permit 

action, or Federal project, and which affords the public an opportunity to present their views, opinions, and 

information on such permit actions or Federal projects. 5

 The Atomic Energy Act requires that a public hearing be held before a construction permit is issued for a 

nuclear power plant. The hearing will be conducted by the Commission or by a presiding officer designated 

by the Commission pursuant to 10 CFR 2.313, “Designation of Presiding Officer, Disqualification, 

Unavailability, and Substitution.”
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will be consistent with all relevant laws and regulations and coordinated with 

appropriate District and Division Commanders or their representatives. 

V. Administration of the MOU

A. While retaining ultimate responsibility for making determinations and exercising 

their individual responsibilities in accordance with existing statutory 

responsibilities, the NRC and the Corps will consult with one another to resolve 

disputes using existing dispute resolution methods and in accordance with this 

agreement. If no agreement can be reached, either agency may refer the matter 

to the Council on Environmental Quality in accordance with 40 CFR 1504, 

“Predecision Referrals to the Council of Proposed Federal Actions Determined 

To Be Environmentally Unsatisfactory.” Notwithstanding any such referral, the 

NRC reserves the right to make a final decision on any matter within the NRC’s 

regulatory authority. 

B. This MOU may be modified, amended, or terminated upon written request of any 

party hereto and the subsequent written concurrence of all other participating 

agencies. Participation in this agreement may be terminated 60 days after 

providing written notice of such termination to other participating agencies. 

C. Acknowledgement that the authority and responsibilities of the parties under their 

respective jurisdictions are not altered by the MOU. 

1. This MOU is intended only to improve the working relationships of the 

participating agencies in connection with expeditious decisions with regard to 

nuclear power plant authorizations and is not intended to, nor does it create, 

any right, benefit, or trust responsibility, substantive or procedural, 

enforceable at law or equity by any person or party against the United States, 

its agencies, its officers, or any other person. 

2. This MOU is to be construed in a manner consistent with all effective existing 

laws and regulations. 

3. The MOU neither expands nor is in derogation of those powers and 

authorities vested in the participating agencies by applicable laws, statutes, 

or regulations. 

4. The terms of this MOU are not intended to be enforceable by any party other 

than the signatories hereto. 

5. The participating agencies intend to fully carry out the terms of this MOU. All 

provisions in this MOU, however, are subject to available resources. In 

addition, this MOU does not limit the ability of any of the participating 

agencies to review and respond to final applications. 

6. If an applicant, prospective applicant, or other person requests a correction of 

information disseminated pursuant to this MOU, as authorized by Section 515 

of the Treasury and General Government Appropriations Act for Fiscal 
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Year 2001 (P.L. 106-554), the process by which such request will be 

addressed will be that established by the agency that disseminated the 

information. 

7. This MOU cannot be used to obligate or commit funds or as the basis for the 

transfer of funds. 

8. Nothing in this MOU, in and of itself, requires any signatory agency to enter 

into any contract, grant, or interagency agreement. 

9. All provisions in this MOU are subject to the availability of funds. 

ACCORDINGLY, the parties have signed this MOU on the dates set forth below, to be effective 

for all purposes as of the date last signed. The signatures may be executed using counterpart 

original documents. 

/RA/ /RA/ 

_____________________________ _______________________________ 

John Paul Woodley, Jr. R. W. Borchardt 

Assistant Secretary Executive Director for Operations 

 of the Army (Civil Works) U.S. Nuclear Regulatory Commission 

September 12, 2008 September 12, 2008 

____________________________ _______________________________ 

Date Date