20081000 Ver 1_401 Application_20080608

CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
June 16, 2008
Ms. Linda Wiggs
NC Division of Water Quality
2090 US Highway 70
Swannanoa, North Carolina 28778
. P A I 0g 1 00 0

RE: Notice of Violation
Chimney Laurel
Buncombe County
DWQ Project # NOV-2007-PC-0762
Dear Ms. Wiggs,
Ow R
,1!)N 2 3 2008
DEAR WAEUUAUTY
WETr_ANDS AND STORMWATER Bl"",Lr4
Please reference the "Notice of Violation" dated November 14, 2007 sent by the North
Carolina Division of Water Quality (DWQ) in response to a site visit conducted by the
DWQ on November 1, 2007 at Chimney Laurel near Asheville in Buncombe County
North Carolina. The DWQ determined that unauthorized stream impacts had occurred on
site and that the activities were in violation of 401 Water Quality Standards. In the
"Notice of Violation", the DWQ requested three items for review. Each information
request will be discussed below.
1. "Please explain why the above-mentioned water quality standard violations
occurred without prior authorization. "
Ms. Darlene Flynn, the registered agent and applicant, was unaware that
jurisdictional waters existed on the property. It is our understanding she was not advised
that a wetland delineation should have been conducted prior to development of the site
plan. It was not until she received the "Notice of Violation" from the DWQ that she
realized jurisdictional waters were on the property. At that time, roads had already been
constructed and impacts had already occurred on site. This is Ms. Flynn's first
development in North Carolina and she was largely unaware of the state and federal
rules, which govern development in North Carolina. Ms. Flynn has been working
diligently since issuance of the "Notice of Violation" to resolve all issues and comply
with rules and regulation set forth by the State of North Carolina and the US Army Corps
of Engineers (Corps).
2. 'Please provide documentation (including a detailed site map/survey) depicting
all jurisdictional water features (e.g. streams, wetlands, buffers) on the site. This
documentation should describe and quantify the current impacts to those jurisdictional
.features, and should include plans to avoid further stream impacts on the site. "
718 Oakland Street
Hendersonville, North Carolina 28791
Phone: [phone] Fax: [phone]
www.cwenv.com
After issuance of the "Notice of Violation", ClearWater Environmental
Consultants, Inc. (CEC) was retained by Ms. Flynn to delineate the subject property. A
stream and wetland map, which identifies CEC's findings, has been included in the
attached after-the-fact Nationwide permit application in Appendix C. This map identifies
all jurisdictional water features identified at the site.
3. "Permit Application - If you wish for any impacts to remain in place, you must
contact the U.S. Army Corps of Engineers (USACOE) for information on the type(s) of
permit required. Depending on the type ofpermits the USA CE requires, application for a
401 Water Quality Certification to DWQ will also be required. Please note that sediment
impacts to streams are not permittable. "
CEC, on behalf of Ms. Flynn, is submitting an after-the-fact Nationwide permit
application for three culverts that were previously installed and one new culvert needed
to access additional lots.
The information submitted in this package addresses all issues setforth in the "Notice of
Violation" letter. CEC appreciated the DWQ's patience and consideration while reviewing
this project. Should you have any questions or comments concerning this project please do
not hesitate to contact me at 828-698-9800. A copy of the permit application has also been
submitted to Ms. Lori Beckwith at the US Army Corps of Engineers, Asheville Regulatory
Field Office.
Sincerely,
4OP&O-)
Rebekah L. Newton
Project Biologist
Copy Furnished:
NC Wildlife Resources Commission - David McHenry
US Army Corps of Engineers - Lori Beckwith
NC Division of Water Quality, Raleigh-Cyndi Karoly
R. 4?3Clement iddle, P.W.S.
Principal
CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
June 16, 2008
Ms. Lori Beckwith
US Arny Corps of Engineers
Asheville Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-2638
Ms. Cyndi Karoly
NC Division of Water Quality
1650 Mail Service Center
Raleigh, NC 27699-1650
RE: RUKH Asheville Properties, LLC
Chimney Laurel
Buncombe County, North Carolina
Ms. Beckwith and Ms. Karoly,
The attached after-the-fact Pre-Construction Notification (PCN) is being submitted on behalf of
RUKH Asheville Properties, LLC (RUKH). RUKH currently owns approximately 100 acres
near Asheville in Buncombe County, North Carolina and is seeking after-the-fact permit
authorization under Nationwide Permit 29 for impacts associated with development of a single-
family residential community. Three culverts were installed without prior permit authorization
and on(: additional culvert is needed to access land locked lots.
Should you have any questions regarding the attached PCN and supplemental information please
do not hesitate to contact me at 828-698-9800. A copy of this package has been sent to Mr.
David McHenry of the NC Wildlife Resources Commission for review. A copy of this
application has also been submitted to Ms. Linda Wiggs of the NC Division of Water Quality,
Asheville Regional Office.
Respectfully,
m kKr
Rebekah L. Newton
Project Biologist
®r .
R. Clement Riddle P.W.S
Principal
Copy Furnished:
NC Wildlife Resources Commission David McHenry
NC Division of Water Ouality -- Linda WI11121S
718 Oakland Street
Hendersonville, North Carolina 28791
Phone: [phone] Fax: [phone]
www. cwenv. com
Corps Submittal Cover Sheet
Please provide the following info:
1. Project Name: Chimney Laurel
2. Name of Property Owner/Applicant: RUKH Asheville Properties, LLC
3. Name of Consultant/Agent: C1earWater Environmental Consultants, Inc.
*Agent authorization needs to be attached.
4. Related/previous Action ID numbers(s): none
5. Site Address: Elk Mountain Scenic Highway
6. Subdivision Name: Chimney Laurel
7. City: Asheville
8. County: Buncombe
9. Lat: 35.666316N Long: 82.491273W (Decimal Degrees Please)
10. Quadrangle Name: Craggy Pinnacle
11. Waterway: UT Ox Creek
12. Watershed: Upper French Broad 06010105
13. Requested Action:
X Nationwide Permit # 29
General Permit #
Jurisdictional Determination Request
Pre-Application Request
.......................................................................................................................................
The following information will be completed by the Corps office:
AID:
Prepare File Folder Assign number in ORM Begin Date
Authorization: Section 10 Section 404
Project Description/Nature of Activity/Project Purpose:
Site/Waters Name:
Keywords:
CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
Department of the Army
Wilmington District, Corps of Engineers
Attn: Ken Jolly, Chief Regulatory Division
PO Box 1890
Wilmington, North Carolina 28402-1890
-and-
NC Division of Water Quality
Attn: Cyndi Karoly
1650 Mail Service Center
Raleigh, NC 27699-1650
I, the current landowner/managing partner of the property identified below, hereby
authorize Clearwater Environmental Consultants, Inc. (CEC) to act on my behalf as my
agent during the processing of permits to impact Wetlands and Waters of the US that are
regulated by the Clean Water Act and the Rivers and Harbors Act.
CEC is authorized to provide supplemental information needed for permit processing at
the request of the USACE or DWQ.
Property Owner of Record:
R U K F+ pev-e / o)'o m e? >?5 ?- /D?` ore
Property Owner Address. ??nL> C) d /-c-" poa-d
e s Z Z C,,
Gl ? ? ? lam/, CJ 2 r- / D ? C?
Phone number: ?70 E- 732_ Z F 2'7
Property Location:
Owner/Managing partner Signature:
Date: ?? Z /U
718 Oakland Street
Hendersonville, North Carolina 28791
Phone: [phone] Fax: [phone]
www.cwenv.com
Office Use Only: Form Version March 05
-08 1 00 0
USACE Action ID No. DWQ No.
k,1 ally Nat ocular item is not appncaoie to tors project, please enter "Not Applicable" or "N/A".)
1. Processing
AI
1. Check all of the approval(s) requested for this project:
® Section 404 Permit ? Riparian or Watershed Buffer Rules
? Section 10 Permit ? Isolated Wetland Permit from DWQ
® 401 Water Quality Certification ? Express 401 Water Quality Certification
2. Nationwide, Regional or General Permit Number(s) Requested:_ NW 29 (after-the-fact)
3. If this notification is solely a courtesy copy because written approval for the 401 Certification
is not required, check here: ?
4. If payment into the North Carolina Ecosystem Enhancement Program (NCEEP) is proposed
for mitigation of impacts, attach the acceptance letter from NCEEP, complete section VIII,
