APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army C01 … · U.S. Army C01·ps of Engineers ....

APPROVED JURISDICTIONAL DETERMINATION FORM US Army C01middotps of Engineers

This form should be completed by following the instructions provided in Section IV of the JD Fotm Instructional Guidebook

SECTION 1 BACKGROUND INFORl1ATION A REPORT COMPLETION DATE FOR APPROVED J URISDICTIONAL DETERMINATION (JD) 5 July 2012 signed by Lee A Pittman Regulatotmiddoty Proj ect Manager

B DISTRICT OFFICE FILE NAME AND NUMBER Huntington Dishict Egypt Valley Stone S hugert Mine IM-2299 LRHshy2007-46-TUS-Isolated Wetlands WLB to WLI Isolated Open Waters WI-2 amp WI-3

C PROJECT LOCATION AND BACKGROUND INFORMATION State Ohio Cotmtyparishlborough Belmont City Morristown Center coordinates ofsite (atlong in degree decimal format) Lat 400743deg N Long 811199deg iWi

Universal Transverse Mercator Name ofnearest waterbody Stillwater Creek

Name ofnearest Traditional Navigable Water (lNW) into which the aquatic resource flows Tappan Lake Name ofwatershed or Hydrologic Unit Code (HUC) 05040001 ~ Check ifmapdiagram ofreview area andor potential jurisdictional areas isare available upon request 0 Check ifother sites (eg offsite mitigation sites disposal sites etc ) are associated with this action and are recorded on a

different JD fonn

D REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY) ~ Office (Desk) Detennination Date 8 Jun 2012 D Field Detennination Date(s)

SECTION II SUMMARY OF FINDINGS A RHA SECTION 10 DETERMINATION OF JURISDICTION

There Are no navigable waters ofthe US within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CPR patt 329) in the review area [Required]

0 Waters subject to the ebb and flow ofthe tide D Waters are presently used or have been used in the past or may be susceptible for use to transpott interstate or foreign commerce

Explain

B CWA SECTION 404 DETERMINATION OF JURISDICTION

There rAre no waters ofthe US within Clean Water Act (CWA) jurisdiction (as defined by 33 CPR patt 328) in the review rumiddotea [Required]

1 Waters of the US a Indicate presence of water s of US in tbulleview atmiddotea (check all that apply) 1

D lNWs including tenmiddotitorial seas D Wetlands adjacent to TNWs D Relatively permatlent waters2 (RPWs) that flow directly or indirectly into lNWs D Non-RPWs that flow directly or indirectly into lNWs D Wetlands directly abutting RPWs that flow directly or indirectly into lNWs D Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into lNWs D Wetlands adjacent to non-RPWs that flow directly or indirectly into lNWs D Impoundments ofjurisdictional waters D Isolated (interstate or intrastate) waters including isolated wetlands

b Identify (estimate) size of waters of the US in the review area Non-wetland waters linear feet width (ft) atldlor acres Wetlands acres

c Limits (boundaties) of julisdiction based on Pick Lis Elevation of established OHWM (if known)

2 Non-regulated waterswetlands (check if applicable)3

1 Boxes checked below shall be supported by completing the appropriate sections in Section ill below 2 For purposes of this form an RPW is defined as a tributaty that is not a TNW and that typically flows year-round or has continuous flow at least seasonally (eg typically 3 months) 3 Supporting documentation is presented in Section illF

I8Jl Potentially jurisdictional waters andor wetlands were assessed within the review area and detennined to be not jurisdictional Explain Eight isolated wetlands (Wetlands WLB (0022 ac) WLC (0005 ac) WLD (0473 ac) WLE (0009 ac) WLF (0009 ac) WLG (001 ac) WLH (0136 ac) and WLI (0081 ac) total 0746 ac) as well as two isolated open waters (WIshy2 (0028 ac) and Wl-3 (006 ac) total 0088 ac) are completely sunounded by uplands with no surface water connection to a water of the US and no nexus to interstate or foreign commerce The land sunounding these wate1middots is privately owned and consists of previously surface-mined area These waters do not have a distinct surface connection to a water of the US The closest jurisdictional wate1middot is Stillw ater Cr eek ranging in distance f1middotom approximately 1100 to 2000 The waters would not suppo1middott inte1middotstate or fo1middoteign commerce interests nor do they contain any rare or endanger ed species

