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APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps ofEngineers

This form should be completed by following the instructions provided in Section N of the JD Form Instructional Guidebook.

SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): December 15,2014

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESA W-RG-A, 2014-01983, Hiwassee River Watershed Coalition, Inc./ Attn.: Callie Moore

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Cherokee City: Marble Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.15514 N, 83.957265 W Universal Transverse Mercator: Name of nearest waterbody: Dick Branch, Cindy Branch, & Morgan Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Valley River Name ofwatcrshed or Hydrologic Unit Code (HUC): Hiwassee (06020002) ~. Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. D. 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): !2l Office (Desk) Determination. Date: December 15, 2014 0 Field Determination. Date(s):

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

There &eiJq "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

0 Waters subject to the ebb and flow of the tide. 0 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 4i'~ "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): 1

0 TNWs, including territorial seas 0 Wetlands adjacent to TNWs [8l Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [J Non-RPWs that flow directly or indirectly into TNWs 1%1. Wetlands directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 0 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: 1,300 linear feet: 8-15 width (ft) and/or acres. Wetlands: 0.07 acres.

c. Limits (boundaries) of jurisdiction based on: i987l>ejjii~~tionl».anu~l Elevation of established OHWM (if known):

2. Non-regulated waters/wetlands (check if applicable): 3

[] Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

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

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.l and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below.

1. TNW IdentifY 1NW: Summarize rationale supporting determination:

2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent":

B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY):

This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met.

The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4.

A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law.

If the waterbodl 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 Ill.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.

1. Characteristics of non-TNW s that flow directly or indirectly into TNW

(i)

(ii)

General Area Conditions: Watershed size: ,.f:~e~ Jii~~ Drainage area: :f!C.:~,!->1~ Average annual rainfall: inches Average annual snowfall: inches

Physical Characteristics: (a) Relationship with 1NW:

D Tributary flows directly i11to Tl"fW. D Tributary flows through ~~~;Ic~i§J) tributaries before entering 1NW.

Project waters are Pick:'t:!St river miles from 1NW. Project waters are }-j~~~~ river miles from RPW. Project waters are 'PicJ<p~t aerial (straight) miles from 1NW. Project waters are 'P~~~ljst, aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

IdentifY flow route to 1NW5:

Tributary stream order, if known:

(b) General Tributary Characteristics (check all that apply): Tributary is: D Natural

D Artificial (man-made). Explain:

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

D Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: Pic({qst.

Primary tributary substrate composition (check all that apply): D Silts D Sands D Cobbles D Gravel D Bedrock D Vegetation. Type/% cover: D Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: :f~~({;j:,i~~ Tributary gradient (approximate average slope): %

(c) Flow:

D Concrete 0Muck

Explain:

Tributary provides for: ¥ick;t.~t Estimate average numberofflow events in review area/year: :ffc!iL!st

Describe flow regime: Other information on duration and volume:

Surface flow is: l'it:~List. Characteristics:

Subsurface flow: P:ickList. Explain findings: D Dye (or other) test performed:

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 oflitter and debris D changes in the character of soil D destruction of terrestrial vegetation D shelving D the presence of wrack 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 community D other (list):

D Discontinuous OHWM.7 Explain:

If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): 0 High Tide Line indicated by: 0 Mean HighWater Mark indicated by:

D oil or scum line along shore objects D survey to available datum; D fine shell or debris deposits (foreshore) D physical markings; D physical markings/characteristics D vegetation lines/changes in vegetation types. D tidal gauges D 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:

(iv) Biological Characteristics. Channel supports (check all that apply): D Riparian corridor. Characteristics (type, average width): D Wetland fringe. Characteristics: D Habitat for:

D Federally Listed species. Explain findings: D Fish/spawn areas. Explain fmdings: D Other environmentally-sensitive species. Explain findings:

6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Wbere there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7Ibid.

0 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 J'lo~ Relationship with Non-TNW: Flow is: ifjf)f,B:i~. Explain:

Surface flow is: pjd{j;i~~ Characteristics:

Subsurface flow: P~~L~~- Explain fmdings: 0 Dye (or other) test performed:

(c) Wetland Adjacency Determination with Non-TNW: 0 Directly abutting 0 Not directly abutting

0 Discrete wetland hydrologic connection. Explain: 0 Ecological connection. Explain: 0 Separated by berm/barrier. Explain:

(d) Proximity (Relationship} to TNW Project wetlands are fklt (iis. river miles from TNW. Project watersare Pici{~~~ aerial (straight) miles from TNW. Flow is from: Pltk LiSt. Estimate appr~xin:{~te location of wetland as within the J>~~l(J_,~~ 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): 0 Riparian buffer. Characteristics (type, average width): 0 Vegetation type/percent cover. Explain: 0 Habitat for:

0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings: 0 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;I,~! Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specifY the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN)

Summarize overall biological, chemical and physical functions being performed:

C. SIGNIFICANT NEXUS DETERMINATION

Size (in acres)

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 ofthe flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus.

Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and discussed in the Instructional Guidebook. Factors to consider include, for example: • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to TNWs, or to

reduce the amount of pollutants or flood waters reaching a TNW? • Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and other

species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW? • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that

support downstream foodwebs? • Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or biological

integrity of the TNW?

Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented below:

1. Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary itself, then go to Section III.D:

2. Significant nexus findings for non-RPW and its adjacent wetlands, where the non-RPW flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section III.D:

3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section III.D:

D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL THAT APPLY):

1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: [] TNWs: linear feet width (ft), Or, acres. []Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. [8] Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is pereunial: Dick Branch, Cindy Branch, & Morgan Creek exhibits indicators of ordinary high water marks (OHWM) including developed bed and bank, scour, presence of aquatic life, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaf litter washed away. Dick Branch, Cindy Branch, & Morgan Creek is depicted as a solid blue line on the USGS 7.5 minute quadrangle map Marble and the most current Natural Resource Conservation Service Soil Survey for Cherokee County. Solid blue line features on these mapping conventions typically represent perennial streams. Perennial flow has been observed by Corps representatives during numerous visits to the Marble, North Carolina vicinity.

[!3 Tributaries ofTNW 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): 181 Tributary waters: 1,300 linear feet 8-15 width (ft). [Q 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): EJ Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.


4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs.

8See Footnote # 3.

J8l 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: Flow to associated stream.

l§il Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW:

Provide acreage estimates for jurisdictional wetlands in the review area: 0.07 acres.

5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. II) 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 Ill. 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. 0 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 Ill. 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

EJ which are or could be used by interstate or foreign travelers for recreational or other purposes. EJ from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. t] which are or could be used for industrial purposes by industries in interstate commerce. [J Interstate isolated waters. Explain: 0 Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): [] Tributary waters: linear feet width (ft). [] Other non-wetland waters: acres.

Identify type(s) of waters: ffii Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): gj 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. [3 Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.

0 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).

IJJ Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: D 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.

9 To complete the analysis refer to the key in Section IILD.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.

0 Other non-wetland waters: acres. List type of aquatic resource: D 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): D Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). [] Lakes/ponds: acres. [J Other non-wetland waters: acres. List type of aquatic resource: 0 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: t8l Data sheets prepared/submitted by or on behalf of the applicant/consultant.

[gJ Office concurs with data sheets/delineation report. 0 Office does not concur with data sheets/delineation report.

D Data sheets prepared by the Corps: 0 Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:

D USGS NHD data. D USGS 8 and 12 digit HUC maps.

121 U.S. Geological Survey map(s). Cite scale & quad name: Marble. £81 USDA Natural Resources Conservation Service Soil Survey. Citation: Cherokee County, NC 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: 0 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: D Aerial (Name & Date):

or D Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: 0 Applicable/supporting case law: 0 Applicable/supporting scientific literature: 0 Other information (please specifY):

B. ADDITIONAL COMMENTS TO SUPPORT JD:

APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers

This form should be completed by following the instructions provided in Section N of the JD Form Instructional Guidebook.

SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): December 8, 2014

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-01985, Marshall Barlowe

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Caldwell City: Lenoir Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.885336 N, -81.583597 W Universal Transverse Mercator: Name of nearest waterbody: Abingdon Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Catawba River Name of watershed or Hydrologic Unit Code (HUC): Catawba /03050101 IE} 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): IEJ Office (Desk) Determination. Date: 12-8-2014 [] Field Determination. Date(s):


There ,ij'e:~~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

Q Waters subject to the ebb and flow of the tide. [] Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Explain:


There Are "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFRpart 328) in the review area. [Required]


0 TNW s, including territorial seas 0 Wetlands adjacent to TNWs l2J Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [] Non-RPWs that flow directly or indirectly into TNWs E1 Wetlands directly abutting RPWs that flow directly or indirectly into TNWs LJ 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 [J Impoundments of jurisdictional waters EJ 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: 700 linear feet: 22 width (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: Est;.illishedbyQII:WM~ Elevation of established OHWM (if known):

2. Non-regulated waters/wetlands (check if applicable):3





1. TNW IdentifY TNW: Summarize rationale supporting determination:




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. Ifthe aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4.


Ifthe waterbodl 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. Ifthe tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i)

(ii)

General Area Conditions: Watershed size: :PitkList Drainage area: i.~ick.. ~i~( Average annual rainfall: inches Average annual snowfall: inches

Physical Characteristics: (a) Relationship with TNW:

D Tributary flows directly into TNW. D Tributary flows through ~~.~"-~!¥t tributaries before entering TNW.

Project waters are )'ic~):,)s~ river miles from TNW. Project waters are J>ic~il:;i~ river miles from RPW. Project waters are [Pi~~;l.;ist aerial (straight) miles from TNW. Project waters are rmt~>;(;~~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

IdentifY flow route to TNW5:


(b) General Tributarv Characteristics (check all that apply): Tributary is: D Natural

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

4 Note that the Instructional Guidebook contains additional infom1ation regarding swales, ditches, washes, and erosional features generally and in the arid West. 5 Flow route can be described by identifYing, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW.

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: Pi~kLis.t.

Primary tributary substrate composition (check all that apply): D Silts D Sands 0 Cobbles 0 Gravel 0 Bedrock D Vegetation. Type/% cover: 0 Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: Pi(:{c:[:.il:lt Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: rick. LiSt

D Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: ~il)~~is~ Describe flow regime:

Other information on duration and volume:

Surface flow is: ):>i.ckList. Characteristics:

Subsurface flow: £it:k List. Explain findings: 0 Dye (or other) test performed:

Tributary has (check all that apply): 0 Bed and banks 0 OHWM6 (check all indicators that apply):

0 clear, natural line impressed on the bank D the presence oflitter and debris 0 changes in the character of soil D destruction of terrestrial vegetation D shelving D the presence of wrack line 0 vegetation matted down, bent, or absent D sediment sorting D leaflitter disturbed or washed away 0 scour D sediment deposition 0 multiple observed or predicted flow events 0 water staining D abrupt change in plant community D other (list):

0 Discontinuous OHWM. 7 Explain:

If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): [] High Tide Line indicated by: 0 Mean High Water Mark indicated by:

0 oil or scum line along shore objects D survey to available datum; 0 fine shell or debris deposits (foreshore) 0 physical markings; 0 physical markings/characteristics D vegetation lines/changes in vegetation types. D tidal gauges · D other (list):


IdentifY specific pollutants, if known:

(iv) Biological Characteristics. Channel supports (check all that apply): 0 Riparian corridor. Characteristics (type, average width): D Wetland fringe. Characteristics: D Habitat for:

0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain findings:

6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7lbid.





(b) General Flow Relationship with Non-TNW: Flow is: ~ickLiS~. Explain:

Surface flow is: .f:i~~:l:,~~ Characteristics:

Subsurface flow: 'f':i<lkfji~t. Explain findings: 0 Dye (or other) test performed:

(c) Wetland Adjacency Determination with Non-TNW: D Directly abutting D Not directly abutting

0 Discrete wetland hydrologic connection. Explain: 0 Ecological connection. Explain: 0 Separated by benn/barrier. Explain:

(d) Proximity (Relationship) to TNW Project wetlands are Pick.;;(;~~ river miles from TNW. Project watersl.!Te :rick}:;~~~ aerial (straight) miles from TNW. Flow is from: l'itk'J5isi Estimate appr~~ill"l~teiocation of wetland as within the }>i¢~'ij~~~ floodplain.




0 Federally Listed species. Explain findings: 0 Fishispawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain fmdings: 0 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: PickU.~! Approximately ( ) acres in total are being considered in the cumulative analysis.




Size (in acres)

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.











1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: [J TNWs: linear feet width (ft), Or, acres. D Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. [21 Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: Abingdon Creek is a blue line stream on the USGS topographic map, Lenoir Quad which in North Carolina means it flows more than 3 months out of the year making it a perennial stream.

JEI Tributaries ofTNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in. the review area (check all that apply): Ll Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. 0 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


Provide estimates for jurisdictional waters within the review area (check all that apply): 0 Tributary waters: linear feet width (ft). [J Other non-wetland waters: acres.


4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. 0 Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.

GJ 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:

8See Footnote# 3.

D 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:


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 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.


6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. CJ 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.



As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. EJ Demonstrate that impoundment was created from "waters of the U.S.," or GJ Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 0 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

0 which are or could be used by interstate or foreign travelers for recreational or other purposes. D 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. [J Interstate isolated waters. Explain: 0 Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): D Tributary waters: linear feet width (ft). D Other non-wetland waters: acres.

IdentifY type(s) of waters: EI Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): D 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. D. Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


D Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: I] 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): 0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). D Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: D 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):

9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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.

0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


A. SUPPORTING DATA. Data reviewed for JD (check all that apply- checked items shall be included in case file and, where checked and requested, appropriately reference sources below): 0 Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.

. D Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report.

[] Data sheets prepared by the Corps: [J Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:

0 USGS NHD data. D USGS 8 and 12 digit HUC maps.

[gf U.S. Geological Survey map(s). Cite scale & quad name: NC-Lenoir. 0 USDA Natural Resources Conservation Service Soil Survey. Citation: Caldwell County, NC 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: 0 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: D Aerial (Name & Date):

or D Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: D Applicable/supporting case law: 0 Applicable/supporting scientific literature: 0 Other information (please specify):

B. ADDITIONAL COMMENTS TO SUPPORT JD: Representatives from NRCS have been onsite.


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): 1//';)ij-jlf

dul~l-b£1Sq , ~ B. DISTRICT oFFICE, FILE NAME, AND NUMBER: c.t:: s¥\w R c-, -A C. PROJECT LOCATION AND BACKGROUND INFORMATION:

State: NC County/parish/borough: Alexander City: Taylorsville Center coordinates of site (lat/long in degree decimal format): Lat. 35.867669223° N, Long. -81.27978730° W:.

Universal Transverse Mercator: Name of nearest waterbody: Middle Little River

Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Catawba River Name of watershed or Hydrologic Unit Code (HUC): 03050101 f8l Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. C] 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): D. Office (Desk) Determination. Date: !Il Field Determination. Date(s):

SECTION ll: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION.

There ~i~1i,~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

[J Waters subject to the ebb and flow of the tide. Q' 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. CW A SECTION 404 DETERMINATION OF JURISDICTION.

There~ "waters of the US." within Clean Water Act (CWA)jurisdiction (as defined by 33 CFRpart 328) in the review area. [Required]


[] TNWs, including territorial seas [] Wetlands adjacent to TNWs ~ Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs 121 Non-RPWs that flow directly or indirectly into TNWs 0 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 D. Impoundments of jurisdictional waters [] Isolated (interstate or intrastate) waters, including isolated wetlands

b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 30 linear feet: 8 width (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: .l'~'f,ij~ij .. ejtiohjl{lltaU~l -- b+\ IJJ ,rf\ Elevation of established OHWM (ifknown):


0 Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (.," tvni":>llv 1 month< I

SECTION ill: CWA ANALYSIS


The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section m.A.l and Section m.D.l. only; ifthe aquatic resource is a wetland adjacent to a TNW, complete Sections m.A.l and 2 and Section ll.D.l.; otherwise, see Section ill.B below.

1. TNW IdentifY TNW:

Summarize rationale supporting determination:



This section summarizes information regarding characteristics ofthe 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 m.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section ll.D.4.


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 ll.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section m.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section m.c below.

1. Characteristics ofnon-TNWs that flow directly or indirectly into TNW

(i)

(ii)

General Area Conditions: Watershed size: i:l,~tk~~:L-~--~ Drainage area: ~it~ Ll$~ Average annual rainfall: inches Average annual snowfall: 6 inches


[8] Tributary flows directly iJ1tO .TNW. 0 Tributary flows through fick~is~ tributaries before entering TNW.