and check here:
5. If your project is located in any of North Carolina's twenty coastal counties (listed on page
4), and the project is within a North Carolina Division of Coastal Management Area of
Environmental Concern (see the top of page 2 for further details), check here: ?
II. Applicant Information ® P 1?,? 1
1? ?1. Owner/Applicant Information
Name: Ms. Darlene Flynn JUN 2 3 2"U0
Mailing Address: RUKH Asheville Properties, LLC DENR-WATER Qu,A.r
300 Hadley Road
Plainfield New Jersey 07080
Telephone Number: 708-732-2877 Fax Number:
E-mail Address:[e-mail]
2. Agent/Consultant Information (A signed and dated copy of the Agent Authorization letter
must be attached if the Agent has signatory authority for the owner/applicant.)
Name: Mr. R. Clement Riddle
Company Affiliation: C1earWater Environmental Consultants Inc (CEC)
Mailing Address: 718 Oakland Street
Hendersonville North Carolina 28791
Telephone Number: 828-698-9800 Fax Number:-828-698-9003
E-mail Address:_ clement a,cwenv.com
Updated 11/1/2005
Page 1 of 9
III. Project Information
Attach a vicinity map clearly showing the location of the property with respect to local
landmarks such as towns, rivers, and roads. Also provide a detailed site plan showing property
boundaries and development plans in relation to surrounding properties. Both the vicinity map
and site plan must include a scale and north arrow. The specific footprints of all buildings,
impervious surfaces, or other facilities must be included. If possible, the maps and plans should
include the appropriate USGS Topographic Quad Map and NRCS Soil Survey with the property
boundaries outlined. Plan drawings, or other maps may be included at the applicant's discretion,
so long as the property is clearly defined. For administrative and distribution purposes, the
USACE requires information to be submitted on sheets no larger than 11 by 17-inch format;
however, DWQ may accept paperwork of any size. DWQ prefers full-size construction
drawings rather than a sequential sheet version of the full-size plans. If full-size plans are
reduced to a small scale such that the final version is illegible, the applicant will be informed that
the project has been placed on hold until decipherable maps are provided.
1. Name of project: Chimney Laurel
2. T.I.P. Project Number or State Project Number (NCDOT Only): n/a
3. Property Identification Number (Tax PIN): 976101358990 and 976114349639
4. Location
County: Buncombe Nearest Town: Asheville
Subdivision name (include phase/lot number): Chimney Laurel
Directions to site (include road numbers/names, landmarks, etc.): From Asheville and
Interstate 240 take Exit 5A. Turn north onto Merrimon Avenue turn right onto Beaverdam
Road, turn left onto Elk Mountain Scenic Highway. The site is on the left side of the road-,
the entrance is marked by a small information kiosk and large stone entrance
5. Site coordinates (For linear projects, such as a road or utility line, attach a sheet that
separately lists the coordinates for each crossing of a distinct waterbody.)
Decimal Degrees (6 digits minimum): 35.666316 ON 82.491273 °W
6. Property size (acres): +/- 100
7. Name of nearest receiving body of water: UT Ox Creek
8. River Basin: French Broad River Basin
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at http://h2o.enr.state.nc.us/admii-/maps/.)
Updated 111112005
Page 2 of 9
9. Describe the existing conditions on the site and general land use in the vicinity of the project
at the time of this application: The site is mostly wooded with a small network of
residential roads and three associated crossings. General land use in the vicinity is
residential. There was one, 20 linear foot culvert existing on the southern portion of the site
An affidavit regarding the existence of this culvert is included for review (Appendix A)
10. Describe the overall project in detail, including the type of equipment to be used: The
project includes the development of a single-family residential community along with all
associated infrastructure. Typical construction and earth-moving equipment will be utilized
on site. The applicant requests after-the-fact authorization for three culverts and associated
rip-rap, which were previously installed (Impacts A B and C) and one new culvert and
associated rip-rap to access land-locked lots (Impact D). Impact A includes 92 linear feet of
impacts. Impact B included 130 linear feet of impacts. Seventy linear feet of culvert will be
removed and the area restored. Final impacts at Impact B will be 60 linear feet Impact C
includes a total of 100 linear feet of impact. A 20-linear foot culvert existed at this location
prior to purchase of the property; new impacts at Impact C total 80 linear feet. Impact D is
needed to access additional lots. The applicant has proposed 67 linear feet of impact at this
location. New impacts on site will total 299 linear feet.
11. Explain the purpose of the proposed work: The purpose of the proposed work is to provide
road access to high ground residential building lots.
IV. Prior Project History
If jurisdictional determinations and/or permits have been requested and/or obtained for this
project (including all prior phases of the same subdivision) in the past, please explain. Include
the USACE Action ID Number, DWQ Project Number, application date, and date permits and
certifications were issued or withdrawn. Provide photocopies of previously issued permits,
certifications or other useful information. Describe previously approved wetland, stream and
buffer impacts, along with associated mitigation (where applicable). If this is a NCDOT project,
list and describe permits issued for prior segments of the same T.I.P. project, along with
construction schedules. The DWQ issued a notice of violation on November 14, 2007• DWQ
Project # NOV-2007-PC-0762. The site has been visited by DWQ personnel several times; exact
dates of site visits are unknown to CEC. This site has no prior project history with the Corps.
_
V. Future Project Plans
Are any future permit requests anticipated for this project? If so, describe the anticipated work,
and provide justification for the exclusion of this work from the current application.
No future project plans are anticipated at this time The plan submitted represents the site at full
build out.
Updated 11/1/2005
Page 3 of 9
VI. Proposed Impacts to Waters of the United States/Waters of the State
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
wetlands, open water, and stream channels associated with the project. Each impact must be
listed separately in the tables below (e.g., culvert installation should be listed separately from
riprap dissipater pads). Be sure to indicate if an impact is temporary. All proposed impacts,
permanent and temporary, must be listed, and must be labeled and clearly identifiable on an
accompanying site plan. All wetlands and waters, and all streams (intermittent and perennial)
should be shown on a delineation map, whether or not impacts are proposed to these systems.
Wetland and stream evaluation and delineation forms should be included as appropriate.
Photographs may be included at the applicant's discretion. If this proposed impact is strictly for
wetland or stream mitigation, list and describe the impact in Section VIII below. If additional
space is needed for listing or description, please attach a separate sheet.
1. Provide a written description of the proposed impacts: The impacts associated with
this project include the installation of four culverts to provide road access to residential
building lots. The applicant requests after-the-fact authorization for three culverts and
associated rip-rap which were previously installed (Impacts A B and C) and one new
culvert and associated rip-rap to access land-locked lots (Impact D) Impact A includes 92
linear feet of impacts. Impact B included 130 linear feet of impacts Seventy linear feet of
culvert will be removed and the area restored. Final impacts at Impact B will be 60 linear
feet. Impact C includes a total of 100 linear feet of impact A 20 linear foot culvert existed
at this location prior to purchase of the property; new impacts at Impact C total 80 linear feet
Fact D is needed to access additional lots The applicant has proposed 67 linear feet of
impact at this location. New impacts on site will total 299 linear feet
2. Individually list wetland impacts. Types of impacts include, but are not limited to
mechanized clearing, grading, fill, excavation, flooding, ditching/drainage, etc. For dams,
separately list impacts due to both structure and flooding.

