MEMORAMDDM OF AGREEMENT
BETWBEH THE DEPARTMEHT OF THE ARMY
AMD THE ENVIRONMENTAL PROTECT ION AGENCT
CONCERNING THE DETERMINATION OF THE
GEOGRAPHIC JURISDICTION OF THE SECTION 404 PROGRAM
AND THE APPLICATION OF THE EXEMPTIONS
UNDER SECTION 404(f) OF THE GLEAM WATER ACT
I. PORPOSE AMD SCOPE. " ' '
The United .States Department of the • Army (Army) and the
United States Environmental Protection Agency (EPA) hereby
establish the policy and procedures pursuant to which they will
determine the geographic jur.isdictional scope of waters of the
United States for purposes of section .404 and the application of
the exemptions under section 404 (f) of the Clean Water Act (CVJA) .
The Attorney General of the United States issued an opinion
on September 5, 1979, that the Administrator of EPA
(Administrator) has the ultimate authority under the CWA to
determine the geographic jurisdictional scope of section 404
waters of- the United States and the application of the section
404(f) exemptions. Pursuant to this authority and for purposes
and effective administration of the 404 program, this Memorandum
of Agreement (MOA) sets forth an appropriate allocation of
responsibilities between the EPA and the. U.S. Army Corps of
Engineers . (Corps) to determine geographic jurisdiction of the
section 404 program and the applicability of the exemptions under
section 404 (f) of the CWA. ..
II. POLICY. ..
It shall be the policy of the Army and EPA for the Corps to
continue to perform the majority of the geographic jurisdictional
determination* and determinations of the applicability of the
exemptions under section 404(f) as part of the Corps role in
administering the section 404 regulatory program. It shall also
be the policy of the Array and EPA that the Corps shall fully
implement -EPA guidance on determining the geographic extent of
section 404 jurisdiction and applicability of the 404(f)
exemptions.
Case-specific determinations made pursuant to the terms of
this MOA will be binding on the Government and represent the
Government's position in.. any subsequent Federal action or
litigation regarding the .case. Inlmaking its determinations, the
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foc
the «n.z decision if
.
waters
a circuance
, .c or Project.
lties . are anticipated or Li ~ * °C tech"i«l
determination of the geographic 1uriLi>J? ? c°ncerning the
the United states for ^ purposea f i ^ *cop* of wat*r* °«
clarifying guidance is or^ U iik.?5 if*eVOn ' 4°4 and where
.special cases will be designated bv l/.-i • 5e needed- Generic
or geographic subdi vision ^ suth M* toJn-hf "" fiable Poli^*l
state, EPA region, or Corps df vis ion «r^P', ?ounty' Parish,
ensure that generic special r-»lli • district. EPA will
other clear 'format and pVoviSId to^th^^^ °n maP3 Or so™e
Engineer (DE) . pcovxaeci to the appropriate- District
applicability of exertions
difficulties
applicability
clarifying
special 404(f)
political
parish, state,
specific 404 (/)
ar. anticipated
matters
is
will be
c Suhdiv
-f) matter is a
the
in 9~.ric or
S'flflcjnt lsau^ or technical
I*/"' con<=«rning the
"H 4°4 (fj ' and whece
« "f^ed. Generic
9dby easily id*ntifiable
towns"iP- county,
"* "
PROCEDURES
maintain a'^gi ona^ iiVt
special 40??£ ^ matters
documentation, if
designated special
withn
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sari
w™ l«no* ln P«»9«ph III. A. Of .thiMOA b
will no longer be designated by forest cover type.) ~
B" Changes to the Regional Lists. Chanqes to the
'
?**?5fons from. tHe regional "lists. When%hV*s^Vroposei an.
im
«* ^^ y XT " »«C w V? w 4*^9 ^*»313IT ^)f3 r 1 <8 T? ^^ ^^ft ^ T^eJ ^^ ^ * feW ^ ^* .^ __ __ __ _ ^
not
the
ps
— •— «.~~~ — — V» A 3 ^s «M ^ ^«.« »a ^ w C it
„ j not DC€n provided final notification of
to the ™f«n!!? ^.P"7*1 of th« RAfs proposed changes. Deletions
to the regional list do not become effective until a revised
j w.. EPA Headouarters. is orovi ^.^ ».« tne
Project Reviews. ,. The DE shall review section 404
brah^1^1! "J?1*^*'' *•«** »PP«e«tion«, ««d other matters
brought to his attention, which involve the discharge of dredged
or fill material into waters of the United States to determine if
a current designated special case or special 404 (f) matter is
involved.
