HomeMy WebLinkAbout20200819 Ver 1_SAW-2020-01029 JD_20200619U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action ID: SAW-2020-01029 County: Haywood U.S.G.S. Quad: Clyde
NOTIFICATION OF JURISDICTIONAL DETERMINATION
Property Owner: Robert Noland
Address: 180 Jule Noland Drive
Waynesville, NC 28786
Telephone Number: 828-421-0421
Email: robertn1@bellsouth.net
Size (acres): 15.93 Nearest Town: Waynesville
Nearest Waterway: UT Factory Branch Coordinates: 35.52195 N, 82.98695 W
River Basin/ HUC: Pigeon (06010106)
Location description: The site is located on a tract of land (PIN 8616-48-1684) at the southeast corner of Russ
Avenue (U.S. Highway 276) and Jule Noland Drive in Waynesville, Haywood County, North Carolina.
Indicate Which of the Following Apply:
A. Preliminary Determination
There are waters, including wetlands, on the above described project area, that may be subject to Section 404 of the
Clean Water Act (CWA)(33 USC § 1344) and/or Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403). The
waters, including wetlands, have been delineated, and the delineation has been verified by the Corps to be sufficiently
accurate and reliable. Therefore this preliminary jurisdiction determination may be used in the permit evaluation process,
including determining compensatory mitigation. For purposes of computation of impacts, compensatory mitigation
requirements, and other resource protection measures, a permit decision made on the basis of a preliminary JD will treat all
waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional
waters of the U.S. This preliminary determination is not an appealable action under the Regulatory Program
Administrative Appeal Process (Reference 33 CFR Part 331). However, you may request an approved JD, which is an
appealable action, by contacting the Corps district for further instruction.
There are wetlands on the above described property, that may be subject to Section 404 of the Clean Water Act
(CWA)(33 USC § 1344) and/or Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403). However, since the
waters, including wetlands, have not been properly delineated, this preliminary jurisdiction determination may not be
used in the permit evaluation process. Without a verified wetland delineation, this preliminary determination is merely an
effective presumption of CWA/RHA jurisdiction over all of the waters, including wetlands, at the project area, which is
not sufficiently accurate and reliable to support an enforceable permit decision. We recommend that you have the
waters of the U.S. on your property delineated. As the Corps may not be able to accomplish this wetland delineation in a
timely manner, you may wish to obtain a consultant to conduct a delineation that can be verified by the Corps.
B. Approved Determination
There are Navigable Waters of the United States within the above described property subject to the permit requirements of
Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403) and Section 404 of the Clean Water Act (CWA)(33 USC
§ 1344). Unless there is a change in the law or our published regulations, this determination may be relied upon for a
period not to exceed five years from the date of this notification.
X There are waters of the U.S. including wetlands on the above described property subject to the permit requirements of
Section 404 of the Clean Water Act (CWA)(33 USC § 1344). Unless there is a change in the law or our published
regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification.
We recommend you have the waters of the U.S. on your property delineated. As the Corps may not be able to
accomplish this wetland delineation in a timely manner, you may wish to obtain a consultant to conduct a delineation that
can be verified by the Corps.
X The waters of the U.S. including wetlands on your property have been delineated and the delineation has been verified
by the Corps. If you wish to have the delineation surveyed, the Corps can review and verify the survey upon completion.
Once verified, this survey will provide an accurate depiction of all areas subject to CWA and/or RHA jurisdiction on your
property which, provided there is no change in the law or our published regulations, may be relied upon for a period not
to exceed five years.
The waters of the U.S. including wetlands have been delineated and surveyed and are accurately depicted on the plat
signed by the Corps Regulatory Official identified below on . Unless there is a change in the law or our published
regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification.
There are no waters of the U.S., to include wetlands, present on the above described project area which are subject to the
permit requirements of Section 404 of the Clean Water Act (33 USC 1344). Unless there is a change in the law or our
published regulations, this determination may be relied upon for a period not to exceed five years from the date of this
notification.
The property is located in one of the 20 Coastal Counties subject to regulation under the Coastal Area Management Act
(CAMA). You should contact the Division of Coastal Management to determine their requirements.
