MEMORANDUM OF AGREEMENT BETWEEN THE
            ENVIRONMENTAL PROTECTION AGENCY AND
                   THE DEPARTMENT OF THE ARMY
                                                                       USB
 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
Clean Water Act Section 404(q) Memorandum of Agreement Between
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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.
      ,  i  ,.            .    .      •,..'.•       v  - .      ' •     ;    • •   "    .-•••'
 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.
      t
 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
       *-. .          ,             '            ,               ,             .
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.
                                       . •                i
              (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);
  ".          or      •..••.••.'"'•       ''    ••

            (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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