(a) The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit under this subsection, the Secretary shall publish the notice required by this subsection.
(b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary:
(1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under section 403(c), and
(2) in any case where such guidelines under clause (1) alone would prohibit the specification of a site, through the application additionally of the economic impact of the site on navigation and anchorage.
(c) The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.
(d) The term "Secretary" as used in this section means the Secretary of the Army, acting through the Chief of Engineers.
(1) In carrying out his functions relating to the discharge of dredged or fill material under this section, the Secretary may, after notice of opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment. Any general permit issued under this subsection shall
(A) be based on the guidelines described in subsection (b)(l) of this section, and
(B) set forth the requirements and standards which shall apply to any activity authorized by such general permit.
(2) No general permit issued under this subsection shall be for a period of more than five years after the date of its issuance and such general permit may be revoked or modified by the Secretary if, after opportunity for public hearing, the Secretary determines that the activities authorized by such general permit have an adverse impact on the environment or such activities are more appropriately authorized by individual permits.
(1) Except as provided in paragraph (2) of this subsection, the discharge of dredge or fill material -
(A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;
(B) for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures;
(C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;
(D) for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters;
(E) for the purpose of construction or maintenance or farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized;
(F) resulting from any activity with respect to which a State has an approved program under section 1288(b)(4) of this title which meets the requirements of subparagraphs (B) and (C) of such section,
is not prohibited by or otherwise subject to regulation under this section or section 1311(a) or 1342 of this title (except for effluent standards or prohibitions under section 1317 of this title).
(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.
(1) The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto), within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program.
(2) Not later than the tenth day after the date of the receipt of the program and statement submitted by any State under paragraph (1) of this subsection, the Administrator shall provide copies of such program and statement to the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service.
(3) No later than the ninetieth day after the date of the receipt by the Administrator of the program and statement submitted by any State, under paragraph (1) of this subsection, the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, shall submit any comments with respect to such program and statement to the Administrator in writing.
(1) Not later than the one-hundred-twentieth day after the date of the receipt by the Administrator of a program and statement submitted by any State under paragraph (1) of this subsection, the Administrator shall determine, taking into account any comments submitted by the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, pursuant to subsection (g) of this section, whether such State has the following authority with respect to the issuance of permits pursuant to such program:
(A) To issue permits which -
(i) apply, and assure compliance with, any applicable requirements of this section, including, but not limited to, the guidelines established under subsection (b)(l) of this section, and sections 307 and 403 of this Act;
(ii) are for fixed terms not exceeding five years; and
(iii) can be terminated or modified for cause including, but not limited to, the following:
(I) violation of any condition of the permit;
(II) obtaining a permit by misrepresentation, or failure to disclose fully all relevant facts;
(III) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.
(B) To issue permits which apply, and assure compliance with, all applicable requirements of section 308 of this Act, or to inspect, monitor, enter, and require reports to at least the same extent as required in section 308 of this Act.
(C) To assure that the public, and any other State the waters of which may be affected, receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application.
(D) To assure that the Administrator receives notice of each application (including a copy thereof) for a permit.
(E) To assure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendation to the permitting State (and the Administrator) with respect to any permit application and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and the Administrator) in writing of its failure to so accept such recommendations together with its reasons for so doing.
(F) To assure that no permit will be issued if, in the judgement of the Secretary, after consultation with the Secretary of the department in which the Coast Guard is operating, anchorage and navigation of any of the navigable waters would be substantially impaired thereby.
(G) To abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement.
(H) To assure continued coordination with Federal and Federal-State water-related planning and review processes.
(2) If, with respect to a State program submitted under subsection (g)(l) of this section, the Administrator determines that such State -
(A) has the authority set forth in paragraph (1) of this subsection, the Administrator shall approve the program and so notify (i) such State, and (ii) the Secretary, who upon subsequent notification from such State that it is administering such program, shall suspend the issuance of permits under subsections (a) and (e) of this section for activities with respect to which a permit may be issued pursuant to such State program; or
(B) does not have the authority set forth in paragraph (1) of this subsection, the Administrator shall so notify such State, which notification shall also describe the revisions or modifications necessary so that such State may resubmit such program for a determination by the Administrator under this subsection.
(3) If the Administrator fails to make a determination with respect to any program submitted by a State under subsection (g)(l) of this section within one-hundred-twenty days after the date of the receipt of such program, such program shall be deemed approved pursuant to paragraph (2)(A) of this subsection and the Administrator shall so notify such State and the Secretary who, upon subsequent notification from such State that it is administering such program, shall suspend the issuance of permits under subsection (a) and (e) of this section for activities with respect to which a permit may be issued by such State.
(4) After the Secretary receives notification from the Administrator under paragraph (2) or (3) of this subsection that a State permit program has been approved, the Secretary shall transfer any applications for permits pending before the Secretary for activities with respect to which a permit may be issued pursuant to such State program to such State for appropriate action.