land Impact
e Number
cate on map)
F
Type of Impact Type of Wetland
(e.g., forested, marsh,
herbaceous, bog, etc.) Located within
100-year
Floodplain
(yes/no) Distance to
Nearest
Stream
(linear feet) Area of
Impact
(acres)
No
L impacts.

To tal Wetland Impact (acres) 0
3. List the total acreage (estimated) of all existing wetlands on the property: - 0.25 acre
4. Individually list all intermittent and perennial stream impacts. Be sure to identify temporary
impacts. Stream impacts include, but are not limited to placement of fill or culverts, dam
construction, flooding, relocation, stabilization activities (e.g., cement walls, rip-rap, crib
walls, gabions, etc.), excavation, ditching/straightening, etc. If stream relocation is proposed,
Updated 11/1/2005
Page 4 of 9
plans and profiles showing the linear footprint for both the original and relocated streams
must be included. To calculate acreage, multiply length X width, then divide by 43,560.
Stream Impact
Number

(indicate on map)
A
Stream Name

UT Ox Creek
Type of Impact

Culvert/rip, rap
Perennial or
Intermittent?

P Average

Stream Width
Before Impact
3 Impact

Length
(linear feet)
92 Area of

Impact
(acres)
0.0063
B UT Ox Creek Culvert/rip, rap P 4 60 0.0055
C UT Ox Creek Culvert/rip, rap P 5 80 0.0092
D UT Ox Creek Culvert/rip, rap P T 5 67 0.0077
E
Total Stream Impact (by length and acreage) 299 0.0287
5. Individually list all open water impacts (including lakes, ponds, estuaries, sounds, Atlantic
Ocean and any other water of the U.S.). Open water impacts include, but are not limited to
fill, excavation, dredging, flooding, drainage, bulkheads, etc.
Open Water Impact
Site Number
(indicate on map)
No OW Impacts. Name of Waterbody
(if applicable)
Type of Impact Type of Waterbody
(lake, pond, estuary, sound, bay,
ocean, etc.) Area of
Impact
(acres)