Special Cases/Special 404
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(2) "Non-Special Cases/Non-Special 404(f) Matters,
, . .. . For, those Projects not involving a current
designated special case or special 404(f) matter, the Dshall
make final determinations and communicate those determinations"
without a requirement for prior consultation with EPA. nacions
D* Determination of Special Cases or Special 404m
aUr^;^™"80 thC specifcal caa.V0r special 404 (f) matter has been
designated on a- project-specific basis, issuance of the final
determination by the RA will Sft;ve aa guidance relevant to the
specific facts 'of each particular. situation, and will* terminate
the special case or special 404(f) matter designation. When the
special case or special 404(f) matter has been designated on a
generic basis EPA Headquarters will develop, iS consultation
wi^th Army, relevant programmatic guidance for determining t-v,.
geographic jurisdictional scope of Waters of thf United Spates
for the purpose of section 404 or the applicability of -exeuntIOM
under section 404 (f}. Special cases and special 4of(|^Stterl
designated on a generic basis remain in effect until {]) a
deletion from the regional list is proposed^ andprocessed
according to paragraph IV-B of this MOA, or (2) EpJ H*adS«?«s
^n2Ue«r,^°/-raT1ati5 fuldan<=* that, addresses the relevant issues
and specifically deletes the special case or social *niffi
matter from the regional list(s) /whichever occurs fi^st '
Uncertainties Regarding Special Cases/Special 404(f)
•^T*rSh0{il* 3n-y u"certainti«s arise in determining whether a
culaA.actlon inv°lves a current designated special case or
al 404(f) matter, the DE shall consult with the RA. Upon
. etion of the consultation, the RA will make the final
determination as to whether the action involves, a current
designated special case or special 404(f) matter.
*• Compliance Tracking. in order to track the DE's
compliance with IPX guidance, the DE shall make his files
available for inspection by the RA at the district office,
including IJglit notes and data sheets utilized in making final
deter mi nat^^as well any photographs of the site that may be
available, atC^>i*s of final geographic jurisdictional determin-
ations wiir be) provided to the RA upon request at no coat to EPA
unless the)- sample six* exceeds 10 percent of th« number of
determinations for th* sample p«riod. Copies in excess of a 10
percent sampl* will be provided at EPA expense. To ensure that
EPA is awar* of d*t*rminations b*ing mad* for which notification
is not forward«d through th* public notice process, th* Corps
will provid* copi*s to EPA of all final d*t«rminations of no
geographic jurisdiction and. all final determinations that an
exemption under Section 404(f) is applicable. Should EPA become
aware of any problem trends with the DE's implementation of
guidance, EPA shall initiate interagency discussions to address
the' ; ssue.
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V. RELATED ACTIOHS. . .
*• Enforcement Situations.. For those investigations made
pursuant to the 1989 Enforcement MOA between Army and E?A
concerning Federal enforcement of section 404 of the CWA, whi-h
involve areas that are current designated special cases, the RA
shall make the final determination of the geographic jurisdic-
tional scope of waters of the United States for purposes of
section 404. The RA's determination is subject to discretionary
review by. EPA Headquarters, and will be binding regardless of
which agency is subsequently designated lead enforcement agency
pursuant to the 1989 Enforcement MOA. For those" investigations
not involving special cases, the agencies will proceed in
accordance with the provisions of the 1989 Enforcement MOA.
For those investigations made pursuant to" the 1989
Enforcement MOA -between Army and EPA concerning Federal
enforcement of section 404 of the CWA, which involve current
designated special 404(f) matters, the RA shall make the final
determination of. the applicability of the exemptions under
section 404 (f). The RA determination is subject to discretionary
review by EPA Headquarters, and is binding regardless of which
agency is subsequently designated lead enforcement agency
pursuant to the 1989 Enforcement MOA. For those investigations
not involving special 404(f) matters, the agencies will proceed
in accordance with the provisions of the 1989 Enforcement MOA.
