MEMORANDUM OF AGREEMENT
AMONG THE DEPARTMENT OF AGRICULTURE, THE ENVIRONMENTAL
PROTECTION AGENCY, THE DEPARTMENT OF THE INTERIOR, AND THE
DEPARTMENT OF THE ARMY
CONCERNING THE DELINEATION OF WETLANDS FOR
PURPOSES OF SECTION 404 OF THE CLEAN WATER ACT AND
SUBTITLE B OF THE FOOD SECURITY ACT
I. BACKGROUND
The Departments of the Army, Agriculture, and the Interior, and the Environmental
Protection Agency (EPA) recognize fully that the protection of the Nation's remaining
wetlands is an important objective that will be supported through the implementation of
the Wetland Conservation (Swampbuster) provision of the Food Security Act (FSA) and
Section 404 of the Clean Water Act (CWA). The agencies further recognize and value
the important contribution of agricultural producers to our society, our economy, and
our environment. We are committed to ensuring that Federal wetlands programs are
administered in a manner that minimizes the impacts on affected landowners to the
fullest possible extent consistent with the important goal of protecting wetlands. We are
also committed to minimizing duplication and inconsistencies between Swampbuster and
the CWA Section 404 program. On August 24, 1993, the Administration announced a
comprehensive package of reforms that will improve both the protection of wetlands and
make wetlands programs more fair and flexible for landowners, including the Nation's
agriculture producers. This Memorandum of Agreement (MOA) implements one of
over 40 components of the Administration's Wetlands Plan.
II. PURPOSE AND APPLICABILITY
A. PURPOSE
The purpose of this MOA is to specify the manner in which wetland delineations
and certain other determinations of waters of the United States made by the U.S.
Department of Agriculture (USDA) under the FSA will be relied upon for
purposes of CWA Section 404. While this MOA will promote consistency
between CWA and FSA wetlands programs, it is not intended in any way to
diminish the protection of these important aquatic resources. In this regard, all
signatory agencies to this MOA will ensure that wetlands programs are
administered in a manner consistent with the objectives and requirements of
applicable laws, implementing regulations, and guidance.
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B. APPLICABILITY \
t
1. The Administrator of EPA has the ultimate authority to determine the
geographic scope of waters of thje United States subject to jurisdiction
under the CWA, including the Section 404 regulatory program. Consistent
with a current MOA between EPA and the Department of the Army, the
Army Corps of Engineers (Corps) conducts jurisdictional delineations
associated with the day-to-day administration of the Section 404 program.
! ' ' , _ •
2. The Secretary of the USDA, acting through the Chief of the Soil
Conservation Service (SCS), has the ultimate authority to determine the
geographic scope of wetlands for FSA purposes and to make delineations
relative to the FSA, in consultation with the Department of the Interior,
Fish and Wildlife Service (FWS).
III. DEFINITION OF AGRICULTURAL LANDS
•
For the purposes of this MOA, the term "agricultural lands" means those lands
intensively used and managed for the production of food or fiber to the extent that the
natural vegetation has been removed and cannot be used to determine whether the area
meets applicable hydrophytic vegetation criteria in making a wetland delineation.
A. Areas that meet the above definition may include intensively used and managed
cropland, hayland, pasture land, orchards, vineyards, and areas which support
wetland crops (e.g., cranberries, taro, watercress, rice). For example, lands
intensively used and managed for pasture or hayland where the natural vegetation
has been removed and replaced with planted grasses or legumes such as ryegrass,
bluegrass, or alfalfa, are considered agricultural lands for the purposes of this
MOA. •
B. "Agricultural lands" do not include range lands, forest lands, wood lots, or tree
farms. Further, lands where the natural vegetation has not been removed, even
though that vegetation may be regularly grazed or mowed and collected as forage
or fodder (e.g., uncultivated meadows and prairies, salt hay), are not considered
agricultural lands for the purposes of this MOA.
Other definitions for the purposes of this MOA are listed below in Section VI.
IV. ALLOCATION OF RESPONSIBILITY
A. In accordance with the terms and procedures of this MOA, wetland delineations
made by SCS on agricultural lands, in consultation with FWS, will be accepted by
EPA and the Corps for the purposes of determining Section 404 wetland
jurisdiction. In addition, EPA and the;Corps will accept SCS wetland delineations
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B.
D.
E.
F.
on non-agricultural lands that are either narrow bands immediately adjacent to, or
small pockets interspersed among, agricultural lands. SCS is responsible for
making wetland delineations for agricultural lands whether or not the person who
owns, manages, or operates the land is a participant in USDA programs.