Project waters are pi~fi J.ist river miles from TNW. Project waters are 'pi~lt~is~ river miles from RPW. Project waters are :f:':lf:lt . .l:!i~~ aerial (straight) miles from TNW. Project waters are :Pit.k'J,iist aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:



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

(b) General Tributary Characteristics (check all that apply): Tributary is: 0 Natural

0 Artificial (man-made). Explain: 0 Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: PitliL)~.

Primary tributary substrate composition (check all that apply): 0 Silts 0 Sands 0 Cobbles 0 Gravel 0 Bedrock 0 Vegetation. Type/% cover: 0 Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: 'pi~ki.,is£ Tributary gradient (approximate average slope): %

(c) Flow:

0 Concrete 0Muck

Explain:

Tributary provides for: Pi~J{;]jfst Estimate average number of flow events in review area/year: Pici(,tis~


Surface flow is: P.iik?Liit. Characteristics:

Subsurface flow: ,Pldf.::Lii~. Explain findings: 0 Dye (or other) test performed:


0 clear, natural line impressed on the bank 0 the presence oflitter and debris 0 changes in the character of soil 0 destruction of terrestrial vegetation 0 shelving 0 the presence of wrack line 0 vegetation matted down, bent, or absent 0 sediment sorting 0 leaf litter disturbed or washed away 0 scour 0 sediment deposition 0 multiple observed or predicted flow events 0 water staining 0 abrupt change in plant community 0 other (list):

0 Discontinuous OHWM.7 Explain:

If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): D High Tide Line indicated by: 0 Mean High Water Mark indicated by:

0 oil or scum line along shore objects 0 survey to available datum; 0 fine shell or debris deposits (foreshore) 0 physical markings; 0 physical markings/characteristics 0 vegetation lines/changes in vegetation types. 0 tidal gauges 0 other (list):

(iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.).

Explain: Identi:ty specific pollutants, if known:

6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 71bid.

(iv) Biological Characteristics. Channel supports (check all that apply): 0 Riparian corridor. Characteristics (type, average width): 0 Wetland fringe. Characteristics: 0 Habitat for:

0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: . 0 Other environmentally-sensitive species. Explain findings: 0 Aquatic/wildlife diversity. Explain findings:



Properties: Wetland size: acres Wetland type. Explain: . Wetland quality. Explain:.


(b) General Flow Relationship with Non-TNW: Flow is: ~i~~]3is~. Explain:

Surface flow is: J>ji!J[l,i$t Characteristics:

Subsurface flow: .Pi~JJttfst. Explain findings: 0 Dye (or other) test performed:



(d) Proximity (Relationship)}o TNW Project wetlands are~~e~,..;iS~ river miles from TNW. Project waters ~'!!'~~,~~~~,L~t aerial (straight) miles from TNW. Flow is from: l'i~J.Ii~. ~~~\~~c~'c Estimate approximate location of wetland as within the ~~~l(Lis~ 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: Identity specific pollutants, if known:

(iii) Biological Characteristics. Wetland supports (check all that apply): 0 Riparian buffer. Characteristics (type, average width): . 0 Vegetation type/percent cover. Explain: M. 0 Habitat for:

0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: . 0 Other environmentally-sensitive species. Explain findings: . 0 Aquatic/wildlife diversity. Explain findings: .

3. Characteristics of all wetlands adjacent to the tributary (if anr.), ~ , ~ . All wetland(s) being considered in the cumulative analysis: ipieltList Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specifY the following:

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



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 ofthe 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

1NWs, or to reduce the amount of pollutants or flood waters reaching a 1NW? • 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 1NW? • 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 1NW?


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 TNW s. Explain fmdings 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: .


1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: .CJ 1NWs: linear feet width (ft), Or, acres. [3 Wetlands adjacent to 1NWs: acres.

2. RPWs that flow directly or indirectly into TNWs. 183 Tributaries of 1NW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that

tributary is perennial: Continuous bed and bank features, moderate to strong baseflow, OHWM, presence ofmacro-benthics, second order channel based on USGS topographic quadrangle.

Cl 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): IE! Tributary waters: 30 linear feet 8 width (ft). 0: Other non-wetland waters: acres.

Identity type(s) of waters:

3. Non-RPWs8 that flow directly or indirectly into TNWs. 0 Waterbody that is not a 1NW or an RPW, but flows directly or indirectly into a 1NW, and it has a significant nexus with a

1NW 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): l3 Tributary waters: linear feet width (ft). (3 Other non-wetland waters: acres.

Identity type(s) of waters:

4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. EJ Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.

8 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:

0 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:


5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. CJ 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 1NW are jurisidictional. Data supporting this conclusion is provided at Section III. C.


6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. 0 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 1NW are jurisdictional. Data supporting this conclusion is provided at Section III. C.



As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0, 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 CJ 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

IEJ: which are or could be used by interstate or foreign travelers for recreational or other purposes. E2J: from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. [J which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: 0 Other factors. Explain:

8See Footnote# 3. 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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 Folwwing Rapanos.

Identify water body and summarize rationale supporting determination:

Provide estimates for jurisdictional waters in the review area (check all that apply): [] Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.

IdentifY type(s) of waters: [J Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): 0 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. 0' Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. . 0 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). 0 Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: 0:1 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): 0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). 0 Lakes/ponds: acres. IEJ Other non-wetland waters: acres. List type of aquatic resource: t:J 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): 0; Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. EJ Other non-wetland waters: acres. List type of aquatic resource: EJ Wetlands: acres.


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): f8l Maps, plans, plots or plat submitted by or on behalf ofthe applicant/consultant: r&1 Data sheets prepared/submitted by or on behalf of the applicant/consultant.

0 Office concurs with data sheets/delineation report. 0 Office does not concur with data sheets/delineation report.

0 Data sheets prepared by the Corps: tJ Corps navigable waters' study: D U.S. Geological Survey Hydrologic Atlas:

0 USGS NHD data 0 USGS 8 and 12 digit HUC maps.

1:8:1, U.S. Geological Survey map(s). Cite scale & quad name: Ellendale, NC USGS Topographic Quadrangle. 0 USDA Natural Resources Conservation Service Soil Survey. Citation: Gl National wetlands inventory map(s). Cite name: ~. ' .. ·. State/Local wetland inventory map(s): w FEMA/FIRM maps: [] 1 00-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: 0 Aerial (Name & Date):

or D Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: I2J Applicable/supporting case law: [1] Applicable/supporting scientific literature: I}Ql Other information (please specifY):



This form should be completed by following the instructions provided in Section N ofthe JD Form Instructional Guidebook.

SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD):

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:

C. PROJECT LOCATION AND BACKGROUND INFORMATION:

D.

State: NC County/parish/borough: Yancey City: Micaville Center coordinates of site (!at/long in degree decimal format): Lat. 35.95648° N;, Long. -82.19806° ~·

Universal Transverse Mercator: Name of nearest waterbody: Dobag Creek

Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: North Toe River Name of watershed or Hydrologic Unit Code (HUC): 06010108 I2J Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. 0; 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.

iVIEW PERFORMED_ F~R SITE EYtLUk!ION.(CH)i:C,KALL THAT APPLY): ' Office (Desk) Determmatwn. Date: {J 8/'J-(-t.._ 1,)-/Lfl l'f

Field Determination. Date(s): 10/16/2014


There Are II~ "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]


Explain:


There Are "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


[] TNWs, including territorial seas [}I Wetlands adjacent to TNWs (81 Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs 00 Non-RPWs that flow directly or indirectly into TNWs [[I Wetlands directly abutting RPWs that flow directly or indirectly into TNWs [J 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 0 Isolated (interstate or intrastate) waters, including isolated wetlands


c. Limits (boundaries) of jurisdiction based on: )t~ialjij$Jied.by0~~ Elevation of established OHWM (if known):




SECTION III: CWA ANALYSIS



1. TNW Identity TNW:







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 III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i)

(ii)

General Area Conditions: Watershed size: Pi~kJ-'ist Drainage area: ;J:>~*lf::~i,st Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through Pic~Ht~S't tributaries before entering TNW.

Project waters are )>((;~ river miles from TNW. Project waters are river miles from RPW. Project waters are aerial (straight) miles from TNW. Project waters are aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:






Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: J"I~l{tist.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: rif~~i~~ Tributary gradient (approximate average slope): %

(c) Flow:

D Concrete 0Muck

Explain:

Tributary provides for: i'ick,.J.,ist Estimate average number of flow events in review area/year: Pic~P$t


Surface flow is: Pick List. Characteristics:

Subsurface flow: J?ickList. Explain findings: D Dye (or other) test performed:


D clear, natural line impressed on the bank D the presence of litter and debris D changes in the character of soil D destruction of terrestrial vegetation D shelving D the presence of wrack 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 community D other (list):


If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): [] High Tide Line indicated by: L] Mean High Water Mark indicated by:



Explain: Identify specific pollutants, if known:

6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7Ibid.


D Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain findings:





(b) General Flow Relationship with Non-TNW: Flow is: PiCI(:Cist Explain:

Surface flow is: }f(ck L~! Characteristics:

Subsurface flow: Pi~:kList. Explain findings: D Dye (or other) test performed:

(c) Wetland Adjacency Determination with Non-TNW:

(d)

D Directly abutting D Not directly abutting

D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: D Separated by berm/barrier. Explain:

Project wetlands are ~i Project waters are ti,~f( Flow is from: Plck'List.

t river miles from TNW. aerial (straight) miles from TNW.

Estimate approrill1ate location of wetland as within the P:i~k',l..(~t floodplain.


characteristics; etc.). Explain: IdentifY specific pollutants, if known:

(iii) Biological Characteristics. Wetland supports (check all that apply): D Riparian buffer. Characteristics (type, average width): D Vegetation type/percent cover. Explain: D Habitat for:


3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: l,>'~e~(~i~t Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specify the following:




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.


TNW s, 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


biological integrity ofthe TNW?




3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain fmdings 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:


1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: [ill TNWs: linear feet width (ft), Or, acres. G) Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. t81 Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide datawd. liatioPvle i.ndicating that

tributary is perennial: Do bag Creek has prominent bed/bank features, fish, and aquatic insects. 1 J) 0 Tributaries ofTNW where tributaries have continuous flow "seasonally" (e.g., typically three mon e'ltc ye~) 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): [8] Tributary waters: 200 linear feet 5 width (ft). 0 Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. GJ 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): 0 Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.



. I] 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:



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.


6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. 0 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.



As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. [] Demonstrate that impoundment was created from "waters of the U.S.," or III Demonstrate that water meets the criteria for one of the categories presented above ( 1-6), or I[) 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 (CHECKALLTHAT APPLY): 10

0, which are or could be used by interstate or foreign travelers for recreational or other purposes. 0 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. E1 which are or could be used for industrial purposes by industries in interstate commerce. [] Interstate isolated waters. Explain: 0 Other factors. Explain:

Identify water body and summarize rationale supporting determination:

8See Footnote# 3. 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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): CJ Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.

Identizytype(s) ofwaters: [] Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): [J 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. 0 Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.

D 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).

0 Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: 0 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). [3 Lakes/ponds: acres. [] Other non-wetland waters: acres. List type of aquatic resource: 0 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): 0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. D Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): 12} Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.

D Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report.

[] Data sheets prepared by the Corps: 0 Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:

0 USGS NHD data. 0 USGS 8 and 12 digit HUC maps.

~ U.S. Geological Survey map(s). Cite scale & quad name:l :24000, Micaville Quadrangle. 0 USDA Natural Resources Conservation Service Soil Survey. Citation: 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): LJ FEMA/FIRM maps:NC Floodplain Mapping Program. [] 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) &:Sf Photographs: D Aerial (Name & Date):

or~ Other (Name & Date):Stream photos in NWP Application, October 23, 2014. D Previous determination(s). File no. and date of response letter: EJ Applicable/supporting case law: 0 Applicable/supporting scientific lit<>N,.,,r,.

}E! Other information (please specifY): L


APPROVED JURJSDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers


SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): November 25, 2014

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02018, Madison County I Allen Lamberson

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Madison City: Marshall Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.83873 N, -82.75432 W Universal Transverse Mercator: Name of nearest waterbody: French Broad River Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Name of watershed or Hydrologic Unit Code (HUC): French Broad [2] Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. 0 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): 181" Office (Desk) Determination. Date: 11-25-2014 [J Field Determination. Date(s):


There Aj~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

0 Waters subject to the ebb and flow of the tide. [81 Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Explain:


There Are "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


[2] TNWs, including territorial seas 0 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 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs [] Impoundments of jurisdictional waters [] Isolated (interstate or intrastate) waters, including isolated wetlands


c. Limits (boundaries) of jurisdiction based on: ~~~bll;S~~j)fpJ::(W;M~ Elevation of established OHWM (if known):



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


The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section III.A.l and Section III.D.l. only; ifthe aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below.

1. TNW IdentifY TNW: French Broad River. Summarize rationale supporting determination: Section 10 Water of the U.S.








(i)

(ii)

General Area Conditions: Watershed size: PitkLlst Drainage area: Pi~k.List Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through 'f>i<\~:Lis~ tributaries before entering TNW.

Project waters are 'J>i()~~~s~ river miles from TNW. Project waters are PitkList river miles from RPW. Project waters are :f>ickList aerial (straight) miles from TNW. Project waters are [PickLiSt aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:






Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: P~ckList.

Primary tributary substrate composition (check all that apply): D Silts 0 Sands D Cobbles 0 Gravel 0 Bedrock 0 Vegetation. Type/% cover: 0 Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes: Explain: Tributary geometry: Pic!<; List Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: rkk List

D Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: Pick List Describe flow regime:


Surface flow is: PickList. Characteristics:

Subsurface flow: PiclrList. Explain findings: 0 Dye (or other) test performed:


0 clear, natural line impressed on the bank 0 the presence of litter and debris 0 changes in the character of soil 0 destruction of terrestrial vegetation D shelving 0 the presence of wrack line D vegetation matted down, bent, or absent 0 sediment sorting D leaf litter disturbed or washed away 0 scour D sediment deposition 0 multiple observed or predicted flow events D water staining 0 abrupt change in plant community D other (list):


If factors other than the OHWM were used to determine lateral extent of CWAjurisdiction (check all that apply): [] High Tide Line indicated by: 0 Mean High Water Mark indicated by:

D oil or scum line along shore objects D survey to available datum; D fine shell or debris deposits (foreshore) 0 physical markings; D physical markings/characteristics 0 vegetation lines/changes in vegetation types. D tidal gauges D other (list):



(iv) Biological Characteristics. Channel supports (check all that apply): 0 Riparian corridor. Characteristics (type, average width): 0 Wetland fringe. Characteristics: D Habitat for:

0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain fmdings: 0 Aquatic/wildlife diversity. Explain findings:

6 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. 7Ibid.





(b) General Fl()wRelationship with Non-TNW: Flow is: fpickJ.,is:t. Explain:

Surface flow is: Pidt List Characteristics:

Subsurface flow: :Pici(;List. Explain findings: 0 Dye (or other) test performed:


0 Discrete wetland hydrologic connection. Explain: 0 Ecological connection. Explain: 0 Separated by benn/barrier. Explain:

(d) Proximity (Relationship)to TNW Project wetlands are PickList river miles from TNW. Project waters ar-e. ~ickList aerial (straight) miles from TNW. Flow is from: PickList. Estimate appr~~irn~te location of wetland as within the Pic,i(i;!st floodplain.





3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: P!~k.J,is.t Approximately ( ) acres in total are being considered in the cumulative analysis.




Size (in acres)













1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: 0 TNWs: linear feet width (ft), Or, acres. 0 Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. [J Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: Creek is a blue line stream on the USGS topographic map, Drexel Quad which in North Carolina means it flows more than 3 months out of the year making it a perennial stream. AND professionals observed flow in the field.

D Tributaries ofTNW 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): 0 Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. jill 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






8See Footnote# 3.

[J 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:


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 tributary to which they are adjacent and with



6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. [J Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with




As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0 Demonstrate that impoundment was created from "waters of the U.S.," or 0 Demonstrate that water meets the criteria for one of the categories presented above (1-6), or D Demonstrate that water is isolated with a nexus to commerce (see E below).

E. ISOLATED [INTERSTATE OR INTRA-STATE] WATERS, INCLUDING ISOLATED WETLANDS, THEUSE, DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY): 10

[J which are or could be used by interstate or foreign travelers for recreational or other purposes. [J 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. 0 Interstate isolated waters. Explain: [J Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): [] Tributary waters: linear feet width (ft). [J Other non-wetland waters: acres.

Identizy type( s) of waters: 0 Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): 0 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. II] Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


liJ Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: fill] 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.


9 To complete the analysis refer to the key in,Section IILD.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWAjurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA IIQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: [J Wetlands: acres.


