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<br />7A - ATTACHMENT NO.2 <br />Page 12 <br /> <br />As stated above, DMB' s submittal of a PID is an initial step in the 404 permit <br />process. The October 2 Memorandum has potential implications for the extent of <br />jurisdiction under Section 404 over the actively managed portions of the project site. <br />Nevertheless, DMB has initiated the CW A Section 404 permit process on the basis that <br />those areas will be treated as jurisdictional. 5 <br /> <br />USACE will not issue a permit if it concludes that (1) a practicable alternative <br />exists that is less damaging to the aquatic environment, or (2) the waters of the United <br />States would be significantly degraded by the proposed fill. Accordingly, in the course of <br />the permitting process, DMB will have to demonstrate to USACE that, to the extent <br />practicable, DMB has taken steps to avoid wetland impacts, to minimize potential <br />impacts on wetlands, and to provide compensation for any remaining unavoidable <br />impacts to wetlands. (33 U.S.C. ~ 1344(b)(1); 40 C.F.R. ~ 230.10.) <br /> <br />In addition, in issuing the permit, US ACE will perform a "public interest review" <br />weighing the benefits of the proposed discharge against its costs; USACE will issue the <br />permit only if it determines that the project is "not contrary to the public interest," taking <br />into account various factors. (33 C.F.R. ~ 320.4(a).) US ACE will also review the <br />application with respect to impacts on the coastal zone and floodplains. (33 C.F.R. ~ <br />320.4(h), (k).) <br /> <br />In the event the City decides to proceed with the CEQA process, we recommend: <br /> <br />· Establishing a working relationship with the USACE District Office, <br /> <br />· Monitoring closely the progress of the 404 permit application, and ensuring <br />that the City's EIR includes a complete discussion of wetland-related impacts <br />and mitigation measures, <br /> <br />· Obtaining from DMB a detailed description of its tidal marsh restoration plan, <br />and including a description and analysis of the restoration plan in the EIR, and <br /> <br />Robert "Perl" Perlmutter and Brianna R. Fairbanks, Shute, Mihaly & Weinberger LLP to Jane <br />Hicks, USACE (January 14, 2010).) <br /> <br />5/ The October 2 Memorandum makes reference to the PJD process. (See October 2 <br />Memorandum, p. 2.) The memorandum does not, however, conclude how or to what extent the <br />guidance affects the permit process in light of a PJD that presumes jurisdiction. DMB' s PJD <br />submittal does not refer to the October 2 Memorandum. <br /> <br />12 <br />