DEPARTMENT OF THE ARMY UNITED STATES ENVIRONMENTAL PROTECTION AGENCY SUBJECT: Section 404 Enforcement Memorandum of Agreement (MOA) Procedures Regarding the Applicability of Previously-Issued ' dorps Permits * ' v 1. The MOA Between the Department of the Army and the Environmental Protection Agency (EPA) Concerning Federal Enforcement for the .Section 404 Program of the Clean Water Act (Section 404 Enforcement MOA) establishes policy and procedures pursuant to which EPA and Army will undertake federal enforcement of the dredged and fill material permit requirements of the Clean Water Act >.-'" . ~ p. 2. For purposes of effective administration of the statutory enforcement authorities of both EPA and the ULS. Army Corps of Engineers (Corps), the MOA sets forth an appropriate allocation of enforcement responsibilities between EPA and the Corps. Given that the Corps is the federal permit-issuing authority, for purposes of f implementation of the provisions of the Section 404 Enforcement MOA the Corps will be responsible for determining whether an alleged illegal discharge of dredged or fill material is authorized under an individual or general permit, 3. When EPA becomes aware of an alleged illegal discharge, it will contact the appropriate Corps district and request a determination as to whether the discharge is authorized by an individual or general permit 4. A Corps determination that the discharge is authorized by an individual or general permit represents a final enforcement decision for that particular case. Likewise, a Corps determination that the discharge is not authorized by an individual or general permit (i.e., it is .an unpermitted discharge) is final for that particular case. 5. In order to promote effective and expeditious action against possible illegal discharges, the Corps district upon request from EPA is responsible for providing a determination, within two working days in those cases where EPA provides the Corps with sufficient information to make this determination in the office. However, if sufficient information is not available to the Corps so that additional investigation by the Corps is needed before it is able to respond to the EPA request, the Corps will provide a determination to EPA within 10 working days. If the Corps does not provide a determination to EPA within the applicable .time frame, EPA may continue to investigate the case and determine whether the activity constitutes an unauthorized discharge, and the EPA determination will be final for that particular case. ------- FOR SECTION 404 UNPERMTTTED VIOLATIONS* VIOLATION REPORTED TO OR DETECTED BY THE CORPS OR EPA NO NO VIOLATION WORK INVOLVES: A. A WATER OF THE U.S. AND B. A SECTION 404 DISCHARGE AND C. AN UNPERMITTED ACTIVITY AND D. AN ACTIVITY NOT EXEMPTED BY SECTION 404(f) YES INVESTIGATION* * ACTIVITY REQUIRES: A. IMMEDIATE ACTION OR B. INITIAL CORRECTIVE MEASURES YES NO INVESTIGATING AGENCY ISSUES CtD/AO (copy to other agency) Yes LEAD AGENCY SELECTION*** ACTIVITY INVOLVES ONE OF THE FOLLOWING: A. REPEAT VIOLATOR B. FLAGRANT VIOLATOR(i.«., obvious prior knowledge) C. EPA REQUEST THE CASE OR D. CORPS RECOMMENDS ADMINISTRATIVE PENALTY NO - BPA FOLLOWS CWA SECTION 309 PROCEDURES CORPS FOLLOWS 33 CFR 326 PROCEDURES ! t * Enforcement "procedures for permit condition violation cases . are set forth at Part III.D.3. and III.D.4. ** Procedures for investigating unpermittad activity cases are set forth at Part III.B. *** Examples _of situations in which "C" & "D" night arise include cases which ar« important due to deterrent value, due to the violation occurring in a critical priority resource or in an advancefd identification area, involving an uncooperative individual, etc. ------- 6. Notwithstanding the above provisions, in situations where an alleged illegal discharge is ongoing and EPA reasonably believes that, such discharge is riot authorized, EPA may take immediate enforcement action against the discharger when necessary to minimize impacts to the environment However, EPA will also contact the appropriate Corps district and request a determination as to whether the discharge is authorized by an individual or general permit. A subsequent determination by the Corps, pursuant to paragraph, five above, that the" dischargels authorized represents, a final enforcement decision for that particular case. ' 7. this guidance shall remain in effect for as long as the Section 404 Enforcement MOA is in effect, unless revisions to or revocation of this guidance is mutually agreed to by the two signatory agencies. , . t Robert W.P^ge Assistant 3ecretary\of the Army (Civil Works) (Date) Rebecca W. Hanmer (Dal Acting Assistant Administrator for Water U.S. Environmental Protection Agency r. ------- ------- |