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): 12:1 Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.


0 Data sheets prepared by the Corps: 0 Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:


(gJ U.S. Geological Survey map(s). Cite scale & quad name: NC-Spring Creek.

00.· •. USDA Natural Resources Conservation Service Soil Survey. Citation: Madison County, NC

National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: 0 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: 0 Aerial (Name & Date):

or 0 Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: 0 Applicable/supporting case law: 0 Applicable/supporting scientific literature: 0 Other information (please specifY):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02021, Lake Junaluska Assembly, Inc. I Attn.: Brian Alderidge

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Haywood City: Waynesville Center coordinates of site (lat/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.52779 N, 82.963486 W Universal Transverse Mercator: Name of nearest waterbody: Richland Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Pigeon River Name of watershed or Hydrologic Unit Code (HUC): Pigeon (06010106) 181 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): IZ! Office (Desk) Determination. Date: December 19,2014 D Field Determination. Date(s):


There AJ:~n~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

D; Waters subject to the ebb and flow of the tide. 0; Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Explain:


There 1\]-~ "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


0 TNWs, including territorial seas 0 Wetlands adjacent to TNWs (gJ Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [] Non-RPWs that flow directly or indirectly into TNWs C] Wetlands directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs D Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs D Impoundments of jurisdictional waters 0 Isolated (interstate or intrastate) waters, including isolated wetlands


c. Limits (boundaries) of jurisdiction based on: )i:s{1liJj~JI;ii)yijJIWM~ Elevation of established OHWM (if known):


JII Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

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









If the waterbodl is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to d"etermine 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 sihnificant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i) General Area Conditions: Watershed size: :PitiEi$t Drainage area: ,rict'ti~! Average annual rainfall: inches Average annual snowfall: inches

(ii) Physical Characteristics: (a) Relationship with TNW:

D Tributary flows directly into TNW. D Tributary flows through !;'~~k'Ms! tributaries before entering TNW.

Project waters are i river miles from TNW. Project waters are river miles from RPW. Project waters are kList aerial (straight) miles from TNW. Project waters are t:kList: aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:






Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: P,idcUst.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: J,>icli:Ji~~ Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: ;P:ick.L~t

D Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: Pick}JiS~ Describe flow regime:


Surface flow is: Piek.Li~t. Characteristics: ' ' ~- . . .. ' .

Subsurface flow: Picf(.IJis~. Explain findings: D Dye (or other) test performed:




If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): Q High Tide Line indicated by: 0 Mean High Water Mark indicated by:











(b) General Flow Relationship with Non-TNW: Flow is: ,Pi~~L:is~. Explain:

Surface flow is: J:'ic,~,JijS. Characteristics:

Subsurface flow: :J;>!ck[;f~f. Explain findings: 0 Dye (or other) test performed:


(d)

D Directly abutting D Not directly abutting


river miles from TNW. aerial (straight) miles from TNW.

Estimate approximate location of wetland as within the Picl(f,ii~~ floodplain.



(iii) Biological Characteristics. Wetland supports (check all that apply): 0 Riparian buffer. Characteristics (type, average width): 0 Vegetation type/percent cover. Explain: D Habitat for:


3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: R;~~~!.t~~t, Approximately ( ) acres in total are being considered in the cumulative analysis.




Size (in acres)

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.











1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: BJ TNWs: linear feet width (ft), Or, acres. 0 Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. 12] Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: Richland Creek exhibits indicators of ordinary high water marks (OHWM) including developed bed and bank, scour, presence of aquatic life, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaf litter washed away. Richland Creek is depicted as a solid blue line on the USGS 7.5 minute quadrangle map Dellwood and the most current Natural Resource Conservation Service Soil Survey for Haywood County. Solid blue line features on these mapping conventions typically represent perennial streams. Perennial flow has been observed by Corps representatives during numerous visits to the Waynesville, North Carolina vicinity.

D Tributaries ofTNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): 183 Tributary waters: 800 linear feet 20 width (ft). IJJ Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. IEJ 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


Provide estimates for jurisdictional waters within the review area (check all that apply): D Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.




8See Footnote# 3.

EJ 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:


5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. 0 Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with



6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. E) Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with


Provide estimates for jurisdictional wetlands in the review area:. acres.


As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0 Demonstrate that impoundment was created from "waters of the U.S.," or 0 Demonstrate that water meets the criteria for one of the categories presented above (1-6), or b) Demonstrate that water is isolated with a nexus to commerce (see E below).


0 which are or could be used by interstate or foreign travelers for recreational or other purposes. 0 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: 0 Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): 0 Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.

Identify type(s) of waters: [] Wetlands: acres.


Delineation Manual and/or appropriate Regional Supplements. [] Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


[]I Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: Jill 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): E1 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). 0 Lakes/ponds: acres. [] Other non-wetland waters: acres. List type of aquatic resource: S Wetlands: acres.

9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a fmding is required for jurisdiction (check all that apply): [] Non-wetland waters (i.e., rivers, streams): linear feet, width (fi). fill Lakes/ponds: acres. [3 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): [8J Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.


[] Data sheets prepared by the Corps: 0 Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:


~ U.S. Geological Survey map(s). Cite scale & quad name: Dellwood. 18} USDA Natural Resources Conservation Service Soil Survey. Citation: Haywood County, NC 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): [} FEMA/FIRM maps: [] 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: 0 Aerial (Name & Date):

or 0 Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: 0 Applicable/supporting case law: G1 Applicable/supporting scientific literature: 0 Other information (please specifY):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02079, Christopher Foster

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Transylvania City: Lake Toxaway Center coordinates of site (lat!long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.12979 N, 82.941876 W Universal Transverse Mercator: Name of nearest waterbody: Lake Toxaway (Deep Ford Creek) Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Lake Toxaway Name of watershed or Hydrologic Unit Code (HUC): Seneca (03060101) ~ 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): 1:81 Office (Desk) Determination. Date: December 23,2014 ~. Field Determination. Date(s): November 4, 2014


There A)-en~ "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:


There Xr~ "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFRpart 328) in the review area. [Required]


~ TNW s, including territorial seas 0] Wetlands adjacent to TNWs 0 Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs 0 Non-RPWs that flow directly or indirectly into TNWs 121 Wetlands directly abutting RPWs that flow directly or indirectly into TNWs 121 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectlyinto TNWs 121 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs [ill] Impoundments of jurisdictional waters IEJ 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: linear feet: width (ft) and/or 2.0 acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: ~~tft~~~~~):)yp~~ Elevation of established OHWM (if known):


li] Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

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



1. TNW IdentifY 1NW: Lake Toxaway (Deep Ford Creek). Summarize rationale supporting determination: Large watershed, waterway can and has and does support navigation of non

motorized and motorized boats.

2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wc:tland is "adjacent":





If the waterbodl is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section ll.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i) General Area Conditions: Watershed size: :Pit[ :List Drainage area: r~~~~~~~~ Average annual rainfall: inches Average annual snowfall: inches

(ii) Physical Characteristics: (a) Relationship with 1NW:

D Tributary flows directly into T'J'.[W. D Tributary flows through ~~~~Jd~s~ tributaries before entering 1NW.

Project waters are ':LiSt river miles from 1NW. Project waters are List river miles from RPW. Project waters are ~ist aerial (straight) miles from 1NW. Project waters are lj~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:






0 Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes:'!,:',!~~ List.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riftle!J?OOl complexes. Explain: Tributary geometry: J>,i~l<. )j\$~ Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: P~~!( Lis~

0 Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: Pi~k List Describe flow regime:


Surface flow is: Pick List. Characteristics:

Subsurface flow: PickLi~f. Explain findings: 0 Dye (or other) test performed:


0 clear, natural line impressed on the bank 0 the presence oflitter and debris 0 changes in the character of soil 0 destruction of terrestrial vegetation 0 shelving 0 the presence of wrack line 0 vegetation matted down, bent, or absent 0 sediment sorting 0 leaf litter disturbed or washed away 0 scour 0 sediment deposition 0 multiple observed or predicted flow events 0 water staining 0 abrupt change in plant community 0 other (list):


If factors other than the OHWM were used to determine lateral extent of CWAjurisdiction (check all that apply): [] High Tide Line indicated by: [] Mean High Water Mark indicated by:





0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings:


D Aquatic/wildlife diversity. Explain findings:





(b) General Flow Relationship with Non-TNW: Flow is: ~!c~'j_.i~. Explain:

Surface flow is: P.ick.List Characteristics:

Subsurface flow: ~j({llSf. Explain findings: D Dye (or other) test performed:



(d) Proximi Relationshi Project wetlands are ):il st river miles from TNW. Project waters are aerial (straight) miles from TNW.

Flow is from: fl,ck: , .....•....•.........•.•. Estimate approximate location of wetland as within the f.i~~:~!S,~ floodplain.


etc.). Explain: Identify specific pollutants, if known:


D Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain fmdings: D 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: I,tisi(J.~! Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specify the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN) Size (in acres)



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 ifthe 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 Rapmws 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









D. DETERMINATIONS OF lliRISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL THAT APPLY):

1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: [8J TNWs: linear feet width (ft), Or, 2.0 acres. []Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. 0 Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial. IIJ Tributaries of TNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): EI Tributary waters: linear feet width (ft). !IJ; Other non-wetland waters: acres.

Identify type(s) of waters:

3. Non-RPWs8 that flow directly or indirectly into TNWs. IJJ 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


Provide estimates for jurisdictional waters within the review area (check all that apply): EJ Tributary waters: linear feet width (ft). EJ Other non-wetland waters: acres.


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

IJ] 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:

[j] 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:

8See Footnote# 3.


5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. IJI Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with







As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. D Demonstrate that impoundment was created from "waters of the U.S.," or [8] Demonstrate that water meets the criteria for one of the categories presented above (1-6), Lake Toxaway was formed by the

impoundment of the Toxaway River, including Deep Ford Creek, a TNW at the project location. or [] Demonstrate that water is isolated with a nexus to commerce (see E below).


[l which are or could be used by interstate or foreign travelers for recreational or other purposes. [ill from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. E] which are or could be used for industrial purposes by industries in interstate commerce. IJ[J Interstate isolated waters. Explain: i] Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): (iJ Tributary waters: linear feet width (ft). D Other non-wetland waters: acres.

IdentifY type( s) of waters: [] Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): D If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps ofEngineers Wetland

Delineation Manual and/or appropriate Regional Supplements. D Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


D Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: D Other: (explain, if not covered above):

Provide acreage estimates for non-jurisdictional waters in the review area, whery 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): D Non-wetland waters (i.e., rivers, streams): linear feet width (ft). D Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: D 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): [ill Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). (3 Lakes/ponds: acres.


0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): I2J Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.


[J Data sheets prepared by the Corps: D Corps navigable waters' study: Q U.S. Geological Survey Hydrologic Atlas:

D USGS NliD data. D USGS 8 and 12 digit HUC maps.

fBJ U.S. Geological Survey map(s). Cite scale & quad name: Reid. ~ USDA Natural Resources Conservation Service Soil Survey. Citation: Transylvania County, NC 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: D 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: D Aerial (Name & Date):

or D Other (Name & Date): D Previous determination(s). File no. and date of response letter: D Applicable/supporting case law: D Applicable/supporting scientific literature: D Other information (please specifY):




SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): December 22,2014

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESA W-RG-A, 2014-02081, Ecoplexus, Inc. I Attn.: Nathan Rogers

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Catawba City: Claremont Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.711823 N, 81.130455 W Universal Transverse Mercator: Name of nearest waterbody: UTs to Lyle Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Catawba River Name of watershed or Hydrologic Unit Code (HUC): Upper Catawba (03050101) ~ Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. ED 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: December 22,2014 Field Determination. Date(s): December 18, 2014


There Ate ti~ "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]

0 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:


There Are "waters of the US." within Clean Water Act (CWA)jurisdiction (as defmed by 33 CFR part 328) in the review area. [Required]

1. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1

D TNWs, including territorial seas 0 Wetlands adjacent to TNWs t8J Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs D Non-RPWs that flow directly or indirectly into TNWs I:8'J Wetlands directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs 0 Impoundments of jurisdictional waters Q 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: 648 linear feet: 3 width (ft) and/or acres. Wetlands: 0.05 acres.

c. Limits (boundaries) of jurisdiction based on: j~87~elille~tioJ}1\{~~u3j Elevation of established OHWM (if known):






1. TNW Identify TNW: Summarize rationale supporting determination: Large watershed, waterway can and has and does support navigation of non







If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine ifthe waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i)

(ii)

General Area Conditions: Watershed size: l'itf~]j~t Drainage area: .f!(;~J.:i$t Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through ric}{.L,ist tributaries before entering TNW.

Project waters are Project waters are iSt river miles from RPW. Project waters are ·aerial (straight) miles from TNW. Project waters are aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

Identify flow route to TNW5:


(b) General Tributary Characteristics (check all that apply):


Tributary is: D Natural D Artificial (man-made). Explain: D Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: )>lcl{:(>jSt.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: PickList Tributary gradient (approximate average slope): %

(c) Flow:

D Concrete 0Muck

Explain:

Tributary provides for: Pick List Estimate average number of flow events in review area/year: }>ic~List


Surface flow is: PkkList. Characteristics:

Subsurface flow: Pic[J..:isi. Explain findings: D Dye (or other) test performed:


D clear, natural line impressed on the bank D the presence oflitter and debris D changes in the character of soil D destruction of terrestrial vegetation D shelving D the presence of wrack 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 community D other (list):


If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): 0 High Tide Line indicated by: D Mean High Water Mark indicated by:



Explain: IdentifY specific pollutants, if known:








(b) General Flow Relationship with Non-TNW: Flow is: ri~~,'(,~. Explain:

Surface flow is: fii~LlSt Characteristics:

Subsurface flow: fi~k List. Explain findings: D Dye (or other) test performed:



(d) Proximity (Relationship)toi1~W Project wetlands are ~ick J:Ais! river miles from TNW. Project watersare 'pi~k'M$1: aerial (straight) miles from TNW. Flow is from: Pick List. . ... Estimate appr~~i~at~iocation of wetland as within the Ptci'IJi~t floodplain.


characteristics; etc.). Explain: Identizy specific pollutants, if known:


D Federally Listed species. Explain findings: D Fish/spawn areas. Explain fmdings: D Other environmentally-sensitive species. Explain findings: D 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: J>t¢t.,i~~~ Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specizy the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN) Size (in acres)



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.





biological integrity of the TNW?






1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: CJ TNWs: linear feet width (ft), Or, acres. [3 Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. I2J Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that

tributary is perennial: UTs to Lyle Creek exhibits indicators of ordinary high water marks (OHWM) including developed bed and bank, scour, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaf litter washed away. Indicators of perennial flow was observed by Corps representatives during field visit to the Claremont, North Carolina vicinity.

[] Tributaries ofTNW 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): 12:1 Tributary waters: 648 linear feet 3 width (ft). [J Other non-wetland waters: acres.


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


Provide estimates for jurisdictional waters within the review area (check all that apply): [] Tributary waters: linear feet width (ft). [QI Other non-wetland waters: acres.


8See Footnote# 3.

4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. 13J. Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.

IE] 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: Flows directly into associated tributary.

I] 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:


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



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.



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 APPL Y): 10

0 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. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: [] Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): [] Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.

Identizy type(s) of waters: [] Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): [J 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. D Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


Q Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: '0 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):

ff] Non-wetland waters (i.e., rivers, streams): linear feet width (ft).

9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWAjurisdiction 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.

0 Lakes/ponds: acres. 0 Other non-wetland waters: 0 Wetlands: acres.

acres. List type of aquatic resource:

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): 0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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. D Office does not concur with data sheets/delineation report.

0 Data sheets prepared by the Corps: 0 Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:


~ U.S. Geological Survey map(s). Cite scale & quad name: Newton. ~ USDA Natural Resources Conservation Service Soil Survey. Citation: Catawba County, NC 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): [] FEMA/FIRM maps: [] 1 00-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: D Aerial (Name & Date):

or D Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: 0 Applicable/supporting case law: 0 Applicable/supporting scientific literature: [] Other information (please specify):



This form should be completed by following the instructions provided in Section N ofthe JD Form Instructional Guidebook.

SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): November 24,2014

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02088, Ray Montogmery & Meachele Martin

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Alleghany City: Piney Creek Center coordinates of site (lat/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 36.559171 N, -81.314731 W Universal Transverse Mercator: Name of nearest waterbody: New River Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: New River Name of watershed or Hydrologic Unit Code (HUC): New I 05050001 fliSI 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): [j Office (Desk) Determination. Date: [gl_ Field Determination. Date(s): 9-26-2014


There {\1-~·'ri!! "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required)

11] Waters subject to the ebb and flow of the tide. 1[1 Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Explain:


There ~-t~ "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required)


D TNW s, including territorial seas Q Wetlands adjacent to TNWs [] Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs Q Non-RPWs that flow directly or indirectly into TNWs t8J Wetlands directly abutting RPW s that flow directly or indirectly into TNW s 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs Q 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: linear feet: width (ft) and/or acres. Wetlands: 0.006 acres.

c. Limits (boundaries) of jurisdiction based on: OC2~~:"Q~I,iit'i¥at~~!t,M;!~'Il~ Elevation of established OHWM (if known):


Q Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

1 Boxes checked below shaH 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 typica11y flows year-round or has continuous flow at least "seasonally" (e.g., typica11y 3 months). 3 Supporting documentation is presented in Section III.F.


The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section Ill.A.l and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section Ill.D.l.; otherwise, see Section III.B below.

1. TNW Identity TNW: Summarize rationale supporting determination:








(i)

(ii)

General Area Conditions: Watershed size: Pi~kList Drainage area: ~~ci{.List Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through j)iC:~J..,i$1) tributaries before entering TNW.

Project waters are river miles from TNW. Project waters are river miles from RPW. Project waters are ..... ·.·· .. Li# aerial (straight) miles from TNW. Project waters are [l!i~li:List aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

Identity flow route to TNW5:





Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: . feet Average side slopes: ):'f~~~:·J:;isl

Primary tributary substrate composition (check all that apply): 0 Silts D Sands 0 Cobbles D Gravel 0 Bedrock D Vegetation. Type/% cover: 0 Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: ~~¢~:~AS,t Tributary gradient (approximate average slope): %

(c) Flow: .............................. . Tributary provides for: ~~.lf:(;,ij~ ......... ..

D Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: ~~~!f.'J:.~t Describe flow regime:


Surface flow is: f~~~')JJ*~· Characteristics:

Subsurface flow: ;ti~){' Ps1. Explain findings: D Dye (or other) test performed:




If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): GJ High Tide Line indicated by: 0 Mean High Water Mark indicated by: ... D oil or scum line along shore objects .. . D survey to available datum;

D fine shell or debris deposits (foreshore) D physical markings; D physical markings/characteristics D vegetation lines/changes in vegetation types. D tidal gauges D other (list):





6 A natural or man-made discontinuity in 1he OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where 1he OHWM has been removed by development or agricultural practices). Where 1here is a break in 1he OHWM 1hat is unrelated to 1he waterbody's flow regime (e.g., flow over a rock outcrop or 1hrough a culvert), 1he agencies will look for indicators of flow above and below 1he break. 7Ibid.



(b)



General Flo>y Relationship with Non-TNW: Flow is: '(>ick;LGt. Explain:

Surface flow is: ~i~I\.LGt Characteristics:

Subsurface flow: fi~~OCJist. Explain findings: 0 Dye (or other) test performed:



(d) Proximity (Relationship) to TNW Project wetlands are )'j:(!kl;i~~ river miles from TNW. Project waters are Pic){.Uis~ aerial (straight) miles from TNW. Flow is from: Pick List. Estimate appro;imate location of wetland as within the :Pi¢kl;ist floodplain.




0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings: 0 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: Pic:ll..!.>i~~ Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specify the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN)



Size (in acres)













1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: IE2J TNWs: linear feet width (ft), Or, acres. ill] Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. l[l Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial:

I!J Tributaries ofTNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): [] Tributary waters: linear feet width (ft). [I_ Other non-wetland waters: acres.

ldentiJY type(s) of waters:

3. Non-RPWs8 that flow directly or indirectly into TNWs. [II 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 Ill. C.

Provide estimates for jurisdictional waters within the review area (check all that apply): [] Tributary waters: linear feet width (ft). [J Other non-wetland waters: acres.

ldentiJY type(s) of waters:

4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. [J Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.

181 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

8See Footnote# 3.

directly abutting an RPW: Wetlands are directly connected to the stream on the adjacent property. The stream is aUT to the New River. Verified in the field on 9-26-2014.



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



6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. EJ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with




As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0 Demonstrate that impoundment was created from "waters of the U.S.," or 0 Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 0 Demonstrate that water is isolated with a nexus to commerce (see E below).


0 which are or could be used by interstate or foreign travelers for recreational or other purposes. 0 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: D Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): b) Tributary waters: linear feet width (ft). IITJ Other non-wetland waters: acres.

IdentifY type(s) of waters: D Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): 0 If potential wetlands were assessed within the review are~ these areas did not meet the criteria in the 1987 Corps of Engineers Wetland

Delineation Manual and/or appropriate Regional Supplements. D Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


l:illi Waters do not meet the "Significant Nexus" standard, where such a fmding is required for jurisdiction. Explain: [ill Other: (explain, if not covered above):

Provide acreage estimates for non-jurisdictional waters in the review are~ 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): D Non-wetland waters (i.e., rivers, streams): linear feet width (ft). D Lakes/ponds: acres. [ill Other non-wetland waters: acres. List type of aquatic resource: tJ Wetlands: acres.



till Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). f8 Lakes/ponds: acres. iJ Other non-wetland waters: acres. List type of aquatic resource: 1]1 Wetlands: acres.


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): 18! Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: IE] Data sheets prepared/submitted by or on behalf of the applicant/consultant. ..... . 0 Office concurs with data sheets/delineation report.

0 Office does not concur with data sheets/delineation report. [] Data sheets prepared by the Corps: IJ] Corps navigable waters' study: [! U.S. Geological Survey Hydrologic Atlas:


18! U.S. Geological Survey map(s). Cite scale & quad name: NC-Mouth of Wilson. 0 USDA Natural Resources Conservation Service Soil Survey. Citation: Alleghany County, NC 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: D 1 00-year Floodplain Elevation is:. (National Geodectic Vertical Datum of 1929) 0 Photographs: 0 Aerial (Name & Date):

or 0 Other (Name & Date): [J Previous determination(s). File no. and date of response letter: E] Applicable/supporting case law: D Applicable/supporting scientific literature: [] Other information (please specifY):




SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): December 11, 2014

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SAW-2014-02101, Fairfield Mountains Property Owners Association, Inc d/b/a Rumbling Bald Resort

C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project is located off Buffalo Creek Road in Lake Lure

State: NC County/parish/borough: Rutherford City: Lake Lure Center coordinates of site (lat/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.462865 N,-82.18762W Universal Transverse Mercator: Name of nearest water body: Broad River Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Name of watershed or Hydrologic Unit Code (HUC): Santee 3050105 f81 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): 18] Office (Desk) Determination. Date: December 11, 2014 19 Field Determination. Date(s):


There ~ie'n~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defmed by 33 CFR part 329) in the review area. [Required]

0 Waters subject to the ebb and flow of the tide. 0 Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign

commerce. Explain:


There "waters of the US." within Clean Water Act (CWA)jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


[Q TNW s, including territorial seas 0 Wetlands adjacent to TNWs [gf Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs 0 Non-RPWs that flow directly or indirectly into TNWs D 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 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs 0 Impoundments of jurisdictional waters 0 Isolated (interstate or intrastate) waters, including isolated wetlands

b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 120linear feet: 12 width (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: ,E~!~mi,~~ed'byQ~ Elevation of established OHWM (if known):

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes ofthis 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).


D Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:




1. TNW Identify TNW:







If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the water body has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i)

(ii)

General Area Conditions: Watershed size: Pick.I.;ist Drainage area: :rickili~t Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through .Pick.I;ist tributaries before entering TNW.

Project waters are PickList river miles from TNW. Project waters are ,Pick:List river miles from RPW. Project waters are PickLis,t aerial (straight) miles from TNW. Project waters are J:1c~:LiS,t aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

3 Supporting documentation is presented in Section III.F. 4 Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the arid West.

apply):





Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: ~i~i{J_;i~t:.

Primary tributary substrate composition (check all that apply): D Silts D Sands D Cobbles 0 Gravel 0 Bedrock 0 Vegetation. Type/% cover: 0 Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: l':i~lt!'.~~t Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: ~ic~List

0 Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: f~£)i:!,i~ Describe flow regime:


Surface flow is: :f:ici,S;List. Characteristics:

Subsurface flow: ;l:>ick;Li$t. Explain findings: 0 Dye (or other) test performed:

Tributary has (check all that apply): D Bed and banks 0 OHWM6 (check all indicators that apply):

0 clear, natural line impressed on the bank 0 changes in the character of soil 0 shelving 0 vegetation matted down, bent, or absent 0 leaflitter disturbed or washed away 0 sediment deposition

D D D D

the presence of litter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting

D scour 0 multiple observed or predicted flow events

0 water staining 0 abrupt change in plant community

D other (list): D Discontinuous OHWM.7 Explain:

If factors other than the OHWM were used to determine lateral extent ofCWAjurisdiction (check all that

[] High Tide Line indicated by: 0 Mean High Water Mark indicated by: 0 oil or scum line along shore objects 0 fine shell or debris deposits (foreshore) 0 physical markings/characteristics D tidal gauges D other (list):

(iii) Chemical Characteristics:

D survey to available datum; D physical markings; 0 vegetation lines/changes in vegetation types.

Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain:


5 Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. 6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above . and below the break. 7Ibid.







(b) General Flo"' ~~lationship with Non-TNW: Flow is: J:>j~~1ist. Explain:

Surface flow is: 'PickLi# Characteristics:

Subsurface flow: gi~k: List. Explain findings: D Dye (or other) test performed:



(d) Proximity (Relationship) to TNW Project wetlands are :l'ick~iSt river miles from TNW. Project waters are Pic~J:,ist aerial (straight) miles from TNW. Flow is from: Pick Li~t. Estimate appr~xi~ateiocation of wetland as within the (>~£Kt'ist 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:


D Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain fmdings:

3. Characteristics of all wetlands adjacent to the tributary (if any} ... . ... All wetland(s) being considered in the cumulative analysis: J>ic~:Li~t Approximately ( ) acres in total are being considered in the cumulative analysis.






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 TNW s, 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 ofthe TNW?

Note: the above Jist of considerations is not inclusive and other functions observed or known to occur should be documented below:


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 JII.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 lli.D:


1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: B TNWs: linear feet width (ft), Or, acres. [J Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. :'\l8J Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale

indicating that tributary is perennial: Feature shows on USGS topographic map as a blue line stream. Professionals in the field observed flow levels and development of bed and bank structures in the stream, indicative of perennial.

[]' Tributaries of TNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional. Data supporting this conclusion is provided at Section III.B. Provide rationale indicating that

tributary flows seasonally:

Provide estimates for jurisdictional waters in the review area (check all that apply): ~ Tributary waters: 120 linear feet 12 width (ft). 0 Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. 0 Water body 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): [J Tributary waters: linear feet width (ft). · 0 Other non-wetland waters: acres.



Cf Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale indicating that tributary is perennial in Section IILD.2, above. Provide rationale indicating that wetland is directly abutting an RPW:

[] Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section IILB and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW:


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.


6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. 0 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.



As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. E1 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 0 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, !NCLUDINGANY SUCH WATERS (CHECK ALL THAT APPLY): 10

IZJ which are or could be used by interstate or foreign travelers for recreational or other purposes. L] from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. [J which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: 0 Other factors. Explain:


IdentifY type(s) of waters: 0 Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY):

8See Footnote# 3. 9 To complete the analysis refer to the key in Section IILD.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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.

0' 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.

0 Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. 0 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). 0 Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: 0 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): 0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). 0 Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.



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): 181 Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: I8J Data sheets prepared/submitted by or on behalf of the applicant/consultant.


0 Data sheets prepared by the Corps: 0 Corps navigable waters' study: E] U.S. Geological Survey Hydrologic Atlas:


12] U.S. Geological Survey map(s). Cite scale & quad name:NC-LAKE LURE. 0 USDA Natural Resources Conservation Service Soil Survey. Citation: 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: 0 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 181 Photographs: 181 Aerial (Name & Date):UNK.

or 181 Other (Name & Date):UNK. 0 Previous determination(s). File no. and date of response letter: 0 Applicable/supporting case law: 0 Applicable/supporting scientific literature: 0 Other information (please specify):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SAW-2014-02102, Gayle Hegwood, Fairfield Mountains Chapel, Inc

C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project is located at th Fairfield Mountains Chapel off Buffalo Creek Road in Lake Lure

State: NC County/parish/borough: Rutherford City: Lake Lure Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.461283N,-82.187868W Universal Transverse Mercator: Name of nearest water body: Broad River Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Name of watershed or Hydrologic Unit Code (HUC): Santee ~ Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. [J Check if other sites (e.g., offsite mitigation sites, disposal sites, etc ... ) are associated with this action and are recorded


D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): f2l Office (Desk) Determination. Date: December 11, 2014 [] Field Determination. Date(s):


There t\.[¢.11,'§ "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]

ffi] Waters subject to the ebb and flow of the tide. [J Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign

commerce. Explain:


There Ar~ "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


[J TNW s, including territorial seas ffil Wetlands adjacent to TNWs f2l Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs ffi1 Non-RPWs that flow directly or indirectly into TNWs [J Wetlands directly abutting RPWs that flow directly or indirectly into TNWs D Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs ffi] Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs EJ Impoundments of jurisdictional waters EJ Isolated (interstate or intrastate) waters, including isolated wetlands


c. Limits (boundaries) of jurisdiction based on: ~~~~~IS:~~iiY:()~ Elevation of established OHWM (if known):

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months).








2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent'':







(i) General Area Conditions: Watershed size: Pick.Ust Drainage area: PickLtst Average annual rainfall: inches Average annual snowfall: inches


0 Tributary flows directly int() TN\V. 0 Tributary flows through Picl<.Li~~ tributaries before entering TNW.

Project waters are Pick List river miles from TNW. Project waters are Pi~ji List river miles from RPW. Project waters are Pick List aerial (straight) miles from TNW. Project waters are ~ick].,ist aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:


apply):





Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: ,f:I9k{.ist.

Primary tributary substrate composition (check all that apply): D Silts D Sands D Cobbles D Gravel

D Concrete 0Muck

D Bedrock D Vegetation. Type/% cover: D Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain:

Explain:

Tributary geometry: J:'Jcl(l..ist Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: J>i~Ji::List Estimate average number of flo~ events in review area/year: fit:~J'.,is.f:


Surface flow is: :r!cJ{'"I.;ijt. Characteristics:

Subsurface flow: Piclr·List. Explain findings: D Dye (or other) test performed:


D clear, natural line impressed on the bank D changes in the character of soil D shelving D vegetation matted down, bent, or absent D leaf litter disturbed or washed away D sediment deposition

D D D D

the presence oflitter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting

D scour D multiple observed or predicted flow events

D water staining D abrupt change in plant community


If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that

D High Tide Line indicated by: [] D oil or scum line along shore objects D fine shell or debris deposits (foreshore) D physical markings/characteristics D tidal gauges D other (list):


Mean High Water Mark indicated by: D survey to available datum; D physical markings; D vegetation lines/changes in vegetation types.



5 Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. 6A natural or mao-made discontiriuity 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 aod below the break. 7Ibid.







(b) General Flow Relationship with Non-1NW: Flow is: fi~k):Ji§~. Explain:

Surface flow is: Picl\;:(.,ist Characteristics:

Subsurface flow: PickList. Explain fmdings: D Dye (or other) test performed:



(d) Proximitv (Relationship) to 1NW Project wetlands are J;'ickList river miles from 1NW. Project waters are Pi.ck List aerial (straight) miles from 1NW. Flow is from: Pi~[ List. Estimate approri!llat~location of wetland as within the ~~~l<Li~t floodplain.


watershed characteristics; etc.). Explain: Identify specific pollutants, if known:



3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: PickLxst Approximately ( ) acres in total are being considered in the cumulative analysis.






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: • J)oes the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood



organic carbon that support downstream food webs? • Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical,

chemical, or biological integrity of the TNW?






1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: [] TNWs: linear feet width (ft), Or, acres. [J Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. : ,''181 Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale


I[] Tributaries ofTNW 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


Provide estimates for jurisdictional waters in the review area (check all that apply): (gl Tributary waters: I 15 linear feet 15 width (ft). I]] Other non-wetland waters: acres.










5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. 0 Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they







As a general rule, the impoundment of a jurisdicti.onal tributary remains jurisdictional. ITI Demonstrate that impoundment was created from "waters of the U.S.," or 0 Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 0 Demonstrate that water is isolated with a nexus to commerce (see E below).


0 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. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: [] Other factors. Explain:


IdentifY type(s) of waters: I§] Wetlands: acres.


8See Footnote# 3. 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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.

0 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.

