MEMORANDUM OF AGREEMENT BETWEEN THE
ENVIRONMENTAL PROTECTION AGENCY AND
THE DEPARTMENT OF THE ARMY
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1. Authority:
2. Purpose:
Section 404(q) of the Glean Water Act, 33 U.S.C. 1344(q).
Establish policies and procedures to implement Section 404(q) of the
Clean Water Act to "minimize, to the maximum extent practicable,
duplication, needless paperwork and delays in the issuance of
permits."
3. Applicability: This agreement shall apply to Regulatory authorities under: a)
Section 10 of the Rivers and Harbors Act of 1899; b) Section 404 of
the Clean Water Act; and c) Section 103 of the Marine Protection,
Research and Sanctuaries Act.
4. General Rules:
Policy and procedures for the Department of the Army Regulatory
Program are established in 33 CFR Parts 320 through 330, and 40
CFR Part 230.
5. Organization: This Memorandum of Agreement (MOA) is subdivided into four
distinct parts. The procedures for each part are specific to that part
and do not necessarily relate to other parts. For example, different
signature levels are established for Parts II, III, and TV.
PART I - BACKGROUND
1. The Army Corps of Engineers is solely responsible for making final permit decisions
pursuant to Section 10, Section 404(a), and Section 103, including final determinations
of compliance with the Corps permit regulations, the Section 404(b)(l) Guidelines, and
Section 7(a)(2) of the Endangered Species Act. As such, the Corps will act as the project
manager for the evaluation of all permit applications. As the project manager, the Corps
is responsible for requesting and evaluating information concerning all permit
applications. The Corps will obtain and utilize this information in a manner that moves,
as rapidly as practical, the regulatory process towards a final permit decision. The Corps
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will not evaluate applications as a project opponent or advocate - but instead will
maintain an objective evaluation, fully considering all relevant factors. The Corps will
fully consider EPA's comments when determining compliance with the National
Environmental Policy Act, the 404(b)(l) Guidelines, and other relevant statutes,
regulations, and policies. The Corps will also fully consider the EPA's views when
determining whether to issue the permit, to issue the permit with conditions and/or
mitigation, or to deny the permit.
2. It is recognized that the EPA has an important role in the Department of the Army
Regulatory Program under the Clean Water Act, National Environmental Policy Act, and
other relevant statutes. When providing comments, only substantive, project-related
information (within EPA's area of expertise and authority) on the impacts of activities
being evaluated by the Corps and appropriate and practicable measures to mitigate
adverse impacts will be submitted. Pursuant to its authority under Section 404(b)(l) of
the Clean Water Act, the EPA may provide comments to the Corps identifying its views
regarding compliance with the Section 404(b)(l) Guidelines. The comments will be
submitted within the time frames established in this agreement and applicable regulations.
3. National or regional issues relating to resources, policy, procedures, and regulation
interpretation, can be elevated by either agency to their respective Washington
Headquarters for resolution as prescribed in Part m - ELEVATION OF POLICY
ISSUES. Individual permit decisions will not be delayed during the policy issue elevation
process. Elevation of issues related to specific individual permit cases will be limited to
those cases that involve aquatic resources of national importance. Procedures for
elevation of such "specific cases are provided in PART IV - ELEVATION OF
INDIVIDUAL PERMIT DECISIONS.
4. For projects of other Federal agencies and Federally assisted projects for which a
Federal agency takes responsibility for environmental analysis and documentation, Army
will accept, where appropriate and legally permissible, the environmental documentation
and decisions of those agencies.
5. This agreement does not diminish either Army's authority to decide whether a
particular individual permit should be granted, including determining whether the project
is in compliance with the Section 404(b)(l) Guidelines, or the Administrator's authority
under Section 404(c) of the Clean Water Act.
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6. The officials identified in this MO A cannot delegate their responsibilities unless
specifically provided for in this MO A.
7. Days referred to in this MOA are calendar days. If the end of the specified time
period falls on a weekend or holiday, the last calendar day will be the first business day
following the weekend or holiday. The end of the specified time period shall mean the
close of the business day on the last day of the specified time period.
8. This agreement is effective immediately upon the date of the last signature and will
continue in effect until modified or revoked by agreement of both parties, or revoked by
either party alone upon six months written notice.