Total Open Water Impact (acres) 0
6. List the cumulative impact to all Waters of the I 1 Q, recnltinrs fi-nm rl,A
Stream Impact (acres): 0.0287
Wetland Impact (acres): 0
Open Water Impact (acres): 0
Total Impact to Waters of the U.S. (acres) 6.0287
Total Stream Impact (linear feet): 299
7. Isolated Waters
Do any isolated waters exist on the property? ? Yes ® No
Describe all impacts to isolated waters, and include the type of water (wetland or stream) and
the size of the proposed impact (acres or linear feet). Please note that this section only
applies to waters that have specifically been determined to be isolated by the USACE.
8. Pond Creation - No pond proposed.
If construction of a pond is proposed, associated wetland and stream impacts should be
included above in the wetland and stream impact sections. Also, the proposed pond should
be described here and illustrated on any maps included with this application.
Updated H/1/2005
Page 5 of 9
Pond to be created in (check all that apply): ? uplands ? stream ? wetlands
Describe the method of construction (e.g., dam/embankment, excavation, installation of
draw-down valve or spillway, etc.): n/a
Proposed use or purpose of pond (e.g., livestock watering, irrigation, aesthetic, trout pond,
local stormwater requirement, etc.): n/a
Current land use in the vicinity of the pond: n/a
Size of watershed draining to pond: n/a Expected pond surface area: n/a
VII. Impact Justification (Avoidance and Minimization)
Specifically describe measures taken to avoid the proposed impacts. It may be useful to provide
information related to site constraints such as topography, building ordinances, accessibility, and
financial viability of the project. The applicant may attach drawings of alternative, lower-impact
site layouts, and explain why these design options were not feasible. Also discuss how impacts
were minimized once the desired site plan was developed. If applicable, discuss construction
techniques to be followed during construction to reduce impacts. Impacts on site have been
minimized to the maximum extent practicable All wetlands on site have been avoided Impacts
to streams have been minimized through the use of shared driveways
VIII. Mitigation
DWQ - In accordance with 15A NCAC 2H .0500, mitigation may be required by the NC
Division of Water Quality for projects involving greater than or equal to one acre of impacts to
freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
USACE - In accordance with the Final Notice of Issuance and Modification of Nationwide
Permits, published in the Federal Register on January 15, 2002, mitigation will be required when
necessary to ensure that adverse effects to the aquatic environment are minimal. Factors
including size and type of proposed impact and function and relative value of the impacted
aquatic resource will be considered in determining acceptability of appropriate and practicable
mitigation as proposed. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining wetland
and/or upland vegetated buffers to protect open waters such as streams; and replacing losses of
aquatic resource functions and values by creating, restoring, enhancing, or preserving similar
functions and values, preferable in the same watershed.
If mitigation is required for this project, a copy of the mitigation plan must be attached in order
for USACE or DWQ to consider the application complete for processing. Any application
lacking a required mitigation plan or NCEEP concurrence shall be placed on hold as incomplete.
An applicant may also choose to review the current guidelines for stream restoration in DWQ's
Draft Technical Guide for Stream Work in North Carolina, available at
http://h2o.eiir.state.iic.us/iiewetlands/striiip,ide.liti-n1.
Updated 11/1/2005
Page 6 of 9
Provide a brief description of the proposed mitigation plan. The description should provide
as much information as possible, including, but not limited to: site location (attach directions
and/or map, if offsite), affected stream and river basin, type and amount (acreage/linear feet)
of mitigation proposed (restoration, enhancement, creation, or preservation), a plan view,
preservation mechanism (e.g., deed restrictions, conservation easement, etc.), and a
description of the current site conditions and proposed method of construction. Please attach
a separate sheet if more space is needed.
RUKH Asheville Properties LLC proses to mitigate for the unavoidable impacts
(approximately 299 linear feet) through payment into the EEP in-lieu fee program at a ratio
of 1:1. By letter dated February 13, 2008, EEP has indicated they are willing to accept
payment for impacts associated with the development of Chimney Laurel The acceptance
letter is enclosed for review (Appendix B).
2. Mitigation may also be made by payment into the North Carolina Ecosystem Enhancement
Program (NCEEP). Please note it is the applicant's responsibility to contact the NCEEP at
[phone] to determine availability, and written approval from the NCEEP indicating
that they are will to accept payment for the mitigation must be attached to this form. For
additional information regarding the application process for the NCEEP, check the NCEEP
website at http://h2o.enr.state.nc.us/wrp/index.htni. If use of the NCEEP is proposed, please
check the appropriate box on page five and provide the following information:
Amount of stream mitigation requested (linear feet): 299
Amount of buffer mitigation requested (square feet): 0
Amount of Riparian wetland mitigation requested (acres): 0
Amount of Non-riparian wetland mitigation requested (acres):
Amount of Coastal wetland mitigation requested (acres): 0
IX. Environmental Documentation (required by DWQ)
1. Does the project involve an expenditure of public (federal/state/local) funds or the use of
public (federal/state) land? Yes ? No
2. If yes, does the project require preparation of an environmental document pursuant to the
requirements of the National or North Carolina Environmental Policy Act (NEPA/SEPA)?
Note: If you are not sure whether a NEPA/SEPA document is required, call the SEPA
coordinator at [phone] to review current thresholds for environmental documentation.
Yes ? No ?
3. If yes, has the document review been finalized by the State Clearinghouse? If so, please
attach a copy of the NEPA or SEPA final approval letter. Yes ? No ?
Updated 11/1/2005
Page 7 of 9
X. Proposed Impacts on Riparian and Watershed Buffers (required by DWQ)
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
required state and local buffers associated with the project. The applicant must also provide
justification for these impacts in Section VII above. All proposed impacts must be listed herein,
and must be clearly identifiable on the accompanying site plan. All buffers must be shown on a
map, whether or not impacts are proposed to the buffers. Correspondence from the DWQ
Regional Office may be included as appropriate. Photographs may also be included at the
applicant's discretion.
1. Will the project impact protected riparian buffers identified within 15A NCAC 2B .0233
(Meuse), 15A NCAC 2B .0259 (Tar-Pamlico), 15A NCAC 02B .0243 (Catawba) 15A NCAC
2B .0250 (Randleman Rules and Water Supply Buffer Requirements), or other (please
identify )? Yes ? No
2. If "yes", identify the square feet and acreage of impact to each zone of the riparian buffers.
If buffer mitigation is required calculate the required amount of mitigation by applying the
buffer multipliers.
Zone* Impact
pe feet
(square feet) Multiplier Required
Mitigation
1 3 (2 for Catawba)
2 1.5
Total
L011C I cxlCUUS out w ieei perpenotcular from the top of the near bank of channel; Zone 2 extends an
additional 20 feet from the edge of Zone 1.
3. If buffer mitigation is required, please discuss what type of mitigation is proposed (i.e.,
Donation of Property, Riparian Buffer Restoration / Enhancement, or Payment into the
Riparian Buffer Restoration Fund). Please attach all appropriate information as identified
within 15A NCAC 213.0242 or.0244, or.0260.
XI. Stormwater (required by DWQ)
Describe impervious acreage (existing and proposed) versus total acreage on the site. Discuss
stormwater controls proposed in order to protect surface waters and wetlands downstream from
the property. If percent impervious surface exceeds 20%, please provide calculations
demonstrating total proposed impervious level. In order for the development to exceed 20%
impervious area on site approximately 20 acres of land would need to be impervious Twenty-
six lots are proposed for this development Calculations for impervious area allow for 6,000
square feet of impervious area per lot (the square footage has been adjusted to account for
roadways, driveways infrastructure etc.). This would yield 3.5% impervious area for the entire
site. Square footage of impervious area per lot would need to be increase to approximately
35,000 square feet (0.8 acre) to exceed the 20% mentioned above Roadways and lots have
already been surveyed and platted Lots will not be subdivided adding additional homesites to
Updated 11/1/2005
Page 8 of 9
the property, and road layouts in the field are consistent with road layouts depicted on the plans
