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MEMORANDUM BETWEEN THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY Subject: U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army), Corps of Engineers (Corps) Coordination to Ensure Consistent Implementation of the Navigable Waters Protection Rule 1. Purpose. The purpose of this memorandum is to establish a process by which the U.S. Environmental Protection Agency (EPA), the Department of the Army (Army1), and the U.S. Army Corps of Engineers (Corps) (the agencies) will coordinate on policy matters to ensure the consistent implementation of the Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR; 85 FR 22250, April 21, 2020). This memorandum also establishes, for a limited period of time, a process for coordinating certain draft approved jurisdictional determinations (JDs) and a joint agency review process for final approved JDs and EPA jurisdictional decisions following implementation of the rule. An effective coordination process will promote and improve interagency cooperation, facilitate increased communication, and establish an efficient process for determining Clean Water Act (CWA) jurisdiction. This memorandum does not nullify or supersede the January 19, 1989 “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the Clean Water Act” (1989 MOA), including its special case provisions,2 nor does it supersede policy or individual permit elevations under the CWA Section 404(q) “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency” (1992 404(q) MOA).3 2. Current Practice. The Corps Districts are currently posting all final approved JDs for public viewing on their respective websites as well as on the Corps Headquarters (HQ) website

MEMORANDUM BETWEEN THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY Subject: U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army), Corps of Engineers (Corps) Coordination to Ensure Consistent Implementation of the Navigable Waters Protection Rule 1. Purpose. The purpose of this memorandum is to establish a process by which the U.S. Environmental Protection Agency (EPA), the Department of the Army (Army1), and the U.S. Army Corps of Engineers (Corps) (the agencies) will coordinate on policy matters to ensure the consistent implementation of the Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR; 85 FR 22250, April 21, 2020). This memorandum also establishes, for a limited period of time, a process for coordinating certain draft approved jurisdictional determinations (JDs) and a joint agency review process for final approved JDs and EPA jurisdictional decisions following implementation of the rule. An effective coordination process will promote and improve interagency cooperation, facilitate increased communication, and establish an efficient process for determining Clean Water Act (CWA) jurisdiction. This memorandum does not nullify or supersede the January 19, 1989 “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the Clean Water Act” (1989 MOA), including its special case provisions,2 nor does it supersede policy or individual permit elevations under the CWA Section 404(q) “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency” (1992 404(q) MOA).3 2. Current Practice. The Corps Districts are currently posting all final approved JDs for public viewing on their respective websites as well as on the Corps Headquarters (HQ) website

1 MEMORANDUM BETWEEN THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY Subject: U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army), Corps of Engineers (Corps) Coordination to Ensure Consistent Implementation of the Navigable Waters Protection Rule 1. Purpose. The purpose of this memorandum is to establish a process by which the U.S. Environmental Protection Agency (EPA), the Department of the Army (Army1), and the U.S. Army Corps of Engineers (Corps) (the agencies) will coordinate on policy matters to ensure the consistent implementation of the Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR; 85 FR 22250, April 21, 2020). This memorandum also establishes, for a limited period of time, a process for coordinating certain draft approved jurisdictional determinations (JDs) and a joint agency review process for final approved JDs and EPA jurisdictional decisions following implementation of the rule. An effective coordination process will promote and improve interagency cooperation, facilitate increased communication, and establish an efficient process for determining Clean Water Act (CWA) jurisdiction. This memorandum does not nullify or supersede the January 19, 1989 “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the Clean Water Act” (1989 MOA), including its special case provisions,2 nor does it supersede policy or individual permit elevations under the CWA Section 404(q) “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency” (1992 404(q) MOA).3 2. Current Practice. The Corps Districts are currently posting all final approved JDs for public viewing on their respective websites as well as on the Corps Headquarters (HQ) websi

JOINT MEMORANDUM TO THE FIELD BETWEEN THE U.S. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY CONCERNING EXEMPT CONSTRUCTION OR MAINTENANCE OF IRRIGATION DITCHES AND EXEMPT MAINTENANCE OF DRAINAGE DITCHES UNDER SECTION 404 OF THE CLEAN WATER ACT I.INTRODUCTION The U.S. Army Corps of Engineers (“Corps”) and the U.S. Environmental Protection Agency (“EPA”) (together, “the agencies”), implement Section 404 of the Clean Water Act (“CWA”).1 Section 404 of the CWA regulates the discharge of dredged or fill material into the navigable waters, which the CWA defines as “waters of the United States, including the territorial seas.” 33 U.S.C. 1344 and 1362. The agencies are signing this memorandum to provide a clear, consistent approach regarding the application of the exemptions from regulation under Section 404(f)(1)(C) of the CWA for the construction or maintenance of irrigation ditches and for the maintenance of drainage ditches (“ditch exemptions”). This memorandum supersedes previous Corps Regulatory Guidance Letter (“RGL”) 07-02, which superseded RGL 87-07. In an effort to provide greater clarity, this memorandum defines the following terms for purposes of implementing the ditch exemptions: “irrigation ditch,” “drainage ditch,” “construction,” and “maintenance.” This memorandum also provides a framework for determining the applicability of the ditch exemptions and the “recapture provision” in CWA Section 404(f)(2). The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. II.BACKGROUND a.Under Section 404(f)(1)(C) of the CWA (see also 33 CFR 323.4(a)(3) and 40 CFR 232.3(c)(3)),discharges of dredged or fill material for the purpose of construction or maintenance of jurisdictionalirrigation ditches, or the maintenance (but not construction) of