Placement of dredged or fill material within waters of the US and/or wetlands without a Department of the Army permit may
constitute a violation of Section 301 of the Clean Water Act (33 USC § 1311). Placement of dredged or fill material,
construction or placement of structures, or work within navigable waters of the United States without a Department of the
Army permit may constitute a violation of Sections 9 and/or 10 of the Rivers and Harbors Act (33 USC § 401 and/or 403). If
you have any questions regarding this determination and/or the Corps regulatory program, please contact David Brown at 828-
271-7980, ext. 4232 or david.w.brown@usace.army.mil. C. Basis for Determination:
See attached approved jurisdictional determination form.
D. Remarks:
The waters of the U.S. at this site were verified by the Corps during a site inspection on June 15, 2020, and are as
approximately depicted on the attached Potential Jurisdictional Features Map, Figure 6, dated June 11, 2020, and
submitted by Civil and Environmental Consultants, Inc.
E. Attention USDA Program Participants
This delineation/determination has been conducted to identify the limits of Corps’ Clean Water Act jurisdiction for the
particular site identified in this request. The delineation/determination may not be valid for the wetland conservation
provisions of the Food Security Act of 1985. If you or your tenant are USDA Program participants, or anticipate
participation in USDA programs, you should request a certified wetland determination from the local office of the Natural
Resources Conservation Service, prior to starting work.
F. Appeals Information (This information applies only to approved jurisdictional determinations as indicated in
B. above)
This correspondence constitutes an approved jurisdictional determination for the above described site. If you object to this
determination, you may request an administrative appeal under Corps regulations at 33 CFR Part 331. Enclosed you will
find a Notification of Appeal Process (NAP) fact sheet and request for appeal (RFA) form. If you request to appeal this
determination you must submit a completed RFA form to the following address:
US Army Corps of Engineers
South Atlantic Division
Attn: Philip Shannin, Review Officer
60 Forsyth Street SW, Room 10M15
Atlanta, Georgia 30303-8801
In order for an RFA to be accepted by the Corps, the Corps must determine that it is complete, that it meets the criteria
for appeal under 33 CFR part 331.5, and that it has been received by the Division Office within 60 days of the date of the
NAP. Should you decide to submit an RFA form, it must be received at the above address by August 16, 2020.
**It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this
correspondence.**
Corps Regulatory Official:
David Brown
Issue Date of JD: June 15, 2020 Expiration Date: Five years from Issue Date
The Wilmington District is committed to providing the highest level of support to the public. To help us ensure we continue to
do so, please complete our Customer Satisfaction Survey, located online at
http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0.
Copy furnished (by email):
Civil & Environmental Consultants, Inc., Kevin Thomas, 3701 Arco Corporate Drive, Suite 400, Charlotte, NC 28273
kthomas@cecinc.com
#*#*
#*
!(
Waters of the US Abutting WetlandWetland APEM: 0.09 AcresPFO: 0.01 AcresTotal: 0.1 Acres
Non-Wetland Waters of the U SSRPW (Intermittent): 447 LF447 LF
DP 2 up
DP 1 wet
SCP1
26502600264026202
6
3
0
266026102590
2670258 0
26802690270027102720
27302740266026502690
www.cecinc.com
3701 Arco Corporate Dr., Suite 400 - Charlotte, NC 2873980-237-0373 800-365-2324
DRAWN BY:
DATE:
APPROVED BY:
PROJECT NO:
FIGURE N O:6
BC CONSTRUCTION GROUP, LLC289 MAPLE GROVE CHURCH ROADTOWN OF WAYNESVILLEHAYWOOD COUNTY, NORTH CAROLINA
MAK6/11/2020
0 200 400
SCALE IN FEET
1 " = 200 '
POTENTIAL JURISDICTIONAL FEATURES MAP
KT KT*302-078CHECKED BY:
SCALE:\\MKRAMER\Share\Temp\302-078\Maps\PJWD\302078_PJWD_Fig6.mxd 6/11/2020 11:33 AM (mkramer)LEGEND
PROJECT AR EA (15.69 ACRES)
PEM WETLAND
PFO WETLAN D
INTERMITTENT STREAM
10 FT INDEX CONTOURS
2 FT CONTOURS
!(EXISTING 24" CULVERT
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* Hand signature on file
NORTH!a
REF ERENCE
ESRI WORLD IMAGERY / ARCGIS MAP SERVICE
CONT OURS DERIVED FROM NC ONE MAP GEOPORTALNOVEMBER, 2013.
