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1 <br />6.0 <br />1 <br />DISCUSSION <br />6.1 Federal Regulations <br />' The Corps will assume regulatory jurisdiction over all areas preliminarily delineated by AWC <br />as wetland. In addition, the St. Vrain River will regulated as a waters of the U.S. The Corps <br />will not extend jurisdiction to the irrigation ditches or the St. Vrain Supply Canal. <br />' A Section 404 permit will be required to place fill in regulated areas. <br />` ' 6.2 Permitting <br />' Under Section 404(b), Congress empowered the Secretary of the U.S. Army, acting through <br />the Corps of Engineers, to issue permits based on the application of guidelines developed <br />by the EPA administrator in conjunction with the Corps. The EPA, under Section 404(c) is <br />vested with veto power for discharges having 'an unacceptably adverse effect on municipal <br />water supplies, shel~sh beds and fishing areas...wildlife or recreation areas.' In addition, the <br />EPA has enforcement authority under Section 309 for discharges without a permit, and often <br />comments on proposed Corps permits, espedally the interpretation and application of the <br />Section 404(b)(1) guidelines. <br />t When a development activity involves the discharge of dredged or fill material covered under <br />Section 404, the Corps is required to ensure compliance with the EPA Section 404(b)(1) <br />guidelines. The guidelines are based on the assumption that wetland sites should not be <br />developed 'rf alternative sites are available. This assumption applies even more directly if <br />proposed development activities are not water dependent (i.e., do not require placement in <br />an aquatic site in order to fulfill the basic project purpose). <br />6.2.1 Practicable Alternatives <br />' The 'practicable alternatives' section of the 404(b)(1) guidelines assumes that, 'rf a <br />' project is non-water dependent, alternative sites that do not involve disturbance of <br />wetland or other aquatic features, are available unless dearly demonstrated <br />otherwise (40 CFR Section 230.10 (a)(3)). To satisfy the 'practicable alternatives' <br />' test, the applicant must first prove that atemative sites would not be feasible or <br />achieve their projects' basic purposes. The guidelines state that'what is practicable <br />depends on cost, technical and logistic factors' and that an applicant must consider <br />' those alternatives which are reasonable in terms of the overall scopelcost of the <br />proposed project.' However, even though an alternative site does not meet all of the <br />desired specifications, does not maximize profd, or is somehow undesirable to the <br />applicant, lt may still be deemed feasible or practicable by the EPA. <br />9 <br />1 <br />