Lands owned or operated by a USDA program participant that are not
agricultural lands and for which a USDA program participant requests a wetland
delineation, will be delineated by SCS in coordination with the Corps, or EPA as
appropriate, and in consultation with FWS. Final wetland delineations conducted
by SCS pursuant to the requirements of this paragraph shall not be revised by
SCS except where an opportunity for coordination and consultation is provided to
the other signatory agencies.
SCS may conduct delineations of other waters for the purposes of Section 404 of
the CWA, such as lakes, ponds, and streams, in coordination with the Corps, or
EPA as appropriate, on lands on which SCS is otherwise engaged in wetland
delineations pursuant to paragraphs IV.A or IV.B of this MOA. Delineations of
"other waters" will not be made until the interagency oversight team convened
pursuant to Section V.B.2 has agreed on appropriate local procedures and
guidance for making such delineations.
For agricultural lands, the signatory agencies will use the procedures for
delineating wetlands as described in the National Food Security Act Manual,
Third Edition (NFSAM). For areas that are not agricultural lands, SCS will use
the 1987 Corps Wetland Delineation Manual, with current national Corps
guidance, to make wetland delineations applicable to Section 404.
Delineations on "agricultural lands" must be performed by personnel who are
trained in the use of the NFSAM. Delineations on other lands and waters must
be performed by personnel who are trained in the use of the 1987 Corps Wetland
Delineation Manual. This MOA includes provisions for the appropriate
interagency delineation training below in Section V.E.
In the spirit of the agencies' commitment to develop agreed upon metnods for use
in making wetland delineations, subsequent revisions or amendments to the Corps
1987 manual or portions of the NFSAM affecting the wetland delineation
procedures upon which this agreement is based will require the concurrence of
the four signatory agencies.
A final written wetland delineation made by SCS pursuant to the terms of this
MOA will be adhered to by all the signatory agencies and will be effective for a
period of five years from the date the delineation is made final, unless new
information warrants revision of the delineation before the expiration date. Such
new information may include, for example, data on landscape changes caused by a
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H.
I.
J.
K.
major flood, or a landowner's notification of intent to abandon agricultural use
and the return of wetland conditions on a prior converted cropland. In
accordance with Section 1222 of the FSA, SCS will update wetland delineations
on this five-year cycle. Circumstances under which SCS wetland delineations
made prior to the effective date of this agreement will be considered as finail for
Section 404 purposes are addressed in Paragraph V.C.
Within the course of administering their Swampbuster responsibilities, SCS and
FWS will provide landowners/operatbrs general written information (i.e.,
EPA/Corps fact sheets) regarding the CWA Section 404 program permit
requirements, general permits, and exemptions. The SCS and FWS will not,
however, provide opinions regarding the applicability of CWA Section 404 permit
requirements or exemptions. :
USDA will maintain documentation pf all final written SCS wetland delineations
and record the appropriate label and boundary information on an official wetland
delineation map. USDA will make this information available to the signatory
agencies upon request . i
In pursuing enforcement activities, the signatory agencies will rely upon
delineations made by the lead agency, as clarified below, providing a single
Federal delineation for potential violations of Section 404 or Swampbuster.
Nothing in this MOA will diminish, modify, or otherwise affect existing EPA and
Corps enforcement authorities under the CWA and clarified in the 1989
"EPA/Army MOA Concerning Federal Enforcement for the Section 404 Program
of the Clean Water Act" EPA, the Corps, and SCS may gather information
based on site visits or other means to provide additional evidentiary support: for a
wetland delineation which is the subject of a potential or ongoing CWA Section
404 or Swampbuster enforcement action.
For those lands where SCS has not made a final written wetland delineation, and
where the Corps or EPA is pursuing a potential CWA violation, the lead agency
for the CWA enforcement action will conduct a jurisdictional delineation for the
purposes of Section 404 and such delineations will be used by SCS for
determining Swampbuster jurisdiction and potential Swampbuster violations. For
those lands where the Corps has not made a final written wetland delineation,
and where SCS is pursuing a potential Swampbuster violation, SCS will make a
final written wetland delineation consistent with Sections IV.A, IV.B, and F/.C of
this MOA and provide copies to the Corps and EPA. Such delineations will be
used by the Corps and EPA for the purpose of determining potential violations of
the CWA. In circumstances in which either the Corps or EPA is pursuing a
potential CWA violation on land thai is subject to an ongoing SCS appeal, a
wetland delineation will be conducted by the Corps or EPA in consultation with
SCS and FWS. ;
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V.