(5) Upon notification from a State with a permit program approved under this subsection that such State intends to administer and enforce the terms and conditions of a general permit issued by the Secretary under subsection (e) of this section with respect to activities in such State to which such general permit applies, the Secretary shall suspend the administration and enforcement of such general permit with respect to such activities.
(i) Whenever the Administrator determines after public hearing that a State is not administering a program approved under section (h)(2)(A) of this section, in accordance with this section, including, but not limited to, the guidelines established under subsection (b)(l) of this section, the Administrator shall so notify the State, and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days after the date of the receipt of such notification, the Administrator shall:
(1) withdraw approval of such program until the Administrator determines such corrective action has been taken, and
(2) notify the Secretary that the Secretary shall resume the programs for the issuance of permits under subsection (a) and (e) of this section for activities with respect to which the State was issuing permits and that such authority of the Secretary shall continue in effect until such time as the Administrator makes the determination described in clause (1) of this subsection and such State again has an approved program.
(j) Each State which is administering a permit program pursuant to this section shall transmit to the Administrator
(1) a copy of each permit application received by such State and provide notice to the Administrator of every action related to the consideration of such permit application, including each permit proposed to be issued by such State, and
(2) a copy of each proposed general permit which such State intends to issue. Not later than the tenth day after the date of the receipt of such permit application or such proposed general permit, the Administrator shall provide copies of such permit application or such proposed general permit to the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service. If the Administrator intends to provide written comments to such State with respect to such permit application or such proposed general permit, he shall so notify such State not later than the thirtieth day after the date of the receipt of such application or such proposed general permit and provide such written comments to such State, after consideration of any comments made in writing with respect to such application or such proposed general permit by the Secretary and the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, not later than the ninetieth day after the date of such receipt. If such State is so notified by the Administrator, it shall not issue the proposed permit until after the receipt of such comments from the Administrator, or after such ninetieth day, whichever first occurs. Such State shall not issue such proposed permit after such ninetieth day if it has received such written comments in which the Administrator objects
(A) to the issuance of such proposed permit and such proposed permit is one that has been submitted to the Administrator pursuant to subsection (h)(l)(E), or
(B) to the issuance of such proposed permit as being outside the requirements of this section, including, but not limited to, the guidelines developed under subsection (b)(l) of this section unless it modified such proposed permit in accordance with such comments. Whenever the Administrator objects to the issuance of a permit under the preceding sentence such written objection shall contain a statement of the reasons for such objection and the conditions which such permit would include if it were issued by the Administrator. In any case where the Administrator objects to the issuance of a permit, on request of the State, a public hearing shall be held by the Administrator on such objection. If the State does not resubmit such permit revised to meet such objection within 30 days after completion of the hearing or, if no hearing is requested within 90 days after the date of such objection, the Secretary may issue the permit pursuant to subsection (a) or (e) of this section, as the cause may be, for such source in accordance with the guidelines and requirements of this Act.
(k) In accordance with guidelines promulgated pursuant to subsection (i)(2) of section 304 of this Act, the Administrator is authorized to waive the requirements of subsection (j) of this section at the time of the approval of a program pursuant to subsection (h)(2)(A) of this section or any category (including any class, type, or size within such category) of discharge within the State submitting such program.
(l) The Administrator shall promulgate regulations establishing categories of discharges which he determines shall not be subject to the requirements of subsection (j) of this section in any State with a program approved pursuant to subsection (h)(2)(A) of this section. The Administrator may distinguish among classes, types, and sizes within any category of discharges.
(m) Not later than the ninetieth day after the date on which the Secretary notifies the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service that
(1) an application for a permit under subsection (a) of this section has been received by the Secretary, or
(2) the Secretary proposes to issue a general permit under subsection (e) of this section, the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, shall submit any comments with respect to such application or such proposed general permit in writing to the Secretary.
(n) Nothing in this section shall be construed to limit the authority of the Administrator to take action pursuant to section 309 of this Act.
(o) A copy of each permit application and each permit issued under this section shall be available to the public. Such permit application or portion thereof, shall further be available on request for the purpose of reproduction.
(p) Compliance with a permit issued pursuant to this section, including any activity carried out pursuant to a general permit issued under this section, shall be deemed compliance, for purposes of sections 309 and 505, with sections 301, 307, and 403.
(q) Not later than the one-hundred-eightieth day after the date of enactment of this subsection, the Secretary shall enter into agreements with the Administrator, the Secretaries of the Departments of Agriculture, Commerce, Interior, and Transportation, and the heads of other appropriate Federal agencies to minimize, to the maximum extent practicable, duplication, needless paperwork, and delays in the issuance of permits under this section. Such agreements shall be developed to assure that, to the maximum extent practicable, a decision with respect to an application for a permit under subsection (a) of this section will be made not later than the ninetieth day after the date the notice of such application is published under subsection (a) of this section.