*N OTE: JURIS DICTIONAL FEATURES HAVE NOT BEEN VERIFIED BY THE USACE or NCDWQ.DP = DATA POINTSCP = S TRE AM COLLECTION POINTPEM = PALUSTRINE EMERGE NTPFO = PALU STRINE FORESTEDSRPW = SEA SONA L RELATIV ELY PERMANENT WATE R
NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND
REQUEST FOR APPEAL
Applicant: Robert Noland File Number: SAW-2020-01029 Date: June 15, 2020
Attached is: See Section below
INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) A
PROFFERED PERMIT (Standard Permit or Letter of permission) B
PERMIT DENIAL C
APPROVED JURISDICTIONAL DETERMINATION D
PRELIMINARY JURISDICTIONAL DETERMINATION E
SECTION I - The following identifies your rights and options regarding an administrative appeal of the above decision.
Additional information may be found at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx or
Corps regulations at 33 CFR Part 331.
A: INITIAL PROFFERED PERMIT: You may accept or object to the permit.
• ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all
rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the
permit.
• OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request
that the permit be modified accordingly. You must complete Section II of this form and return the form to the district
engineer. Your objections must be received by the district engineer within 60 days of the date of this notice, or you will
forfeit your right to appeal the permit in the future. Upon receipt of your letter, the district engineer will evaluate your
objections and may: (a) modify the permit to address all of your concerns, (b) modify the permit to address some of your
objections, or (c) not modify the permit having determined that the permit should be issued as previously written. After
evaluating your objections, the district engineer will send you a proffered permit for your reconsideration, as indicated in
Section B below.
B: PROFFERED PERMIT: You may accept or appeal the permit
• ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all
rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the
permit.
• APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein,
you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of
this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days
of the date of this notice.
C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by
completing Section II of this form and sending the form to the division engineer. This form must be received by the division
engineer within 60 days of the date of this notice.
D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new
information.
• ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the
date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD.
• APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers
Administrative Appeal Process by completing Section II of this form and sending the form to the district engineer. This form
must be received by the division engineer within 60 days of the date of this notice.
E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps regarding the
preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an approved JD (which may be appealed),
by contacting the Corps district for further instruction. Also you may provide new information for further consideration by the
Corps to reevaluate the JD.
SECTION II - REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT
REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an initial
proffered permit in clear concise statements. You may attach additional information to this form to clarify where your reasons or
objections are addressed in the administrative record.)
ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the
record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to
clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record.
However, you may provide additional information to clarify the location of information that is already in the administrative
record.
POINT OF CONTACT FOR QUESTIONS OR INFORMATION:
If you have questions regarding this decision and/or the
appeal process you may contact:
District Engineer, Wilmington Regulatory Division,
Attn: David Brown
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
828-271-7980, ext. 4232
If you only have questions regarding the appeal process you may
also contact:
Mr. Philip Shannin, Administrative Appeal Review Officer
CESAD-PDO
U.S. Army Corps of Engineers, South Atlantic Division
60 Forsyth Street, Room 10M15
Atlanta, Georgia 30303-8801
Phone: (404) 562-5137
RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government
consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 15 day
notice of any site investigation, and will have the opportunity to participate in all site investigations.
________________________________________
Signature of appellant or agent.
