MEMORANDUM OF AGREEMENT
BETWEEN THE DEPARTMENT OF THE ARMY AND
THE ENVmbNMENtAL PROTECTION AGENCY CONCERNING
ENFORCEMENT FOR THE SECTION 404 PROGRAM
OF THE CLEAN WATER ACT
I. PURPOSE AND SCOPE _
The United States Department of the Army (Army) and the United States
Environmental Protection Agency (EPA) hereby establish policy and procedures
pursuant to which they will undertake federal enforcement of the dredged and fill
material permit requirements ("Section 404 program") of the Clean Water Act (CWA).
The U.S Army Corps of Engineers (Corps) and EPA have enforcement authorities for
the^Section 404 program, as specified in Sections 301(a), 308, 309, 404(n), and 404(s) of
the CWA. In addition, the 1987 Amendments to the CWA (the Water Quality Act of
1987) provide new administrative penalty authority under Section 309(g) for violations
of the Section 404 program. For purposes of effective administration of these statutory
authorities, this Memorandum of Agreement (MOA) sets forth an appropriate
allocation of enforcement responsibilities between EPA and the Carps, The prime goal
of the MOA is to strengthen the Section 404 enforcement program by using the
expertise, resources and initiative of both agencies in a manner which is effective and
efficient in achieving the goals of the CWA. .
n. POLICY
A. General It shall be the policy of the Army and EPA to maintain the integrity
of the program through federal enforcement of Section 404 requirements. The basic
premise of this effort is to establish a framework for effective Section 404 enforcement
with very little overlap. EPA will conduct initial pn-sitfc investigations when it is
efficient with respect to available time, tesources and/or expenditures, and use its
authorities as provided in this agreement In the majority of enforcement cases the
Corps, because ft. has more field resources, will conduct initial investigations and use its
authorities as provided in this agreement This will allow each agency to play a role in
enforcement which concentrates its resources in those areas for which its authorities and
expertise are best suited. The Corps and EPA are encouraged to consult with each
other on cases involving novel or important legal issues and/or technical situations.
Assistance from the U.S. Fish and Wildlife Service (FWS), the National Marine
Fisheries Service (NMFS) and other federal, state, tribal and local agencies wfll be
sought and accepted when appropriate.
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B. Geographic Jurisdictional Determinations. Geographic jurisdictional
determinations for a specific case will be made by the investigating agency. If asked for
an oral decision, the investigator will caution that oral statements regarding jurisdiction
are not an official agency determination. Each agency will advise the other of any
problem trends that they become aware of through case by case determinations and
initiate interagency discussions or other action to address the issue. (Note: Geographic
jurisdictional determinations for "special case" situations and interpretation of Section
404(f) exemptions for "special Section 404(f) matters" will be handled in accordance
with the Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning the Determination of the Geographic
Jurisdiction of the Section ,404 Program and* the Application of the Exemptions Under
Section 404(f) of the Ctean Water Act.)
C. Violation Determinations. The Investigating agency shall be responsible for
violation determinations, for example, the need for a permit. Each agency wfll advise
the other of any problem trends that they become aware of through case by case
dSterminations.and initiate; interagency discussions or other action to address the issue.
D. Lead Enforcement Agency. The Corps will act as the lead enforcement agency
for all violations of Corps-issued permits. The Corps will also act as the lead
enforcement agency for unpermitted discharge violations which do not meet the criteria
for forwarding to EPA, as listed in Section ni.D. of this MOA. EPA wfll act as the
lead enforcement agency on all unpermitted discharge violations which meet those
criteria. The lead enforcement agency will complete the enforcement action once an
investigation has established that a violation exists. A lead enforcement agency decision
with regard to any issue in a particular case, including a decision that no enforcement
action be taken, is final for that case. This provision does not preclude the lead
enforcement agency from referring the matter to the other agency under Section?
III.D.2 and III.D.4 of this MOA.
E. Environmental Protection Measures. It is the policy of both agencies to avoid
permanent environmental harm caused by the violator's activities by requiring remedial
actions or ordering removal and restoration. In those cases where a complete
remedy/removal is not appropriate, the violator may be required, in addition to other
legal remedies which are appropriate (e.g., payment of administrative penalties) to
provide compensatory mitigation to compensate for the harm caused by such illegal
actions. Such compensatory mitigation activities shall be placed as an enforceable
requirement upon a violator as authorized by law.