0 Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. D 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). 0 Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: 0 Other: (explain, if not covered above): c

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): GJ Non-wetland waters (i.e., rivers, streams): linear feet width (ft). D Lakes/ponds: acres. D Other non-wetland waters: acres. List type of aquatic resource: D 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): 0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). D Lakes/ponds: acres. D Other non-wetland waters: acres. List type of aquatic resource: D Wetlands: acres.


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): 12] Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: l8l Data sheets prepared/submitted by or on behalf of the applicant/consultant.

l8l Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report.

D Data sheets prepared by the Corps: D Corps navigable waters' study: D U.S. Geological Survey Hydrologic Atlas:


l8l U.S. Geological Survey map(s). Cite scale & quad name:NC-LAKE LURE. D USDA Natural Resources Conservation Service Soil Survey. Citation: D National wetlands inventory map(s). Cite name: D State/Local wetland inventory map(s): D FEMA/FIRM maps: D lOO~year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) l8l Photographs: l8l Aerial (Name & Date):

or l8l Other (Name & Date): D Previous determination(s). File no. and date of response letter: D Applicable/supporting case law: D Applicable/supporting scientific literature: [] Other information (please specify):


APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps ofEngineers



B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESA W-RG-A, 2014-02114, Valley Hill Fire & Rescue Department, Inc. I Attn.: Tim Garren

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Henderson City: Hendersonville Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.245365 N, 82.551453 W Universal Transverse Mercator: Name of nearest waterbody: UT to Crab 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) [gl Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. 0 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): t8l Office (Desk) Determination. Date: December 22,2014 0 Field Determination. Date(s):


There Are ll<i "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defmed by 33 CFR part 329) in the review area. [Required]

0 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:


There Are "waters of the US." within Clean Water Act (CWA) jurisdiction (as defmed by 33 CFR part 328) in the review area. [Required]


[J TNWs, including territorial seas 0 Wetlands adjacent to TNWs [gJ Relatively permanent waters2 (RPW s) that flow directly or indirectly into TNW s 0 Non-RPWs that flow directly or indirectly into TNWs lB] Wetlands directly abutting RPWs that flow directly.or indirectly into TNWs [J Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs [J Impoundments of jurisdictional waters [] Isolated (interstate or intrastate) waters, including isolated wetlands

b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 670 linear feet: 3 width (ft) and/or acres. Wetlands: 0.03 acres.

c. Limits (boundaries) of jurisdiction based on: j'$t~~1iSi~ byi{j~~ Elevation of established OHWM (if known):


[j] Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:



The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section ill.A.l and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections IJI.A.l and 2 and Section IJI.D.l.; otherwise, see Section III.B below.







If the waterbodl is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section ill.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i)

(ii)

General Area Conditions: Watershed size: :Pi~k:l;,i~t Drainage area: :~j!:f<Li~t Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through fi~~J.S~~t tributaries before entering TNW.

Project waters are 'Pi river miles from TNW. Project waters are It river miles from RPW. Project waters are 'R' aerial (straight) miles from TNW. Project waters are 'Picl{ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:






Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: ... feet Average side slopes: Pi~kList.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of runlriffle/p()ol C()mplexes. Explain: Tributary geometry: f~ckLis( Tributary gradient (approximate average slope): %

(c) Flow:

D Concrete 0Muck

Explain:

Tributary provides for: Pi(;k.List Estimate average number ~ffl~w events in review area/year: J'i@.~¥i~


Surface flow is: ri~J{,J.;Ht. Characteristics:

Subsurface flow: Pi£KJASf. Explain findings: D Dye (or other) test performed:




If factors other than the OHWM were used to determine lateral extent ofCWAjurisdiction (check all that apply): 0 High Tide Line indicated by: EI Mean High Water Mark indicated by:

. D oil or scum line along shore objects D survey to available datum; D fine shell or debris deposits (foreshore) D physical markings; D physical markings/characteristics D vegetation lines/changes in vegetation types. D tidal gauges D other (list):




D Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain fmdings:






(b) General Flow Relationship with Non-TNW: Flow is: fpi~:kList. Explain:

Surface flow is: ~i£K:tis~ Characteristics:

Subsurface flow: Pic1fLisf Explain findings: D Dye (or other) test performed:



(d) Proximit Project wetlands are . Project waters are .. ~i Flow is from: Pick. Lis{

river miles from TNW. aerial (straight) miles from TNW.

Estimate appro~im~te location of wetland as within the Pic)iLi.~t floodplain.





3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: ~i£~',(.;~~! Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specifY the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN) Size (in acres)



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 ifthe 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


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 1NWs, or to


species, such as feeding, nesting, spawning, or rearing young for species that are present in the 1NW? • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that


integrity of the 1NW?






1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: 0 1NWs: linear feet width (ft), Or, acres. 0 Wetlands adjacent to 1NWs: acres.

2. RPWs that flow directly or indirectly into TNWs. 181 Tributaries of1NWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: UT to Crab Creek exhibits indicators of ordinary high water marks (OHWM) including developed bed and bank, scour, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaf litter washed away. Indicters of perennial flow have been observed by Corps representatives during visits to the Hendersonville, North Carolina vicinity.

[3 Tributaries of 1NW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): 181 Tributary waters: 670 linear feet 3 width (ft). 0 Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. [J Waterbody that is not a 1NW or an RPW, but flows directly or indirectly into a 1NW, and it has a significant nexus with a 1NW is


Provide estimates for jurisdictional waters within the review area (check all that apply): D Tributary waters: linear feet width (ft). EIJ Other non-wetland waters: acres.


4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. jg'l Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.

l8l 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: Flows directly into associated tributary.

8See Footnote# 3.



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



6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. I] Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with




As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. Q Demonstrate that impoundment was created from "waters of the U.S.," or Q Demonstrate that water meets the criteria for one of the categories presented above (l-6), or Q Demonstrate that water is isolated with a nexus to commerce (see E below).


EJ which are or could be used by interstate or foreign travelers for recreational or other purposes. 0 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: D Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): [) Tributary waters: linear feet width (ft). [j Other non-wetland waters: acres.

Identify type(s) of waters: [J Wetlands: acres.


Delineation Manual and/or appropriate Regional Supplements. 0 Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.

Q 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: 0 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): 0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). 0 Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: c:l 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): ·


D Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). Q Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): 121 Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 121 Data sheets prepared/submitted by or on behalf of the applicant/consultant.

~Office concurs with data sheets/delineation report. 0 Office does not concur with data sheets/delineation report.

III Data sheets prepared by the Corps: 0 Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:


1%1 U.S. Geological Survey map(s). Cite scale & quad name: Standing Stone Mountain. 0 USDA Natural Resources Conservation Service Soil Survey. Citation: Henderson County, NC. 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): [] FEMA/FIRM maps: [] 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) Q Photographs: 0 Aerial (Name & Date):

or 0 Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: [] Applicable/supporting case law: [] Applicable/supporting scientific literature: 0 Other information (please specify):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESA W-RG-A, SA W-2014-02134, Richard Berkowitz, Scott Sharp, Wade Wells, Edwin Tiollman, Joseph Urash

C. PROJECT LOCATION AND BACKGROUND INFORMATION: Moss Lake State: NC County/parish/borough: Cleveland City: Shelby Center coordinates of site (lat/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.308361, -81.472398 Universal Transverse Mercator: Name of nearest water body: Buffalo Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Name of watershed or Hydrologic Unit Code (HUC): Upper Catawba Watershed, Santee Basin, HUC: 03050101 ~ Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. Q, Check if other sites (e.g., offsite mitigation sites, disposal sites, etc, .. ) are associated with this action and are recorded


D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): [J Office (Desk) Determination. Date: 181 Field Determination. Date(s): 20 November 2014


There ~r~-~~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required)

III Waters subject to the ebb and flow of the tide. j5] Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign

commerce. Explain:


There ,i\.~~ "waters of the US." within Clean Water Act (CWA)jurisdiction (as defined by 33 CFRpart 328) in the review area. [Required)


[] TNWs, including territorial seas [] Wetlands adjacent to TNWs 181 Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [J Non-RPWs that flow directly or indirectly into TNWs IEJ Wetlands directly abutting RPWs that flow directly or indirectly into TNWs G) Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs G) Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs 181 Impoundments of jurisdictional waters [] Isolated (interstate or intrastate) waters, including isolated wetlands

b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 177 linear feet: width (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: i~t,~ij~~~~~ij~jci~~~ Elevation of established OHWM (if known):


IJ] Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes of this fonn, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months). 3 Supporting documentation is presented in Section III.F.



1. TNW Identizy TNW:







If the waterbodl is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the water body has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l 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 i~ determined in Section III.C below.


(i) General Area Conditions: Watershed size: Drainage area: Average annual rainfall: Average annual snowfall:


inches inches

D Tributary flows directly into mw. D Tributary flows through ri£~ I,~~ tributaries before entering TNW.

Project waters are river miles from TNW. Project waters are river miles from RPW. Project waters are aerial (straight) miles from TNW. Project waters are aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

Identizy flow route to TNW5:




apply):

D Artificial (man-made). Explain: 0 Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: ]>i~!f'l.i§!.

Primary tributary substrate composition (check all that apply): D Silts 0 Sands D Cobbles 0 Gravel 0 Bedrock 0 Vegetation. Type/% cover: D Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/poolcomplexes. Explain: Tributary geometry: ~icki!J,~t Tributary gradient (approximate average slope): %

(c) Flow:

D Concrete 0Muck

Explain:

Tributary provides for: ipil~ti~t Estimate average number of flow events in review area/year: ]>~~~'~i~


Surface flow is: PitkLISt. Characteristics:

Subsurface flow: ]>I~~'J..ist. Explain findings: 0 Dye (or other) test performed:


0 clear, natural line impressed on the bank 0 changes in the character of soil D shelving 0 vegetation matted down, bent, or absent 0 leaf litter disturbed or washed away 0 sediment deposition

D D D D

the presence of litter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting



0 other (list): 0 Discontinuous OHWM.7 Explain:


Ji' High Tide Line indicated by: [] 0' oil or scum line along shore objects 0 fine shell or debris deposits (foreshore) 0 physical markings/characteristics 0 tidal gauges D other (list):


Mean High Water Mark indicated by: 0 survey to available datum; D physical markings; 0 vegetation lines/changes in vegetation types.




0 Federally Listed species. Explain fmdings:


0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings: 0 Aquatic/wildlife diversity. Explain findings:



(b)



General Flow Relationship with Non-TNW: Flow is: J!iek List. Explain:

Surface flow is: PiekList Characteristics:

Subsurface flow: :Pi¢kList. Explain findings: 0 Dye (or other) test performed:



(d) Proximity (Relationship) to 1NW Project wetlands are Pi..,kList, river miles from TNW. Project waters arePick.l.;;ist aerial (straight) miles from TNW. Flow is from: PkkLiSt. Estimate apprmdmate location of wetland as within the :Pi¢ii:'List floodplain.





3. Characteristics of all wetlands adjacent to the tributary (if any) .. ... . All wetland(s) being considered in the cumulative analysis: :t'i~kl.~t Approximately ( ) acres in total are being considered in the cumulative analysis.


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



Size (in acres)



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


organic carbon that support downstream foodwebs? • Does the tributary, in·combination with its adjacent wetlands (if any), have other relationships to the physical,








2. RPWs that flow directly or indirectly into TNWs. [8:1 Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Features show on USGS topographic map as a blue line stream. Professionals in the field observed flow levels and development of bed and bank structures in the stream, which are indicative of perennial waters.

W Tributaries ofTNW 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


Provide estimates for jurisdictional waters in the review area (check all that apply): [J Tributary waters: linear feet width (ft) . . 18\ Other non-wetland waters: 0.34 acres.

IdentifY type(s) of waters: Open.

3. Non-RPWs8 that flow directly or indirectly into TNWs. If]] Water body that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant


Provide estimates for jurisdictional waters within the review area (check all that apply):

8See Footnote# 3.

0 Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.




D 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:









As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0 Demonstrate that impoundment was created from "waters of the U.S.," or [gl Demonstrate that water meets the criteria for one of the categories presented above (1-6), or G 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

LJ which are or could be used by interstate or foreign travelers for recreational or other purposes. L] from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. lffil which are or could be used for industrial purposes by industries in interstate commerce. JiB Interstate isolated waters. Explain: 1m Other factors. Explain:


Identify type(s) of waters: 0 Wetlands: acres.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): 0 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. Elli] Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


liT] Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain:

9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

[] 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): 0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). 0 Lakes/ponds: acres. 0 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). 0 Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): 12:{ Maps, plans, plots or plat submitted by or on behalf ofthe applicant/consultant: [j Data sheets prepared/submitted by or on behalf of the applicant/consultant.


0 Data sheets prepared by the Corps: Q Corps navigable waters' study: 0' U.S. Geological Survey Hydrologic Atlas:


Jg) U.S. Geological Survey map(s). Cite scale & quad name:NC-WACO. Q USDA Natural Resources Conservation Service Soil Survey. Citation: 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): [] FEMA/FIRM maps: ['] 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 181 Photographs:~ Aerial (Name & Date):1993.

or D Other (Name & Date): [J Previous deterrnination(s). File no. and date of response letter: [] Applicable/supporting case law: [] Applicable/supporting scientific literature: t]l Other information (please specifY):




SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): November 24, 2014

B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SA W-2014-02146, UNCC, Philip Jones, Associate Vice-Chancellor for Facillities

C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project is located on the campus of UNCC on Toby Creek, in forested area bounded by Van Landingham Road, Mary Alexander Road and parking facilities.Coordinates: 35.307N, -80.728 W

State: NC County/parish/borough: Mecklenburg City: Charlotte Center coordinates of site (lat!long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.307N, -80.728W Universal Transverse Mercator: Name of nearest water body: Toby Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Name of watershed or Hydrologic Unit Code (HUC): Upper Pee Dee, 3040105 I2J 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


D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): I2J Office (Desk) Determination. Date: November 24, 2014 0 Field Determination. Date(s):


There ,;\fefi;~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required)

[] Waters subject to the ebb and flow of the tide. [] Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign

commerce. Explain:


There ~r~ "waters of the US." within Clean Water Act (CWA) jurisdiction (as defmed by 33 CFRpart 328) in the review area. [Required)


[] TNWs, including territorial seas ill Wetlands adjacent to TNWs I2J Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [] Non-RPWs that flow directly or indirectly into TNWs OJ Wetlands directly abutting RPW s that flow directly or indirectly into TNW s 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs D Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs II] 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: 299linear feet: 4 width (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: Esta~~~~~~~~ypffW~ Elevation of established OHWM (ifknown):

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months).





The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. Ifthe aquatic resource is a TNW, complete Section III.A.l and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below.






The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D;2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4.


If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine ifthe waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i)

(ii)

General Area Conditions: Watershed size: PickList Drainage area: 'PickList Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through 'P,~cklList tributaries before entering TNW.

Project waters are Pick L}st river miles from TNW. Project waters are J?iekJ:,ist river miles from RPW. Project waters are ~ickLisf aerial (straight) miles from TNW. Project waters are gick!\is~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

3 Supporting documentation is presented in Section IILF. 4 Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the arid West.

apply):





Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: ,f!~l>.l_,.i§(.


D Concrete 0Muck


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of runlriffle/po,ol complexes. Explain:

Explain:

Tributary geometry: ;pi~!t]]~S:! Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: J.>~~~~~~t Estimate average numb~r ~fflow events in review area/year: J.>~¢~~i~


Surface flow is: fj~~:!A~~- Characteristics:

Subsurface flow: ~~~~Jfuisi. Explain findings: D Dye (or other) test performed:



D D D D



D water staining D abrupt change in plant community



0 High Tide Line indicated by: 0 D oil or scum line along shore objects D fme shell or debris deposits (foreshore) D physical markings/characteristics D tidal gauges D other (list):




5 Flow route can be described by identifYing, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. 6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7Ibid.








(b) General Flow Relationship with Non-TNW: Flow is: PickL!~~- Explain:

Surface flow is: PickList Characteristics:

Subsurface flow: PickList. Explain findings: 0 Dye (or other) test performed:



(d) Proximity (Relationship} to TNW Project wetlands are ~if.* Lis~ river miles from TNW. Project waters are PickLi$t aerial (straight) miles from TNW. Flow is from: Pitk List. Estimate approximate location of wetland as within the )>icklist floodplain.




0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain fmdings: 0 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: J:>~~J<:q~l Approximately ( ) acres in total are being considered in the cumulative analysis.





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 ofthe 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.


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






2. Significant nexus findings for non-RPW and its adjacent wetlands, where the non-RPW flows directly or indirectly into TNW s. 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:



1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: '[] TNWs: linear feet width (ft), Or, acres. IE! Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. iL!i,J~ Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale


[] 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


Provide estimates for jurisdictional waters in the review area (check all that apply): tEJ Tributary waters: 299 linear feet 4 width (ft). [] Other non-wetland waters: acres.