Date: Telephone number:
For appeals on Initial Proffered Permits send this form to:
District Engineer, Wilmington Regulatory Division, Attn.: David Brown, 69 Darlington Avenue, Wilmington,
North Carolina 28403
For Permit denials, Proffered Permits and approved Jurisdictional Determinations send this form to:
Division Engineer, Commander, U.S. Army Engineer Division, South Atlantic, Attn: Mr. Philip Shannin,
Administrative Appeal Officer, CESAD-PDO, 60 Forsyth Street, Room 10M15, Atlanta, Georgia 30303-8801
Phone: (404) 562-5137
APPROVED JURISDICTIONAL DETERMINATION FORM
U.S. Army Corps of Engineers
This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook.
SECTION I: BACKGROUND INFORMATION
A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): June 15, 2020
B. DISTRICT OFFICE, FILE NAME, AND NUMBER: CESAW-RG-A, SAW-2020-01029, BC Construction Group-Shining Rock
Classical Academy
C. PROJECT LOCATION AND BACKGROUND INFORMATION:
State: NC County/parish/borough: Haywood City: Waynesville
Center coordinates of site (lat/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.52195 N, 82.98695 W
Universal Transverse Mercator:
Name of nearest waterbody: UT Factory Branch
Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Pigeon River
Name of watershed or Hydrologic Unit Code (HUC): Pigeon (06010106)
Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request.
Check if other sites (e.g., offsite mitigation sites, disposal sites, etc…) are associated with this action and are recorded on a
different JD form.
D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY):
Office (Desk) Determination. Date: June 15, 2020
Field Determination. Date(s): June 15, 2020
SECTION II: SUMMARY OF FINDINGS
A. RHA SECTION 10 DETERMINATION OF JURISDICTION.
There Are no “navigable waters of the U.S.” within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the
review area. [Required]
Waters subject to the ebb and flow of the tide.
Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.
Explain: .
B. CWA SECTION 404 DETERMINATION OF JURISDICTION.
There Are “waters of the U.S.” within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]
1. Waters of the U.S.
a. Indicate presence of waters of U.S. in review area (check all that apply): 1
TNWs, including territorial seas
Wetlands adjacent to TNWs
Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs
Non-RPWs that flow directly or indirectly into TNWs
Wetlands directly abutting RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs
Impoundments of jurisdictional waters
Isolated (interstate or intrastate) waters, including isolated wetlands
b. Identify (estimate) size of waters of the U.S. in the review area:
Non-wetland waters: 447 linear feet: 1-2 width (ft) and/or acres. S1 (UT Factory Branch)
Wetlands: 0.1 acres. Wetland A
c. Limits (boundaries) of jurisdiction based on: 1987 Delineation Manual
Elevation of established OHWM (if known) .
2. Non-regulated waters/wetlands (check if applicable):3
Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional.
Explain: .
1 Boxes checked below shall be supported by completing the appropriate sections in Section III below.
2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least “seasonally”
(e.g., typically 3 months).
3 Supporting documentation is presented in Section III.F.
SECTION III: CWA ANALYSIS
A. TNWs AND WETLANDS ADJACENT TO TNWs
The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete
Section III.A.1 and Section III.D.1. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2
and Section III.D.1.; otherwise, see Section III.B below.
1. TNW
Identify TNW: .
Summarize rationale supporting determination:
2. Wetland adjacent to TNW
Summarize rationale supporting conclusion that wetland is “adjacent”: .
B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY):
This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps
determine whether or not the standards for jurisdiction established under Rapanos have been met.
The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are “relatively permanent
waters” (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3
months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round
(perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow,
skip to Section III.D.4.
A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and
EPA regions will include in the record any available information that documents the existence of a significant nexus between a
relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even
though a significant nexus finding is not required as a matter of law.
If the waterbody 4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the
waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must
consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for
analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is
the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.1 for
the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite
and offsite. The determination whether a significant nexus exists is determined in Section III.C below.
1. Characteristics of non-TNWs that flow directly or indirectly into TNW
(i) General Area Conditions:
Watershed size: 4.32 square miles
Drainage area: 0.0384 square miles
Average annual rainfall: 41.75 inches
Average annual snowfall: 8.5 inches
(ii) Physical Characteristics:
(a) Relationship with TNW:
Tributary flows directly into TNW.
