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

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 209-215

Page 209

MEMORANDUM FOR DIRECTOR OF CIVIL WORKS AND

US EPA REGIONAL ADMINISTRATORS

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

provisions.

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.