# 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

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## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** January 19, 1994

## Text

[Federal Register Volume 59, Number 12 (Wednesday, January 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1311]

[[Page Unknown]]

[Federal Register: January 19, 1994]

_______________________________________________________________________

Part IV

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
_______________________________________________________________________

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-1311. Public record. Not legal advice.