Lots on site will range from approximately 1.6 acres to 3.7 acres with an average lot size of
approximately 2.8 acres.
XII. Sewage Disposal (required by DWQ)
Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of
wastewater generated from the proposed project, or available capacity of the subject facility.
Wastewater generated on site will be treated via on-site wastewater treatment system (i.e. single-
family septic system). Potable water will be supplied by single-family wells
XIII. Violations (required by DWQ)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H .0500) or any Buffer Rules?
Yes ® No ?
Is this an after-the-fact permit application? Yes ® No ?
XIV. Cumulative Impacts (required by DWQ)
Will this project (based on past and reasonably anticipated future impacts) result in additional
development, which could impact nearby downstream water quality? Yes ? No
If yes, please submit a qualitative or quantitative cumulative impact analysis in accordance with
the most recent North Carolina Division of Water Quality policy posted on our website at
http://h2o.enr.state.nc.us/ncwetiands. If no, please provide a short narrative description: Any
goods and services needed by the residents of this development can be obtained from the nearby
city of Asheville. This project will not result in additional development which would impact
nearby downstream water quality.
XV. Other Circumstances (Optional):
It is the applicant's responsibility to submit the application sufficiently in advance of desired
construction dates to allow processing time for these permits. However, an applicant may
choose to list constraints associated with construction or sequencing that may impose limits on
work schedules (e.g., draw-down schedules for lakes, dates associated with Endangered and
Threatened Species, accessibility problems, or other issues outside of the applicant's control).
Ion
-Xpplieant/Agent's Signature 9 Date f
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
Updated 11/1/2005
Page 9 of 9
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CLEARWATER
Chimney Laurel Environmental Consultants. Inc.
Buncombe County 718 Oakland Street
North Carolina Hendersonville. NC 28791
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Appendix A
(Affidavit Regarding Existing Culvert)
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
AFFIDAVIT OF PHIL GARLAND
1. My name is Phil Garland and I am above the age of 18 and competent to testify as
to all matters appearing herein.
2. I am the owner of Garland Brothers, Inc., a North Carolina licensed general
contractor which specializes in grading and site work.
3. My firm was the contractor for the road installation at the Elk Mountain Chimney
Laurel development in Buncombe County, North Carolina (the "Project").
4. LandDesign, Inc. ("LandDesign") served as the engineer of record for the Project.
5. Project to LandDesign's preparation of drawings for the Project I participated in a
site investigation visit with LandDesign and Darlene Flynn, one of the owners of Rukh
Development Asheville Properties, LLC. That site visit took place in the spring of 2006.
6. On the site visit two engineers with LandDesign were present, John Kinnard and
Wes Ioeger. On the site visit we rode the entire site, traversing most of the property on existing
logging roads, as well as traveling overland in areas where no logging roads existed. At the site
visit I saw substantial amounts of free flowing water and spring heads, including water which
was crossing the existing logging roads. Because Garland Brothers had been doing a job in
Buncombe County for the past several years in which the North Carolina Division of Water
Quality ("DWQ") had sited the developer for water quality and permitting problems I was
concerned about the water on site.
7. I pointed out all spring heads and water on site to the two LandDesign engineers
and told them they had better make sure to take care of all water issues in the permitting and
design phases of the Project to avoid any problems with DWQ. They assured me that they would
address the water issues in the planning and permitting stage.
8. In particular, free flowing water was detected at the top of the property around
lots 3 and 4. In that area there was an existing 15" culvert, 20 feet long, in place that crossed the
existing logging road.
9. During construction that existing culvert was removed and two additional culverts
were installed per LandDesign's plans. In addition, there was so much water in that area that we
were required to install french drains beneath the roads in order to drain the springs and stream in
this area.
10. During construction a representative of LandDesign approved the use of french
drains in the area below lots three and four, as well as in other areas throughout the Project
where streams and spring heads needed to traverse the roads.
11. DWQ has issued a notice of violation to the owner for unauthorized stream
impacts because apparently the appropriate permits were not obtained by the engineer.
12. I understand from reviewing documents prepared by the owner's independent
consultant, Clearwater Environmental Consultants, Inc. that there are some 322 feet of impacts to
jurisdictional streams and wetlands on the property.
13. As a result of these impacts progress on the job has been halted since November
of 2007.
14. At no time did the engineers ever advise Garland Brothers that there was any
issue with jurisdictional waters on the property with would require special permits. During the
course of construction certain changes were made to the engineer's plans in order to create a
more useable development. In particular, a spur road which travels below lots nine and ten was
converted from a simple drive to a cul de sac and driveway turnaround in order to better serve
those lots.
15. In particular, additional culverting had to be placed along the stream in that area
in order to fill this area and create the cul de sac turnaround. Had we ever been told by the
engineer that jurisdictional waters were on the property and that impacts would be strictly
measured by the State and would cost the developer substantial amounts of money for impacts in
excess of 150 linear feet, we would have advised against this and would not have performed this
change beneath lots nine and ten, and thus could have avoided impacts in this area.
16. I have reviewed a copy of the plan prepared by the engineer for the road design
and have marked the areas on such plan where water was observable and free flowing as of the
original site investigation before the permitting and design phases of the Project began. A true
and accurate copy of this map is attached hereto as Exhibit A and is incorporated by reference as
if set forth in full herein.
17. As can be shown on Exhibit A there was substantial amounts of water on the
property when the property was initially investigated by the engineer and me. I assumed, as did
the owner, that the engineer had correctly determined that this water was not an issue from a
permitting standpoint.
18. In addition to the impact costs the developer will have to pay there will be
additional construction costs to undo some of these impacts.
Furthermore Affiant sayeth naught.
Phil Garland
STATE OF NORTH CAROLINA
I,C' &" ,2ma"V,') , a Notary Public for said County and State, do hereby
certify that Phil Garland personally appeared before me this day and acknowledged the due
execution of tl?foregoing instrument.
? - Personally known tome
Produced satisfactory evidence of identity
Driver's License No.
Other
State
Witness my hand and official seal, this the )7 day of March, 2008.
??-? Sign
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Appendix B
(EEP Acceptance Letter)
February 13, 2008
Darlene Flynn
RUKH Asheville Properties
3000 Hadley Road
South Plainfield, NJ 07080
Expiration of Acceptance: August 13, 2008
Project: Chimney Laurel
County: Buncombe
The purpose of this letter is to notify you that the North Carolina Ecosystem Enhancement Program (NCEEP) is willing to
accept payment for impacts associated with the above referenced project. Please note that this decision does not assure that
the payment will be approved by the permit issuing agencies as mitigation for project impacts. It is the responsibility of the
applicant to contact these agencies to determine if payment to the NCEEP will be approved.
This acceptance is valid for six months from the date of this letter and is not transferable. If we have not received a copy of
the issued 404 Permit/401 Certification/CAMA permit within this time frame, this acceptance will expire. It is the
applicant's responsibility to send copies of the permits to NCEEP. Once NCEEP receives a copy of the permit(s) an invoice
will be issued based on the required mitigation in that permit and payment must be made prior to conducting the authorized
work. The amount of the In Lieu Fee to be paid to NCEEP by an applicant is calculated based upon the Fee Schedule and
policies listed at www.nceep.net.
Based on the information supplied by you the impacts that may require compensatory mitigation are summarized in the
following table.
French Broad
06010105 Stream (feet) Wetlands (acres) Buffer I

