MEMORANDUM OF AGREEMENT
BETWEEN THE ENVIRONMENTAL PROTECTION AGENCY^
AND THE DEPARTMENT OF THE ARMY CONCERNING *
THE DETERMINATION OF MITIGATION UNDER THE
CLEAN WATER ACT SECTION 404(b)(l) GUIDELINES
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L Purpose
The United States Environmental Protection Agency (EPA) and the United States
Department of the Army (Army) hereby articulate the policy and procedurei-to be used
in the determination of the type and level of mitigation necessary to demonstrate
compliance with the-Clean Water Act (CWA) Section 404(b)(l) Guidelines ("Guidelines").
This Memorandum of Agreement (MOA) expresses the explicit intent of the Army and
EPA to implement the objective of the CWA to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters, including wetlands. This MOA is
specifically limited to the Section 404 Regulatory Program and is written to provide
guidance for agency field personnel on the type and level of mitigation which demonstrates
compliance with requirements in the Guidelines. The policies and procedures discussed
herein are consistent with current Section 404 regulatory practices and are provided in
response to questions that have been raised about how the Guidelines are implemented.
The MOA does not change the substantive requirements of the Guidelines. It is intended
to provide guidance regarding the exercise of discretion under the Guidelines.
Although the Guidelines are clearly applicable to all discharges of dredged or fill
material, including general permits and Corps of Engineers (Corps) civil works projects,
this MOA focuses on standard permits (33 CFR 325.5(b)(l));. This focus is intended
solely to • reflect the unique procedural aspects associated with the review of standard
permits, and does not obviate the need for other regulated activities to comply fully with
the Guidelines. EPA and Army will seek to develop supplemental guidance for other
regulated activities consistent with the policies and principles established in this document.
This MOA provides guidance to Corps and EPA personnel for implementing the
Guidelines and must be adhered to when considering mitigation requirements for standard
permit applications. The Corps will use this MOA when making its determination of
compliance with the Guidelines with respect to mitigation for standard permit applications.
EPA will use this MOA in developing its positions on compliance with the Guidelines for
'Standard permits are those individual permits which have been processed through
application of the Corps public interest review procedures (33 CFR 325) and EPA's
Section 404(b)(l) Guidelines, including public notice and receipt of comments. Standard
permits do not include letters of permission, regional permits, nationwide permits, or
programmatic permits.
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HOA Concerning Ac Deunnintfiort aftfiagjtion mJer Ac Section 4O4(b)(l) Cvitte&ta /•<_. 2
proposed discharges and will reflect this MOA when commenting on standard permit
applications.
//. Policy
, A. The Council on Environmental Quality (CEQ) has defined mitigation in its
regulations at 40 CFR 1508.20 to include: avoiding impacts, minimizing impacts, rectifying
impacts, reducing impacts over time, and compensating for impacts. The Guidelines
establish environmental criteria which must be met for activities to be permitted under
Section 404.-2 The types of mitigation enumerated by CEQ are compatible with the
requirements of the Guidelines; however, as a practical matter, they can .be-combined to
form three general types: avoidance, minimization and compensatory mitigation. The
remainder of this MOA will speak in terms of these more general types of mitigation.
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B. The Clean Water Act and the Guidelines set forth a goal of restoring and
maintaining existing aquatic resources. The Corps will strive to avoid adverse impacts and
offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will
strive to achieve a goal of no overall net loss of values and functions. In focusing the goal
of no overall net loss to wetlands only, EPA and Army have explicitly recognized the
special significance of the nation's wetlands resources. This special recognition of wetlands
resources does not in any manner diminish the value of other waters of the United States,
which are often of high value. All waters of the United States, such as streams, rivers,
lakes, etc., will be accorded the full measure of protection under the Guidelines, including
the requirements for appropriate and practicable mitigation. The determination of what
level of mitigation constitutes "appropriate" mitigation is based- solely on the values and
functions of the aquatic resource that will be impacted. "Practicable" is defined at Section
23().3(q) of the Guidelines.5 However, the level of mitigation determined to be appropriate
and practicable under Section 230.10(d) may lead to individual permit decisions which do
not fully meet this goal because the mitigation measures necessary to meet this goal are
not feasible, not practicable, or would accomplish only inconsequential reductions in
impacts. Consequently, it is recognized that no net loss of wetlands functions and values
may not be achieved in each and every permit action. However, it remains a goal of the
Section 404 regulatory program to contribute to the national goal of no overall net loss of
the nation's remaining wetlands base. EPA and Army are committed to working with
others through the Administration's interagency task force and other avenues to help
achieve this national goal.
•2(except where Section 404(b)(2) applies).