Tributary flows through 2 tributaries before entering TNW.
Project waters are 2-5 river miles from TNW.
Project waters are 1 (or less) river miles from RPW.
Project waters are 2-5 aerial (straight) miles from TNW.
Project waters are 1 (or less) aerial (straight) miles from RPW.
Project waters cross or serve as state boundaries. Explain: N/A.
Identify flow route to TNW 5: S1 (UT Factory Branch) flows into Factory Branch, which flows into Richland Creek,
and then into the Pigeon River, a traditional navigable water.
Tributary stream order, if known: 2nd Order.
4 Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the arid
West.
5 Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW.
(b) General Tributary Characteristics (check all that apply):
Tributary is: Natural
Artificial (man-made). Explain: .
Manipulated (man-altered). Explain: .
Tributary properties with respect to top of bank (estimate):
Average width: 1-2 feet
Average depth: 0.25 feet
Average side slopes: 2:1.
Primary tributary substrate composition (check all that apply):
Silts Sands Concrete
Cobbles Gravel Muck
Bedrock Vegetation. Type/% cover:
Other. Explain: .
Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain: S1 appears stable and was previously
distrurbed by ditching for agricultural purposes.
Presence of run/riffle/pool complexes. Explain: S1 has some run/riffle/pool complexes.
Tributary geometry: Relatively straight
Tributary gradient (approximate average slope): 0.5-1 %
(c) Flow:
Tributary provides for: Seasonal flow
Estimate average number of flow events in review area/year: 11-20
Describe flow regime: S1 has intermittent flow. Intermittent streams in western NC usually have flow from
late fall-late spring in a typical year.
Other information on duration and volume: .
Surface flow is: Discrete and confined. Characteristics: .
Subsurface flow: Unknown. Explain findings: .
Dye (or other) test performed: .
Tributary has (check all that apply):
Bed and banks
OHWM 6 (check all indicators that apply):
clear, natural line impressed on the bank the presence of litter and debris
changes in the character of soil destruction of terrestrial vegetation
shelving the presence of wrack line
vegetation matted down, bent, or absent sediment sorting
leaf litter disturbed or washed away scour
sediment deposition multiple observed or predicted flow events
water staining abrupt change in plant community
other (list):
Discontinuous OHWM.7 Explain: .
If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction (check all that apply): N/A
High Tide Line indicated by: Mean High Water Mark indicated by:
oil or scum line along shore objects survey to available datum;
fine shell or debris deposits (foreshore) physical markings;
physical markings/characteristics vegetation lines/changes in vegetation types.
tidal gauges
other (list):
(iii) Chemical Characteristics:
Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.).
Explain: Water is generally clear, with exception of some local natural iron oxidizing staining from bacteria and
small areas of discoloration from algae and silt.
Identify specific pollutants, if known: No specific pollutants known.
6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where
the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody’s flow
regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break.
7Ibid.
(iv) Biological Characteristics. Channel supports (check all that apply):
Riparian corridor. Characteristics (type, average width): Forested and emergent mix, less than 5-10-ft wide.
Wetland fringe. Characteristics: .
Habitat for:
Federally Listed species. Explain findings: .
Fish/spawn areas. Explain findings: .
Other environmentally-sensitive species. Explain findings: .
Aquatic/wildlife diversity. Explain findings: .
2. Characteristics of wetlands adjacent to non-TNW that flow directly or indirectly into TNW
(i) Physical Characteristics:
(a) General Wetland Characteristics:
Properties:
Wetland size: 0.1 acres
Wetland type. Explain:Palustrine emergent and forested.
Wetland quality. Explain: Quality is poor due to past agricultural activities.
Project wetlands cross or serve as state boundaries. Explain: N/A.
(b) General Flow Relationship with Non-TNW:
Flow is: Intermittent flow. Explain: Wetland A flows overland and/or ditched to S1.
Surface flow is: Overland sheetflow
Characteristics: Spring-head/wetland complex flows overland, has some relic ditching from past agricultural use.
Subsurface flow: Unknown. Explain findings: .
Dye (or other) test performed: .
