Agenda - Planning Commission - 08/02/2018

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REPLY TO ATTENTION OF REGULATORY BRANCH DEPARTMENT OF THE ARMY ST. PAUL DISTRICT, CORPS OF ENGINEERS 180 FIFTH STREET EAST, SUITE 700 ST. PAUL, MN 55101-1678 NOV 0 9 2017 Regulatory File No. MVP-2017-03815-SMD Sambatek c/o Michele Ross 12800 Whitewater Drive, Suite 300 Minnetonka, MN 55343 Dear Ms. Ross: We have received the document entitled, "North Dayton Development," received on October 31, 2017. The purpose of this letter is to inform you that based on available information a Department of the Army (DA) permit will likely be required for your proposed activity. This letter also provides general information regarding the U.S. Army Corps of Engineers (Corps) regulatory program. If the proposal involves activity in navigable waters of the United States, it may be subject to the Corps of Engineers' jurisdiction under Section 10 of the Rivers and Harbors Act of 1899 (Section 10). Section 10 prohibits the construction, excavation, or deposition of materials in, over, or under navigable waters of the United States, or any work that would affect the course, location, condition, or capacity of those waters, unless the work has been authorized by a Department of the Army permit. If the proposal involves discharge of dredged or fill material into waters of the United States, it may be subject to the Corps of Engineers' jurisdiction under Section 404 of the Clean Water Act (CWA Section 404). Waters of the United States include navigable waters, their tributaries, and adjacent wetlands (33 CFR § 328.3). CWA Section 301(a) prohibits discharges of dredged or fill material into waters of the United States, unless the work has been authorized by a Department of the Army permit under Section 404. Information about the Corps permitting process can be obtained online at htto:/Iwww.mvD.usace.armv.mil/reaulatorv. The Corps' evaluation of a Section 10 and/or a Section 404 permit application involves multiple analyses, including (1) evaluating the proposal's impacts in accordance with the National Environmental Policy Act (NEPA) (33 CFR part 325), (2) determining whether the proposal is contrary to the public interest (33 CFR § 320.4), and (3) in the case of a Section 404 permit, determining whether the proposal complies with the Section 404(b)(1) Guidelines (Guidelines) (40 CFR part 230). If the proposal requires a Section 404 permit application, the Guidelines specifically require that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences" (40 CFR § 230.10(a)). Time and money spent on the proposal prior to applying for a Section 404 permit cannot be factored into the Corps' decision whether there is a less damaging practicable alternative to the proposal.