AgdaPkt 2010-02-01 clsd and regular

Browse Search

7A - ATTACHMENT NO.2 Page 8 focus then turns from disputing jurisdictional issues to reaching agreement regarding appropriate permit conditions. On November 12, 2009, DMB submitted to USACE an application for PJD in accordance with RGL 08-02. DMB submitted the PJD Application as a means to "set aside questions regarding CW A RHA jurisdiction" for the "sole and exclusive purpose of processing" the 50/50 Balanced Plan project application. The US ACE was to respond to this application on or before January 12, 2010. (RGL 08-02, ~ 5(a).) To our knowledge, USACE had not issued a response. Once the PJD is finalized, DMB will submit its Section 404/Section 10 permit application. By its terms, RGL 08-02 provides permit applicants the ability to "elect to use a preliminary JD to voluntarily waive or set aside questions regarding CW A and RHA jurisdiction" and elect to use a PJD to obtain expeditiously a USACE permit authorization. (RGL 08-02, ~ 4(a).) PJD's can be used "even where initial indications are that the water bodies or wetlands on a site may not be jurisdictionaL.. ", (Id., ~ 4( c), emphasis added.) By definition, a PJD can only be used to determine that wetlands or other waterbodies "may be" jurisdictional "waters of the United States." A PJD cannot be used to "determine either that there are no wetlands or other waterbodies on a site at all, or that there are no jurisdictional wetlands or other waterbodies on a site, or that only a portion of the wetlands or waterbodies on a site are jurisdictional." A definitive, official determination that there are, or are not, jurisdictional waters of the United States on a site can only be made by an approved Jurisdictional Determination. (RGL 08-02, ~ 7.) A PJD makes "no legally binding determination of any type regarding whether CW AlRHA jurisdiction exists over the particular water body or wetland in question." (RGL 08-02, ~ 4(f).) Instead, the wetlands and waters that are identified within the PJD are presumed to meet the requirements of federal jurisdiction under CW A Section 404 and RHA Section 10 for the sole and exclusive purpose of processing the application. (RGL 08-02, ~ 4(d).) In this case, DMB's November 12 submittal indicates that DMB intends to proceed under RGL 08-02. Thus, DMB has agreed that, for purposes of determining impacts and compensatory mitigation requirements, a permit decision made on the basis of a PJD "will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S." (Id., ~ 4(d).) Therefore, DMB acknowledges that waters and wetlands, as applicable, will be evaluated in accordance with the Federal agencies' section 404(b)( 1) Guidelines and compensatory mitigation regulations. (40 C.P.R. Part 230; 33 C.P.R. Parts 325, 332; see 73 Pederal Register 19593 (April 10, 2008).) 8