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Applicant's Response to Second Adequacy Letter Grand River Park Project, DRMS File M-2006-046 January 2, 2007 Page 6 The applicant and land owner are jointly conversing with the U.S. Army Corps of Engineers regarding the extent and impact of "Section 404" (Clean Water Act, as amended) wetland regulations affecting the project site. The applicant's responds to the Division's assertions above as follows: (1)(a) The applicant's present proposal for mining and reclamation attempts to avoid jurisdictional wetlands. This is a central design principle in the layout of the proposed mining cells. "Non-jurisdictional" wetlands have not been formally delineated on the plan, but generally serve as a setback/buffer area around jurisdictional wetlands. There is an area in the southwest corner of the site having uncertain jurisdictional status. The applicant and land owner and the Corps have agreed to hold a formal jurisdictional delineation in abeyance until questions regarding the hydrology of the Last Chance Ditch are answered. Because the wetlands in this area may or may not have an exempt "artificial" hydrology, the applicant has revised plans (see Exhibit C-2) to show the planned mine in this area as outside mining limits pending determination of its jurisdictional status. Should the area in the southwest corner contain jurisdictional wetlands, the area would be permanently removed from mining plans unless the land owner or applicant receives authorization under a Section 404 Individual or Nationwide Permit. The applicant reserves the right to seek a 404 Permit for any lawful activity under federal statutes and regulations. The included plans could at some point be amended to allow for mining of jurisdictional wetland resources. However, accessing jurisdictional wetlands under 404 permitting would require formal amendment of the state Regular 112 Reclamation Permit to allow for an increase in the mining (affected area) footprint. Detailed development of wetland mitigation measures is a typical condition under Individual 404 Permits and some Nationwide Permits, and, if required, the applicant commits to submitting mitigation plans to the Division of Reclamation, Mining, and Safety for concurrent review. (1)(b) The applicant does not include any new wetland or plan to create new wetlands on its current mining and reclamation plans. Any plan to create new wetlands (such as mitigation) would be subject to the Division's approval of an amendment to the proposed Regular 112 Permit. (2) The applicant and land owner retained a wetland consultant, O&G Environmental Services, to obtain a jurisdictional delineation of the site. In the process, the consultant, the land owner, and the applicant met with representatives from the U.S. Army Corps of Engineers in the field multiple times.