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I I Federal Register I VoL 55. No. 48 I Monday. March 12, 1990 I Notices 9211 I wetlands functions and values may not - be achieved in each and every permit action. Specifically. the MOA recognizes that compensatory mitigation may not be required if mitigation Is not practicable (as dermed in I 230.3(q) 01 the Guidelines). leasible or would result in only inconsequential environmental benefill. For example, in areas 01 the country wbere wetlands constitute a . malority 01 the land type. minor losses of wetland functions may not need to be mitigated by offsite compensatory miUsation.1n making this determination field personnel may consider. among , olber things, lbe nature 01 lbe wetlands functions. cumulative effecll on the . watershed or ecosystem and whether wetlands in the contiguous area are protected through public ownership nr pennanent easemenl The MOA does not establish any new mitigation requiremenll beyond lbose currently found in lbe Guidelines or modify the Guidelines in any way. Since signing the MOA. lbe agencies "'ye conducted discussions wilb . affected Federal agencies regarding lbe MOA. AI'a result 01 those discussions, aDd in an attempt to clarify lbe agencies' intant regarding lbe scope and effect 01 lba MOA. specific 'changes have been mada to the language 01 lbe MOA. A copy 01 lbis revised MOA Is published wilb this notice. M....orandum Of Agreement Between IhlI Envinmmental Protection Agency and lbe Department 01 lbe Army Conceming lbe Determination of Mitigation Under lbe Clean Waler Act Section 404(b)(t) Guidelines L Purpose The United Slates Environmental Protection Agency (EPAJ and the United States Department 01 lbe Army (Anny) hereby articulate lbe policy and procedures to be used in the , delermination of lbe type and level of mitigation necessary to demonstrate ,compliance wilb the Clean Water Act (CW A) Section 404(b J(I) Guidelines ' ("Guidelinesj. This Memorandum 01 Asreement (MOA) expresses the explicit intent 01 the Anny and EPA to Implement lbe objective 01 the CW A to , restore and maintain lbe chemical, , physical. and biological integrity of the Nation's waters, including wetlands. This MOA is specifically limited 10 the Section 404 Regulatory Program and is written to provide guidance lor agency field personnel on the type and level 01 millgation wbich demonstrates' , compliance with requirements in the Guideline.. The policies and procedures di8C1llaed herein are consislent wilb c:urnnl Sectfon 404 regulatory practices I I I I I I I I I I I I I I I I 'end ere provided in responae to , . questions lbat have been reised about' how ths Guidelines are implemented. The MOA does not change the substantive requirements 01 lbe Guidlines. It is intended 10 provide guidance regarding lbe exercise 01 discretion under the Guidelines. Although lbe Guidelines are clearly applicable to all discharges of dredged or fill material. including general permits and Corpa 01 Engineers (Corps) civil works projects, this MOA locuses on atandard permits (33 CFR 325.5(b)(t).' This locus is intended solely to reflect the unique procedural aspects associated wilb the review 01 atandard permits, and does not obviate the need lor other reguleted activities to comply luIly wilb lbe Guidelines. EPA and Anny will seek to develop aupplemental guidance for other regulated activities consislent wilb the policies and principles established in this document , This MOA provides guidance to Corps and EPA personnel for implementing the Guidelines and must be adhered to when considering mitigation requirements lor standard permit , applications. The Corps will use this MOA when making ita determination 01 compliance with the Guidelines with respect to mitigation lor standard permit applications. EPA will use this MOA in developing its positions on compliance wilb tha Guidelines lor proposed discharges and will reflect this MOA when commenting on standard permit applicalions. Il Policy A. The Council on Environmental Quelity (CEQ) has defined mitigation in its regulations al40 CFR 1508.20 10 include: avoiding impacta. minimizing impacts, rectifying impacts. reducing impacts over time, and compensating lor impact.. The Guidelines establish environmental criteria which must be met lor activilles to be pennitted under Section 404." The types 01 mitigation enumerated by CEQ are compatible wilb the requirements 01 lbe Guidelines: however. as a practical maller. lbey can be combined to lorm three general types: avoidance, minimization and compensatory mitigation. The remainder of this MOA will speak in tenns 01 these more general types of mitigetion. , ,- I Sllndarel permitl.n. tho. Individual pennill which have bea. procnled throqh appUc;ation of the Cropt public iDteresl review procedlU'el (33 CFR 3..).nd EPA', Section 404(bIl1) Culclelill... iDcludin. public DOtice and receipl or COIDIDmta. SlI.Ddard permits do not Include lelters Cl' pennislion. rqlonal permit-. aat1o.awtd. permits. . prosnmzpalic permits. '(_-4Ol(bllZl'pplioo~ B. The dean Water Act and the Guidelines set forth a goal 01 restoring and maintaining existing aquatic ' ' resource.. The Corps will strive to avoid adverse impacts and offset unavoidable adverse impacll to existing aquatic resource3. and lor wetlands, will strive to achieve a goal 01 no overall net loss 01 values and functions. In locusing lbe goal 01 no overall net loss to wetlands 'only, EPA and Army have explicitly ,-, recognized lbe apecial significance of the nation's wetlands re.ources. This , special recognition 01 wetlands resources does not in any manner diminish the value ololber walers 01 lbe United Slates, which ere olten 01 higb value. All waters 01 the United Slales. such 88 streams, rivers, lakes, ete., wiil be accorded the lull measure 01 prolection under the Guidelines. including the requirements lor appropriate and practicable mitigation. The determination 01 what level of mitigation constitutes "appropriate" . mitigation is based solely on lbe value. and functioRl 01 lbe aquatic resource that will be impacted. "Practicable" iI dermed at Section 230.3(qJ 01 lbe Guidelines.' However. the level of mitigation determined to be appropriale and practicable under Section 230.tO(d) msy lead to individual permit decisions which do not luIly meet this goal because lbe mitigation measures' necessary to meet this goal are not leasible, not practicable. or would accomplish only inconsequential reductions in impacts. Consequently. il i. recognized that no net 105s of wetlands lunction. and values may not be achieved in each and every permit action. However. it remains a goal 01 the Section 404 regulatory program to contribute to the national goal 01 no overall net loss of the nation's remaining wetlands base. EPA and Anny are committed to working with others through lbe Administration's interagency task force and olber avenues to belp achieve this national goal. C. In evaluating stBndard Section 404 permil applications. es a practical mailer. inlormation on all facets 01 a project, including potential mitigation, i. typically gathered and reviewed at the same time. The Corps, except as indica led below, r....t makes a determination that potential impacts have been avoided to the maximum extent practicable: remaining . Section 23O..1(QI of the Culdelinel re.ds al' . follows:""Th. tenD PracUc;abl. m..na aVllilablt .Dd. c;apable of beinl done artu taldnlllnlo . ClXI~~U"!l co.L auti", leehlloJory. Qnd ..._ ..1iB/>t of 0-./1 plVjoet p._- (Empluloill ouppl;od)