III. PROCEDURES
A. Flow chart. The attached flow chart provides an outline of the procedures
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EPA and the Corps will follow in enforcement cases involving unpcnnitted discharges, ;
The procedures in (B.), (C), (D.), (E.) and (F.) below are in a sequence in which they
could occur. However, these procedures may be combined in an effort to expedite the
enforcement process. ..'..'
B. Investigation. EPA, if it so requests and upon prior notification to the Corps,
will be the investigating agency for unpennitted activities occurring in specially defined
geographic areas (e.g., a particular wetland Jype, areas declared a "special case" within
the meaning of the Memorandum of Agreement Between the Department of the Army
and the Environmental Protection Agency Concerning the Determinationofthe
Geographic Jurisdiction of the Section 404 Program and the Application of the
Exemptions Under Section 404(f) of the Clean Water Act). Timing of investigations
will be commensurate with agency resources and potential environmental damage. To
reduce the potential for duplicative federal effort, each agency should verify=prior to
initiating an investigation that the other agency does not intend or has not already
begun an'investigation of the same reported violation. If a violation exists, a field
investigation report will be prepared which at a minimum provides a detailed
description of the illegal activity, the existing environmental setting, initial view on
potential impacts and a recommendation on the heed for initial corrective measures. ,
Both agencies agree that-investigations must be conducted in a professional, legal
manner that will not prejudice future enforcement action on the case. Investigation ^
reports will be provided to the agency selected as the lead on,the case.
C Immediate Enforcement Action. The investigating or lead enforcement agency
should inform the responsible parties of the Violation and inform them that all illegal
activity should cease pending further federal action.A notification letter or
administrative order to that effect will be sent in the most expeditious manner. If time
allows, an order for initial corrective measures may be included with the notification
letter or administrative order. Also, if time allows, input from other federal, state,
tribal and local agencies will be considered when determining the need for such initial
corrective measures. In all cases the Corps will provide EPA a copy of its violation
letters and EPA will provide the Corps copies of its §308 letters and/or §309
administrative Orders. These communications wffl include language requesting the other
agency's views and recommendations on the case. The violator wffl also be notified that
the other agency has been contacted.
D. Lead i&xcement Agency Selection. Using the following criteria, the
investigating ^focy wfll determine which agency wffl complete action on the
enforcementcase: .
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.1. EPA will act as the lead enforcement agency when an unpermitted activity
involves the following:
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a. Repeat Violator(s);
b. Flagrant Violatjon(s);
c. Where EPA requests a class of cases or a particular case; or
d. The Corps recommends that an EPA administrative penalty action
may be warranted.
2. The Corps will act as the lead enforcement agency in all other
unpermitted cases not identified in Part in D.I. above. Where EPA
notifies the Corps that, because of limited staff resources or other reasons,
it will not take action on a specific case, the Corps may take action
commensurate with resource availability.
3. .The Corps will act as the lead enforcement agency for Corps=issued .
permit condition violations.
N 4. Where EPA requests the Corps to take action on a permit condition
violation, this MOA establishes a "right of first refusal" for the Corps.
Where the Corps notifies EPA that, because of limited staff resources or
other reasons, it will not take an action on a permit condition violation
case, the EPA may take action commensurate with resource availability, r
However, a determination by the Corps that the activity is in compliance
with the permit will represent a final enforcement decision for that case.
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E. Enforcement Response. The lead enforcement agency shall determine, based on
its authority, the appropriate enforcement response taking into consideration any views
provided by the other agency. An appropriate enforcement response may include an
administrative order, administrative penalty complaint, a crvfl or criminal judicial referral
or other appropriate formal enforcement response.
F. Resolution. The lead enforcement agency shall make a final determination that
a violation is resolved and notify interested parties so that concurrent enforcement files
within another agency can be closed. In addition, the lead enforcement agency shall
make arrangements for proper monitoring when required for any remedy/removal,
compensatory mitigation or other corrective measures.
G. After-JM-Fact Permits. No after-the-fact (ATF) permit application shall be
accepted until resolution has been reached through an appropriate enforcement
response as determined by the lead enforcement agency (e.g^ until all administrative,
legal andYor corrective action has been completed, or a decision has been made that no
enforcement action is to be taken).
