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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                               - 3  -
 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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                               - 4 -
           (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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                                                            I
                          - 6 -
 .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."

                         - ^               .
                 Date                                 '  '   /Date

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