In making wetland delineations, the agencies recognize that discharges of dredged
or fill material that are not authorized under Section 404 cannot eliminate Section
404 jurisdiction, and that wetlands that were converted as a result of unauthorized
discharges remain subject to Section 404 regulation.
PROCEDURES
Accurate and consistent wetland delineations are critical to the success of this MO A.
For this reason, the signatory agencies will work cooperatively at the field level to:
1) achieve interagency concurrence on mapping conventions used by SCS for wetland
delineations on agricultural lands, 2) provide EPA and Corps programmatic review of
SCS delineations, and 3) certify wetland delineations in accordance with Section
1222(a)(2) of the FSA, as amended* The following sections describe the procedures that
will be followed to accomplish these objectives.
A. MAPPING CONVENTIONS
1. Each SCS State Conservationist will take the lead in convening
representatives of the Corps, EPA, FWS, and SCS to obtain the written
concurrence of each of the signatory agencies, within 120 calendar days of
the effective date of this MO A, on a set of mapping conventions for use in
making wetland delineations. Only mapping conventions concurred upon
by all signatory agencies will be used by SCS for wetland delineations.
2. If interagency consensus on mapping conventions is not reached within 120
days of the date of this MO A, the State Conservationist will refer
documentation of the unresolved issues to the Chief of SCS. The Chief of
SCS will immediately forward copies of the State Conservationist's
documentation of unresolved issues to the Corps Director of Civil Works;
the EPA Director of the Office of Wetlands, Oceans, and Watersheds; and
the FWS Director. Immediately thereafter, the Chief of SCS or an
appropriate designee will lead necessary discussions to achieve interagency
concurrence on resolution of outstanding issues, and will forward
documentation of the resolution to the State Conservationist and the
appropriate Headquarters offices of the signatory agencies.
3.
4.
Once interagency concurrence on mapping conventions is obtained, such
mapping conventions will be used immediately in place of the earlier
mapping conventions.
Agreed-upon mapping conventions developed at the state level will be
documented and submitted, for each state, through the Chief of SCS to the
Headquarters of each of the signatory agencies. State-level agreements
will be reviewed by the Headquarters of the signatory agencies for the
purpose of ensuring national consistency.
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B. DELINEATION PROCESS REVIEW AND OVERSIGHT
1. This MOA emphasizes the need to ensure consistency in the manner in
which wetlands are identified for CWA and FSA purposes, and provides a
number of mechanisms to increase meaningful interagency coordination
and consultation in order for the agencies to work toward meeting this
goal. In this regard, the agencies believe it is critical that efforts for
achieving consistency be carefully monitored and evaluated. Consequently,
this MOA establishes a monitoring and review process that will be used to
provide for continuous improvement in the wetland delineation process
specified in this MOA. i
2. EPA will lead the signatory!agencies in establishing interagency oversight
teams at the state level to cbnduct periodic review of wetland delineations
conducted under the provisions of this MOA. These reviews will include
delineations done by SCS pursuant to Sections FV.A, IV.B, and IV.C of
this MOA and delineations done by EPA or the Corps pursuant to Section
IV.K. of this MOA. These reviews also will include changes to wetland
delineations resulting from the SCS appeals process, as well as
disagreements regarding allocation of responsibility. These reviews will
occur, at a minimum, on a quarterly basis for the first year, on a semi-
annual basis for the second year, and annually thereafter. In addition, a
review will be initiated whenever one or more of the signatory agencies
believes a significant issue needs to be addressed. The purpose of each
review will be to evaluate the accuracy of an appropriate sample of
wetland delineations. When feasible, this will include actual field
verifications of wetland delineations. Should the interagency oversight
team identify issues regarding implementation of this MOA or wetland
delineations conducted under the provisions of this MOA, the team will
work to resolve those issues and reach agreement on any necessary
corrective actions. Each review, and any necessary corrective action, will
be documented in a report to be distributed to the signatory agencies'
appropriate field and Headquarters offices.
3. In situations in which the interagency oversight team identifies and reports
unresolved issues concerning wetland delineations conducted under the
provisions of this MOA, including changes to wetland delineations resulting
from the SCS appeals process, the Headquarters offices of the signatoiy
agencies will informally review the issue and work to reach agreement on
any necessary corrective actions. This informal process notwithstanding,
the EPA Regional Administrator or the Corps District Engineer may, at
any time, propose to designate a geographic area as a "special case".