(c) Wetland Adjacency Determination with Non-TNW:
Directly abutting
Not directly abutting
Discrete wetland hydrologic connection. Explain:
Ecological connection. Explain: .
Separated by berm/barrier. Explain: .
(d) Proximity (Relationship) to TNW
Project wetlands are 2-5 river miles from TNW.
Project waters are 2-5 aerial (straight) miles from TNW.
Flow is from: Wetland to navigable waters.
Estimate approximate location of wetland as within the 500-year or greater floodplain.
(ii) Chemical Characteristics:
Characterize wetland system (e.g., water color is clear, brown, oil film on surface; water quality; general watershed
characteristics; etc.). Explain: Water is generally clear, with some local natural iron oxidizing staining from
bacteria and small areas of discoloration from algae and silt.
Identify specific pollutants, if known: No specific pollutants known.
(iii) Biological Characteristics. Wetland supports (check all that apply):
Riparian buffer. Characteristics (type, average width): 10-20 ft.
Vegetation type/percent cover. Explain: .
Habitat for:
Federally Listed species. Explain findings: .
Fish/spawn areas. Explain findings: .
Other environmentally-sensitive species. Explain findings: .
Aquatic/wildlife diversity. Explain findings: .
3. Characteristics of all wetlands adjacent to the tributary (if any)
All wetland(s) being considered in the cumulative analysis: 1
Approximately (0.1) acres in total are being considered in the cumulative analysis.
For each wetland, specify the following:
Directly abuts? (Y/N) Size (in acres) Directly abuts? (Y/N) Size (in acres)
Wetland A Y 0.1
Summarize overall biological, chemical and physical functions being performed: Biological- habitat for organisms
most adapted to wetlands. Chemical- surface and groundwater filtration. Physical-groundwater discharge.
C. SIGNIFICANT NEXUS DETERMINATION
A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed
by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity
of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent
wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW.
Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow
of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent
wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a
tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or
outside of a floodplain is not solely determinative of significant nexus.
Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and
discussed in the Instructional Guidebook. Factors to consider include, for example:
• Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to
TNWs, or to reduce the amount of pollutants or flood waters reaching a TNW?
• Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and
other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW?
• Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that
support downstream foodwebs?
• Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or
biological integrity of the TNW?
Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented
below:
1. Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain
findings of presence or absence of significant nexus below, based on the tributary itself, then go to Section III.D: .
2. Significant nexus findings for non-RPW and its adjacent wetlands, where the non-RPW flows directly or indirectly into
TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its
adjacent wetlands, then go to Section III.D: .
3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain findings of
presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to
Section III.D: .
D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL
THAT APPLY):
1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area:
TNWs: linear feet width (ft), Or, acres.
Wetlands adjacent to TNWs: acres.
2. RPWs that flow directly or indirectly into TNWs.
Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that
tributary is perennial: Tributaries of TNW where tributaries have continuous flow “seasonally” (e.g., typically three months each year) are
jurisdictional. Data supporting this conclusion is provided at Section III.B. Provide rationale indicating that tributary flows
seasonally: Continuous bed and bank, presence of OHWM, soil-based evidence of hydric soils in hyporheic zone.
Provide estimates for jurisdictional waters in the review area (check all that apply):
Tributary waters: 447 linear feet 1-2 width (ft). S1 (UT Factory Branch)
Other non-wetland waters: acres.
Identify type(s) of waters: .
3. Non-RPWs 8 that flow directly or indirectly into TNWs.
Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a
TNW is jurisdictional. Data supporting this conclusion is provided at Section III.C.
Provide estimates for jurisdictional waters within the review area (check all that apply):
Tributary waters: linear feet width (ft).
8See Footnote # 3.
Other non-wetland waters: acres.
Identify type(s) of waters: .
4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs.
Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.
Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale
indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is
directly abutting an RPW:
Wetlands directly abutting an RPW where tributaries typically flow “seasonally.” Provide data indicating that tributary is
seasonal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly
abutting an RPW: Wetland A flows directly into associated tributary. Wetlands are contiguous to RPW that flow
indirectly into TNWs. Wetland hydrology is enhanced with abutting RPW via normal down gradient flows and
periods of high water.
