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Aggregate Industries (AI) submitted a Response to Second Adequacy Review and Technical Revision to Permit No. M-2004-031 (Amendment Application) to the Division of Reclamation and Mining Safety (Division) on September 1, 2016. Included in Al's Amendment Application is a Memorandum by Tetra Tech outlining the design basis of a project to drain water from property owned by Equity Funding, LLC (Orr Property) caused by the Hazeltine Mine. These comments are submitted on the proposal because: (1) the Al reclamation and remediation proposal must include application for a §404 permit to include the Orr Property; (2) the Al proposal must address the technical flaws identified; and (3) the Al proposal needs to put in place long-term monitoring to ensure any proposal works and the groundwater table is restored to pre-mining levels and is maintained. I. Aggregate Industries Must First Apply for an Amendment to 404 Permit The Tetra Tech Memorandum identifies "competing objectives" in the design of the project. On the one hand, the system is intended to drain the Orr Property (to restore it to its pre- mining condition) while at the same time preserving enough water in Bull Seep to "maintain pre- existing jurisdictional wetlands as well as compensatory wetlands as required by the US Army Corps of Engineers permit" on the land mined by Al. Tetra Tech admits in its report that "the amount of water necessary to maintain the wetlands and drain the Orr Property is not known at this time." There are, however, no competing objectives. US Army Corp of Engineer regulations define "wetlands" as "[t]hose areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." See U.S. Army Corps of Engineers Information Pamphlet: Recognizing Wetlands, an Informational Pamphlet.l The relocation of the Bull Seep and the construction of the slurry wall as part of the mine operation have elevated the groundwater table. By 2011, about 73.27% of the Orr property had standing water on its surface and the groundwater table had risen by 11 feet. A site visit to the Orr Property on June 30, 2016 confirmed that these conditions have not lessened — standing water was present on at least two-thirds of the property and riparian/wetland vegetation covered nearly the entire parcel. By the plain definition used by the US Army Corps of Engineers, the Orr Property is a wetland due entirely to Al's mining activities on the adjacent parcel. Al currently operates under Department of the Army Permit No. 199980194 as amended on October 9, 2002. See Attachment 1, Al 404 Permit(Jan. 26, 2000); see also Attachment 2, Al 404 Permit Amendment No. 1 (Oct. 9, 2002). Neither the original permit, nor the subsequent amendment grant Al the authority to drain wetlands on the Orr Property. Al proposes to build structures that will affect the wetlands created on the Orr Property. 33 C.F.R. §322.1. The work involves installation of pipes and other infrastructure to divert water currently inundating the Orr Property to alter the wetland regime. 33 C.F.R. §§ 322.2(b), (c). The work would also involve the discharge of water to other wetlands. Thus, by draining the Orr Property, Al is actually operating outside the scope of its permit, and in order to implement any aspect of the design set forth in the memorandum by Tetra Tech, Al needs to request a permit amendment from the U.S. ' Available at:http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/rw_bro.pdf Page 1 of 5