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36 Ocean & Coastal L. Memo 1 (1990)

handle is hein.journals/ocoaslme36 and id is 1 raw text is: I Ocean and oasta Law Memo Issue 36 October 1990 Developments in Wetlands Law Because of the national attention focused on conserving remaining U.S. wetlands, the Ocean and Coastal Law Center has prepared this Ocean and Coastal Law Memo devoted to significant recent developments in wetlands law and policy at the federal and state levels. I. Federal Regulatory Developments A. Memoranda of Agreement between the EPA and the Corps Allocating Regulatory Responsibilities In January 1989 three memoranda of agreement (MOAs) were signed that clarify wetlands regulatory roles under section 404 of the Clean Water Act, 33 U.S.C. sec. 1344 (1988), the most important federal statute regarding the regulation of dredging and filling of wetlands. The MOAs address jurisdiction determinations, enforcement responsibilities, and procedures for the Environmental Protection Agency (EPA) to determine if a discharge has been authorized by the Army Corps of Engineers. In the MOA addressing jurisdictional determinations, the Corps and the EPA agreed that the Corps would continue to make the bulk of the jurisdic- tional determinations in the field. However, Corps determinations must be made pursuant to EPA guidance. In the past, some parts of the Corps refused to follow EPA guidance. EPA assumes the role as the lead agency for developing guidelines for making decisions as to whether a given activity falls within federal wetlands jurisdiction. Further- more, the EPA retains the authority to designate a particular case or class of cases in which the EPA will be the lead agency determining section 404 jurisdic- tion. Determinations of section 404 jurisdiction made pursuant to the MOA would be binding on federal agencies in subsequent federal action, including litigation. The EPA retains a large measure of authority under this MOA regarding the determina- tion of section 404(f) exempt activities which do not require a Corps permit. These activities are described in section 404(f) and include activities such as normal farming, silvicultural, and ranching activities, maintaining existing dams, levees, bridge abutments, and similar activities. Additionally, the Corps has agreed to provide the regional administrators of the EPA a list of all final determinations of no jurisdiction and make other jurisdictional determinations by the Corps available upon EPA's request. This will function as a means of tracking the Corps compliance with the EPA's guide- lines and with the technical wetland delineation manual dis- cussed below that has been issued by the EPA, U.S. Fish and Wild- life Service, Soil Conservation Service, and the Corps. Under the second MOA addressing enforcement respon- sibilities, the Corps will continue to conduct the bulk of the enforcement investigations, including violations of Corps- issued permits and discharges Distributed by: Oregon State University Extension . Sea Grant Program Corvallis OR

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