-'Section 230.3(q)l of the Guidelines reads as follows: The term practicable means
available and capable of being done after taking into consideration co.it, existing technology,
and logistics m light of overall project purposes" (Emphasis supplied)
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ArwyffA MOA Canceminf +e Dcxminaian of Moi&aon into- ike SecaaJn 4&4(b)(l) G^feSna rage J
C. In evaluating standard Section 404 permit applications, as a practical matter,
information on all facets of a project, including potential mitigation, is typically gathered
and reviewed at the same time. The Corps, except as indicated below, first makes a
determination that potential impacts have been avoided to the maximum extent practicable;
remaining unavoidable impacts will then be mitigated to the extent appropriate and
practicable by requiring steps to minimize impacts and, finally, compensate for aquatic
resource values. This sequence is considered satisfied where the proposed mitigation is in
accordance with specific provisions of a Corps and EPA approved comprehensive plan that
ensures compliance with the compensation requirements of the Section 4()4(b)(l)
Guidelines (examples of such comprehensive plans may include Special Area .Management
Plans, Advance identification areas (Section 230.80), and State Coastal Zone Management
Plans). It may be appropriate to deviate from the sequence when EPA and the Corps
agree the proposed discharge is necessary to avoid environmental harm (e.g., to protect
a natural aquatic community from saltwater intrusion, chemical contamination, or other
deleterious physical or chemical impacts), or EPA and the Corps agree that the proposed
discharge can reasonably be expected to result in environmental gain or insignificant
environmental losses.
In determining "appropriate and practicable" measures to offset unavoidable impacts,
such measures should be appropriate to the scope and degree of those impacts and
practicable in terms of cost, existing technology, and logistics in light of overall project
purposes. The Corps will give full consideration to the views of the resource agencies
when making this determination. _
1. Avoidance/ Section 230.10(a) allows permit issuance for only the least
environmentally damaging practicable alternative/ The thrust of this section on
alternatives is avoidance of impacts. Section 230.10(a) requires that no discharge shall
be permitted if there is a practicable alternative to the proposed discharge which would
have less adverse impact to the aquatic ecosystem, so long as the alternative does not have
other significant adverse environmental consequences. In addition, Section 230.10(a)(3)
sets forth rebuttable presumptions that 1) alternatives for non-water dependent activities
that do not involve special aquatic sites* are available and 2) alternatives that do not
involve special aquatic sites have less adverse impact on the aquatic environment.
'Avoidance as used in the Section 404(b)(l) Guidelines and this MOA does not
include compensatory mitigation.
5It is important to recognize that there are circumstances where the impacts of the
project are so significant that even if alternatives are not available ^discharge may not
be permitted regardless of the compensatory mitigation proposed (40 CFR 23U.lU(cjj.
"Special aquatic sites include sanctuaries and refuges, wetlands, mud flats, vegetated
shallows, coral reefs and riffle pool complexes.
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Compensatory mitigation may not be used as a method to reduce environmental impacts
in the evaluation of the least environmentally damaging practicable alternatives for the
purposes of requirements under Section 230.10(a).
2. Minimization. Section 230.10(d) states that appropriate and practicable steps to
minimize the adverse impacts will be required through project modifications and permit
conditions. Subpart H of the Guidelines describes several (but not all) means for
minimizing impacts of an activity.
3. Compensatory Mitigation. Appropriate and practicable compensatory mitigation
is required for unavoidable adverse impacts which remain after all appropriate and
practicable minimization has been required. Compensatory actions (e.g., restoration of
existing degraded wetlands or creation of man-made wetlands) should be undertaken
when practicable, in areas adjacent or contiguous to the discharge site (on-site
compensatory mitigation). • If on-site compensatory mitigation is not practicable off-site
compensatory mitigation should be undertaken in the same geographic area if practicable
(i.e., in close physical proximity and, to the extent possible, the same watershed). In
determining compensatory mitigation, the functional values lost by the resource to1 be
impacted must be considered. Generally, in-kind compensatory mitigation is preferable to
out-of-kmd. There is continued uncertainty regarding the success of wetland creation or
other habitat development Therefore, in determining the nature and extent of habitat
development of this type, careful consideration should be given to its likelihood of success.
Because the likelihood of success is greater and the impacts to potentially valuable uplands
are reduced, restoration should be the first option considered. _
In the situation where the Corps is evaluating a project where a permit issued by
another agency requires compensatory mitigation, the Corps may consider that mitigation
as part of the overall application for purposes of public notice, but avoidance and
minimization shall still be sought
Mitigation banking may be an acceptable form of compensatory mitigation under
specific criteria designed to ensure an environmentally successful bank. Where a mitigation
bank has been approved by EPA and the Corps for purposes of providing compensatory
mitigation for specific identified projects, use of that mitigation bank for those particular
projects is considered as meeting the objectives of Section II.C.3 of this MOA, regardless
of the practicability of .other forms of compensatory mitigation. Additional guidance on
mitigation banking will be provided. Simple purchase or "preservation" of existing wetlands
resources may in only exceptional circumstances be accepted as compensatory mitigation.