Provide estimates for jurisdictional waters within the review area (check all that apply): 0 Tributary waters: linear feet width (ft). [J Other non-wetland waters: acres.






5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. [J Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they



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




As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0 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 APPL Y): 10

(3] which are or could be used by interstate or foreign travelers for recreational or other purposes. 0 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: [] Other factors. Explain:


IdentifY type(s) of waters: D Wetlands: acres.

8See Footnote# 3. 9 To complete the analysis refer to the key in Section IILD.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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.

F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): [] If potential wetlands were assessed within the review are~ these areas did not meet the criteria in the 1987 Corps of

Engineers Wetland Delineation Manual and/or appropriate Regional Supplements. IJJ; Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.

. D 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).

D Waters do not meet the "Significant Nexus" standard, where such a fmding is required for jurisdiction. Explain: 0 Other: (explain, if not covered above):

Provide acreage estimates for non-jurisdictional waters in the review are~ 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): D Non-wetland waters (i.e., rivers, streams): linear feet width (ft). D Lakes/ponds: acres. D Other non-wetland waters: acres. List type of aquatic resource: D 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): E:J Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). [} Lakes/ponds: acres. II] Other non-wetland waters: acres. List type of aquatic resource: @I Wetlands: acres.


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): 18] .Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: l)gJ Data sheets prepared/submitted by or on behalf of the applicant/consultant.

18] Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report.

ITI Data sheets prepared by the Corps: LJ Corps navigable waters' study: [J U.S. Geological Survey Hydrologic Atlas:


123 U.S. Geological Survey map(s). Cite scale & quad name:NC-Harrisburg. OJ USDA Natural Resources Conservation Service Soil Survey. Citation: [] National wetlands inventory map(s). Cite name: D State/Local wetland inventory map(s): D FEMA/FIRM maps: [J 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 18] Photographs: D Aerial (Name & Date):

or D Other (Name & Date): D Previous determination(s). File no. and date of response letter: [J Applicable/supporting case law: 0 Applicable/supporting scientific literature: EJ Other information (please specifY):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02167, The University of North Carolina at Asheville Foundation, Inc. I David Todd

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Buncombe City: Asheville Center coordinates of site (lat/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.614104 N, -82.563673 W Universal Transverse Mercator: Name of nearest waterbody: Reed 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): French Broad 123 Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. CJ 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): l2J Office (Desk) Determination. Date: 12-19-2014 0 Field Determination. Date(s):


There 1\r~:p9 "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Reql<'ired]

1m Waters subject to the ebb and flow of the tide. L) Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Explain:


There A'f~ "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


1.5] TNWs, including territorial seas [J Wetlands adjacent to TNWs ~ Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [] Non-RPWs that flow directly or indirectly into TNWs [J Wetlands directly abutting RPWs that flow directly or indirectly into TNWs IT] Wetlands adjacent to but not directly abutting RPW s that flow directly or indirectly into TNW s [] Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs [!] Impoundments of jurisdictional waters EJ Isolated (interstate or intrastate) waters, including isolated wetlands

b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 75 linear feet: 25 width (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: tf~tabliStiif~y;Q:IJ.Wij'~ Elevation of established OHWM (if known):


D. Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:



The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is :1 TNW, complete Section III.A.l and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below.

1. TNW Identify TNW: Summarize rationale supporting determination:






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 III.B.l for the tributary, Section ffi.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i)

(ii)

General Area Conditions: Watershed size: PitkList Drainage area: ,J>j¢[£ist Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TJ\f:W-0 Tributary flows through fi~k'tiSt tributaries before entering TNW.

Project waters are '¢ick ):ji~ river miles from TNW. Project waters are Pick I:iist river miles from RPW. Project waters are ~~i;k~~~ aerial (straight) miles from TNW. Project waters are 'f\~~ti~~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

Identify flow route to TNW5:






Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: .. feet Average side slopes: ll:',~~~,jii,~f,.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: ~i~f(lt!~~ Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: fi~!~~t

D Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: J>ick.LI~t Describe flow regime:


Surface flow is: Pidtl:,i$i. Characteristics:

Subsurface flow: ]:>i~Ji;;L,ist. Explain findings: D Dye (or other) test performed:




If factors other than the OHWM were used to determine lateral extent of CWAjurisdiction (check all that apply): [] High Tide Line indicated by: 0 Mean High Water Mark indicated by:




(iv) Biological Characteristics. Channel supports (check all that apply): D Riparian corridor. Characteristics (type, average width): ·o Wetland fringe. Characteristics: D Habitat for:

D Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings:







(b) General Flo\¥ Relationship with Non-TNW: Flow is: PiclcLi$t. Explain:

Surface flow is: PickL.ist Characteristics:

Subsurface flow: PH:ItLis~. Explain findings: 0 Dye (or other) test performed:

(c) Wetland Adjacency Determination with Non-TNW: D Directly abutting 0 Not directly abutting


(d) Proximity (Relationship) to 1NW Project wetlands are Pic:k ).,ist river miles from TNW. Project waters areP:ickList aerial (straight) miles from TNW. Flow is from: Pick List. Estimate approximate location of wetland as within the j>i~j(:J.:iS! floodplain.


etc.). Explain: ldentizy specific pollutants, if known:


0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive spedes. Explain findings: 0 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: ~lck.List Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specizy the following: Directly abuts? CY/N) Size (in acres) Directly abuts? (YIN)



Size (in acres)

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 ifthe 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 1NWs, or to

reduce the amount of pollutants or flood waters reaching a 1NW? • 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 1NW? • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that

support downstream food webs? • Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or biological

integrity of the 1NW?






1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: @1NWs: linear feet width (ft), Or, acres. 8J Wetlands adjacent to 1NWs: acres.

2. RPWs that flow directly or indirectly into TNWs. J81 Tributaries of 1NW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: Reed Creek is a blue line stream on the USGS topographic map, NC-Asheville Quad which in North Carolina means it flows more than 3 months out of the year making it a perennial stream. It also supports aquatic life.

[J Tributaries of 1NW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): Iilli Tributary waters: linear feet width (ft). E) Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. £] Waterbody that is not a 1NW or an RPW, but flows directly or indirectly into a 1NW, and it has a significant nexus with a 1NW is

jurisdictional. Data supporting this conclusion is provided at Section Ill. C.

Provide estimates for ju,risdictional waters within the review area (check all that apply): 0 Tributary waters: linear feet width (ft). []] Other non-wetland waters: acres.


4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. Eli] Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.

El 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

8See Footnote# 3.

directly abutting an RPW:

0 Wetlands directly abutting an RPW where tributaries typicaily flow "seasonaily." 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:









As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0 Demonstrate that impoundment was created from "waters of the U.S.," or 0 Demonstrate that water meets the criteria for one of the categories presented above ( 1-6), or 0 Demonstrate that water is isolated with a nexus to commerce (see E below).


0 which are or could be used by interstate or foreign travelers for recreational or other purposes. 0 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. 0 which are or could be used for industrial purposes by industries in interstate commerce. [] Interstate isolated waters. Explain: 0 Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check ail that apply): IJ] 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): CJ 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. 0 Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


0 Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: [1 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 ail that apply): 0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). II] Lakes/ponds: acres. E) Other non-wetland waters: acres. List type of aquatic resource: [] Wetlands: acres.

9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWAjurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): 0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: EJ Wetlands: acres.


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: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.


01 Data sheets prepared by the Corps: 01 Corps navigable waters' study: EJ U.S. Geological Survey Hydrologic Atlas:


[8l U.S. Geological Survey map(s). Cite scale & quad name: NC-Asheville. 0 USDA Natural Resources Conservation Service Soil Survey. Citation: Buncombe County, NC [] National wetlands inventory map(s). Cite name: IS] State/Local wetland inventory map(s): CJ FEMA/FIRM maps: [ill 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) [] Photographs: D Aerial (Name & Date):

or D Other (Name & Date): D Previous deterrnination(s). File no. and date of response letter: 0 Applicable/supporting case law: [] Applicable/supporting scientific literature: @ Other information (please specify):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SA W-2014-02208, Keith Wesolowski, Ram Construction

C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project is located at 500 Uverson Way in the Sedgefield Neighborhood

State: NC County/parish/borough: Mecklenburg City: Charlotte Center coordinates of site (latllong in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.202563, -80.860754 Universal Transverse Mercator: Name of nearest water body: Dairy Branch Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Name of watershed or Hydrologic Unit Code (HUC): Lower Catawba 3050103 18] 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


D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): [J Office (Desk) Determination. Date: I3J Field Determination. Date(s):


There~~~;:~~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

LJ Waters subject to the ebb and flow of the tide. EJ Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign

commerce. Explain:


There "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


Efl TNW s, including territorial seas EEl Wetlands adjacent to TNWs I8J Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs 0 Non-RPWs that flow directly or indirectly into TNWs EJ Wetlands directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 1[1 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs B Impoundments of jurisdictional waters ITl Isolated (interstate or intrastate) waters, including isolated wetlands


c. Limits (boundaries) of jurisdiction based on: ~st~~~i~Q~:h)i';p~J Elevation of established OHWM (if known):

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes ofthis 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).












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 oflaw.

If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the water body has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.

1. Characteristics of non-TNWs that flow directly or indirectly into TNW

(i)

(ii)

General Area Conditions: Watershed size: List Drainage area: kList Average annual rainfall: inches Average annual snowfall: inches


0 Tributary flows directly into'IN'Y· 0 Tributary flows through ~ic,~Li~~ tributaries before entering TNW.

Project waters are J>itkLisi river miles from TNW. Project waters are Pi "j$( river miles from RPW. Project waters are · aerial (straight) miles from TNW. Project waters are aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:


apply):





Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: .. feet Average side slopes: }>ifKl;iSt.

Primary tributary substrate composition (check all that apply): D Silts D Sands 0 Cobbles 0 Gravel

0 Concrete 0Muck

0 Bedrock 0 Vegetation. Type/% cover: D Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riftle/p()ol ~()mplexes. Explain: Tributary geometry: ;fi,~}5~js~

Explain:

Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: £ifi(Jji$t Estimate average numb~;offlow events in review area/year: fit:~'!fi~


Surface flow is: flc.kj,:~~- Characteristics:

Subsurface flow: Pieki,;iS:t. Explain findings: 0 Dye (or other) test performed:


0 clear, natural line impressed on the bank 0 changes in the character of soil 0 shelving 0 vegetation matted down, bent, or absent 0 leaf litter disturbed or washed away 0 sediment deposition

D D D D




D other (list): 0 Discontinuous OHWM. 7 Explain:


EJI High Tide Line indicated by: EJ 0 oil or scum line along shore objects 0 fine shell or debris deposits (foreshore) 0 physical markings/characteristics 0 tidal gauges D other (list):


Mean High Water Mark indicated by: D survey to available datum; D physical markings; 0 vegetation lines/changes in vegetation types.



5 Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. 6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7lbid.

(iv) Biological Characteristics. Channel supports (check all that apply): D Riparian corridor. Characteristics (type, average width): D Wetland :fringe. Characteristics: D Habitat for:






(b) General Flow Relationship with Non-TNW: Flow is: J;>i~j{):;iS~. Explain:

Surface flow is: J'i~I{List Characteristics:

Subsurface flow: fif){;List. Explain findings: D Dye (or other) test performed:



(d) Proximitv (Relationship) to TNW Project wetlands are I':iFk:~iSt river miles from TNW. Project waters are.,P:i~k,:LiSt aerial (straight) miles :from TNW. Flow is :from: PickLisf. Estimate appnlxi~~t~ !~cation of wetland as within the -.?icK:List floodplain.





3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: fi~l(I.,i~j Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specify the following:















1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: E] TNWs: linear feet width (ft), Or, acres. !]] Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. ·121 Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale


lillJ Tributaries ofTNW 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


Provide estimates for jurisdictional waters in the review area (check all that apply): [87 Tributary waters: 67 linear feet 3 width (ft). I2J Other non-wetland waters: acres.




Provide estimates for jurisdictional waters within the review area (check all that apply): B Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.


4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. B Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.

0 Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale indicating that tributary is perermial in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW:



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



6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. [J Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are




As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. @ Demonstrate that impoundment was created from "waters of the U.S.," or 0 Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 0 Demonstrate that water is isolated with a nexus to commerce (see E below).


B which are or could be used by interstate or foreign travelers for recreational or other purposes. D from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. D which are or could be used for industrial purposes by industries in interstate commerce. B Interstate isolated waters. Explain: [] Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): D Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.

IdentifY type( s) of waters: D Wetlands: acres.


'See Footnote# 3. 9 To complete the analysis refer to the key in Section IILD.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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.

EJ 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.

EJ Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. D 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). I]) Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: LJ 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): D Non-wetland waters (i.e., rivers, streams): linear feet width (ft). 0 Lakes/ponds: acres. D Other non-wetland waters: acres. List type of aquatic resource: D 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). D Lakes/ponds: acres. D Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): l8J Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: I2J Data sheets prepared/submitted by or on behalf of the applicant/consultant.

. 18] Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report.

CI Data sheets prepared by the Corps: D Corps navigable waters' study: E] U.S. Geological Survey Hydrologic Atlas:

D USGS NHD data. 0 USGS 8 and 12 digit HUC maps.

18:1 U.S. Geological Survey map(s). Cite scale & quad name:NC-Charlotte East. [,] USDA Natural Resources Conservation Service Soil Survey. Citation: D National wetlands inventory map(s). Cite name: D State/Local wetland inventory map(s): EJ FEMA/FIRM maps: EJ 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) JEI Photographs: 18] Aerial (Name & Date):

or 18:1 Other (Name & Date): El Previous determination(s). File no. and date of response letter: D Applicable/supporting case law: IE Applicable/supporting scientific literature: W Other information (please specifY):


------------------------------------


---------



B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02210, John Vincent

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Lincoln City: Denver Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.469798 N, 80.965727 W Universal Transverse Mercator: Name of nearest waterbody: Lake Norman (Catawba River) Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Lake Norman (Catawba River) Name of watershed or Hydrologic Unit Code (HUC): Upper Catawba (03050101) [8] Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. [J 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): [8] Office (Desk) Determination. Date: December 15, 2014 [] Field Determination. Date(s):


There 1\.i:¢'0:~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]


Explain:


There At~ "waters oft he US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


t8] TNWs, including territorial seas [] Wetlands adjacent to TNWs 0 Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs 0 Non-RPWs that flow directly or indirectly into TNWs 0 Wetlands directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs [g) Impoundments of jurisdictional waters [J 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: linear feet: width (ft) and/or 1 acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: E,~t~b1iSK~))y()~~ Elevation of established OHWM (if known):


I[] Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:



The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section III.A.l and Section III.D.l. only; ifthe aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below.

1. TNW Identizy TNW: Catawba River (Lake Norman). Summarize rationale supporting determination: : Large watershed, waterway can and has and does support navigation of non







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 III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


"(i) General Area Conditions: Watershed size: Drainage area: Average annual rainfall: Average annual snowfall:


inches inches

0 Tributary flows directly into'fl'~W. 0 Tributary flows through ;piclf~if tributaries before entering TNW.

Project waters are Piek.LiSt river miles from TNW. Project waters are J>j~k · • river miles from RPW. Project waters are P' ........... aerial (straight) miles from TNW. Project waters are }>~kEl~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:

Identizy flow route to TNW5:



0 Artificial (man-made). Explain:


0 Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: ~i£kJ:,Ist.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: fi£k,;£..i~t Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: _l>,ifk1~~

D Concrete 0Muck

Explain:

Estimate average number of flow events in review area/year: ,Pick List Describe flow regime:


Surface flow is: PiekList. Characteristics:

Subsurface flow: PitkL,is!. Explain findings: 0 Dye (or other) test performed:


D clear, natural line impressed on the bank D the presence oflitter and debris D changes in the character of soil 0 destruction of terrestrial vegetation D shelving 0 the presence of wrack line D vegetation matted down, bent, or absent 0 sediment sorting D leaf litter disturbed or washed away 0 scour D sediment deposition 0 multiple observed or predicted flow events 0 water staining 0 abrupt change in plant community D other (list):


If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): [] High Tide Line indicated by: D Mean High Water Mark indicated by:

D oil or scum line along shore objects D survey to available datum; D fine shell or debris deposits (foreshore) 0 physical markings; D physical markings/characteristics 0 vegetation lines/changes in vegetation types. D tidal gauges D other (list):

(iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics; etc.). Explain:




6 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. 71bid.






