Criteria for Reviewing MOAs for Possible Revisions (Final Cycle)
U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Office of Compliance
Washington, DC 20460
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Criteria for Reviewing MOAs for Possible Revision (First Cycle)
Clean Water Act sections 304(i) and 402, along with implementing regulations in 40 CFR
Part 123, contain NPDES state program requirements. One element used to establish the
relationship between EPA and the state is a memorandum of agreement (MOA).
EPA currently reviews state NPDES programs via two separate review efforts: the State
Review Framework (SRF) and the Permit Quality Review (PQR). These program reviews are
led by the Office of Enforcement and Compliance Assurance (OECA) and the Office of
Wastewater Management (OWM), respectively. The EPA intends to integrate these reviews
starting in Fiscal Year 2013 and to review each state NPDES program at least once every four
years, as contemplated by the October 15, 2009 Clean Water Act Action Plan (as revised). The
NPDES MOA review is intended to be done concurrently with or prior to the integrated review
process, such that each MOA will be reviewed every four years as well. The problematic MOAs
identified during the first four-year cycle should be updated by September 2017, The update
may be an amendment to existing MOAs or, if necessary, a complete revision of existing MOAs,
to address specific problematic issues; if an amendment is used, it is important to clarify which
portions are being revised. MOA reviews should inform performance reviews and MOA fixes
should be included in program findings and recommendations. The MOA is part of the overall
relationship between EPA and the State. EPA intends to collaborate with the state on any
decision to revise the MOA.
The EPA expects that, based on these reviews, MOAs which omit necessary NPDES
program provisions, or contain provisions that pose legal or practical barriers to program
implementation, will be identified. MOAs that fail to reflect these key elements or that contain
such barriers may be problematic in that such MOAs may prohibit the effective implementation
of the state's and EPA's NPDES program performance. For each of these MOAs, EPA
anticipates engaging the state in a process to revise the MOA, as necessary. In general, MOAs
that may need revision include those for which there are other than "yes" answers to these five
criteria :
•	The MOA meets the requirements of 40 C.F.R. § 123.24;
•	The MOA is consistent with the regulations and statute;
•	The MOA accurately documents program authorities or jurisdictions that are all
supported by state law or policy;
•	The MOA includes all critical sections and program components that reflect the
federal requirements for both permitting and enforcement programs and that are
within the scope of the approved program, for example, pretreatment, stormwater,
CAFO, as well as permit issuance, data systems, compliance monitoring, and
enforcement, as applicable; and
! The criteria, as listed, are not in a priority order.
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• The MOA does not limit EPA authorities to review NPDES permits, conduct
compliance monitoring or investigations, initiate enforcement, or issue permits in an
appropriate manner.
As described in the "Note to Users" Section of the model MOA, there is some flexibility
in terms of how the required elements are described, but the MOA should address these five
criteria in some way to comply with the CWA and implementing regulatory requirements and to
ensure that the MOA serves as an effective tool for coordination. Required elements may be
documented in writing and set forth in a separate document that is effective until the MOA is
modified. In addition, if a state is missing a required element of the NPDES program (storm-
water, pesticides, concentrated animal feeding operations, pretreatment, mining), EPA should
work with the state to address the deficiency and may include changes in other documents, as
appropriate, in addition to referencing it in the MOA.
40 CFR §123.24 sets forth required elements of MOAs between states authorized to
administer the NPDES program and EPA, as further explained in the 1986 NPDES State
Program Guidance. As a preliminary matter, in order for an MOA to be effective, it must be
signed by the Director of the state agency and the appropriate EPA Regional Administrator, The
MOA, annual state grant work plan, and state/EPA Enforcement Agreement (if separate from the
MOA) should all be consistent and the relationship between those various documents should be
clear (i.e., what document supersedes another). The MOA should consist of a listing of the
responsibilities and procedures that will be used to ensure the coordination and cooperation
between the state and EPA. Additionally, consistent with the requirements in 40 C.F.R. §123.62,
the MOA should reflect any program revisions and/or changes in the state's legal authority that
have occurred since the MOA was first put into place or last revised.
This document is not itself legally binding or enforceable.
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