SECTION III CWA ANALYSIS

A TNWs AND WETLANDS ADJACENT TO TNW s

The agencies will assert jmmiddotisdiction ove1middot TNW s and wetlands adjacent to TNWs If the aquatic 1middotesource is a INV complete Section IIIAl and Section IIIDl only if the aquatic resource is a wetland adjacent to a Th~V complete Sections IIIAl and 2 and Section IIIDl otherwise see Section IIIB below

1 TNW Identify TNW

Smrunarize rationale supporting determination

2 Wetland adjacent to TNW Smrunarize rationale supporting conclusion that wetland is adjacent

B CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A T NW) AND ITS ADJACENT WETLANDS (IF ANY)

This section summalizes info1middotmation rega1middotding cha1middotacte1istics of the tributary and its adjacent wetlands if any and it helps determine whether 01 not the standards for jurisdiction established under R1pwos have been met

The agencies will assert jurisdiction over non-navigable tributa1middoties of Th~Vs where the tributa1ies are relatively permanent waters (RPVVs) ie hibutaries that typically flow yea1middot-round or have continuous flow at least seasonally (eg typically 3 months) A wetland that directly abuts an RPVV is also ju1isdictional If the aquatic 1middotesource is not a T NW but has yea1middot-round (perennial) flow skip to Section IIID2 If the aquatic resource is a wetland directly abutting a hibutary with perennial flow skip to Section IIID4

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 1middoteco1middotd any available information that documents the existence of a significant nexus between a relatively pe1middotmanent tributa1middoty 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 wate1middotbody4 is not an RPW or a wetland directly abutting an RPW a JD will1middotequire additional data to detellnine if the waterbody has a significant nexus with a Th~V If the hibutary has adjacent wetlands the significant nexus evaluation must consider the tlbullibutary in combination with all of its adjacent wetlands This significant nexus evaluation that combines fo1middot analytical pmmiddotposes the tributary and all of its adjacent wetlands is used whethe1middot the 1middoteview area identified in the JD 1middotequest is the hibuta1-y or its adjacentwetlands 01 both If the JD covers a t1bullibuta1middoty with adjacent wetlands complete Section IIIBl for the hibuta1-y Section IIIB2 fo1middot any onsite wetlands and Section IIIB3 for all wetlands adjacent to that hibuta1-y both onsite and offsite The determination whether a significant nexus exists is determined in Section IIIC below

1 C haracte1middotistics ofnon-TNVVs that flow directly or indirectly into TNW

(i)

Drainage area Average ammalrainfall inches Average atumal snowfall inches

(ii)

Project waters are Pick Lis river miles from TNW Project waters are Pick Lis river miles from RPW Project waters are Pick Lis aerial (straight) miles fimiddotom TNW Project waters are Pick Lis aerial (straight) miles fimiddotom RPW Project waters cross or serve as state botmdaries Explain

Identify flow route to TNW5

Tributary stream order ifknown

4 Note that the Instructional Guidebook contains additional information regarding swales ditches washes and erosional features generally and in the arid West 5 Flow route can be described by identifying eg tributary a which flows through the review area to flow into tributary b which then flows into TNW

(b) General Tributaty Characteristics (check all that apoly) Tributa1middoty is D Natural

D Artificial (man-made) Explain D Manipulated (man-altered) Explain

Tributary properties with respect to top ofbank (estimate) Average width feet Average depth feet Average side slopes Pick List

Primary tributary substrate composition (check all that apply) D Silts D Sands D Concrete D Cobbles D Gravel 0 Muck D Bedrock D Vegetation Type cover D Other Explain

Tributary conditionstability [e g highly eroding sloughing banks] Explain Presence ofnmriffielpool complexes Explain Tributary geometry P i ck Lis Tributary gradient (approximate average slope)

(c) Flow Tributary provides for Pick Lis Estimate average number of flow events in review areayear Pick List

Describe flow regime Other information on dmmiddotation and volume

Tributary has (check all that apply) D Bed and banks D OHWM6 (check all indicators that apply)

D clear natural line impressed on the bank D the presence oflitte~middot and debris D changes in the character ofsoil D destruction ofterrestrial vegetation D shelving D the presence ofwrack line D vegetation matted down bent or absent D sediment sorting D leaf litter disturbed or washed away D scour D sediment deposition D multiple observed or predicted flow events D water staining D abrupt change in plant conununity D other (list)

D Discontinuous OHWM Explain

If factors othe~middot than the OHWM we~middote used to detennine lateral extent of CWA jurisdiction (check all that apply) D High Tide Line indicated by D Mean High Water Mark indicated by

