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<br />7A - ATTACHMENT NO.2 <br />Page 14 <br /> <br />or legal interpretations of Clean Water Act applicability to the Redwood <br />City site were issued. As a co-regulatory partner in Clean Water Act <br />implementation with the Corps, EP A needs to be fully consulted during the <br />process of developing policy and legal interpretations of Clean Water Act <br />Section 404. . .. We expect that as the Corps evaluates the Cargill/DMB <br />request for a preliminary jurisdictional determination and subsequent <br />permit application, we will have the opportunity to work closely with you <br />at each step in the jurisdictional determination and Section 404 permitting <br />process, before any project-related decisions are made. <br /> <br />(Letter from Alexis Strauss, Director, Water Division, USEPA Region 9, to <br />Lt. Col. Laurence M. Farrell, District Engineer, San Francisco District, <br />USACE (January 5,2010), pp. 1-2.) <br /> <br />The letter identifies "factors influencing evaluation of the Saltworks development <br />proposal." Among other things, the letter states: <br /> <br />· "As EPA was not consulted in the preparation of the Corps' 'normal <br />circumstances' memorandum of October 2, 2009, I would like to clarify that <br />EPA does not necessarily agree with its analysis or conclusions. As there may <br />be other special aquatic sites present at areas of the project site proposed for <br />fill, a permit application and associated project alternatives should be evaluated <br />based on the criteria established at 40 CFR 230.10(a)(3) regarding presumption <br />of no-fill alternatives for any proposed non-water dependent activity." <br />(January 5 Letter, p. 2.) <br /> <br />· "The Corps and EPA must rigorously apply the 404(b)(I) guidelines in <br />evaluating a full range of reasonable alternatives; this evaluation will be the <br />basis for the project's [sic] [Least Environmentally Damaging Practicable <br />Alternative] determination for the project. .. EP A expects to work closely <br />with the Corps to carefully evaluate risks associated with flooding and sea <br />level rise in applying the guidelines and other public policy considerations, <br />including public interest review, coastal zone impacts, and floodplain <br />protection. . . ." (January 5, Letter, p. 3.) <br /> <br />Under section 401 of the Clean Water Act (33 U.S.C. ~ 1341), States are provided <br />authority to review permits under section 404 or under sections 9 and 10 of the Rivers <br />and Harbors Act to determine whether the proposed discharge will comply with State <br />water quality standards. In addition, States may determine whether the activity will <br />violate effluent limitations or other regulations designed to protect water quality. This <br />process is referred to as "water quality certification" under section 401. In the Bay Area, <br /> <br />14 <br />