(b) General Flow Relationship with Non-TNW: Flow is: J:ti~~Lisf. Explain:

Surface flow is: P!¢ltList Characteristics:

Subsurface flow: :P!~l<'Lis~. Explain findings: 0 Dye (or other) test performed:


(d)

D Directly abutting 0 Not directly abutting


toTNW Project wetlands areP LiSt river miles from TNW. Project watersare · .· ist, aerial (straight) miles from TNW. Flow is from: Pitk:LiSf. Estimate approxi~;i.e iocation of wetland as within the :fi~~'~\S! floodplain.


etc.). Explain: IdentifY specific poilutants, if known:


0 Federaily Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentaily-sensitive species. Explain findings: 0 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: !'i£k.Li§~ Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specifY the foil owing: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN)

Summarize overaii biological, chemical and physical functions being performed:


Size (in acres)

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 ofthe 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








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 significimt nexus below, based on the tributary itself, then go to Section III.D:




1. TNWs and Adjacent Wetlands. t8J TNWs: linear feet 0 Wetlands adjacent to TNWs:

Check all that apply and provide size estimates in review area: width (ft), Or, 1 acres.

acres.

2. RPWs that flow directly or indirectly into TNWs. 0 Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: [J Tributaries of TNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): [] Tributary waters: linear feet width (ft). [l Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. 0 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


Provide estimates for jurisdictional waters within the review area (check all that apply): 0 Tributary waters: linear feet width (ft). [] Other non-wetland waters: acres.


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:

8See Footnote# 3.

D' 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:


5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. 0, Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with



6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. Jill Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with




As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 0 Demonstrate that impoundment was created from "waters of the U.S.," or :t2J Demonstrate that water meets the criteria for one of the categories presented above (1-6), Lake Nor man was formed by the

impoundment of the Catawba River, a TNW at the project location. or [J Demonstrate that water is isolated with a nexus to commerce (see E below).


[] which are or could be used by interstate or foreign travelers for recreational or other purposes. EJ from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. [] which are or could be used for industrial purposes by industries in interstate commerce. [] Interstate isolated waters. Explain: [] Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): [J Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.

IdentifY type(s) of waters: 0 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.


III Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: D 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: 0 Wetlands: acres.

9 To complete the analysis refer to the key in Section III.D,6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): 0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. [J Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): [81 Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.


[J Data sheets prepared by the Corps: [] Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:


[81 U.S. Geological Survey map(s). Cite scale & quad name: Lake Normal South. (g) USDA Natural Resources Conservation Service Soil Survey. Citation: Lincoln County, NC [] National wetlands inventory map(s). Cite name: II] State/Local wetland inventory map(s): 0 FEMA/FIRM maps: EJ 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: D Aerial (Name & Date):

or D Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: [] Applicable/supporting case law: [J Applicable/supporting scientific literature: E) Other information (please specifY):


APPROVED WRISDICTIONAL DETERMINATION FORM U.S. Army Corps ofEngineers

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


B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SAW-2014-02211, Bruce and Valerie Cuddy

C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project is located at 18124 Shore Farm Road, Albemarle, NC. From Indian Mound Road, turn west onto Shore Farm Road and property will be on the left.

State: NC County/parish/borough: Stanly City: Morven Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.290667, -80.107569 Universal Transverse Mercator: Name of nearest water body: Lake Tillery Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Name of watershed or Hydrologic Unit Code (HUC): Upper Pee Dee 3040104 I2J Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request Q Check if other sites (e.g., offsite mitigation sites, disposal sites, etc ... ) are associated with this action and are recorded


D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): [J Office (Desk) Determination. Date: 12J, Field Determination. Date(s): Nov 18 2014


There ~r,~2fi9 "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

EJ Waters subject to the ebb and flow of the tide. Q' Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign

commerce. Explain:


There ~f~ "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


OJ TNWs, including territorial seas tJ Wetlands adjacent to TNWs (gJ Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [] Non-RPWs that flow directly or indirectly into TNWs IIJ Wetlands directly abutting RPWs that flow directly or indirectly into TNWs EJ Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs Q Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs ~ Impoundments of jurisdictional waters D 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: 800 linear feet: OPENwidth (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: l!}S,~~~US,~~J?y,;g~~ Elevation of established OHWM (if known):

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below, 2 For purposes of this form, an RPW is defmed 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).





The agencies will assert jurisdiction over TNWs and wetlands adjacentto TNWs. lfthe aquatic resource is a TNW, complete Section III.A.l and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below.

1. TNW Identify TNW:





The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year~round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4.




(i) General Area Conditions: Watershed size: Drainage area: Average annual rainfall: Average annual snowfall:

st st

inches inches


D Tributary flows directly into TNW. D Tributary flows through ?itkList tributaries before entering TNW.

Project waters are }>~c~:lfiS~ river miles from TNW. Project waters are ric~l,Ji:s,f river miles from RPW. Project waters are ~!~~],ill~ aerial (straight) miles from TNW. Project waters are ti~:I'<iS~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:


apply):





Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: . fe~t Average side slopes: ;J;'J,fkUs~.


D Concrete 0Muck


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run!riffl~lp()Ol complexes. Explain: Tributary geometry: [R~~J{),"ii~t

Explain:

Tributary gradient (approximate average slope): %

(c) Flow: Tributary provides for: iji~~':J.:j$t Estimate average number of flow events in review area/year: ij~c,~,-.,i~


Surface flow is: fi~~~~~- Characteristics:

Subsurface flow: »i~kLi~t. Explain findings: D Dye (or other) test performed:



D D D D



D water staining 0 abrupt change in plant community



D High Tide Line indicated by: Q . D oil or scum line along shore objects D fine shell or debris deposits (foreshore) D physical markings/characteristics D tidal gauges D other (list):





5 Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. 6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7Ibid.

(iv) Biological Characteristics. Channel supports (check all that apply): D Riparian corridor. Characteristics (type, average width): 0 Wetland fringe. Characteristics: 0 Habitat for:






(b) General Flow Relationship with Non-TNW: Flow is: f:>i~~I,~st. Explain:

Surface flow is: Pick List Characteristics:

Subsurface flow: f:>!~]{,List. Explain findings: 0 Dye (or other)t~st performed:



(d) Proximity (Relationship) to TNW Project wetlands are l'ick:LiS~ river miles from TNW. Project waters are :[iick,List aerial (straight) miles from TNW. Flow is from: Pic~Lj~. Estimate approximate !~cation of wetland as within the J>i~~;tiS:t floodplain.


watershed characteristics; etc.). Explain: Identizy specific pollutants, if known:



3. Characteristics of all wetlands adjacent to the tributary (if any), ,, All wetland(s) being considered in the cumulative analysis: ,Piik Li~t Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specizy the following:







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,







1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: D TNWs: linear feet width (ft), Or, acres. !II] Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Feature shows on USGS topographic map as a blue line stream. Professionals in the field observed flow levels and development of bed and bank structures in the stream, indicative of perenniaL

j~ Tributaries ofTNW 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


Provide estimates for jurisdictional waters in the review area (check all that apply): [?gl Tributary waters: 800 linear feet width (ft). [I Other non-wetland waters: acres.




Provide estimates for jurisdictional waters within the review area (check all that apply): 0 Tributary waters: linear feet width (ft). Q] Other non-wetland waters: acres.




(] 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 re:view area: acres.








As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. [] Demonstrate that impoundment was created from "waters of the U.S.," or [83 Demonstrate that water meets the criteria for one of the categories presented above ( 1-6), or 0 Demonstrate that water is isolated with a nexus to commerce (see E below).


Gl which are or could be used by interstate or foreign travelers for recreational or other purposes. G1 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. (J which are or could be used for industrial purposes by industries in interstate commer.ce. 1]2] Interstate isolated waters. Explain: (J Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): lf1 Tributary waters: linear feet width (ft). [] Other non-wetland waters: acres.

IdentifY type(s) of waters: [I Wetlands: acres.


8See Footnote# 3. 9 To complete the aoalysis 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.

EJ 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. D 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). E] Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: D 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): III Non-wetland waters (i.e., rivers, streams): linear feet width (ft). El Lakes/ponds: acres. [] Other non-wetland waters: acres. List type of aquatic resource: IT] 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). ffi Lakes/ponds: acres. [J Other non-wetland waters: acres. List type of aquatic resource: EJ Wetlands: acres.


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): (g)· Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 18] Data sheets prepared/submitted by or on behalf of the applicant/consultant.

[8] Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report.

!:] Data sheets prepared by the Corps: EI Corps navigable waters' study: [] U.S. Geological Survey Hydrologic Atlas:


(g) U.S. Geological Survey map(s). Cite scale & quad name:NC-MORROW MOUNTAIN. [] USDA Natural Resources Conservation Service Soil Survey. Citation: IJll National wetlands inventory map(s). Cite name: [] State/Local wetland inventory map(s): E) FEMA/FIRM maps: [] 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) IZI Photographs: [8] Aerial (Name & Date):UNK.

or [8] Other (Name & Date):UNK. CJ Previous deterrnination(s). File no. and date of response letter: [] Applicable/supporting case law: D Applicable/supporting scientific literature: [] Other information (please specifY):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESA W-RG-A, 2014-02212, Henderson County- Cane Creek Sewer District I Attn.: Marcus Jones ·

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Henderson City: Fletcher Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.432352 N, 85.516007 W Universal Transverse Mercator: Name of nearest waterbody: UT Kimsey 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) [gl Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. 0 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): I2J. Office (Desk) Determination. Date: December 22, 2014 0 Field Determination. Date(s):


There Are u~ "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]


Explain:


There AI;~ "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFRpart 328) in the review area. [Required]

1. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1

CJ TNWs, including territorial seas L] Wetlands adjacent to TNWs I8J Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [J Non-RPWs that flow directly or indirectly into TNWs 0 Wetlands directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs [J Impoundments of jurisdictional waters IJ Isolated (interstate or intrastate) waters, including isolated wetlands


c. Limits (boundaries) of jurisdiction based on: Esi~~~i$~~bjiijffi¥J\t Elevation of established OHWM (if known):





The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section III.A.l and Section ID.D.l. only; ifthe aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below.







If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine ifthe waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section Ill.B.2 for any onsite wetlands, and Section Ill.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.


(i) General Area Conditions: Watershed size: Pickii$( Drainage area: iPkkEi~t Average annual rainfall: inches Average annual snowfall: inches


D Tributary flows directly into TNW. D Tributary flows through ri~~ti~! tributaries before entering TNW.

Project waters are ist river miles from TNW. Project waters are ist river miles from RPW. Project waters are Lisf: aerial (straight) miles from TNW. Project waters are Li$1: aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:






Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: PkkList.

Primary tributary substrate composition (check all that apply): D Silts 0 Sands 0 Cobbles 0 Gravel 0 Bedrock 0 Vegetation. Type/% cover: 0 Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: PickLj;{ Tributary gradient (approximate average slope): %

(c) Flow:

D Concrete 0Muck

Explain:

Tributary provides for: Pick:tisi Estimate average number of flo~ events in review area/year: j:>jckLiSt


Surface flow is: PickList. Characteristics:

Subsurface flow: J>I.:IfiAst. Explain findings: 0 Dye (or other)test performed:


0 clear, natural line impressed on the bank 0 the presence of litter and debris 0 changes in the character of soil 0 destruction of terrestrial vegetation 0 shelving 0 the presence of wrack line 0 vegetation matted down, bent, or absent 0 sediment sorting 0 leaf litter disturbed or washed away 0 scour 0 sediment deposition 0 multiple observed or predicted flow events D water staining 0 abrupt change in plant community D other (list):


If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): 0 High Tide Line indicated by: [] Mean High Water Mark indicated by:

0 oil or scum line along shore objects 0 survey to available datum; 0 fine shell or debris deposits (foreshore) 0 physical markings; D physical markings/characteristi<;s 0 vegetation lines/changes in vegetation types. 0 tidal gauges D other (list):





6 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. 7lbid.





(b) General Flow Relationship with Non-TNW: Flow is: !rick Lis~. Explain:

Surface flow is: fJ4~1St Characteristics:

Subsurface flow: Pick~ist Explain findings: D Dye (or other) test performed:



(d) Proximity (Relationship) to TNW Project wetlands are Pici{,{,iSt river miles from TNW. Project waters ars ?ickyi~ aerial (straight) miles from TNW. Flow is from: Pick List ..... . Estimate approxi~~te location of wetland as within the i-'lti(.,:,!~t floodplain.





3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: J;"ic{{).:}st Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specify the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN) Size (in acres)



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












1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: 0 TNWs: linear feet 0 Wetlands adjacent to TNWs:

width (ft), Or, acres. acres.

2. RPWs that flow directly or indirectly into TNWs. [21 Tributaries of TNW s where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: UT Kimsey Creek exhibits indicators of ordinary high water marks (OHWM) including developed bed and bank, scour, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaf litter washed away. UT Kimsey Creek is depicted as a solid blue line on the USGS 7.5 minute quadrangle map Skyland and the most current Natural Resource Conservation Service Soil Survey for Henderson County. Solid blue line features on these mapping conventions typically represent perennial streams. Perennial flow has been observed by Corps representatives during visits to the Hendersonville, North Carolina vicinity.

0 Tributaries ofTNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): ~ Tributary waters: 54 linear feet 8 width (ft). [] Other non-wetland waters: acres.

IdentifY type( s) of waters:

3. Non-RPWs8 that flow directly or indirectly into TNWs. Cl 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


Provide estimates for jurisdictional waters within the review area (check all that apply): [] Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.


4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. 0 Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. . 0 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:

8See Footnote# 3.



5. :Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. CJ Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with



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




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 8] Demonstrate that water is isolated with a nexus to commerce (see E below).


[] 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: Q Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): 0 Tributary waters: linear feet width (ft). [] Other non-wetland waters: acres.

IdentifY type(s) of waters: [] Wetlands: acres.


Delineation Manual and/or appropriate Regional Supplements. fiJ Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.

... D 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: [J 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. [J Other non-wetland waters: acres. List type of aquatic resource: [3 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): [2] Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). [2] Lakes/ponds: acres. [J Other non-wetland waters: acres. List type of aquatic resource: [2] Wetlands: acres.


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): [gJ Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: 0 Data sheets prepared/submitted by or on behalf of the applicant/consultant.

[2] Office concurs with data sheets/delineation report. [2] Office does not concur with data sheets/delineation report.

_00_. Data sheets prepared by the Corps:

Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:

[2] USGS NHD data. [2] USGS 8 and 12 digit HUC maps.

f2l U.S. Geological Survey map(s). Cite scale & quad name: Skyland. f2l USDA Natural Resources Conservation Service Soil Survey. Citation: Henderson County, NC 0 National wetlands inventory map(s). Cite name: 13 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: 0 1 00-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) [] Photographs: [2] Aerial (Name & Date):

or [2] Other (Name & Date): [] Previous determination(s). File no. and date of response letter: [] Applicable/supporting case law: 13 Applicable/supporting scientific literature: [] Other information (please specifY):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02221, Dugger Valley Investment Group, LLC I Jim Pitts

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Wilkes City: Ferguson Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 36.1293 N, -81.5128 W Universal Transverse Mercator: Name of nearest waterbody: Dugger Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Yadkin River Name of watershed or Hydrologic Unit Code (HUC): Yadkin- 03040101 jgJ Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. EJ 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: 181 Field Determination. Date(s): 11-13-14


There Ar~ il,Q "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]

D Waters subject to the ebb and flow of the tide. D Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Explain:


There ~e "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]


D TNWs, including territorial seas E] Wetlands adjacent to TNWs l8lJ Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs [] Non-RPWs that flow directly or indirectly into TNWs iJ Wetlands directly abutting RPWs that flow directly or indirectly into TNWs I]J Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs (ill] Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs I]] Impoundments of jurisdictional waters [] Isolated (interstate or intrastate) waters, including isolated wetlands


c. Limits (boundaries) of jurisdiction based on: )t~ta~ii.S~~i:~~:t):~~ Elevation of established OHWM (if known):


D Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes ofthis form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months). 3 Supporting documentation is presented in Section III.F.







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 isalso jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4.


If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine ifthe 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. Ifthe JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i) General Area Conditions: Watershed size: Pick.List Drainage area: PickJ:.-I~t Average annual rainfall: inches Average annual snowfall: inches


0 Tributary flows directly into TNW. 0 Tributary flows through Pfti{Li~~ tributaries before entering TNW.

Project waters are Pick LiSt river miles from TNW. Project waters are :PickList river miles from RPW. Project waters are Pi~~:._:is~ aerial (straight) miles from TNW. Project waters are ~lc.~Li#; aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:




0 Artificial (man-made). Explain:



Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: . feet Average side slopes: ~~~]{..;M.

