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Home My WebLink About20130743_Jurisdictional Determination_20120509BEVERLY EAVES PERDUE GOVERNOR F r maw wQ' STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION March 28 2012 ATTN Ms Lori Beckwith USACE NCDOT Coordinator Mr Mike Parker NCDWQ NCDOT Coordinator Mr Tyler Crumbley USACE EUGENE A CONTI JR SECRETARY �lo� Subject Re Verification for Final Approved Jurisdictional Determination for the Widening of US 19E from Micaville to Spruce Pine in Yancey and Mitchell Counties NC State Project No 6 909001T T I P Project R 2519B Field Visit Summary All The re verification field visit for R 2519 from Micaville to Spruce Pine in Yancey and Mitchell Counties was held on March 22 2012 with Mike Parker from DWQ Tyler Crumbley from USACE and William Barrett and Jeff Hemphill from NCDOT in attendance Five sites were visited during the re verification (Figures refer to the Re Verification Package sent in February) • Stream SA (Figure 2) was considered to be perennial but low quality — NCDOT did not request a lower mitigation ratio since a relatively small portion of the stream will be potentially impacted • Wetland 2DN (Figure 8) had been partially mowed but the three wetland criteria are still met and the wetland abuts Stream 2D • Wetland 11C (Figure 12) had its vegetation partially removed during the construction of a horse corral but its function remains so the wetland has been restored to its original size on NCDOT mapping and CADD files MAILING ADDRESS ADDRESS NC DEPARTMENT OF TRANSPORTATION PROJECT DEVELOPMENT AND ENVIRONMENTAL ANALYSIS 1598 MAIL SERVICE CENTER RALEIGH NC 27699 1598 TELEPHONE 919 733 3141 FAX 919 715 1501 WEBSITE WWW DOH DOT STATE NC US LOCATION TRANSPORTATION BUILDING 1 SOUTH WILMINGTON STREET RALEIGH NC • Stream SC (Figure 14) had been designated intermittent by NCDOT was deemed non jurisdictional by NCDWQ and USACE though the stream probably becomes jurisdictional outside of NCDOT s Right of Way • Wetland UT2BC (Figure 16) was visited and was it agreed that the hydrology has been cut off and the wetland no longer meets the three wetland criteria Perennial Stream UT1CC (Figure 14) was extended from the 2004 verification by 259 if and was extended a further 61 if prior to the field meeting and was discussed but not visited during the re verification meeting The extension of Stream UTICC is reflected in an Updated Change Summary mapping and Rapanos form (Big Crabtree Creek) Perennial Stream SL (Figure 16) was added prior to the field meeting and was discussed but not visited during the re verification meeting The addition of Stream SL is reflected in an Updated Change Summary mapping and Rapanos form (Brushy Creek) A Rapanos form for intermittent streams SC (Figure 14) and UT21) (Figure 6a) will not be submitted since SC was thrown out during re verification and the intermittent portion of UT21) is located outside of NCDOT s Right of Way Ponds A & C are jurisdictional and inside NCDOT s Right of Way and were added to the Brushy Creek Rapanos form If any of my recollections are faulty please notify me and I will correct them Jeff Hemphill NCDOT NES 0) zwzZ 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) B DISTRICT OFFICE FILE NAME AND NUMBER C PROJECT LOCATION AND BACKGROUND INFORMATION TIP# R 2519B NCDOT State NC County/parish/borough Mitchell City Spruce Pine Center coordinates of site (lat/long in degree decimal format) Lat 35 N Long 82 W Universal Transverse Mercator Name of nearest waterbody Brushy Creek (Map Id 213C) & UTs 2E UT2E 3UT2E UT3UT2E UT213C 1G 2UTIG 3UTIG 4UTiG SUTiG 6UT1G 7UTIG 8UT1G 9UTiG IOUTiG I IUT1G 1D SD SE SF SG Wetlands 3UT2E 2E 1GD IGB 2UTIG 1G UT1G 1GC WB Ponds A& C Name of nearest Traditional Navigable Water (TN W) into which the aquatic resource flows North Toe River Name of watershed or Hydrologic Unit Code (HUC) 06010108 ED Check if map /diagram of review area and/or potential Jurisdictional areas is /are available upon request El 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 Field Determination Date(s) 9/01/04 SECTION II SUMMARY OF FINDINGS A RHA SECTION 10 DETERMINATION OF JURISDICTION There ArF na navigable waters of the US within Rivers and Harbors Act (RHA) Jurisdiction (as defined by 33 CFR part 329) in the review area [Required] Q 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 KR waters of the US within Clean Water Act (CWA) Jurisdiction (as defined by 33 CFR part 328) in the review area [Required] Waters of the U S a Indicate presence of waters of U S in review area (check all that apply) ' M TNWs including territorial seas ® Wetlands adjacent to TNWs ® Relatively permanent watersz (RPWs) that flow directly or indirectly into TNWs Non RPWs that flow directly or indirectly into TNWs Q 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 14 796 linear feet 0 5 29 width (ft) and/or acres Wetlands 0 99 acres c Limits (boundaries) of jurisdiction based on 11987 DeLneation anuat Elevation of established OHWM (if known) 2 Non regulated waters /wetlands (check if applicable) 3 Q Potentially jurisdictional waters and /or wetlands were assessed within the review area and determined to be not jurisdictional Explain ' Boxes checked below shall be supported by completing