(Sq. Ft.) Buffer II

(Sq. Ft.)
Cold Cool Warm Riparian Non-Riparian Coastal Marsh
Impacts 300 0 0 0
- 0 0 0 0
Credits 600 Q 0 0 -0 0 Q 0
Upon receipt of payment, EEP will take responsibility for providing the compensatory mitigation. If the regulatory agencies
require mitigation credits greater than indicated above, and the applicant wants NCEEP to be responsible for the additional
mitigation, the applicant will need to submit a mitigation request to NCEEP for approval prior to permit issuance. The
mitigation will be performed in accordance with the Memorandum of Understanding between the N. C. Department of
Environment and Natural Resources and the U. S. Army Corps of Engineers dated November 4, 1998.
If you have any questions or need additional information, please contact Kelly Williams at [phone].
cc: Cyndi Karoly, NCDWQ Wetlands/401 Unit
Lori Beckwith. USACE-Asheville
Linda Wiggs, NCDWQ-Asheville
Rebekah Newton/Celement Riddle, agent
File
Sincerely,
Willi D. Gilmore, PE
Director
R.estoY.., ... Protect Oar State
IV?LJ
MURK
North Carolina Ecosystem Enhancement Program, 1652 Mail Service Center, Raleigh, NC 27699-1652 / 919-715-0476 / www.nceep.net
Appendix C
(Jurisdictional Determination Information)
LEGEND
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DATA FORM
ROUTINE WETLAND DETERMINATION
(1987 COE Wetlands Delineation Manual)
Project/Site: Elk Mountain Project No: 529 Date: 12/18/07
Applicant/Owner: County: Buncombe
Investigators: David Nestor, Rebekah Newton, and State: NC
Scott Taylor
Plot ID: SG and S]
Do Normal Circumstances exist on the site? Yes Community ID:
Is the site significantly disturbed (Atypical Situation:)? No Transect ID:
Is the area a potential Problem Area? No Field Location: Wetland "SG and
SI"
(If needed, explain on the reverse side)
VFC.RTATION
Dominant Plant Species (Latin/Common) Stratum Indicator Plant Species (Latin/Common) Stratum Indicator
Betula alle haniensislyellow birch Tree FACU+ Chelone sp./turtlehead Herb OBL
Lindera benzoin/spicebush Shrub FACW Monarda didyma/scarlet beebalm Herb FAC
Sambucus canadensislelderberry Shrub FACW- Laportea canadensis/wood nettle Herb FACW
Hydrangea radiatelsilverleaf
hydrangea Shrub FACU Leersia lenticularis/catchfly grasss Herb OBI.
Spiraea japonica/Japanese spiraea Herb FACU+ Senecio aureuslgolden ragwort Herb FACW
Percent of Dominant Species that are OBL, FACW or FAC: FAC Neutral %
(excluding FAC- 7/10 = 70% Numeric Index: %
Remarks:
HYDROLOGY
Recorded Data (Describe in Remarks): Wetland Hydrology Indicators
Stream,Lake or Tide Gauge Primary Indicators
Aerial Photographs Inundated
Other x Saturated in Upper 12 Inches
X Water Marks
X No Recorded Data x Drift Lines
X Sediment Deposits
Field Observations x Drainage Patterns in Wetlands
Depth of Surface Water: 0-.5 (in.)> Secondary Indicators (2 or more required):
Depth to Free Water in Pit: 0-10 (in.)> Oxidized Root Channels in Upper 12 Inches
Depth to Saturated Soil: 0-4 (in.)> x Water Stained Leaves
Local Soil Survey Data
x FAC-Neutral Test
Other (Explain in Remarks)
1
DATA FORM
ROUTINE WETLAND DETERMINATION
(1987 COE Wetlands Delineation Manual)
Project/Site: Elk Mountain Project No: 529 Date: 12/18/07
Applicant/Owner: County: Buncombe
Investigators: David Nestor, Rebekah Newton, and State: NC
Scott Taylor
Plot ID: SG and SI
Remarks:
SOILS
Map Unit Name (Series and Phase): Not Available
Map Symbol: N/A Drainage Class: Mapped Hydric Inclusions? No
Taxonomy Not Available Field Observations Confirm Mapped Type? Yes No
(Subgroup):
Profile Description
Depth Horizon Matrix Color Mottle Color Mottle Texture, Concretions,
(Inches) (Munsell Moist) (Munsell Moist) Abundance/Contrast Structure, etc.
0-3 7.5 YR 2.5/2 Loam
3-10 7.5 YR 2.5/1 loam
10+ Bedrock