Primary tributary substrate composition (check all that apply): 0 Silts D Sands 0 Cobbles D Gravel 0 Bedrock D Vegetation. Type/% cover: 0 Other. Explain:

Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run!riffle/p()olcomplexes. Explain: Tributary geometry: 'l',~<:l{,M~t Tributary gradient (approximate average slope): %

(c) Flow:

D Concrete 0Muck

Explain:

Tributary provides for: g~~~''!.>~t Estimate average number of flow events in review area/year: ~i~k.List


Surface flow is: PicffL:iS't. Characteristics:

Subsurface flow: P,iiiJ:lisf,. Explain findings: D Dye (or other) test performed:




If factors other than the OHWM were used to determine lateral extent ofCWAjurisdiction (check all that apply): IJJ High Tide Line indicated by: 0 Mean High Water Mark indicated by:

· D oil or scum line along shore objects D survey to available datum; D fine shell or debris deposits (foreshore) D physical markings; D physical markings/characteristics D vegetation lines/changes in vegetation types. D tidal gauges D other (list):











(b) General Flow Relationship with Non-TNW: Flow is: fick Li§~. Explain:

Surface flow is: Pick List Characteristics:

Subsurface flow: ~~~ktist. Explain findings: 0 Dye (or other) test performed:



(d) Proximity (Relationship) to1NW Project wetlands are f:ick:tist river miles from TNW. Project watersar~ PicJtList aerial (straight) miles from TNW. Flow is from: Pick List. Estimate approxim~te location of wetland as within the ~i,fk~lSt floodplain.





3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: fi¢kLis~ Approximately ( ) acres in total are being considered in the cumulative analysis.

For each wetland, specify the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN)



Size (in acres)

A significant nexus analysis will assess the flow characteristics and functions oftbe tributary itself and the functions performed by any wetlands adjacent to the tributary to determine ifthey 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, bas more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when








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 IILD:

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 IILD:

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 IILD:



2. RPWs that flow directly or indirectly into TNWs. IBJ. Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary

is perennial: Dugger Creek is a blue line stream on the USGS topographic map, Deep Gap Quad which in North Carolina means it flows more than 3 months out of the year making it a perennial stream. AND professionals observed flow in the field and noted caddis flies and trout.

IiJ Tributaries ofTNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional.


Provide estimates for jurisdictional waters in the review area (check all that apply): 0 Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.


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


Provide estimates for jurisdictional waters within the review area (check all that apply): LJ Tributary waters: linear feet width (ft). [[] Other non-wetland waters: acres.


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

8See Footnote# 3.

directly abutting an RPW:

[] Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW:





6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. II] Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with




As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. [] Demonstrate that impoundment was created from "waters ofthe U.S.," or [] Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 0 Demonstrate that water is isolated with a nexus to commerce (see E below).


[] which are or could be used by interstate or foreign travelers for recreational or other purposes. 0 from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: 0 Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): L] Tributary waters: linear feet width (ft). LJ Other non-wetland waters: acres.

Identizy type(s) of waters: 0 Wetlands: acres.


Delineation Manual and/or appropriate Regional Supplements. 0: Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


D 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): EB Non-wetland waters (i.e., rivers, streams): linear feet width (ft). [J Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.

9 To complete the analysis refer to the key in Section IILD.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWAjurisdiction based solely on this category, Corps Districts will elevate the action to Corps aud EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): 0 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. [ill Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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): [8l Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: [81 Data sheets prepared/submitted by or on behalf ofthe applicant/consultant.


tJ Data sheets prepared by the Corps: [] Corps navigable waters' study: li]iil U.S. Geological Survey Hydrologic Atlas:


[81: U.S. Geological Survey map(s). Cite scale & quad name: NC-Deep Gap. [J USDA Natural Resources Conservation Service Soil Survey. Citation: Wilkes County, NC [J National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: 0 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: 0 Aerial (Name & Date):

or 0 Other (Name & Date): G1 Previous determination(s). File no. and date of response letter: G1 Applicable/supporting case law: fill Applicable/supporting scientific literature: liJ Other information (please specifY):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESA W-RG-A, 2014-02269, West Main Development, LLC I Attn.: George Williams

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Transylvania City: Brevard Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.23489 N, 82.73535 W Universal Transverse Mercator: Name of nearest waterbody: None on the site Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: N/A Name of watershed or Hydrologic Unit Code (HUC): Upper French Broad (06010105) 1:81 Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. Q 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 EV ALVA TION (CHECK ALL THAT APPLY): [gl Office (Desk) Determination. Date: December 19, 2014 1:81 Field Determination. Date(s): December 4, 2014


There Af~np "navigable waters of the U.S." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CPR part 329) in the review area. [Required]

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

Explain:


There At¢J;ltJ "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CPR part 328) in the review area. [Required]


[J TNW s, including territorial seas 0 Wetlands adjacent to TNWs D Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs D Non-RPWs that flow directly or indirectly into TNWs [J Wetlands. directly abutting RPWs that flow directly or indirectly into TNW s [J Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs 0 Impoundments of jurisdictional waters 0 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: linear feet: width (ft) and/or acres. Wetlands: acres.

c. Limits (boundaries) of jurisdiction based on: N~t';fpplica6I~; Elevation of established OHWM (if known):


Jill Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes ofthis form, an RPW is defmed as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months). 3 Supporting documentation is presented in Section III. F.


The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Sectionlll.A.1 and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2 and Section III.D.1.; otherwise, see Section III.B below.





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. lfthe aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4.

A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter oflaw.



(i) General Area Conditions: Watershed size: Pic Drainage area: :Pic Average annual rainfall: Average annual snowfall:

st

inches inches


D Tributary flows directly into TNW. D Tributary flows through })~~~;I,iSt; tributaries before entering TNW.

Project waters are Pick List river miles from TNW. Project waters are Pi~kLiSt river miles from RPW. Project waters are ~irikL~~ aerial (straight) miles from 1NW. Project waters are il{!c~:~~~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:





Tributary is: 0Natural 0 Artificial (man-made). Explain: 0 Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: Pi<:K:I.Ai~!·


0 Concrete 0Muck

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: f'ickLi~t Estimate average number of flow events in review area/year: PickList


Surface flow is: pi~~.List. Characteristics:

Subsurface flow: P~~iil,;ist. Explain findings: 0 Dye (or other) test performed:


0 clear, natural line impressed on the bank 0 the presence oflitter and debris 0 changes in the character of soil 0 destruction of terrestrial vegetation 0 shelving 0 the presence of wrack line 0 vegetation matted down, bent, or absent 0 sediment sorting 0 leaf litter disturbed or washed away 0 scour 0 sediment deposition 0 multiple observed or predicted flow events

0 water staining 0 abrupt change in plant community 0 other (list):

0 Discontinuous OHWM. 7 Explain:

Iffactors other than the OHWM were used to determine lateral extent ofCW A jurisdiction (check all that apply): [J High Tide Line indicated by: [] Mean High Water Mark indicated by:



Explain: IdentifY specific pollutants, if known:



0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain fmdings: 0 Aquatic/wildlife diversity. Explain findings:





(b) General f'lo\VRelationship with Non-TNW: Flow is: 'pi£kJA~. Explain:

Surface flow is: :P!t~Lis~ Characteristics:

Subsurface flow: PicJ;;.IJ(~~. Explain fmdings: 0 Dye (or other) test performed:



(d) Proximi elationshi river miles from TNW.

aerial (straight) miles from TNW. Project wetlands are ~~ Project waters are l;'if' Flow is from: PickLiSt. Estimate approximatel~cation of wetland as within the £ic~J:;fsj floodplain.




0 Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings: 0 Aquatic/wildlife diversity. Explain fmdings:

3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: fit~~i,~~ Approximately ( ) acres in total are being considered in the cumulative analysis.




Size (in acres)


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 ofthe 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.











1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: [] TNWs: linear feet width (ft), Or, acres. Ql 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: D Tributaries ofTNW 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: linear feet width (ft). [], Other non-wetland waters: acres.


3. Non-RPWs8 that flow directly or indirectly into TNWs. E] 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


Provide estimates for jurisdictional waters within the review area (check all that apply): l] Tributary waters: linear feet width (ft). @ Other non-wetland waters: acres.


4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. [J 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

8See Footnote# 3.

indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW:



5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. IJ Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent







As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. D Demonstrate that impoundment was created from "waters of the U.S.," or D Demonstrate that water meets the criteria for one of the categories presented above ( 1-6), or EJ Demonstrate that water is isolated with a nexus to commerce (see E below).


F.

0 which are or could be used by interstate or foreign travelers for recreational or other purposes. 0' from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. D which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: 0 Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): [1 Tributary waters: linear feet width (ft). 0 Other non-wetland waters: acres.

IdentifY type(s) of waters: li:J Wetlands: acres.

NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): IIJ 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. IBJ Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


I3J 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). III Lakes/ponds: acres. 0 Other non-wetland waters: acres. List type of aquatic resource: 0 Wetlands: acres.

9 To complete the analysis refer to the key in Section IILD.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 (or review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): [J Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). 0 Lakes/ponds: acres. 0 Other non-wetland\waters: acres. List type of aquatic resource: 0 Wetlands: acres.


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: 12:1· Data sheets prepared/submitted by or on behalf of the applicant/consultant.

12:1 Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report.

D Data sheets prepared by the Corps: D Corps navigable waters' study: D. U.S. Geological Survey Hydrologic Atlas:


121 U.S. Geological Survey map(s). Cite scale & quad name: Brevard. 12:1 USDA Natural Resources Conservation Service Soil Survey. Citation: Transylvania County, NC D National wetlands inventory map(s). Cite name: D State/Local wetland inventory map(s): D FEMA/FIRM maps: D 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) D Photographs: D Aerial (Name & Date):

or D Other (Name & Date): D Previous determination(s). File no. and date of response letter: [] Applicable/supporting case law: [] Applicable/supporting scientific literature: 0 Other information (please specify):





B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, 2014-02273, City of Hendersonville I Attn.: Brendan Shanahan

C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Henderson City: Hendersonville Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: 35.338585 N, 82.467535 W Universal Transverse Mercator: Name of nearest waterbody: UTs to Mud Creek & Britton 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) 121 Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. 0 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): 121 Office (Desk) Determination. Date: December 22,2014 121 Field Determination. Date(s): December 16, 2014


There Af:~ li~ "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required]

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

Explain:


There A~~ "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFRpart 328) in the review area. [Required]


0 TNW s, including territorial seas 0 Wetlands adjacent to TNWs t8J Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs 0 Non-RPWs that flow directly or indirectly into TNWs [8] Wetlands directly abutting RPWs that flow directly or indirectly into TNWs I.IJ Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs 0 Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs I.IJ Impoundments of jurisdictional waters 0 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: 509 linear feet: 3-8 width (ft) and/or acres. Wetlands: 0.27 acres.

c. Limits (boundaries) of jurisdiction based on: i987~~iine~#8~'M~nltitl Elevation of established OHWM (if known):

2. Non-regulated waters/wetlands (check if applicable ):3

I.IJ Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain:

1 Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typicaUy 3 months). 3 Supporting documentation is presented in Section III. F.



1. TNW IdentifY TNW: Summarize rationale supporting determination: Large watershed, waterway can and has and does support navigation of non




This section summarizes information regarding characteristics ofthe tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met.



Ifthe waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine ifthe waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.l for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below.


(i) General Area Conditions: Watershed size: Pitf./' Drainage area: Average annual rainfall: Average annual snowfall:

inches inches


D Tributary flows directly into TNW. D Tributary flows through ~if~~.i~ tributaries before entering TNW.

Project waters are ;rick.Li~t river miles from TNW. Project waters are ·· ··· . ···iSf, river miles from RPW. Project waters are ;'isf, aerial (straight) miles from TNW. Project waters are i~~ aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:





Tributary is: 0 Natural 0 Artificial (man-made). Explain: 0 Manipulated (man-altered). Explain:

Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: . feet Average side slopes: ~~~~~st.


Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: rl~k List Tributary gradient (approximate average slope): %

(c) Flow:

0 Concrete 0Muck

Explain:

Tributary provides for: Pfcktist Estimate average number of flow events in review area/year: }iif1i'.List


Surface flow is: P~ckList. Characteristics:

Subsurface flow: Pidi.List. Explain findings: 0 Dye (or other) test performed:


0 clear, natural line impressed on the bank 0 the presence oflitter and debris 0 changes in the character of soil 0 destruction of terrestrial vegetation 0 shelving 0 the presence of wrack line 0 vegetation matted down, bent, or absent 0 sediment sorting 0 leaf litter disturbed or washed away 0 scour 0 sediment deposition 0 multiple observed or predicted flow events

0 water staining 0 abrupt change in plant community 0 other (list):


If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that apply): 0 High Tide Line indicated by: 0 Mean High Water Mark indicated by:



Explain: Identify specific pollutants, if known:








(b) General Flo\VRelationship with Non-TNW: Flow is: ji>.~~~J.is,f. Explain:

Surface flow is: t'iti'List Characteristics:

Subsurface flow: FiekList. Explain findings: 0 Dye (or other) test performed:


D Discrete wetland hydrologic connection. Explain: 0 Ecological connection. Explain: 0 Separated by berm/barrier. Explain:

(d) Proximity (Relationship) to 'INW Project wetlands are rick::t~~t river miles from TNW. Project waters are ~ickJA$1; aerial (straight) miles from TNW. Flow is from: :Pick List. .. . Estimate approximate location of wetland as within the J:>!~k. tist floodplain.





3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: ~!~~J2ist Approximately ( ) acres in total are being considered in the cumulative analysis.




Size (in acres)


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 ofthe 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), havv the capacity to carry pollutants or flood waters to







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 IILD:

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 IILD:


1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: ill TNWs: linear feet width (ft), Or, acres. I] Wetlands adjacent to TNWs: acres.

2. RPWs that flow directly or indirectly into TNWs. 1§1 Tributaries ofTNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that

tributary is perennial: UTs to Mud Creek & Britton Creek exhibits indicators of ordinary high water marks (OHWM) including developed bed and bank, scour, presence of aquatic life, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaf litter washed away. Perennial flow has been observed by Corps representatives during visits to the Hendersonville, North Carolina vicinity.

II] Tributaries ofTNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional. Data supporting this conclusion is provided at Section IILB. Provide rationale indicating that tributary flows

seasonally:

Provide estimates for jurisdictional waters in the review area (check all that apply): 121 Tributary waters: 509 linear feet 3-8 width (ft). IIl Other non-wetland waters: acres.

IdentifY type( s) of waters:

3. Non-RPWs8 that flow directly or indirectly into TNWs. 12] 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 IILC.

Provide estimates for jurisdictional waters within the review area (check all that apply): (I] Tributary waters: linear feet width (ft). Cl Other non-wetland waters: acres.


8See Footnote# 3.

4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. J2J Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. .. .. I8J 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: Flows directly into associated tributary.

[] 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:


5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. !ill Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent







As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. [] Demonstrate that impoundment was created from "waters of the U.S.," or D Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 0 Demonstrate that water is isolated with a nexus to commerce (see E below).


~ill:] 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. 0 which are or could be used for industrial purposes by industries in interstate commerce. 0 Interstate isolated waters. Explain: [] Other factors. Explain:

Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): [ill Tributary waters: linear feet width (ft). 0 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 ofEngineers

Wetland Delineation Manual and/or appropriate Regional Supplements. [] Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.


[] 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):

0 Non-wetland waters (i.e., rivers, streams): linear feet width (ft).

9 To complete the analysis refer to the key in Section IILP.6 of the Instructional Guidebook. 10 Prior to asserting or declining CW A 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.

0 Lakes/ponds: acres. 0 Other non-wetland waters: 0' Wetlands: acres.

acres. List type of aquatic resource:



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): [?EJ 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. , [Zi Office concurs with data sheets/delineation report.

0 Office does not concur with data sheets/delineation report. 0 Data sheets prepared by the Corps: 0 Corps navigable waters' study: 0 U.S. Geological Survey Hydrologic Atlas:


[?EJ U.S. Geological Survey map(s). Cite scale & quad name: Hendersonville. [?EJ USDA Natural Resources Conservation Service Soil Survey. Citation: Henderson County, NC 0 National wetlands inventory map(s). Cite name: 0 State/Local wetland inventory map(s): 0 FEMA/FIRM maps: D. 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) 0 Photographs: 0 Aerial (Name & Date):

or 0 Other (Name & Date): 0 Previous determination(s). File no. and date of response letter: 0 Applicable/supporting case law: 0 Applicable/supporting scientific literature: 0 Other information (please specifY):


n jd - united states army corps of engineers · the tributary and all of its adjacent wetlands is...

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