the appropriate sections in Section III below Z 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 r 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) ► e tributaries that typically now 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° 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 ons►te wetlands and Section III B 3 for all wetlands adjacent to that tributary both ons►te 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 Pi ftl Drainage area P ek Lis Average annual rainfall inches Average annual snowfall inches (u) Physical Characteristics (a) Relationship with TNW ❑ Tributary flows directly into TNW ❑ Tributary flows through Pick L s tributaries before entering TNW Project waters are Ptck ,R1,U4 river miles from TNW Protect waters are Pfek )is river miles from RPW Project waters are Pick List aerial (straight) miles from TNW Project waters are Pick L s Pi aerial (straight) miles from RPW Project waters cross or serve as state boundaries Explain Identify flow route to TNW5 Tributary stream order if known Note that the Instructional Guidebook contains additional information regarding swales ditches washes and erosional features generally and in the and 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 feet Average depth feet Average side slopes Pie ist 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 Presence of run/riffle/pool complexes Explain Tributary geometry Tributary gradient (approximate average slope) % (c) Flow Tributary provides for Pick List Estimate average number of flow events in review area/year Pi " "ek`List Describe flow regime Other information on duration and volume Surface flow is Pick6L Characteristics Subsurface flow P�ckFLis _ Explain findings ❑ Dye (or other) test performed Tributary has (check all that apply) ❑ Bed and banks ❑ OHWM6 (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 CWAjurisdiction (check all that apply) 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 Identify specific pollutants if 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 'Ibid (iv) Biological Characteristics Channel supports (check all that apply) ❑ Riparian corridor Characteristics (type average width) ❑ 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 (j) Physical Characteristics (a) General Wetland Characteristics Properties Wetland size acres Wetland type Explain Wetland quality Explain Project wetlands cross or serve as state boundaries Explain (b) General Flow Relationship with Non TNW Flow is Pick List Explain Surface flow is Pick List Characteristics Subsurface flow Pick�ist 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 Protect wetlands are Fick List river miles from TNW Project waters are PPk �ic List aerial (straight) miles from TNW Flow is from Pick Lis Estimate approximate location of wetland as within the Pick st floodplam (n) Chemical Characteristics Characterize wetland system (e g water color is clear brown oil film on surface water quality general watershed characteristics etc ) Explain Identify specific pollutants if known (w) Biological Characteristics Wetland supports (check all that apply) ❑ Riparian buffer Characteristics (type average width) ❑ 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 Pick,List Approximately ( ) acres in total are being considered in the cumulative analysis For each wetland specify the following Directly abuts9 (Y/N) Size (in acres) Directly abuts" (Y/N) Size (in acres) Summarize overall biological chemical and physical functions being performed 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 Iles 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 TNW9 • 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 TNW9 • Does the tributary in combination with its adjacent wetlands (if any) have the capacity to transfer nutrients and organic carbon that support downstream foodwebs9 • Does the tributary in combination with its adjacent wetlands (if any) have other relationships to the physical chemical or biological integrity of the TNW9 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 Q TNWs linear feet width (ft) Or acres EJ 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 DWQ rating form greater than 30 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 Provide estimates for jurisdictional waters in the review area (check all that apply) Tributary waters 14 796 linear feet 0 5 29 width (ft) Other non wetland waters 0 30 acres Identify type(s) of waters Ponds 3 Non RPWss 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) §a Tributary waters linear feet width (ft) ❑ 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 87 Corps Manuel Wetland criteria were met in areas adjacent to RPWs ❑ 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 Provide acreage estimates for jurisdictional wetlands in the review area 0 99 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 Iunsidictional 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 Q 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) " ❑ which are or could be used by interstate or foreign travelers for recreational or other purposes El from which fish or shellfish are or could be taken and sold in interstate or foreign commerce R 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 aSee Footnote # 