Provide acreage estimates for jurisdictional wetlands in the review area: 0.1 acres.
5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs.
Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent
and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this
conclusion is provided at Section III.C.
Provide acreage estimates for jurisdictional wetlands in the review area: acres.
6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs.
Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and
with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this
conclusion is provided at Section III.C.
Provide estimates for jurisdictional wetlands in the review area: acres.
7. Impoundments of jurisdictional waters.9
As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional.
Demonstrate that impoundment was created from “waters of the U.S.,” or
Demonstrate that water meets the criteria for one of the categories presented above (1-6), or
Demonstrate that water is isolated with a nexus to commerce (see E below).
E. ISOLATED [INTERSTATE OR INTRA-STATE] WATERS, INCLUDING ISOLATED WETLANDS, THE USE,
DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY
SUCH WATERS (CHECK ALL THAT APPLY):10
which are or could be used by interstate or foreign travelers for recreational or other purposes.
from which fish or shellfish are or could be taken and sold in interstate or foreign commerce.
which are or could be used for industrial purposes by industries in interstate commerce.
Interstate isolated waters. Explain: .
Other factors. Explain: .
Identify water body and summarize rationale supporting determination: .
Provide estimates for jurisdictional waters in the review area (check all that apply):
Tributary waters: linear feet width (ft).
Other non-wetland waters: acres.
Identify type(s) of waters: .
Wetlands: acres.
F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY):
If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engineers
Wetland Delineation Manual and/or appropriate Regional Supplements.
Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.
Prior to the Jan 2001 Supreme Court decision in “SWANCC,” the review area would have been regulated based solely on the
“Migratory Bird Rule” (MBR).
Waters do not meet the “Significant Nexus” standard, where such a finding is required for jurisdiction. Explain: .
Other: (explain, if not covered above): .
9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook.
10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for
review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.
Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR
factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional
judgment (check all that apply):
Non-wetland waters (i.e., rivers, streams): linear feet width (ft).
Lakes/ponds: acres.
Other non-wetland waters: acres. List type of aquatic resource: .
Wetlands: acres.
Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the “Significant Nexus” standard, where such
a finding is required for jurisdiction (check all that apply):
Non-wetland waters (i.e., rivers, streams): linear feet, width (ft).
Lakes/ponds: acres.
Other non-wetland waters: acres. List type of aquatic resource: .
Wetlands: acres.
SECTION IV: DATA SOURCES.
A. SUPPORTING DATA. Data reviewed for JD (check all that apply - checked items shall be included in case file and, where checked
and requested, appropriately reference sources below):
Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: Civil & Environmental Consultants, Inc.
Data sheets prepared/submitted by or on behalf of the applicant/consultant. Civil & Environmental Consultants, Inc.
Office concurs with data sheets/delineation report.
Office does not concur with data sheets/delineation report.
Data sheets prepared by the Corps: .
Corps navigable waters’ study: .
U.S. Geological Survey Hydrologic Atlas: .
USGS NHD data.
USGS 8 and 12 digit HUC maps.
U.S. Geological Survey map(s). Cite scale & quad name: Clyde
USDA Natural Resources Conservation Service Soil Survey. Citation: Haywood County, NC.
National wetlands inventory map(s). Cite name: .
State/Local wetland inventory map(s): .
FEMA/FIRM maps: Map No. 3700861600J, effective date April 3, 2012.
100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929)
Photographs: Aerial (Name & Date): Google Earth Pro. Nov. 2017, Oct. 2015, Mar. 2013, Sep. 2011, Jun. 2008, Jun. 2005,
Mar. 1995, and Apr. 1998.
Other (Name & Date): SAW Regulatory Viewer – USGS Hydrography Dataset, LiDAR Hillshade, and LiDAR Slope.
Previous determination(s). File no. and date of response letter: .
Applicable/supporting case law: .
Applicable/supporting scientific literature: .
Other information (please specify): .
B. ADDITIONAL COMMENTS TO SUPPORT JD: .