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<br />11. The Akin/Stepe and Johnson parties asserted in their objections that the Board's authority to <br />issue the reclamation permit in this case is preempted by a recent change to the "dredge and fill" <br />regulations promulgated pursuant to Section 404 of the Clean Water Act, 33 U.S.C. 1344. With <br />respect to this "preemption" azgument, the Boazd finds the following: <br />a. In an April 4, 2001, letter to Mr. Preston, attorney for the Akin/Stepe party, the Army <br />Corps of Engineers ("ACE"), the federal agency charged with regulating any "dredge and <br />fill" operations in waters of the United States, stated that the operation will not result in a <br />discharge of fill or dredged material into waters of the United States because "there does <br />not exist any jurisdictional waters of the United States within the area of direct impacts <br />by the proposed gravel mining operation." The ACE further stated that any activity <br />within the site boundaries is "notjurisdictional under Section 404 of the Clean Water <br />Act." <br />b. In light of the statements by the ACE in its letter to Mr. Preston, the Boazd finds that the <br />lack of ACEjurisdictional waters within the affected azea under the proposed permit <br />preclude the applicability Section 404 of the Clean Water Act and any applicable <br />regulations promulgated thereunder. <br />b. The Boazd concludes that the recent changes to the "dredge and fill" regulations <br />promulgated under Section 404 of the Clean Water Act, offered by the objectors, do not <br />preempt the Boazd's authority under state law to issue a reclamation permit in this matter. <br />12. A financial warranty in the amount of $91,917.00 is recommended by the Division and is <br />adequate for this operation as it is currently described in the application. <br />ORDER <br />Based on the above findings of fact and conclusions of law, the Boazd ORDERS that: <br />The reclamation permit applied for in File No. M-2001-001 is hereby granted. <br />2. The financial warranty for the operation described in File No. M-2001-001 is set at <br />$91,917.00. <br />Dated this ~ day of June, 2001 <br />COLORADO MINED LAND RECLAMATION BOARD <br />DEPARTMENT OF NATURAL RESOURCES <br />FOR THE BOARD: <br />B Y: c~.rx~t/I` <br />HARRY J VE ICK, Chairman <br />4 <br />