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.
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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.
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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.
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