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4. Similar to the terms of the current Memorandum of Agreement between
the Department of the Army and the EPA Concerning the Determination
of the Geographic Jurisdiction of the Section 404 Program and the
Application of the Exemptions under Section 404(f) of the CWA, the EPA
Regional Administrator or the Corps District Engineer may propose to
designate a geographic area, or a particular wetland type within a
designated geographic area, as a special case. A special case may be
designated only after the interagency oversight team (EPA, Corps, SCS,
and FWS) has reviewed the relevant issues and been unable to reach a
consensus on an appropriate resolution. Special cases will be designated
by an easily identifiable political or geographic subdivision, such as a
township, county, parish, state, EPA Region, or Corps division or district,
and will be marked on maps or using some other clear format and
provided to the appropriate EPA, Corps, FWS, and SCS field offices.
Proposed designations of special cases will not be effective until approved
by EPA or Corps Headquarters, as appropriate.
5. Upon proposing a special case, the EPA Regional Administrator or Corps
District Engineer, as appropriate, will notify the appropriate SCS State
Conservationist in writing. Following notification of the proposed
designation, SCS will not make wetland delineations for the purposes of
CWA jurisdiction within the proposed special case for a period of 20
working days from the date of the notification. SCS may proceed to make
wetland delineations for CWA purposes in the proposed special case after
the 20-day period if the SCS State Conservationist has not been notified by
the EPA Regional Administrator or Corps District Engineer of approval of
the proposed special case designation by EPA Headquarters or the Corps
Director of Civil Works, as appropriate.
6. Following approval of the proposed special case, the Corps, or EPA as
appropriate, will make final CWA wetland delineations in the special case
area, rather than SCS. In addition, the referring field office (i.e., either
the EPA Regional Administrator or Corps District Engineer) will develop
draft guidance relevant to the specific issues raised by the special case and
forward the draft guidance to its Headquarters office. The Headquarters
office of the agency which designated the special case will develop final
guidance after consulting with the signatory agencies' Headquarters offices.
EPA concurrence will be required for final guidance for any special case
designated by the Corps. Special cases remain in effect until final guidance
is issued by the Headquarters office of the agency which designated the
special case or the designation is withdrawn by the EPA Regional
Administrator or Corps District Engineer, as appropriate.
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C. RELIANCE ON PREVIOUS SCS WETLAND DELINEATIONS FOR CWA
PURPOSES ;
1.
2.
3.
Section 1222 of the FSA, as amended by the Food Agriculture
Conservation and Trade Act, provides that SCS will certify SCS wetland
delineations made prior to November 28, 1990. The intent of this process
is to ensure the accuracy of wetland delineations conducted prior to
November 28, 1990, for the purposes of the FSA. This certification
process also will provide a useful basis for establishing reliance on wetland
delineations for CWA purposes. All certifications done after the effective
date of this MOA that are done using mapping conventions will use the
agreed-upon mapping conventions pursuant to Section V.A of this MOA.
Written SCS wetland delineations for lands identified in Section IV.A of
this MOA conducted prior to the effective date of this MOA will be used
for purposes of establishing CWA jurisdiction, subject to the provisions of
Section V.C.3 below. If such SJCS wetland delineations are subsequently
modified or revised through updated certification, these modifications or
revisions will supersede the previous delineations for purposes of
establishing CWA jurisdiction, j Written SCS wetland delineations for lands
identified in Sections IV.B andllV.C of this MOA conducted prior to the
effective date of this MOA will require coordination with the Corps, or
EPA as appropriate, before being used for purposes of determining CWA
jurisdiction. •
As part of the certification effort, SCS will establish priorities to certify
SCS wetland delineations. In addition to responding to requests from
individual landowners who feel their original wetland determinations were
made in error, SCS will give priority to certifying those wetland
delineations where at least two of the four signatory agencies represented
on the interagency oversight team convened pursuant to Section V.B.2 of
this MOA agree that SCS wetland delineations in a particular area, or a
generic class of SCS wetland delineations in a particular area, raise issues
regarding their accuracy based on current guidance. These priority areas
will be identified only after mapping conventions are agreed upon pursuant
to Section V.A of this MOA. Identification of these high priority
certification needs shall be made at the level of the SCS State
Conservationist, FWS Regional Director, EPA Regional Administrator,
and the Corps District Engineer. Following identification of these high
priority certification needs, the SCS State Conservationist will immediately
notify the affected landowner(s), by letter, that the relevant SCS wetland
delineations have been identified as a high priority for being certified
under Section 1222 of the FSA. In addition, the notification will inform
the landowner that while previous wetland delineations remain valid for
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purposes of the FSA until certification or certification update is completed,
the landowner will need to contact the Corps before proceeding with
discharges of dredged or fill material. This communication by the
landowner will enable the Corps to review the wetland delineation to
establish whether it can be used for purposes of CWA jurisdiction. The
SCS State Conservationist will initiate, within 30 calendar days of
landowner notification, corrective measures to resolve the wetland
delineation accuracy problem.
