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<br />7A - ATTACHMENT NO.2 <br />Page 9 <br /> <br />RGL 08-02 specifically states that applicants who proceed under a PID can later <br />seek an approved jurisdictional determination and challenge federal jurisdiction. (RGL <br />08-02, ~ 4(g).) Accordingly, by and through its November 12 submittal, DMB has <br />reserved its right to challenge federal jurisdiction over any portion or the entire project <br />site in the future. <br /> <br />Pursuant to RGL 08-02, the parties will presume USACE jurisdiction over all <br />aquatic resources in the review area. (RGL 08-02, ~ 4(d).) One of the critical steps in <br />CW A 404 permitting will be calculating the appropriate compensation for the project's <br />impacts to jurisdictional waters. USACE's traditional approach to requiring <br />compensation (e.g., requiring the construction or restoration of compensatory wetlands at <br />a ratio of 3: 1 or other ratio) has been modified by new regulations focusing on the <br />"functionality" of the lost aquatic resources. On April 10, 2008, USACE and the U.S. <br />Environmental Protection Agency ("USEP A") published final regulations defining <br />standards and procedures for authorizing compensatory mitigation of impacts to aquatic <br />resources that USACE permits under Section 404 of the CW A or Sections 9 or 10 of the <br />RHA. (See 33 C.P.R. Parts 325, 332 (2008).) Prior to these regulations, Section 404's <br />compensatory mitigation program was administered under various guidance, inter-agency <br />memoranda and other policy documents issued over nearly two decades, in addition to <br />best profession judgment of USACE and USEP A staff. The new regulations introduce <br />ecosystem services into the mitigation decision-making standards by requiring that <br />"compensatory mitigation should be located. . . where it is most likely to successfully <br />replace lost functions and services." (Id., ~332.3(b)(I).) "Services" means "the benefits <br />that human populations receive from functions that occur in ecosystems." (Id., ~332.2) <br /> <br />The rule explains that "the success of compensatory mitigation for impacted <br />habitat functions. . . may lead to siting of such mitigation away from the project area. <br />However, consideration should also be given to functions and services (e.g., water <br />quality, flood control, shoreline protection) that will likely need to be addressed at or near <br />the areas impacted by the permitted impacts." (Id., ~332.3(c)(2)(ii).) Accordingly, Corps <br />district engineers, when making mitigation determinations, "may require on-site, off-site <br />or a combination of on-site and off-site compensatory mitigation to replace permitted <br />losses of aquatic resource functions and services." (Id., ~ 332.3(d)(2).) <br /> <br />Pursuant to these new regulations, compensatory mitigation may be performed <br />using methods of restoration, enhancement, establishment and, in certain circumstances, <br />preservation. (Id., ~ 332.3, subd. (a)(2).) The Corps district engineer must use a <br />watershed approach to establish compensatory mitigation requirements to the extent <br />appropriate and practicable. (Id., subd. (c).) The compensatory mitigation project site <br />must be ecologically suitable for providing the desired aquatic resource functions which <br />may include hydrological conditions, watershed-scale features and other relevant factors <br />including development trends. (Id., subd. (d).) The amount of compensatory mitigation <br />must be, to the extent practicable, sufficient to replace lost aquatic resource functions. In <br /> <br />9 <br />