Interagency Memorandum of Agreement Concerning Wetlands Determinations for Purposes of Section 404 of the Clean Water Act and Subtitle B of the Food Security Act

[Federal Register Volume 59, Number 12 (Wednesday, January 19, 1994)]

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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 94-1311]

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[Federal Register: January 19, 1994]

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Part IV

Environmental Protection Agency

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Department of Agriculture

Soil Conservation Service

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Department of Defense

Corps of Engineers, Department of the Army

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Department of the Interior

Fish and Wildlife Service

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Memorandum of Agreement Concerning Wetlands Determinations on

Agricultural Lands; Notice

ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF AGRICULTURE

Soil Conservation Service

DEPARTMENT OF DEFENSE

Corps of Engineers, Department of the Army

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Interagency Memorandum of Agreement Concerning Wetlands

Determinations for Purposes of Section 404 of the Clean Water Act and

Subtitle B of the Food Security Act

AGENCIES: Environmental Protection Agency; Soil Conservation Service,

USDA; Army Corps of Engineers, DoD; Fish and Wildlife Service, DoI.

ACTION: Notice.

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SUMMARY: On January 6, 1994, the Departments of the Army, Agriculture,

the Interior, and the Environmental Protection Agency signed a

Memorandum of Agreement (MOA) that recognizes the Soil Conservation

Service (SCS) as the lead Federal agency for wetlands delineations on

agricultural lands. Specifically, the MOA articulates the policy and

procedures to be used in the determination of wetlands jurisdiction for

purposes of both Section 404 of the Clean Water Act and Subtitle B of

the Food Security Act (also known as the Swampbuster program). The MOA,

which establishes minimum training requirements and requires the use of

standard interagency approved methods, will improve the quality and

consistency of wetlands determinations on agricultural lands. The

actual text of the MOA is published as part of this notice.

DATES: The effective date of this MOA is January 6, 1994.

ADDRESSES: Copies of this MOA are available from:

EPA Wetlands Hotline, (800) 832-7828.

U.S. Soil Conservation Service Conservation Planning Division,

Washington, DC 20013.

U.S. Army Corps of Engineers CECW-OR, 20 Massachusetts Ave., NW,

Washington, DC 20314-1000.

U.S. Fish and Wildlife Service Division of Habitat Conservation

(400ARLSQ), 1849 C. St., NW, Washington, DC 20240

FOR FURTHER INFORMATION CONTACT: The EPA Wetlands Hotline, (800) 832-

7828; Gregory Peck of the Environmental Protection Agency, 202/260-

8794; Michael Davis of the Office of the Assistant Secretary of the

Army (Civil Works), 703/695-1376; Warren Lee of the Soil Conservation

Service, 202/720-1845; or Stephen Forsythe of the Fish and Wildlife

Service, (703) 358-2161.

SUPPLEMENTARY INFORMATION: On August 24, 1993, the Clinton

Administration announced a comprehensive package of wetlands policy

reforms that will improve the protection of wetlands and make wetlands

programs more fair and flexible for landowners. The MOA signed on

January 6, 1994, implements one of the more than 40 initiatives in the

Administrations's Wetlands Plan. The MOA signatory agencies recognize

the important contribution of agricultural producers to society, our

economy, and our environment. The agencies are committed to ensuring

that Federal wetlands programs are administered in a manner that

minimizes the impacts on affected landowners to the extent possible

consistent with the important goal of protecting wetlands. The MOA was

developed in response to concerns that previous practices may have led

to confusion and inconsistent application of Federal wetlands programs

and policies on agricultural lands.

The MOA will minimize duplication and inconsistencies between

Swampbuster and the Clean Water Act wetlands programs and articulate

clearly the procedures by which the Nation's farmers can rely on SCS

wetlands jurisdictional determinations on agricultural land for

purposes of both the Clean Water Act and Swampbuster programs. The MOA

includes provisions to ensure that agency personnel are properly

trained, that standard agreed-upon methods are utilized in making

wetlands determinations, and that appropriate monitoring and oversight

is undertaken. The MOA also places emphasis on local cooperation

between the signatory agencies and the improvement of analytical

methods for making wetland determinations.

While the MOA became effective on January 6, 1994, full

implementation will vary from state to state depending on the level of

training required and the development of state wetlands mapping

conventions. The signatory agencies will take appropriate action to

expedite implementation of the MOA consistent with such prerequisites.

The full text of the MOA follows.

Dated: January 7, 1994.

Approved:

James R. Lyons,

Assistant Secretary for Natural Resources and Environment, Department

of Agriculture.

Dated: January 12, 1994.

Approved:

Robert Perciasepe,

Assistant Administrator for Water Environmental Protection Agency.

Dated: January 7, 1994.

Approved:

G. Edward Dickey,

Acting Assistant Secretary of the Army for Civil Works, Department of

the Army.

Dated: January 7, 1994.

Approved:

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks, Department of the

Interior.

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 Nations's agriculture producers. This

Memorandum of Agreement (MOA) implements one of over 40 components of

the Administration's Wetland 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.

B. Applicability

1. The Administrator of EPA has the ultimate authority to determine

the geographic scope of waters of the 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 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.

B. 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.

C. 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.

D. 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.

E. 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.

F. In the spirit of the agencies' commitment to develop agreed upon

methods 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.

G. 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 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 final for Section 404 purposes are addressed in

Paragraph V.C.

H. Within the course of administering their Swampbuster

responsibilities, SCS and FWS will provide landowners/operators 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.

I. USDA will maintain documentation of 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.

J. 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.

K. 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 IV.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

that is subject to an ongoing SCS appeal, a wetland delineation will be

conducted by the Corps or EPA in consultation with SCS and FWS.

L. 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.

V. Procedures

Accurate and consistent wetland delineations are critical to the

success of this MOA. 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 MOA, 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 MOA, 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. Once interagency concurrence on mapping conventions is obtained,

such mapping conventions will be used immediately in place of the

earlier mapping conventions.

4. 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.

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.

2. EPA will lead the signatory agencies in establishing interagency

oversight teams at the state level to conduct periodic review of

wetland delineations conducted under the provisions of this MOA. These

reviews will include delineations done by SCS pursuant to Sections

IV.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 signatory 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''.

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.

C. Reliance on Previous SCS Wetland Delineations for CWA Purposes

1. 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.

2. Written SCS wetland delineations for lands identified in section

IV.A of his 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 SCS 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. Written SCS wetland

delineations for lands identified in sections IV.B and IV.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.

3. 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 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 MOA, 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 IV.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.

VI. Definitions

A. 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.

B. 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.

C. A wetland delineation is any determination of the presence of

wetlands and their boundaries.

D. 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.

E. Signatory agencies means the EPA and the Departments of Army

(acting through the Corps), Agriculture (acting through SCS), and

Interior (acting through FWS).

F. 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

A. 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.

B. 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.

C. 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.

D. This MOA will take effect on the date of the last signature

below and 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.

E. The signatory agencies will refer delineation requests to the

appropriate agency pursuant to this MOA.

Dated: January 6, 1994.

James R. Lyons,

Assistant Secretary for Natural Resources and Environment, Department

of Agriculture.

Robert Perciasepe,

Assistant Administrator for Water, Environmental Protection Agency.

G. Edward Dickey,

Acting Assistant Secretary of the Army for Civil Works, Department of

the Army.

George T. Frampton, Jr.,

Assistant Secretary for Fish, Wildlife and Parks, Department of the

Interior.

[FR Doc. 94-1311 Filed 1-18-94; 8:45 am]

BILLING CODE 3710-92-M