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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