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In November 1989, the Corps also entered into a Memorandum
of Agreement (MOA) with the EPA that establishes the procedures
to be used by the Corps staff in reviewing section 67(a) (section
404) CWA permit applications. Specifically, the MOA articulated
the policy and procedure necessary to satisfy section 404 so that
the local field offices of the Corps would be using consistent
standards in processing permit applications. The MOA provided a
three-step process for obtaining a section 404 permit: (1)
Avoidance, (2) minimization, and (3) compensatory mitigation. In
the first stage, avoidance, the applicant must avoid any impact
on protected wetlands, for example, by developing around the
wetland area or using an alternative site for development whether
or not owned by the applicant. In the minimization stage, the
applicant must minimize the impact on wetlands from the proposed
development and must justify the extent that the development will
impact wetlands. Third, in the compensation stage, the applicant
is required to offset the impacted wetlands, for example, by
creating wetlands to replace those being impacted by the
development project.
The MOA did not change the substantive regulatory
requirements for obtaining a section 404 permit as the three
above requirements had been a part of the regulatory scheme since
at least 1984. However, the MOA provided that the requirements
must be met in the above sequence. The effect of the MOA was to
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