D oil or sctun line along shore objects D survey to available datum D fine shell or debris deposits (foreshore) D physical markings D physical markingscharacteristics D vegetation lineschanges in vegetation types D tidal gauges D other (list)

(iii) C hemical C haracte1istics Characterize tributary (eg water color is clear discolored oily film wate~middot quality general watershed characteristics etc)

Explain Identify specific pollutants if known

6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (eg 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 waterbodys flow regime (eg flow over a rock outcrop or through a culvert) the agencies will look for indicators of flow above and below the break 7lbid

(b)

(iv) Biological Characteristics C h a nnel supports (c h eck all that apply) D Riparian corridor Characteristics (type average width) D Wetland fringe Characteristics D Habitat for

D Federally Listed species Explain findings D Fishspawn areas Explain findings D Other environmentally-sensitive species Explain findings D Aquaticwildlife diversity Explain findings

2 C h ar act e1middotis tics ofwetlands adjacent to non-TNW that flow dilmiddotectly o1middot m directly into TNVV

(i) Physical Ch an cteristics (a) General Wetland Characteristics

Properties Wetland s ize acres Wetland type Explain Wetland quality Explain

Project wetlands cross or serve as state botmdaries Explain

Surface flow is Pick Lis Characteristics

(c) Wetland Adjacency Determination with Non-1NW D Directly abutting D Not directly abutting

D Dis crete wetland hydrologic cotmection Explain D Ecological cotmection Explain D Separated by bennbanier Explain

(d) Project wetlands are Pick Lis river miles from 1NW Project waters are P i ck Lis aerial (straight) miles fimiddotom 1NW Flow is fimiddotom Pick Lis t Estimate approximate locat ion ofwetland as within the P i ck L is floodplain

(ii) C h emica l C haracte1istics Characte1ize wetland system (eg water color is clear brown oil film on stuface water quality general watershed

characteristics etc) Explain Identify specific pollutants if known

(iii) Biological C han ctelistics W etla nd suppo11s (check a ll that apply)D Riparian buffer Characteristics (type average width) D Vegetation typepercent cover ExplainD Habitat for


3 C h ar act e1middotis tics of all w etlands a dj acent to the hibutary (if an~) All wetland(s) being considered in the cumulative analysis ck Lis Approximately ( ) acres in total are being considered in the cumulative analysis

For each wetland specify the follow-ing

Directly abuts (YIN) Size (in acres) Directly abuts (YIN) Size (in acres)

Smrunarize overall biological chemical and physical functions being perfotmed

C SIGNIFICANT NEXUS DETERi HNATION

A significant nexus analysis will assess the flow cha1middotacteristics and functions of the tributary itself and the functions pelformed by any wetlands adjacent to the tributa1middoty to determine if they significantly affect the chemical physical and biological integlity of a TNW For each of the following situations a significant nexus exists if the hibuta1-y in combination with all of its adjacent wetlands has more than a speculative Ol insubstantial effect on the chemical physical ando1middot biological integrity of a TNW Considerations when evaluating significant nexus include but a1middote not limited to the volume duration and flequency of the flow of water in the tributa1middoty and its proximity to a TNW and the functions performed by the hibuta1-y and all its adjacent wetlands It is not approp1middotiate to dete1middotmine s ignificant nexus based solely on any s pecific th1middoteshold of distance (eg betw een a flbullibutaiY and its adjacentwetland or between a flbullibutaiY and the TNW) Similarly the fa ct an adjacentwetland lies within or outside of a floodplain is not solely determinative ofsignificant nexus

Draw connections between the featmmiddotes documented and the effects on the T NVV as identified in the Rapanos Guidance and discussed in the Instlmiddotuctional Guidebook Facto1middots to consider include for example bull Does the tributary in combination with its adj acent wetlands (ifany) have the capacity to carry pollutants or flood waters to

TNWs or to reduce the amount ofpollutants or flood waters reaching a TNW bull Does the tributary in combination with its adj acent wetlands (ifany) provide habitat and lifecycle supp01t functions for fish and

other species such as feeding nesting spawning or rearing young for species that are present in the TNW bull Does the tributary in combination with its adj acent wetlands (ifany) have the capacity to transfer nutrients and organic carbon that

support downstream foodwebs bull Does the tributary in combination with its adj acent wetlands (ifany) have other relationships to the physical chemical or

biological integrity ofthe 1NW

Note the above list of considerations is not inclusive and other fun ctions obser ved or known to occu1middot should be documented below