EPA and Army will develop specific guidance for preservation in the context of
compensatory mitigation at a later date.
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///. Other Procedures
A. Potential applicants for major projects should be encouraged to arrange
preapplication meetings with the Corps and appropriate federal, state or Indian tribal, and
local authorities to determine requirements and documentation required for proposed
permit evaluations. As a result of such meetings, the applicant often revises a proposal
to avoid or minimize adverse impacts after developing an understanding of the Guidelines
requirements by which a future Section 404 permit decision will be made, «n addition to
paining an understanding of other state or tribal, or local requirements. Comphance with
other statutes, requirements and reviews, such as NEPA and .the Corps puttie interest
review, may not in and of themselves satisfy the requirements prescribed in the Guidelines.
B In achieving the goals of the CWA, the Corps will strive to avoid adverse
impacts and offset unavoidable adverse impacts to existing aquattc resources. Measures
which can accomplish this can be identified only through resource assessments tailored to
the site performed by qualified professionals because ecological characteristics of each
aquatic site are unique. Functional values should be assessed by applying aquatic sue
assessment techniques generally recognized by experts in the field and/or the best
professional judgment of federal and state agency representatives, P™d^ J^
assessments fully consider ecological functions included in the Guidelines The object ye
of mitigation for unavoidable impacts is to offset environmental losses. Additionally for
wetlands, such mitigation should provide, at a minimum, one for one func lona,
-replacement (i.e., no net loss of values), with an adequate margin of safety to reflect the
expected degree of success associated with the mitigation plan, recognizing that this
Sum requirement may not be appropriate and practicable and thus may not be
Te evant in all cases, as discussed in Section II.B of this MOA/ In the absence of more
definWve information on the functions and values of specific wetlands sues, a ^minimum of
1 to 1 acreage replacement may be used as a reasonable surrogate for no net oss of
functions and values. However, this ratio may be greater where the ^^^
the area being impacted are demonstrably high and the replacement wetlands are of lower
functional value or the likelihood of success of the mitigation project ,s low. Convene*,
he ido may be less than 1 to 1 for areas where the functional values associated with the
'For example, there are certain areas where, due to hydrological conditions;, *e
req u ire'me n ts.
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area being impacted are demonstrably low and the likelihood of success associated with
the mitigation proposal is high.
C, The Guidelines are the environmental standard for Section 404 permit issuance
under the CWA. Aspects of a proposed project may be affected through a determination
of requirements heeded to comply with the Guidelines to achieve these CWA
environmental goals.
D. Monitoring is an important aspect of mitigation, especially in areas ofcscientific
uncertainty. Monitoring should be directed toward determining whether permit condi,
are complied with and whether the purpose intended to be served by the.- condit
actually achieved. Any time it is determined that a permittee is in non-compliancy
• mitigation requirements of the permit, the Corps will take action in accordance v>.
CFR Part 326. Monitoring-should not be required for purposes other than these, although
information for other uses may accrue from the monitoring requirements. For projects to
be permitted involving mitigation with higher levels of scientific uncertainty, such as some
forms of compensatory mitigation, long term monitoring, reporting and potential remedial
action should be required. This can be required of the applicant through permit
conditions.
E. Mitigation requirements shall be conditions of standard Section 404 permilL
Army regulations authorize mitigation requirements to be added as special conditions to
an Army permit to satisfy legal requirements (e.g., conditions necessary to satisfy the
Guidelines) [33 CFR 325.4(a)]. This ensures legal enforceability of the mitigation
conditions and enhances the level of compliance. If the mitigation plan necessary to
ensure compliance with the Guidelines is not reasonably implementable or enforceable, the
permit shall be denied.
F. Nothing in this document is intended to diminish, modify or otherwise affect the
statutory or regulatory authorities of the agencies involved. Furthermore, formal policy
guidance on or interpretation of this document shall be issued jointly.
G. This MO A shall take effect on February 7, 1990, and will apply to those
completed standard permit applications which are received on or after that date. This
MOA may be modified or revoked by agreement of both parties, or revoked by either
party alone upon six (6) months written notice.
Robert W. Page .
Assistant Secretary of the Army
(Civil Works)
(date)
LaJuana S. Wilcher (date)
Assistant Administrator for Water
U.S. Environmental Protection Agency
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