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9. The Memorandum of Agreement between the Administrator of the Environmental
Protection Agency and the Secretary of the Army on Section 404(q) of the Clean Water
Act dated November 12, 1985, is terminated. Those permit applications which have been
elevated to the Assistant Secretary of the Army for Civil Works (ASA(CW)) under the
November 12, 1985, MOA shall be processed according to its terms. Those permit
applications for which Notices of Intent to Issue have been sent by the District Engineer
in accordance with paragraph 7.b. of the November 12, 1985, MOA shall be governed
by that MOA. All other permit applications shall be governed by this agreement. For
permit applications where the basic or extended comment period has closed before the
signature date of this MOA the Regional Administrator has 15 calendar days from the
date of the last signature below to indicate which individual permit cases will be governed
under Part IV by sending the District Engineer the letter required in Part IV, paragraph
3(b). -
PART II - COORDINATION PROCEDURES
1. Purpose: The purpose of Part II is to provide and encourage communication and full
consideration of each agencies' views concerning proposed projects within the resource
limits of each agency and the time constraints of the regulatory process.
2. District Engineers and the Regional Administrators are encouraged to develop, within
six months of the date of this MOA, written procedures to ensure effective interagency
coordination and to discuss issues, expedite comments, foster strong professional
partnerships and cooperative working relationships. Thes&professional partnerships will
be based on EPA providing substantive, project specific comments and the Corps giving
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full consideration to EPA's recommendations as the Corps makes its determination of
compliance with the Section 404(b)(l) Guidelines and the decision on the permit
application. The procedures will encourage, to the extent appropriate:
a. interagency pre-application consultation with prospective applicants;
b. interagency site visits;
c. interagency meeting(s) with applicants;
d. cooperation in acquiring and conveying site specific information needed by
either agency to fulfill its responsibilities;
e. consistent with the time frames setforth in this MOA, an informal process
for the timely resolution of issues at the field level to ensure that the permit
evaluation proceeds as rapidly as practical.
3. The Regional Administrator will inform the District Engineer, in writing, of the EPA
officials who are authorized to provide official EPA comments, including, where
appropriate, by category of activity or geographic area. All official EPA comments will
be signed by either the Regional Administrator or the designated official or an individual
acting for the Regional Administrator or acting for the designated EPA official. Two
officials will be designated in EPA Region X to provide for special circumstances in
Alaska. Comments signed by any of the above mentioned officials will be considered
EPA's response in accordance with Part II of this MOA. Notwithstanding the above,
certain actions described in Part IV require the actual signature of the Regional
Administrator or Acting Regional Administrator.
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4. The Corps will ensure the timely receipt (within 2-3 days from the date of issuance)
of public notices by EPA. EPA comments will be submitted in writing during the basic
comment period specified in the public notice. To the maximum extent practical, EPA
will immediately provide the Corps project manager with a faxed copy of its signed
comments. Where the basic comment period is less than 30 calendar days and the
situation is not an emergency, the District Engineer (or designee) shall, upon written or
electronically transmitted request of an official authorized to provide official EPA
comments, extend the comment period to 30 calendar days. An extension beyond 30
calendar days from the date of the public notice, must be requested in writing by the
Regional Administrator or designee. The written request must be received three calendar
days prior to the end of the basic comment period and must demonstrate the reason for
the extension (e.g., a joint coordination meeting occurs near the end of the comment
period and EPA needs additional time to prepare substantive comments). The District
Engineer or his designee will respond, in writing, within three calendar days of receipt
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of the^ request letter. If the District Engineer or his designee denies the request for
extension within three calendar days prior to the end of the basic comment period, the
EPA will have five calendar days from the receipt of the denial letter to submit final EPA
comments. The maximum comment period, including extension, will not exceed 60
calendar days, unless sought by the applicant,
5. Consistent with the procedures in Part IV, at the conclusion of the comment period,
the Corps will proceed to final action on the permit application. The Corps will consider
all comments submitted by EPA pursuant to Part IV, paragraphs 3(a) and 3(b).
6. The Corps may, in certain cases, request additional comments from or discuss issues
relevant to the project with EPA after the close of the comment period to either clarify
matters or obtain information relevant to the permit decision.
7. Consistent with Part IV, if the District Engineer's decision is to issue the permit over
the objections of the EPA Regional Administrator or to issue the permit without
conditions recommended by the EPA Regional Administrator, the District Engineer will
send a copy of the decision document to the EPA commenting official.
