Memorandum for Director of Civil Works and U.S. EPA Regional Administrators (June 5, 2008)

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
Page 271
Subject: U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of
Engineers (Corps) Coordination on Jurisdictional Determinations (JDs) under Clean Water
Act (CWA) Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions
1. Purpose. The purposes of this memorandum are to promote and improve interagency
cooperation, facilitate increased communication, and establish an efficient and effective
process for determining Clean Water Act Section 404 jurisdiction in light of the Supreme
Court decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) (SWANCC), and the consolidated cases Rapanos v. United
States, and Carabell v. United States, 126 S. Ct. 2208 (2006) (jointly hereafter Rapanos).
The procedures included in this memorandum replace the coordination procedures contained
in the January 2003 EPA/Army guidance implementing the SWANCC decision (but leaves
the remainder of that guidance unaffected) and articulate new coordination procedures for
JDs affected by Rapanos. This memorandum does not nullify or supersede the 1990
Geographic Jurisdiction Memorandum of Agreement (MOA), including its special case
2. Current Practice. The Corps districts are currently posting all Approved JD Forms for
public review on their respective websites. The EPA efficiently reviews these JD forms, as
needed, to monitor consistency with regulation and policy.
3. Documentation Requirements. Under this memorandum, case-by-case evaluations are
required to determine if there is a “significant nexus” to navigable waters for JDs involving
the classes of waters listed in subparagraph 4.a.(2). Documentation for these JDs shall be
made using the Approved JD Form developed by Corps headquarters (HQ) in consultation
with EPA. The information on the jurisdictional form shall identify the rationale for
asserting or not asserting jurisdiction.
4. Coordination Requirements.
a. Interagency Coordination Required. The EPA and the Corps will follow the coordination
procedures in paragraph (5) for the following JDs:
(1) Determinations for intra-state, non-navigable, isolated waters potentially covered
solely under 33 C.F.R. §328.3(a)(3), where jurisdiction is asserted or not asserted based on
interstate commerce factors.

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