3 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 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 I 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) 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 Id 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 Data sheets prepared /submitted by or on behalf of the applicant/consultant ❑ 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 1 24 000 Spruce Pine quad ❑ USDA Natural Resources Conservation Service Soil Survey Citation F11 National wetlands inventory map(s) Cite name ❑ State/Local wetland inventory map(s) 44 FEMA/FIRM maps ❑ 100 year Floodplam Elevation is (National Geodectic Vertical Datum of 1929) Photographs ❑ Aerial (Name & Date) or ❑ Other (Name & Date) Previous determination(s) File no and date of response letter �1 Applicable /supporting case law ❑ Applicable /supporting scientific literature Ef Other information (please specify) B ADDITIONAL COMMENTS TO SUPPORT JD Pond A (0 22 ac) & Pond C (0 03 ac) are connected to perennial stream 8UT1 G 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) B DISTRICT OFFICE FILE NAME AND NUMBER C PROJECT LOCATION AND BACKGROUND INFORMATION State NC County/parish/borough Yancey/Mitchell Center coordinates of site (lat/long in degree decimal format) Lat 35 Universal Transverse Mercator Name of nearest waterbody Big Crabtree Creek (Map Id 1 CC) & UTs 2UTUTICC 2UT1CC 3UTUTICC UT3UTUTICC UTU73UTUTICC Wetlands 1H 2UT1H 11 1113 IIC UTICC UTICC C WA TIP# R 2519B NCDOT City Micaville N Long 82 W 1H UT1H 2UT1H 4UTIH 1I UTII UTICC UTUTICC Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows North Toe River Name of watershed or Hydrologic Unit Code (HUC) 06010108 Check if map /diagram of review area and/or potential Jurisdictional areas is /are available upon request Check if other sites (e g offsrte 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 Field Determination Date(s) 9/01/04 SECTION II SUMMARY OF FINDINGS A RHA SECTION 10 DETERMINATION OF JURISDICTION There Wn7o navigahle waters of the US 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 Vrt waters of the US within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area [Required] Waters of the U S a Indicate presence of waters of U S in review area (check all that apply) i 'rr TNWs including territorial seas Wetlands adjacent to TNWs Relatively permanent waters (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 10 650 linear feet 0 5 30 width (ft) and/or acres Wetlands 0 25 acres c Limits (boundaries) of Jurisdiction based on Elevation of established OHWM (if known) 2 Non regulated waters /wetlands (check if applicable) 3 E3 Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional Explain Boxes checked below shall be supported by completing the appropriate sections in Section III below z 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) ' Supporting documentation is presented in Section III F 9 r 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" 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 ons►te wetlands and Section III B 3 for all wetlands adjacent to that tributary both onsite and offs►te 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 f Drainage area Average annual rainfall inches Average annual snowfall inches (u) Physical Characteristics (a) Relationship with TNW ❑ Tributary flows directly into TNW ❑ Tributary flows through it tributaries before entering TNW Project waters are "tE river miles from TNW Project waters are > river miles from RPW Project waters are aerial (straight) miles from TNW Project waters are C aerial (straight) miles from RPW Project waters cross or serve as state boundaries Explain Identify flow route to TNW5 Tributary stream order if known Note that the Instructional Guidebook contains additional information regarding swales ditches washes and erosional features generally and in the and 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 4 (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 feet Average depth feet Average side slopes Pick€ R 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 Presence of run/riffle /pool complexes Explain Tributary geometry PP �.i' Tributary gradient (approximate average slope) % (c) Flow Tributary provides for lCck t lst Estimate average number of flow events in review area/year List Describe flow regime Other information on duration and volume Surface flow is rLts Characteristics Subsurface flow i+tt! ��,IS Explain findings ❑ Dye (or other) test performed Tributary has (check all that apply) ❑ Bed and banks ❑ OHWM6 (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 determ [' High Tide Line indicated by ❑ oil or scum line along shore objects ❑ fine shell or debris deposits (foreshore) ❑ physical markings /characteristics ❑ tidal gauges ❑ other (list) ne lateral extent of CWA jurisdiction (check all that apply) Mean High Water Mark indicated by ❑ survey to available datum ❑ physical markings ❑ vegetation lines /changes in vegetation types (m) Chemical Characteristics Characterize tributary (e g water color is clear discolored oily film water quality general watershed characteristics etc ) Explain Identify specific pollutants if 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 'Ibid (iv) Biological