1 Significant nexus findings for non-RPVV that has no adjacent wetlands and flows directly Ol indirectly into TNVVs Explain findings ofpresence or absence ofsignificant nexus below based on the tributary itself then go to Section mD

2 Significant nexus findings for non-RPVV and its adjacent wetlands where the non-RPW flows directly Ol indirectly into TNVVs Explain findings ofpresence or absence ofsignificant nexus below based on the tributary in combination with all ofits adj acent wetlands then go to Section IIID

3 Significant nexus findings for wetlands adjacent to an RPW but that do not dilmiddotectly abut the RPVV Explain findings of presence or absence ofsignificant nexus below based on the tributaty in combination with all of its adjacent wetlands then go to Section IIID

D DETERi H NATIONS OF JURISDICTIONAL FINDINGS THE SUBJECT WATERSWETLANDS ARE (CHECK ALL THAT APPLY)

1

B TNVVs and Adjacent Vetlands Check all that apply and provide size estianates in review area

TNWs linear feet width (ft) Or acres Wetlands adjacent to TNWs acres

2 RPWs that flow directly or indirectly into T NWs D Tributaries ofTNW s where tributaries typically flow year-round are jurisdictional Provide data and rationale indicating that

tributary is perennial D Tributaries ofTNW where tributaries have continuous flow seasonally (eg typically three months each year) are

jurisdictional Data supporting this conclusion is provided at Section IIIB Provide rationale indicating that tributaty flows seasonally

Provide estimates for jurisdictional waters in the review area (check all that apply) D Tributa1y waters linear feet width (ft) D Other non-wetland waters acres

Identify types) ofwaters

3 Non-RPWs8 that flow directly or indirectly into INVsD 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 illC

BProvide estimates for jtuisdictional waters within the review area (check all that apply)

Tributa1y waters linear feet width (ft) Other non-wetland waters acres


4 Wetlands directly abutting an RPW that flow dilmiddotectly o1middot indirectly into TNWs D Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands

D Wetlands directly abutting an RPW where tributaties typically flow year-round Provide data and rationale indicating that tributa1y is perennial in Section IIID2 above Provide rationale indicating that wetland is directly abutting an RPW

D Wetlands directly abutting an RPW where tributaties typically flow seasonally Provide data indicating that tiibutaiy is seasonal in Section IIIB and rationale in Section mD2 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 D Wetlands that do not directly abut an RPW but when considered in combination with the tributaty to which they are adjacent

and with similarly situated adjacent wetlands have a significant nexus with a TNW are jtuisidictional Data supporting this conclusion is provided at Section illC


6 Wetlands adjacent to non-RPWs that flow directly o1middot indilmiddotectly into TNWsD 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 illC

Provide estimates for jtuisdictional wetlands in the review area acres

7 Impoundments of jurisdictional waters9

As a general rule the impoundment ofa jmisdictional tributary remains jurisdictional Demonstimiddotate that impotmdment was created fimiddotom waters ofthe US or Demonstimiddotate that water meets the criteria for one ofthe categories presented above (1 -6) or Demonstimiddotate that water is isolated with a nexus to co=erce (see E below) ~

E ISOLATED [INTERSTATE OR INTRA-STATE) WATERS INCLUDING ISOLATED WETLAl1JgtS THE USE DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE INCLUDING ANY

D D D D

SUCH WATERS (CHECK ALL THAT APPLY)10

D which are or could be used by interstate or foreign travelers for recreational or other ptuposes fimiddotom which fish or shellfish are or could be taken and sold in interstate or foreign conunerce which are or could be used for industrial ptuposes by industties in interstate co=erce Interstate isolated waters Explain Other factors Explain

Identify water body and s ummarize rationale s uppo1middotting determination

8See Footnote 3 9 To complete the analysis refer to the key in Section IIID6 of the Instructional Guidebook 10 Prior to asse1middotting o1middot declining CWA jurisdiction based solely on this category Corps Districts wiU elevate the action to Corps and EPA HQ for review con sistent with the process described in the Corp sEP A Memorandum Regarding CWA Act Juris dictim1 F ollowigR apa11os

Provide estimates for jmisdictional waters in the review area (check all that apply) D Tributaty waters linear feet width (ft)D Other non-wetland waters acres

Identify types) ofwaters D Wetlands acres

F NO N-JURISDIC TIONAL WATERS INCL UDING WETLANDS (CHECK ALL THAT APPLY)D Ifpotential wetlands were assessed within the review area these areas did not meet the crite~ia in the 1987 Corps ofEngineers