(r) The discharge of dredged or fill material as part of the construction of a Federal project specifically authorized by Congress, whether prior to or on or after the date of enactment of his subsection, is not prohibited by or otherwise subject to regulation under this section, or a State program approved under this section, or section 301(a) or 402 of the Act (except for effluent standards or prohibitions under section 307), if information on the effects of such discharge, including consideration of the guidelines developed under subsection (b)(l) of this section, is included in an environmental impact statement for such project pursuant to the National Environmental Policy Act of 1969 and such environmental impact statement has been submitted to Congress before the actual discharge of dredged or fill material in connection with the construction of such project and prior to either authorization of such project or an appropriation of funds for each construction.
(1) Whenever on the basis of any information available to him the Secretary finds that any person is in violation of any condition or limitation set forth in a permit issued by the Secretary under this section, the Secretary shall issue an order requiring such persons to comply with such condition or limitation, or the Secretary shall bring a civil action in accordance with paragraph (3) of this subsection.
(2) A copy of any order issued under this subsection shall be sent immediately by the Secretary to the State in which the violation occurs and other affected States. Any order issued under this subsection shall be by personal service and shall state with reasonable specificity the nature of the violation, specify a time for compliance, not to exceed thirty days, which the Secretary determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. In any case in which an order under this subsection is issued to a corporation, a copy of such order shall be served on any appropriate corporate officers.
(3) The Secretary is authorized to commence a civil action for appropriate relief, including a permanent or temporary injunction for any violation for which he is authorized to issue a compliance order under paragraph (1) of this subsection. Any action under this paragraph may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance. Notice of the commencement of such action shall be given immediately to the appropriate State.
(A) Any person who willfully or negligently violates any condition or limitation in a permit issued by the Secretary under this section shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both.
(B) For the purposes of this paragraph, the term "person" shall mean, in addition to the definition contained in section 502(5) of this Act, any responsible corporate officer.
(5) Any person who violates any condition or limitation in a permit issued by the Secretary under this section, and any person who violates any order issued by the Secretary under paragraph (1) of this subsection, shall he subject to a civil penalty not to exceed $10,000 per day of such violation.
(t) Nothing in this section shall preclude or deny the right of any State or interstate agency to control the discharge of dredged or fill material in any portion of the navigable waters within the jurisdiction of such State, including any activity of any Federal agency, and each such agency shall comply with such State or interstate requirements both substantive and procedural to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements. This section shall not be construed as affecting or impairing the authority of the Secretary to maintain navigation.
1. Background
2. Coordination Procedures
3. Elevation of Policy Issues
4. Elevation of Individual
Permit Decisions
1.
Authority: |
Section 404(q) of the Clean Water Act, 33 U.S. C. 1344(q) |
2.
Purpose: |
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 1989; 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 procedure 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 IV. |
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)(1) 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 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 with the National Environmental Policy Act, 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)(1) of the Clean Water Act, the EPA may provide comments to the Corps identifying its views regarding compliance with the Section 404(b)(1) Guidelines. The comments will be submitted within the time frames established in this agreement and applicable regulation.
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 III - EVALUATION 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 Agency'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)(1) Guidelines, or the Administrator's authority under Section 404(c) of the Clean Water Act.
6. The officials identified in this MOA cannot delegate their responsibilities unless specifically provided for in this MOA.
7. Days referred to in this MOA are calendar days. If the end of the specified time period falls on a weekend or a holiday, the last calendar day will be the first business day following the weekend or holiday. The end of the specific 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.
9. The Memorandum of Agreement between the Administrator of the Environmental Protection Agency and the Secretary of the Army of the 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).
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. These professional partnerships will be based on EPA providing substantive, project specific comments and the Corps giving full consideration to EPA's recommendations as the Corps makes its determination of compliance with the Section 404(b)(1) Guidelines and the decision on the permit application. The procedures will encourage, to the extent possible:
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.
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 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 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, paragraph 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 to the EPA commenting official.
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 action 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) and 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 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 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 District 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 or national issues by meeting within 30 calendar days of receipt of notification under paragraph 4. above, or within 30 calendar days 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)(1) 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 requirement of the Administrative Procedures Act, including public notice and comment rulemaking as necessary.
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 permit cases will be limited to those cases that involve aquatic resources of national importance. 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 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:
(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 in 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 natural importance. The opinion, which should explain how the agency determination was made, should be based on site specific information and relate directly to matters with EPA's authority and expertise. A signed copy of the EPA letter should be immediately faxed to the Corps regulatory project manager.
(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 wil, 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.
(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 there 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)(1) 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 pending completion of the Headquarters level review outlined below. Further, the District Engineer will provide CECW-OR and ASA(CW) a copy of the Regional Administrator's letter notifying the District Engineer of the intent to request higher level review.
(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 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 ASA(CW) 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 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) proceedings is concluded and subject to the final determination in such proceeding.
Martha G. Protho /s/
Acting Assistant Administrator for Water
Environmental Protection Agency
August 11, 1992
Nancy P. Dorn /s/
Assistant Secretary of the Army for Civil Works
Department of the Army
August 11, 1992