JOINT MEMORANDUM TO THE FIELD BETWEEN THE U.S. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY CONCERNING EXEMPT CONSTRUCTION OR MAINTENANCE OF IRRIGATION DITCHES AND EXEMPT MAINTENANCE OF DRAINAGE DITCHES UNDER SECTION 404 OF THE CLEAN WATER ACT I.INTRODUCTION The U.S. Army Corps of Engineers (“Corps”) and the U.S. Environmental Protection Agency (“EPA”) (together, “the agencies”), implement Section 404 of the Clean Water Act (“CWA”).1 Section 404 of the CWA regulates the discharge of dredged or fill material into the navigable waters, which the CWA defines as “waters of the United States, including the territorial seas.” 33 U.S.C. 1344 and 1362. The agencies are signing this memorandum to provide a clear, consistent approach regarding the application of the exemptions from regulation under Section 404(f)(1)(C) of the CWA for the construction or maintenance of irrigation ditches and for the maintenance of drainage ditches (“ditch exemptions”). This memorandum supersedes previous Corps Regulatory Guidance Letter (“RGL”) 07-02, which superseded RGL 87-07. In an effort to provide greater clarity, this memorandum defines the following terms for purposes of implementing the ditch exemptions: “irrigation ditch,” “drainage ditch,” “construction,” and “maintenance.” This memorandum also provides a framework for determining the applicability of the ditch exemptions and the “recapture provision” in CWA Section 404(f)(2). The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. II.BACKGROUND a.Under Section 404(f)(1)(C) of the CWA (see also 33 CFR 323.4(a)(3) and 40 CFR 232.3(c)(3)),discharges of dredged or fill material for the purpose of construction or maintenance of jurisdictionalirrigation ditches, or the maintenance (but not construction) of

This joint memorandum provides guidance on implementing the activity exemptions in Clean Water Act section 404(f)(1)(C) notwithstanding the definition of “waters of the United States” in effect. JOINT MEMORANDUM TO THE FIELD BETWEEN THE U.S. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY CONCERNING EXEMPT CONSTRUCTION OR MAINTENANCE OF IRRIGATION DITCHES AND EXEMPT MAINTENANCE OF DRAINAGE DITCHES UNDER SECTION 404 OF THE CLEAN WATER ACT I. INTRODUCTION The U.S. Army Corps of Engineers (“Corps”) and the U.S. Environmental Protection Agency (“EPA”) (together, “the agencies”), implement Section 404 of the Clean Water Act (“CWA”).1 Section 404 of the CWA regulates the discharge of dredged or fill material into the navigable waters, which the CWA defines as “waters of the United States, including the territorial seas.” 33 U.S.C. 1344 and 1362. The agencies are signing this memorandum to provide a clear, consistent approach regarding the application of the exemptions from regulation under Section 404(f)(1)(C) of the CWA for the construction or maintenance of irrigation ditches and for the maintenance of drainage ditches (“ditch exemptions”). This memorandum supersedes previous Corps Regulatory Guidance Letter (“RGL”) 07-02, which superseded RGL 87-07. In an effort to provide greater clarity, this memorandum defines the following terms for purposes of implementing the ditch exemptions: “irrigation ditch,” “drainage ditch,” “construction,” and “maintenance.” This memorandum also provides a framework for determining the applicability of the ditch exemptions and the “recapture provision” in CWA Section 404(f)(2). The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. II. BACKGROUND a. Under Section 404(f)(1)(C) of the CWA (see also 33 CFR 323.4(

1 MEMORANDUM BETWEEN THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY Subject: U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army), Corps of Engineers (Corps) Coordination to Ensure Consistent Implementation of the Navigable Waters Protection Rule 1. Purpose. The purpose of this memorandum is to establish a process by which the U.S. Environmental Protection Agency (EPA), the Department of the Army (Army1), and the U.S. Army Corps of Engineers (Corps) (the agencies) will coordinate on policy matters to ensure the consistent implementation of the Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR; 85 FR 22250, April 21, 2020). This memorandum also establishes, for a limited period of time, a process for coordinating certain draft approved jurisdictional determinations (JDs) and a joint agency review process for final approved JDs and EPA jurisdictional decisions following implementation of the rule. An effective coordination process will promote and improve interagency cooperation, facilitate increased communication, and establish an efficient process for determining Clean Water Act (CWA) jurisdiction. This memorandum does not nullify or supersede the January 19, 1989 “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the Clean Water Act” (1989 MOA), including its special case provisions,2 nor does it supersede policy or individual permit elevations under the CWA Section 404(q) “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency” (1992 404(q) MOA).3 2. Current Practice. The Corps Districts are currently posting all final approved JDs for public viewing on their respective websites as well as on the Corps Headquarters (HQ) websi