Hydric soil Indicators
Histosol Concretions
Histic Epipedon High Organic Content in Surface Layer in Sandy Soils
Sulfidic Odor Organic Streaking in Sandy Soils
Aquic Moisture Regime Listed on Local Hydric Soils List
X Reducing Conditions Listed on National Hydric Soils List
x Gleyed or Low Chroma Colors Other: (Explain in Remarks)
Remarks: Mucky seep perched on bedrock .
WETLAND DETERMINATION
Hydrophytic Vegetation Present? Yes Is the Sampling Point within the Wetland? Yes
Wetland Hydrology Present? Yes
H dric Soils Present? Yes
Remarks: This area meets the 1987 Corps of Engineers Wetlands Delineation Manual's criteria for jurisdictional
wetlands.
Explanation for response to: Normal Circumstances? Atypical Situation? Potential Problem Area?
2
DATA FORM
ROUTINE WETLAND DETERMINATION
(1987 COE Wetlands Delineation Manual)
Project/Site: Elk Mountain Project No: 529 Date: 12/18/07
Applicant/Owner: County: Buncombe
Investigators: David Nestor, Rebekah Newton, Scott State: NC
Taylor
Plot ID: U land
Do Normal Circumstances exist on the site? Yes Community ID: Upland
Is the site significantly disturbed (Atypical Situation:)? No Transect ID:
Is the area a potential Problem Area? No Field Location: Entrance sign to
Chimney Laurel
(If needed, explain on the reverse side) I
VEGETATION
Dominant Plant Species (Latin/Common) Stratum Indicator Plant Species (Latin/Common) Stratum Indicator
Pinus strobus/white pine Tree FACU
Acer rubrum/red maple Tree FAC
Liriodendron tulipifera/tulip tree Tree FAC

Percent of Dominant Species that are OBL, FACW or FAC: FAC Neutral %
(excluding FAC- 2/3 = 66.67% Numeric Index: %
Remarks:
HYDROLOGY
Recorded Data (Describe in Remarks):
Stream,Lake or Tide Gauge
Aerial Photographs
Other
x No Recorded Data
Field Observations
Depth of Surface Water: 0 (in.)>
Depth to Free Water in Pit: >12 (in.)>
Depth to Saturated Soil: >12+ (in.)>
Wetland Hydrology Indicators
Primary Indicators
Inundated
Saturated in Upper 12 Inches
Water Marks
Drift Lines
Sediment Deposits
Drainage Patterns in Wetlands
Secondary Indicators (2 or more required):
Oxidized Root Channels in Upper 12 Inches
Water Stained Leaves
Local Soil Survey Data
FAC-Neutral Test
Other (Explain in Remarks)
1
DATA FORM
ROUTINE WETLAND DETERMINATION
(1987 COE Wetlands Delineation Manual)
Project/Site: Elk Mountain Project No: 529 Date: 12/18/07
Applicant/Owner: County: Buncombe
Investigators: David Nestor, Rebekah Newton, Scott State: NC
Taylor
Plot ID: Upland
Remarks:
SOILS
Map Unit Name (Series and Phase): Not Available
Map Symbol: N/A Drainage Class: Mapped Hydric Inclusions? No
Taxonomy Not Available Field Observations Confirm Mapped Type? No
(Subgroup):
Profile Description
Depth Horizon Matrix Color Mottle Color Mottle Texture, Concretions,
(Inches) (Munsell Moist) (Munsell Moist) Abundance/Contrast Structure, etc.
0-.5 leaf liter
.5-5 7.5 YR 3/3 Loam
5-12+ 7.5 YR 4/4 loam