PART III - ELEVATION OF POLICY ISSUES
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1. Purpose: The purpose of Part III is to provide procedures for policy issue
coordination and resolution.
2. If either agency considers that the nature of an action or series of actions raises
concerns regarding the application of existing policy or procedure, or procedural failures
in agency coordination, the District or Division Engineer, or Regional Administrator (or
designee) may initiate policy implementation review between the District and/or Division
Engineer (or designee) arid the EPA Regional Administrator (or designee) through written
notification. The written notification will describe the issue in sufficient detail and
provide recommendations for resolving the issue. The District Engineer or Division,
Engineer (or designee), depending on the level of the issue, or the Regional Administrator
(or designee) will resolve the issue within 60 calendar days of receipt of written
notification to initiate policy implementation review.
3. In the context of Part III of this MOA, "resolve" means to review the issue, obtain
the views of the requesting party, discuss those views as appropriate, fully consider those
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views, and then make the final determination, in writing, regarding the particular
resource, policy, procedure, or regulation interpretation.
4. If during consultation, the Regional Administrator (or designee) or the Corps (District
Engineer or Division Engineer, or designee) determine the issue cannot or should not be
resolved at the field level, or that an. issue has broader implications beyond the Division,
the RA and Division Engineer will so notify the Assistant Administrator, Office of Water
(AAOW) and the ASA(CW), through the Director of Civil Works, respectively, in
writing. Such notification will describe the nature of the issue and the reasons why'the
issue cannot, or should not, be resolved at the District or Division level or Regional
level, (e.g., national policy issue)
5. Either the AAOW or the ASA(CW) may initiate informal or formal consultation
concerning unresolved regional issues or national issues by meeting within 30 calendar
days of receipt of notification under paragraph 4. above, or within 30 calendar clays of
receipt of notification of a policy or procedural issue or issues raised directly at
Headquarters level. Within 60 calendar days of that meeting, the agencies will agree to
provide direction, guidance, or joint guidance (e.g., general guidance on the. Section
404(b)(l) Guidelines), where appropriate in response to the issues raised in 4., above.
6. At no time should individual permit decisions be delayed pending resolution of policy
issues pursuant to PART III of this MOA- Similarly, changes in policy (i.e., new
policies) that occur as a result of PART III should not affect applicants who' have
submitted a complete permit application prior to implementation of such policy change.
7. Upon resolving a particular policy or procedure, the Corps will determine if the
policy is of sufficient importance to warrant public comment. All decisions will be
implemented pursuant to the requirements of the Administrative Procedures Act,
including public notice and comment rulemaking as necessary.
PART IV - ELEVATION OF INDIVIDUAL PERMIT DECISIONS
1. Purpose: The purpose of PART IV is to provide the exclusive procedures for the
elevation of specific individual permit cases. The elevation of specific individual permi>
cases will be limited to those cases that involve aquatic resources of national impot^n^e,
For example, cases that do not meet this resource value threshold cannot be elevated
under this Part over, a dispute concerning practicable alternatives. More specifically, the
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elevation of individual permit cases should be limited to those cases where the net loss
(i.e., after considering mitigation) from the project (i.e., within the scope of impacts
being evaluated by the Corps), will result in unacceptable adverse effects to aquatic
resources of national importance. As a basis,for comparison, these cases will cause
resource damages similar in magnitude to cases evaluated under Section 404(c) of the
Clean Water Act. The final decision on the need to elevate a specific individual permit
case and any subsequent case specific policy guidance rest solely with the ASA(CW).
2. Because delays associated with the process described within this Part IV can be costly
to the regulated public, every effort will be taken to ensure that the process under
paragraph 3(b) of this Part will be initiated only when absolutely necessary. Generic
issues concerning the use of this Part IV may be elevated by either party using the
procedures in Part III. .
3. The following procedures will be utilized for the elevation of specific individual
permit cases: * .
. FIELD LEVEL PROCEDURES
(a) Within the basic or extended comment period the Regional Administrator (or
designee) must notify the District Engineer by letter that in the opinion of EPA the
project may result in substantial and unacceptable impacts to aquatic resources of national
importance as defined in paragraph 1 of this Part.
