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PeteThorson [constructionmgm@centurytel.net] 3/22/2017 6:51:29 PM mmiller@pacificlegal.org; jpt@pacificlegal.org Bangerter, Layne [/o=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=eb60fa9f470b4cb3802a892flda68b25-Bangerter,]; Kreutzer, David [/o=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=52652127fll74690a5223b2a6df21968-Kreutzer, D]; 'Ray Kagel' [ray@kagelenvironmental.com]; kjbopray@yahoo.com FW: Response to Questions from our Meeting Mon. with Col. Calkins
Mark, Joshua and all...
Just got a Reply from C o l . Calkins.. What a mouth ful1 .... 1) Where in the Rapanos guidance did they see or come up with "Shal 1ow Subsurface Connection" to establish the adjacency argument?
2) Previously they referenced in the A J D , the Lemonwei r River was established in a case cal 1ed "USACE v s . Bol1ig" as a TNW, Now Today its been recently declared from our A J D .... The"Story" is always changing!
3) Hawkes is now lyear old .... T h a t 's no reason not to be addressed it as an option, in a AJD 1etter.
As Ray Kagel says "No sense appeali ng the current record" When its ful1 of unsubstantiated data, 14 yr. old references, S t . Paul Regional supplements that only requi re 2 of the 3 requi red cri teri a of the "87 deli neation manual" (CRA) Congressi onal Revi ew Act questi on and usi ng a connecti on through a farm drainage ditch. Not even considered as a "water of the state" by the state of Wi sconsi n . Some 67 mi 1es away from the Wi sconsi n River (TNW)
Had a good meeti ng wi th Layne Bangerter and Davi d Kreutzer @ the EPA thi s morni n g . Layne was at the forefront of hel pi ng the Sacketts when he was in congress. In hi s own words "This is Sacketts, al1 over agai n" thei r 1ooking at opti ons to assi s t .
Any Thoughts based on the 1atest reply? Mark & Joshua, are you sure we couldn't convi nee PLF to fi1e suit, and Hope for a offer to settle. Li ke you accomplished in Andy Johnson case?
The appeal opti on is a wai s t , based on the record. And I d o n 't have $720,000.00 1aying around to buy mitigations credits as C o l . Calkins suggest. When 5 consultants say thei r over the line agai n !
Thanks everybody!
Pete
-----Origi nal Message----From: Cal kins, Samuel L COL USARMY CEMVP (US) [mai1t o :Samuel.L.Calkins@usace.army.mi 1] Sent: Wednesday, March 22, 2017 11:41 AM T o : Pete Thorson < constructionmgm@centurytel.net> Subject: Response to Questi ons from our Meeti ng
M r . Thorson - i t was great to meet wi th you Monday, and I have some informati on on the questi ons you asked duri ng the meeti n g :
1) You asked about a subsurface connecti on that we menti oned in the AJD and wondered where that fi ts into the requi rements of the "si gni fi cant nexus" and/or the "conti nuous surface connecti o n ."
Response: A shal1ow subsurface connecti on is one of the parameters used to establi sh adjacency a n d , as such, factors into both conti nuous surface connecti on and si gni fi cant n e x u s . The reference for thi s adjacency argument is titled: "Clean Water Act Juri sdi ction Fol1owi ng the U.S. Supreme Court's Deci si on in Rapanos v. Uni ted States & Carabel1 v. Uni ted States," dated December 2, 2008 (page 5). I understand this document is commonly referred to as the Rapanos Gui dance.
2) You asked why we cal 1ed the Lemonwei r a TNW in the AJD when it's not on the list of Navigable Waterways in WI from our website.
Sierra Club v. EPA 18cv3472 NDCA
Tier 7
ED 002061 00034568-00001
Response: Within thi s speci fi c ADD, the Lemonwei r River was determi ned to be a Traditional Navigable Water (TNW) based on guidance issued after the Supreme Co ur t's deci si on in Rapanos v. Uni ted States. Not al1 TNWs are on the list of Navi gable Wate rways (navi gable waters of the United States subject to Section 10 of the Rivers and Harbors A c t ) , these are two di fferent terms with di fferent meani ng s. The list of Navi gable Waterways (navi gable waters of the Uni ted States subject to Secti on 10 of the Rivers and Harbors Act)are the waters determi ned to be jurisdictional pursuant to 33 CFR 329. TNWs are waters determi ned to be jurisdictional pursuant to 33 CFR 328 and the Rapanos Guidance (Section 404 of the Clean Water A c t ) .
3) You asked whether movi ng forward with a permi t as opposed to appeali ng to MVD or the courts mi ght 1imi t your abi1ity to appeal admi ni strati vel y or 1egal1y .
Response: unfortunately we d o n 't have an answer to thi s questi on si nee it's related to the Hawkes deci si on whi ch is relatively new. We d o n 't have cl ear gui dance and we d o n 't know how it would pi ay o u t . What we do know, however, is the regulati ons are cl ear that you have 60 days from the date of the AID in whi ch to fi1e an admi ni strati ve appeal to MVD.
4) Fi nal1y you asked who to talk to if you want to move forward with applyi ng for a permi t .
Response: Kyie Zi bung will be the Project Manager responsi ble for processi ng any permit application submitted.
Thanks,
COL Cal ki ns
Colonel Sam Calki ns Commander, S t . Paul Di stri ct US Army Corps of Engi neers
samuel.1.cal kins@usace.ar my.mi 1
0: 651 c. ^
290'-"53~600
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Sierra Club v. EPA 18cv3472 NDCA
Tier 7
ED 002061 00034568-00002