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HomeMy WebLinkAbout20130371 Ver 1_Application_20130405 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 COMPLETIO N DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): B. DISTRICT OFFICE, FILE NAME, AND NUMBER: C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: McDowell City: Ashford Center coordinates of site (lat/long in degree decimal format): Lat. 35.86491 ° N , Long. -81.94678 ° W . Universal Transverse Mercator: Name of nearest waterbody: UT to N. Fork Catawba River Name of nearest Traditional Navigable Water (TNW) i nto which the aquatic resource flows: Catawba River Name of watershed or Hydrologic Unit Code (HUC): 03050101 Check if map/dia gram 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: Field Determination. Date(s): 3/19/2013 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 t o 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 co mmerce. 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 pres ence of waters of U.S. in review area (check all that apply): 1 TNWs, including territorial seas Wetlands adjacent to TNWs R elatively permanent waters 2 (RPWs) that flow directly or indirectl y 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 RPW s 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: 5 00 linear feet: 8 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: Established by OHWM. Elevation of established OHWM (if known): . 2. Non -regulated waters/wetlands (check if applicable):3 Potentially juris dictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain: . 1 Boxes c hecked 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 T RIBUTARY (THAT IS NO T A T NW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it help s 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., ty pically 3 months). A wetland that directly abuts an RPW is also jurisdictional. I f the aquatic resource is not a TNW, but has year -round (perennial) flow, skip to Section III.D.2. I f the aquatic resource is a wetland directly abutting a tributary with pere nnial 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 ex istence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, ev en though a significant nexus finding is not required as a matter of law. If the waterbod y 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 tributar y in combination with all of it s 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 i ts 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 offsit e. 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: Pick List Drainage area : Pick List Average annual rainfall : inches Average annual snowfall: inches (ii) Physical Characteristics: (a) Relationship with TNW: Tributary flows directly into TNW. Tributary flows through Pick List tributaries before entering TNW. Project waters are Pick List river miles from TNW. Project waters are Pick List river miles from RPW. Project waters are Pick List aerial (straight) miles from TNW. Project waters are Pick List aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: . Identify flow route to TNW 5 : . Tributary stream order, if known: . 4 Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional featur es generally and in the arid West. 5 Flow ro ute 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 Artifi cial (man -made). Explain: . Manipulated (man -altered). Explain: . Tributary properties with respect to top of bank (estimate): Average w idth: feet Average depth: feet Average side slopes: Pick List . 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, sloug hing banks]. Explain: . Presence of run/riffle/pool complexes. Explain: . Tributary geometry: Pick List Tributary gradient (approximate average slope): % (c) Flow: Tributary p rovides for: Pick List Estimate average number of flow events in review area/year: Pick List Describe flow regime: . Other information on duration and volume: . Surface flow is: Pick List . Characteristics: . Subsurface flow: Pick List . 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 le af 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): 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) Chemi cal Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain: . Identify specific pollutants, if known: . 6 A natural or man -made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stre am 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. 7 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: Pick List . Explain: . Surface flow is : Pick List Characteristics: . Subsurface flow: Pick List . 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 (R elationship) to TNW Project wetlands are Pick List river miles from TNW. Project waters are Pick List aerial (straight) miles from TNW. Flow is from: Pick List . Estimate approximate location of wetland as within the Pick List 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: . Identify specific pollutants, if known: . (iii) 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 finding s: . Other environmentally -sensitive species. Explain findings: . Aquatic/wildlife diversity. Explain findings: . 3. Characteristics of all wetlands adjacent t o 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 abuts? (Y/N) Size (in acres) Directly abuts? (Y/N) Size (in acres) Summarize overa ll biological, chemical and physical functions being performed: . C. SIGNIFICANT NEXUS DE TERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions per formed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological in tegrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of i ts 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. bet ween a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within o r outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features document ed 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 f ish 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 c arbon that support downstream food webs?  Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, o r 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 JU RISDICTIONAL FINDING S. THE SUBJECT WATER S/WETLANDS ARE (CHEC K ALL THAT APPLY): 1. TNWs and Adjacent Wetlands. Check all that apply an d provide size estimates in review area: TNWs: linear feet width (ft), Or, acres. Wetlands adjacent to TNWs: acres. 2. RPWs that flow direct ly or indirectly into TNWs. Tributaries of TNWs where tributaries typically flow year -round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Stream has aquatic insects as well as pron ounced bed/bank features . 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 ration ale indicating that tributary flows seasonally: . Provide estimates for jurisdictional waters in the review area (check all that apply): Tributary waters: 5 00 linear feet 8 width (ft). 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). 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 tributari es 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: . Wetland s 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: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. Wetlands th at 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 prov ided 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, INCLU DING ISOLATED WETLAN DS , THE USE, DEGRADATION OR DESTR UCTION OF WHICH COUL D AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK A LL 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 u sed for industrial purposes by industries in interstate commerce. Interstate isolated waters. Explain: . Other factors. Explain: . Identify water body and summarize rationale s upporting determination: . 8 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 sole ly 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: . Wetlands: acres. F. NON -JURISDICTIONAL WATER S, INCLUDING WETLAND S (CHECK ALL THAT AP PLY): If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engine ers Wetland Delineation Manual and/or appropriate Regional Supplements. Review area included isolated wate rs 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). W aters 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 -jurisd ictional 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 be st professional judgment (check all t hat 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 (chec k all that apply - checked items shall be included in case file and, where checked and requested, appropriately reference sources below): Maps, plans, plots or p lat 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:1:24000, Ashford Quadrangle . USDA Natural Resources Conservation Service Soil Survey. Citation: . National wetlands inventory map(s). Cite name: . State/Local wetland inventory map(s): . FEMA/FIRM maps:NC Floodplain Mapping Program . 100 -year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) Photographs: Aerial (Name & Date): . or Other (Name & Date):Stream photos in NWP Application, 4/5/2013 . Previous determination(s). File no. and date of response letter: . Applicable/supporting case law: . Applicable/supp orting scientific literature: . Other information (please specify): . B. ADDITIONAL COMMENTS TO SUPPORT JD: .