Hydric soil Indicators
Histosol Concretions
Histic Epipedon High Organic Content in Surface Layer in Sandy Soils
Sulfidic Odor Organic Streaking in Sandy Soils
Aquic Moisture Regime Listed on Local Hydric Soils List
Reducing Conditions Listed on National Hydric Soils List
Gleyed or Low Chroma Colors Other: (Explain in Remarks)
Remarks: Soil sample take to the left of stone gate along road behind the entrance sign to Chimney Laurel.
.1
WETLAND DETERMINATION
Hydrophytic Vegetation Present? Yes Is the Sampling Point within the Wetland? No
Wetland Hydrology Present? No
Hydric Soils Present? No
Remarks:
Explanation for response to: Normal Circumstances? Atypical Situation? Potential Problem Area?
2
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: Buncombe City: Asheville
Center coordinates of site (lat/long in degree decimal format): Lat. 35.666316° N. Long. -82.491273° W.
Universal Transverse Mercator:
Name of nearest waterbody: Ox Creek
Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: French Broad River
Name of watershed or Hydrologic Unit Code (HUC): Upper French Broad 06010105
® 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:
? Field Determination. Date(s):
SECTION II: SUMMARY OF FINDINGS
A. RHA SECTION 10 DETERMINATION OF JURISDICTION.
There Pick List "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 Pick List "waters of the US." 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): t
? TN Ws, including territorial seas
? Wetlands adjacent to TNWs
® Relatively permanent waters2 (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: 850 linear feet: 3 width (ft) and/or .059 acres.
Wetlands:.012 acres.
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:
' 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).
' 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.I 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.I.; 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 HI.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 waterbodya 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 ID.B.I 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 HI.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 TN W.
Project waters are Pick List aerial (straight) miles from RPW.
Project waters cross or serve as state boundaries. Explain:
Identify flow route to TNWS:
Tributary stream order, if known:
Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the arid
West.
' 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: 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, sloughing banks]. Explain:
Presence of run/riffle/pool complexes. Explain:
Tributary geometry: Pick List
Tributary gradient (approximate average slope): %
(c) Flow:
Tributary provides 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
? OHWM6 (check all indicators that apply):
? clear, natural line impressed on the bank ?
? changes in the character of soil ?
? shelving ?
? vegetation matted down, bent, or absent ?
? leaf litter disturbed or washed away ?
? sediment deposition ?
? water staining ?
? other (list):
El Discontinuous OHWM.' Explain:
the presence of litter and debris
destruction of terrestrial vegetation
the presence of wrack line
sediment sorting
scour
multiple observed or predicted flow events
abrupt change in plant community
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) 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:
'A 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: 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 (Relationship) 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 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 abuts? (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 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 TN W?
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):
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 ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that
tributary is perennial: OHWM, macroin vertebrates.
? 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: 850 linear feet 3 width (ft).
? Other non-wetland waters: acres.
Identify type(s) of waters:
3. Non-RPWs8 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 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 flow directly into or out of their associated channel.
? 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:.012 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.
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:
'See Footnote # 3.
To complete the analysis refer to the key in Section IIl.D.6 of the Instructional Guidebook.
'0 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:
? 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:
? 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:l :24,000 Craggy Pinnacle.
? 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 Floodplain 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/supporting case law:
? Applicable/supporting scientific literature:
? Other information (please specify):
B. ADDITIONAL COMMENTS TO SUPPORT JD: This form applicable to channels SF, SH, and RE and wetlands SG and Sl.
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: Buncombe City: Asheville
Center coordinates of site (lat/long in degree decimal format): Lat. 35.666316° N. Long. -82.491273° W.
Universal Transverse Mercator:
Name of nearest waterbody: Ox Creek
Name of nearest Traditional Navigable Water (TN W) Into which the aquatic resource flows: French Broad River
Name of watershed or Hydrologic Unit Code (HUC): Upper French Broad 06010105
® 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:
? Field Determination. Date(s):
SECTION II: SUMMARY OF FINDINGS
A. RHA SECTION 10 DETERMINATION OF JURISDICTION.
There Pick List "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 Pick List "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): t
? TNWs, including territorial seas
? Wetlands adjacent to TNWs
® Relatively permanent waters2 (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 TN Ws
? 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: 1800 linear feet: 4width (ft) and/or .17 acres.
Wetlands:.005 acres.
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:
' Boxes checked below shall be supported by completing the appropriate sections in Section 111 below.
' 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 111.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.AA and 2
and Section IH.D.I.; otherwise, see Section HLB below.
1. TNW
Identify TNW: French Broad River.
Summarize rationale supporting determination: Very large watershed which encompasses Asheville.
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 IH.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 waterbody4 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 HI.B.1 for
the tributary, Section I LB.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: 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 TN W.
Project waters are Pick List 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 arid
West.
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: 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, sloughing banks]. Explain:
Presence of run/riffle/pool complexes. Explain:
Tributary geometry: Pick List
Tributary gradient (approximate average slope): %
(c) Flow:
Tributary provides 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
? OHWM6 (check all indicators that apply):
? clear, natural line impressed on the bank ?
? changes in the character of soil ?
? shelving ?
? vegetation matted down, bent, or absent ?
? leaf litter disturbed or washed away ?
? sediment deposition ?
? water staining ?
? other (list):
? Discontinuous OHWM.' Explain:
the presence of litter and debris
destruction of terrestrial vegetation
the presence of wrack line
sediment sorting
scour
multiple observed or predicted flow events
abrupt change in plant community
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) 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:
'A 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.
7 bid.
(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 (Relationship) 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 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 abuts? (Y/N) Size (in acres) Directly abuts? (YIN) 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 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):
TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area:
? TNWs: linear feet width (h), Or, acres.
? Wetlands adjacent to TNWs: acres.
2. RPWs that flow directly or indirectly into TNWs.
® Tributaries of TN Ws where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that
tributary is perennial: OHWM, macroin vertebrates.
? Tributaries of TN W where tributaries have continuous flow "seasonally'- (e.g., typically three months each year) are
jurisdictional. Data supporting this conclusion is provided at Section 111.13. Provide rationale indicating that tributary flows
seasonally:
Provide estimates for jurisdictional waters in the review area (check all that apply):
® Tributary waters: 1800 linear feet 4 width (ft).
? Other non-wetland waters: acres.
Identify type(s) of waters:
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
TN W 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 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 flow into or out of their associated channel.
? 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:.005 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 TN W 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:
"See Footnote # 3.
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:
? 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:
? 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 Craggy Pinnacle.
? 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 Floodplain 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/supporting case law:
? Applicable/supporting scientific literature:
? Other information (please specify):
B. ADDITIONAL COMMENTS TO SUPPORT JD: This form applicable to channels SA. SB, SC, SD, RB, RC and RD and wetland RA.