2013-07-29_GENERAL DOCUMENTS - C2009087

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Case 3:05 -cv -00784 Document 133 -2 Filed 07/14/06 Page 4 of 5 PagelD #: 4501 immediately below the valley fill. Consequently, some segment of the stream must be used to convey water from the fill to the sediment pond below. Such stream segment is an-unavoidable and necessary component of the treatment- system because it is required to convey water and because it also provides initial treatment by settling some fraction of suspended sediments in the flow. In these: circumstances. the physical extent of the waste treatment system is defined by the location of the embankment for the 'sediment pond at one end and the toe of the valley fill at the other because the entire system contributes to ensuring that the discharge from the sediment pond meets the requirements of the CWA? The waste treatment, system exclusion applies whether the Corps has authorized the fills in waters of the U.S. using a standard individual permit or general permit that ensures an individualized review of the proposed project consistent with the considerations discussed in this letter. The discharge of fill material into waters of the U.S. associated with the creation of a valley fill. as well as the construction of an embankment to create a sediment pond below the valley fill, is subject to permitting under CWA section 404. As a part of its environmental review for these activities. the agencies' regulations, including the Section 404(b)(1) Guidelines, require that all practicable steps be taken to avoid and minimize potential adverse environmental effects (both permanent and temporary) that may result from the direct, indirect, and cumulative effects of the proposed discharges of fill material. Included in this review are actions to reduce the size and number of valley fills as well as steps to reduce temporary adverse environmental effects associated with the creation, use and operation of the waste treatment system. In addition, the Corps authorization for the mining project is conditioned to require that waters adversely affected while being used as a waste treatment system are restored as soon as the mining operation is completed and water coming from a valley fill no longer requires treatment. Such restoration would generally include elimination of the sediment pond embankment and removal of sediment that may have accumulated in the stream between the embankment and valley fill. Once restoration is complete, the stream segment that was waters of the U.S. before application of the waste treatment system exclusion, resumes its jurisdictional status as a water of the U.S. 'Die Corps also requires mitigation (e.g., stream restoration. wetlands creation) from the mining operator to offset all remaining adverse environmental effects associated with the proposed discharges, including temporary impacts associated with the creation and operation'of the waste treatment system. It is important to emphasize that the Corps' authorization is subject to certification by the State under CWA Section 401 to ensure that the proposed activity will not cause or contribute to a violation of the State's water quality standards. Once the environmental review is complete and the project is authorized under CWA Section 404, the authorization has the effect of changing the legal status of those waters of the U.S. that are a part of the waste treatment, system, consistent with any relevant terms and conditions established in the authorization. Neither the statute nor the 3 Although we have determined that the physical extent of the waste treatment system is defined by the location of the embankment for the sediment pond at one end to the toe of the valley fill at the other, we have not opined on whether the discharge from the toe of the fail would otherwise be subject to section 40-4 or section 402.