Wetland Delineation Manual andor appropriate Regional Supplements J8J Review area included isolated waters with no substantial nexus to interstate (or foreign) connnerce

I8J Ptior to the Jan 2001 Supreme Comt decision in SWANCC the review area would have been regulated based solely on the

BMigrat01y Bird Rule (MBR)

Waters do not meet the Significant Nexus standard whe~middote such a finding is required for jmisdiction Explain Other (explain ifnot covered above)

Provide acreage estimates for non-jmisdictional waters in the review area where the sole potential basis ofjurisdiction is the MBR factors (ie prese~1ce ofmigrat01y birds presence ofendange~middoted species use ofwater for irrigated agriculture) using best professional

~ judgment (check all that apply)

Non-wetland waters (ie tivers streams) linear feet width (ft) Lakesponds 0088 acres Other non-wetland waters acres List type ofaquatic resommiddotce Wetlands 0746 acres

Provide acreage estimates for non-jmisdictional waters in the review area that do not meet the Significant Nexus standard whe~middote such a finding is required for jmisdiction (check all that apply) D Non-wetland waters (ie tivers streams) linear feet width (ft) D D D

Lakesponds acres Other non-wetland waters acres List type ofaquatic resource Wetlands acres

SECTION I V DATA SOUR CES

A SUPPORTING DATA Data reviewed fotmiddot JD (check all that apply- checked iteins shall be included in case file and where checked and requested approptiately reference sources below) ~ Maps plans plots or plat submitted by or on behalf ofthe applicantconsultant Wetland and Stream Delineation Report by Banmiddot Goodie amp Associates Inc dated Febrmuy 2012 J8J Data sheets preparedsubmitted by or on behalf ofthe applicantconsultant

I8J Office concmmiddots with data sheetsdelineation report D Office does not concur with data sheetsdelineation report Data sheets prepared by the Cotps Corps navigable waters study US Geological Survey Hydrologic Atlas 0 USGS NHD data D USGS 8 and 12 digit HUC maps US Geological Survey map(s) Cite scale amp quad name 75 Mllmte Bethesda Ohio USDA Natural Resources Conse~vation Setvice Soil Smvey Citation National wetlands inveiltOiy map(s) Cite name Bethesda Ohio StateLocal wetland invent01y map(s) FEMAIFIRM maps Panel39013C0175E 100-year Floodplain Elevation is (National Geodectic Vertical Datum of 1929) Photographs J8J Aetial (Name amp Date) Bethesda Ohio 1994200420052006 2009 amp 2011

or D Other (Name amp Date) Previous determination(s) File no and date ofresponse letter LRH-2007-46-TUS 9 April2007 amp 3 Nov 2010 on adjacent areas Applicablesupporting case law Applicablesupporting scientific literature Other information (please specify)

B ADDITIONAL COMMENTS TO SUPPORT JD The land surroundn1g these waters is ptivately owned and consists ofpreviously smface-mined area These waters do not have a distinct surface connection to a water ofthe US The closest jmmiddotisdictional water is

Stillwater Creek ranging in distance from approximately 1100 to 2000 The waters would not support interstate or foreign commerce

interests nor do they contain any rare or endangered species

Coordination in accordance with Rapanos guidance initiated 8 Jun 2012 (transmitted to US EPA Region 5 amp Corps HQ) no response or

request for additional information received by 29 Jun 2012 therefore assuming concurrence with above determination

I8Jl Potentially jurisdictional waters andor wetlands were assessed within the review area and detennined to be not jurisdictional Explain Eight isolated wetlands (Wetlands WLB (0022 ac) WLC (0005 ac) WLD (0473 ac) WLE (0009 ac) WLF (0009 ac) WLG (001 ac) WLH (0136 ac) and WLI (0081 ac) total 0746 ac) as well as two isolated open waters (WIshy2 (0028 ac) and Wl-3 (006 ac) total 0088 ac) are completely sunounded by uplands with no surface water connection to a water of the US and no nexus to interstate or foreign commerce The land sunounding these wate1middots is privately owned and consists of previously surface-mined area These waters do not have a distinct surface connection to a water of the US The closest jurisdictional wate1middot is Stillw ater Cr eek ranging in distance f1middotom approximately 1100 to 2000 The waters would not suppo1middott inte1middotstate or fo1middoteign commerce interests nor do they contain any rare or endanger ed species




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APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army C01 … · U.S. Army C01·ps of Engineers ....

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Transcript of APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army C01 … · U.S. Army C01·ps of Engineers ....