Characteristics Channel supports (check all that apply) ❑ Riparian corridor Characteristics (type average width) ❑ 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 acres Wetland type Explain Wetland quality Explain Project wetlands cross or serve as state boundaries Explain (b) General Flow Relationship with Non TNW Flow is ekfU Explain Surface flow is IR i Lie Characteristics Subsurface flow 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 area ffii river miles from TNW Project waters are is aenal (straight) miles from TNW Flow is from KAMIUM Estimate approximate location of wetland as within the Pick t'• floodplam (n) Chemical Characteristics Characterize wetland system (e g water color is clear brown oil film on surface water quality general watershed characteristics etc ) Explain Identify specific pollutants if known (in) Biological Characteristics Wetland supports (check all that apply) ❑ Riparian buffer Characteristics (type average width) ❑ 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 P►I I N4 Approximately ( ) acres in total are being considered in the cumulative analysis For each wetland specify the following Directly abuts9 (Y/N) Size (►n acres) Directly abuts9 (Y/N) Size (in acres) Summarize overall biological chemical and physical functions being performed 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 floodplam 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 TNW9 • 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 TNW9 • Does the tributary in combination with its adjacent wetlands (if any) have the capacity to transfer nutrients and organic carbon that support downstream foodwebs9 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 DWQ rating form greater than 30 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 Provide estimates for jurisdictional waters in the review area (check all that apply) Tributary waters 10 650 linear feet 0 5 30 width (ft) I Other non wetland waters acres Identify type(s) of waters 3 Non RPWs8 that flow directly or indirectly into TNWs Q 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) El Tributary waters linear feet width (ft) NJ Other non wetland waters acres Identify type(s) of waters 4 Wetlands directly abutting an RPW that flow directly or indirectly into TNWs Ig 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 87 Corps Manuel Wetland criteria were met in areas adjacent to RPWs El 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 Provide acreage estimates for jurisdictional wetlands in the review area 0 25 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 junsidictional 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) " Q 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 'See Footnote # 3 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 estimates for Jurisdictional waters in the review area (check all that apply) ❑ Tributary waters linear feet width (ft) r' Other non wetland waters acres Identify type(s) of waters ® Wetlands acres F NON JURISDICTIONAL WATERS INCLUDING WETLANDS (CHECK ALL THAT APPLY) Q 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 forlurisdiction Explain gv Other (explain if not covered above) Provide acreage estimates for non Jurisdictional waters in the review area, where the sole potential basis of Jurisdiction is the MBR factors (i a 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) i Lakes /ponds acres Eli Other non wetland waters acres List type of aquatic resource M 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) 0 Maps plans plots or plat submitted by or on behalf of the applicant/consultant Data sheets prepared /submitted by or on behalf of the applicant/consultant ❑ 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 N14D data ❑ USGS 8 and 12 digit HUC maps U S Geological Survey map(s) Cite scale & quad name 1 24 000 Spruce Pine quad USDA Natural Resources Conservation Service Soil Survey Citation National wetlands inventory map(s) Cite name { State/Local wetland inventory map(s) FEMA/FIRM maps 100 year Floodplam Elevation is (National Geodectic Vertical Datum of 1929) Photographs ❑ Aerial (Name & Date) or ❑ Other (Name & Date) Previous determination(s) File no and date of response letter Applicable /supportmg case law Applicable /supporting scientific literature t Other information (please specify) B ADDITIONAL COMMENTS TO SUPPORT JD CC V O O N 8 0 >ri D bA �.r C� V N O N CC a �J W v Cfj V v Ufs,�W (4-4 U �+. ado Q, U o o Q � o n u �, �, b H u, b O p �p s O Q z N O CIS u N u bu�A 4? z y -0 41 Oil Q- �a) En �� e� — t�. `n cd N su v' x N N M '. O 0 NN N ��' N N a V) �aapya ti b j � v v � � tj = v � v v O M O 0 fj.-a � t` O O r 1 M -T It W) V') V) "o \0 \�0 00 00 O\ o j G ,--, .--. - -, -- .-, -- — - -- -, N N N N N onwwwww� wr�.wwwwwwwwww ;L4 4.4 w a, w an � � � � 4-4 4.4 4, 4-4 4--1 4-� 4-4 C+-i 4-4 4-1 �r) MLr) N C!j 4- N "D O O -- w 4. 44 - M O [� -� 4-a — M C 4-i .--, 4, .- 4-1 .--, 4, r-, 4, .--� 4, .-, 4, ,--� 4, .-, 4, .--� b 00 i O� d �o cr O O O f r 0O V) O V) 110 O 00 "o [� 00 00 00 V) r C) O M �,o M M N -- N [— [,- d O d M O M f� O v 'G y > .fl ' t:s 7; p ",:� 75 (L) "O T'd TJ b p p O O O O O b 'Z5 Cd H u Q N x c� N -- - Jl Cl C/1 V] rte+ V1 M � N V� W 6, �b b r, I d ME c� 1/1InvD� c/)�v cnv) C/)C.0 v)v)v)c) a