D. APPEALS
Landowners for whom SCS makes wetland delineations for either Swampbuster or
Section 404 will be afforded the opportunity to appeal such wetland delineations
through the SCS appeals process. In circumstances where an appeal is made and
the State Conservationist is considering a change in the original delineation, the
State Conservationist will notify the Corps District Engineer and the EPA
Regional Administrator to provide the opportunity for their participation and
input on the appeal. FWS also will be consulted consistent with the requirements
of current regulations. The Corps and EPA reserve the right, on a case-by-case
basis, to determine that a revised delineation resulting from an appeal is not valid
for purposes of Section 404 jurisdiction.
E. TRAINING
1. SCS, in addition to FWS and EPA, will continue to participate in the
interagency wetland delineation training sponsored by the Corps, which is
based on the most current manual used to delineate wetlands for purposes
of Section 404. Completion of this training will be a prerequisite for field
staff of all signatory agencies who delineate wetlands on non-agricultural
lands using the 1987 Corps Wetland Delineation Manual.
2. The interagency wetland delineation training will address agency wetland
delineation responsibilities as defined by this MO A, including SCS NFSAM
wetland delineation procedures.
3. Field offices of the signatory agencies are encouraged to provide
supplemental interagency wetland delineation training (i.e., in addition to
that required in paragraph FV.E), as necessary, to prepare SCS field staff
for making Section 404 wetland delineations. For training on the use of
the 1987 Corps Wetland Delineation Manual, such supplemental training
will rely on the training materials used for the Corps delineation training
program and will provide an equivalent level of instruction.
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VI.
A.
B.
C.
D.
E.
F.
A.
B.
DEFINITIONS
"Coordination" means that SCS will contact the Corps, or EPA as appropriate,
and provide an opportunity for review, comment, and approval of the findings of
SCS prior to making a final delineation. The Corps, or EPA as appropriate, will
review the proposed delineation and respond to SCS regarding its acceptability
for CWA Section 404 purposes within 45 days of receipt of all necessary
information. SCS will not issue a final delineation until agreement is reached
between SCS and the Corps or EPA, as appropriate.
"Consultation" means that SCS, consistent with current provisions of the FSA, will
provide FWS opportunity for full participation in the action being taken and for
timely review and comment on the findings of SCS prior to a final wetland
delineation pursuant to the requirements of the FSA.
A "wetland delineation" is any determination of the presence of wetlands and
their boundaries.
A "special case" for the purposes of this MOA refers to those geographic areas or
wetland types where the Corps or EPA will make final CWA wetland
delineations.
"Signatory agencies" means the EPA and the Departments of Army (acting
through the Corps), Agriculture (acting through SCS), and Interior (acting
through FWS).
"USDA program participant" means individual landowners/operators eligible to
receive USDA program benefits covered under Title XII of the Food Security Act
of 1985, as amended by the Food, Agriculture, Conservation and Trade Act of
1990.
VII. GENERAL
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 the United States. Deviation or variance from the
administrative procedures included in this MOA will not constitute a defense for
violators or others concerned with any Section 404 enforcement action.
Nothing in this MOA is intended to diminish, modify, or otherwise affect
statutory or regulatory authorities of any of the signatory agencies. All formal
guidance interpreting this MOA and background materials upon which this MOA
is based will be issued jointly by the agencies.
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D.
E.
Nothing in this MOA will be construed as indicating a financial commitment by
SCS, the Corps, EPA, or FWS for the expenditure of funds except as authorized
in specific appropriations.
This MOA will take effect on the date of the last sighature'below ancf will
continue in effect until modified or revoked by agreement of all signatory
agencies, or revoked by any of the signatory agencies alone upon 90 days written
notice. Modifications to this MOA may be made by mutual agreement and
Headquarters level approval by all the signatory agencies. Such modifications will
take effect upon signature of the modified document by all the signatory agencies.
The signatory agencies will refer delineation requests to the appropriate agency
pursuant to this MOA.
Lyons
Secretar^or Natural
Resources and Environment
U.S. Department of Agriculture
George T. Fdampton,
Assistant Secretary for Fish and
Wildlife and Parks
U.S. Department of the Interior
I"
Robert Perciasepe
Assistant Administrator for Water
U.S. Environmental Protection Agency
Edward Dickey
Acting Assistant Secretary of the
Army for Civil Works
U.S. Department of the Army
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