(b) For those individual permit cases identified iii paragraph 3(a), within 25
calendar days after the end of the basic or extended comment period the Regional
Administrator must notify the District Engineer by letter (signed by the Regional
Administrator) that in EPA's opinion the discharge will have a substantial and
unacceptable impact on aquatic resources of national importance. The opinion will
clearly state in detail: (1). why there will be substantial and unacceptable impacts to
aquatic resource of national importance as defined in paragraph 1 of this Part and; (2)
why the specific permit must be modified, conditioned, or denied to protect the aquatic
resource of national importance. . The opinion, which should explain how the agency
determination was made, should be based on site specific information and relate directly
to matters within EPA's authority and expertise. A signed copy of the EPA letter should
be immediately faxed to the Corps regulatory project manager.
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(c) Notice of Intent to Proceed:
(1) If, following the receipt of the notification in Part IV paragraph 3(b),
the District Engineer's proposed permit decision is contrary to the stated
EPA written recommendation in paragraph 3(b), the District Engineer will,
within five calendar days of his.proposed decision, forward a copy of the
draft permit and decision document by overnight mail to the Wetlands
Division Director.
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(2) If, following the receipt of the notification in Part IV paragraph 3(b),
the District Engineer believes that his proposed decision resolves the written
concerns raised by EPA pursuant to paragraph 3(b), the District Engineer
will, within five calendar days of his proposed decision, forward a copy of
the draft permit and decision document by overnight mail to the Wetlands
Division Director.
(3) Alternatively, if the District Engineer, prior to reaching a decision on
the permit (e.g., the final decision is pending resolution of issues not related
to the concerns raised by EPA), determines that the project has been
modified or conditioned sufficiently so mere are no longer substantial
adverse impacts on aquatic resources of national importance, the District
Engineer will notify the Wetlands Division Director, by letter including
such project modifications and/or conditions that resolve EPA's concerns
raised in paragraph 3(b). '••
(d) Within 15 calendar days from receipt of the draft permit under paragraphs
3(c)(l) or 3(c)(2) or notification under paragraph 3(c)(3), the Regional Administrator will
notify the District Engineer by faxed letter (signed by the Regional Administrator- or the
Acting Regional Administrator) that:
(1) the Regional Administrator will not request higher level review; or
(2) the Regional Administrator has forwarded the issue to the AAOW with
a recommendation to request review by the ASA(CW).
(e) When the Regional Administrator requests elevation pursuant to paragraph
3(d)(2) of this Part the District Engineer will hold in abeyance the issuance of a permit
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pending completion of the Headquarters level review outlined below. Further, the
District Engineer will provide CEGW-OR and ASA(CW) a .copy of the Regional
Administrator's letter notifying the District Engineer of the intent to request higher level
review.
AGENCY HEADQUARTERS REVIEW fAS NECESSARY^
(f). Within 20 calendar days from the Regional Administrator's letter notifying the
District Engineer of the intent to request higher level review (paragraph 3(d)(2)), the
AAOW will either:
(1)- notify the ASA(CW) that the AAOW will not request further review
(the ASA(CW) will immediately notify CECW-OR of the AAOW's
decision, CECW-OR will immediately notify the district regulatory chief);
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(2) request the ASA(CW) to review the permit decision document.
(g) Within 30 calendar days from the AAOW's request for review, the ASA(CW),
through the Director of Civil Works, will review the permit decision document and
either:
(1) inform the District Engineer to proceed with final action on the permit
decision; or
(2) inform the District Engineer to proceed with final action in accordance
with case specific policy guidance; or
(3), make the final permit decision in accordance with 33 CFR 325.8.
(h) The ASA(CW) will immediately notify the AAOW in writing of its decision
in paragraph 3(g) above. The EPA reserves the right to proceed with Section 404(c).
To assist the EPA in reaching a decision on whether to exercise its Section 404(c)
authority, the District Engineer will provide EPA a copy of the Statement of
Findings/Record of Decision prepared in support of a permit decision after the AS A(C W)
review. The permit shall not be issued during a period of 10 calendar days after such
notice unless it contains a condition that no activity may take place pursuant to the permit.
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until such 10th day, or if the EPA has initiated a Section 404(c) proceeding during such
10 day period, until the Section 404(c) proceeding is concluded and subject to the final
determination in such proceeding.
Administrator for Water Assistant Secretary of the Army
nvironmental Protection Agency for Civil Works
; Department of the Army
(i k^c^.^V flfra ; //
Date V\ Date
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