B. Advanced Identification. EPA may elect to make the
final determination of the geographic jurisdictional scope of
waters of the United States for purposes of section 404, as part
of the advanced identification of disposal sites under 40 CFR
230.80, subject to discretionary review by EPA Headquarters, and
regardless of whether the areas involved are current designated
special cases, unless the DE has already made a final geographic
jurisdictional determination. Any determinations under this
section shall be completed in accordance with paragraph IV of
this MOA.
•>^;
Actions. EPA may elect to make the 'final
determinat^fcof th« geographic jurisdictional scope of waters of *
the United tftates for purposes of section 404(c) of the CWA.
VI. GEBKRAL PROVISIONS.
A. All final determinations must be in writing and signed
by either the DE or RA. Final determination of the DE or RA made
pursuant to this MOA or the 1980 Memorandum of Understanding on
Geographic Jurisdiction of th« Section 404. Program, will be
binding on the Government and represent the Government's position
' in ..any. subs«qu«nt.:i.?«d£.ral^acti^
-•f i na'l ' d« te rmi na t i ^ni'^IS^^ttd^^^
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.p-clSi-d1"-!n ^JSrf E^A "tS-V^""': •<
subordinates
C.
modi fy,,
authorities of either
3uperc.de the
Jurisdiction of the Scn4Q4 l^ar^^^L h°l G«°9"Phic
da^e of the last signature"b^loJ*?£™ill Z£tK£ fn^Jf^ ?*
five years, unless extended, "modified or r2S«vi2 I «**«ct for
both parties, or revoked by either partv A«n by a<3r*e»«nt of
written noti ? Y alon^. UP°« •« month.
««itt« notice, pri« MtSt Vim" ''"" «l««. «P~ »i« -««»
2i£s^?€Sy of the ^^"^"^ HlSSf»*.t»t.t
0. S. Environmental Protection
Agency
Date
y-r^^.mi
^ •
?»•>
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DEPARTMENT OF THE ARMY
U 6. Arrty CoflM of €«flin«f«
WASHINGTON, D.C. 20314-1000
RIPLYTO
ATTENTION Of!
14 JAN 1993
CECW-OR
MEMORANDUM FOR ALL MAJOR SUBORDINATE COMMANDS AND DISTRICT
COMMANDS
SUBJECT: AMENDMENT TO ARMY/EPA JURISDICTION MOA
Manual) forSking ill! wetland determinations .
2. In addition, EPA has adopted, on an ^«J» ^J^8' ***£* rps
-
w _._w _ Branch
operations, construction and
Readiness Division
Directorate of Civil Work*
DISTRIBUTION
(SEE PG, 2)
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" United States Environmental Protection Agency
vt£0 sn<^ . Office of Water
' Washington, D.C. 20460
United States Department of the Army
Office of the Assistant Secretary
Washington, D.C. 20310-0103
AMENDMENT TO THE JANUARY 19, 1989,
raE APPUCATION OF THE EXEMPTIONS UNDER SECTION 404(f)
OF THE CLEAN WATER ACT
isistency and predictability in wetland determinations made
bv Hie two agencies, the following amendment to the January 19, 1989, Department of
the Army/Environmental Protection Agency Memorandum of Agreement concerning the
debamtaation of the geographic jurisdiction of the Section 404 program and the
^pSon of tiie exemption' under Section 404(f) of the Clean Wat.r Act is hereby
adopted: •
Effective on the date of the last signature below, the second sentence of
paragraph.2 of the "Policy" section is amended to read as follows (new language
is italicized; deletions are lined-out):
: the Corps and EPA will adhere to the
Dclincatinr, Jurisdirti?"^ WPJUHUJS "Corps "'
Engineers Wetlands Delineation Manual" (Waterways Experiment Station Technical
Renort Y-87-1 January, 1987) and EPA guidance on isolated waters, and other
^& mterprSns, and regulations issued by EPA to clarify EPA pos.tions
on geographic jurisdiction and exemptions."
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Date ' ' /Date
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