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IV RELATED MATTERS
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A. Intfragency Agreements. The Army and EPA are encouraged to enter into
ihteragency agreements with other federal, state, tribal and local agencies which will
provide assistance to the Corps and EPA in pursuit of Section 404 enforcement .
activities. For example* the preliminary enforcement 'site investigations, or post-case
monitoring activities required to ensure compliance with any enforcement order can be
"delegated to third parties (e.g., FWS) who agree to assist Corps/EPA in compliance
efforts. However, only the Corps or EPA may make a violation determination and/or
pursue an appropriate enforcement response based upon information received from a
third party. : , - ,
B. Corps/EPA Field Agreements. Corps Division or District offices and__their
respective EPA Regional offices are encouraged to enter into field level agreements to
more specifically implement the provisions of this MOA -, " .
A C Data Information Excliange. Data which would enhance either agency's
enforcement efforts should be exchanged between the Corps and EPA where available.
At a minimum, eaph agency shall begin to develop a computerized data list of persons
receiving;ATF permits or that.have been subject to a Section 404 enforcement action
subsequent to February 4,. 1987 (enactment date of the 1987 Clean Water Act . r
Amendments) in order to provide historical compliance, data on persons found to nave
illegally discharged. Such information will help "in an administrative penalty action to
evaluate the, statutory factor concerning history of a violator and will help to determine
whether pursuit of a criminal action is appropriate. "'-.,
V. GENERAL '..",.," .. , . ./..,". :- . ': -"
A The procedures and responsibilities of each agency specified in this MOA may
.be delegated to subordinates consistent with established agency procedures,
B. The policy and procedures contained within" this MOA do not create any rights,
either substantive or procedural, enforceable by any party regarding an enforcement
action brought by either agency or by the U.S. Deviation or variance from these MOA
procedures wfll/aot constitute a defensei for violators or others concerned with any
Section 404^ eefcecement action. ,
' , - . '_,' ' '., . ' ' '".'"." \ ' * i . '
C. Nothing; in.this document is intended to diminish, modifyor otherwise affect
the statutory or regulatory authorities of either agency. All formal guidance interpreting
this MOA shall be issued jointly.
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D. This agreement shall take effect 60 days after the date of the last signature
below and will continue in. effect for five years unless extended, modified or revoked by
agreement of both parties, or revoked by either party alone upon six months written
notice, prior to, that time.
(Date)
sistant Secretary of
the Army (Civil Works)
Rebecca W. Hanmer ./.__. (Date)
Acting Assistant Administrator
for Water
U.S. Environmental Protection Agency
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DEPARTMENT OF THE ARMY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
SUBJECT: Section 404 Enforcement Memorandum of Agreement (MOA)
Procedures Regarding the Applicability of Previously-Issued
; Corps Permits
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 wfll undertake federal enforcement of the dredged
and fill material permit requirements of the Qean Water Act
> ' . ' '..- , "-. ....'..''"-.. 'i "'-.'. "'
2. For purposes of effective administration of the statutory enforcement authorities of
both EPA and the U.S. Army Corps of Engineers (Corps), the MOA sets forth an
appropriate allocation of enforcement responsibilities between EPA and the Corpse
-Given that the Corps is the federal permit-issuing authority, for purposes of r
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 wffl contact the
appropriate Corps district and request a determination as to whether the discharge is
authorized by an individual or general permit
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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 unpennitted 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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CORPS/EPA ENFORCEMENT PROCEDURES
FOR SECTION 4O4 UNPERMTTTED VIOLATIONS*
VIOLATION REPORTED TO OR
DETECTED BY THE CORPS OR EPA
NO
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NO
VIOLATION
I
WORK INVOLVESI
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- C&D/AO (copy
to other agency)
Yes
LEAD AGENCY SELECTION***
ACTIVITY INVOLVES ONE OP THE FOLLOWING;
A. REPEAT VIOLATOR
B. FLAGRANT VIOLATOR(i.e., Obvious prior
knowledge)
C. EPA REQUEST THE CASE OR
D. CORPS RECOMMENDS ADMINISTRATIVE PENALTY
NO
- BPA FOLLOWS CWA
S1CTION 309 PROCEDURES
CORPS FOLLOWS
33 CFR 326 PROCEDURES
* Enforcement procedures for permit condition violation cases
are set forth at Part III.p.3. and III.D.4.
** Procedures f or -investigating unpermitted activity cases are
set forth at Part- III.B. , _',...
*** Examples of situations in which "C« 4 "D" might ariae^
include cases which are important due ^° d^«"*^J5lue'
due to the violation occurring in a critical priority _
resource or in an Advanced 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 not 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 discharge is 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. . ,
Robert
Assistant Secretary of
the Army.(Civil Works)
Rebecca.W. Hanmer (Dai
Acting Assistant Administrator
for Water
U.S. Environmental Protection Agency r
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