SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 6, 2013

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1 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Anny 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): September 6, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, , Faison-Gaston Gateway, LLC I Attn.: Thomas Brasse C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Gaston Center coordinates of site (latflong in degree decimal format): w Universal Transverse Mercator: Nrune of nearest water body: Catawba River (Lake Wylie) City: Mount Holly Latitude & Longitude in Decimal Degrees: N, 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 ( ) m Check if map/diagram of review area and/or potential jurisdictional areas is/arc available upon request. f!1 Check if other sites (e.g., oifsite 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): m Office (Desk) Determination. Date: September 6, 2013 (lllif Field Detennination. Date(s): SECTION IT: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. 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] E 1 Waters subject to the ebb and flow of the tide. jg]' Waters are presently used, or have been used in the past, or may be susceptible for usc to transport interstate or foreign commerce. Explain: B. CW A SECTION 404 DETERMINATION OF JURISDICTION. There ~~1~ "waters oft he U.S" within Clean Water Act (CWA) jurisdiction (as defined 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 fillll TNWs, including territorial seas [1 Wetlands adjacent to TNWs D1m Relatively permanent watcrs 2 (RPWs) that flow directly or indirectly into TNWs lirj] Non-RPWs that flow directly or indirectly into TNWs ILill_ Wetlands directly abutting RPWs that flow directly or indirectly into TNWs mlj Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs mj Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs fllii11. Impoundments of jurisdictional waters Isolated (interstate or intrastate) waters, including isolated wetlands lflill: b. Identify (estimate) size of waters of the U.S. in the review area: Non-wetland waters: linear feet: width (fi) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: ~!lljij!~fi~~j[~i!~~lj~m~ Elevation of established OHWM (ifknowo): 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 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.

2 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.J and Section Ill.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections Ill.A.l and 2 and Section JII.D.l.; otherwise, see Section III.B below. 1. TNW IdentifY lnw: Catawba River (Lake Wylie). Summarize rationale supporting determination: Very 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 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 Raptmos 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 ill.d.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section Ill.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the 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 m.c below. 1. Characteristics of non-tnws that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: Drainage area: Average annual rainfall: Average annual snowfall: inches inches (ii) Physical Characteristics: (a) Relationship with TN\V: 0 Tributary flows directly into TNW. D Tributary flows through m~ifj~~ tributaries before entering TNW. Project waters are river miles from TN\V. 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: Identify flow route to TNW 5 : Tributary stream order, if known: (b) General Tributarv Characteristics (check all that apply): 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 1l1en flows into TNW.

3 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: Rl~ll!!i!i:!. 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 ofrun!riffie/pool complexes. Explain: Tributary geometry:!r~t"i3~~i Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (c) Flow: Tributary provides for: ~Ai~~~~~ Estimate average number of ±low events in review area/year:.~lill'i[!j~ Describe flow regime: Other infonnation on duration and volume: Surface flow is: jj~!l!!l!ij!ii!. Characteristics: Subsurface flow: Explain findings: D Dye (or other) test performed: Tributary has (check all that apply): D Bed and banks D OHWM 6 (check all indicators tl1at apply): 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 plant community D other (list): D Discontinuous OHVVM. 7 Explain: D D D D the presence oflitter and debris destruction of terrestrial vegetation the presence of \Vfack line sediment sorting D scour D multiple observed or predicted flow events D water staining D abrupt change in apply): If factors other than the OHWM were used to determine lateral extent of CWAjurisdiction (check all that 111'! lligh Tide Line indicated by: [!00 Mean High Water Mark indicated by: D oil or scum line along shore objects D survey to available datum; 0 fine shell or debris deposits (foreshore) D physical markings; 0 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: 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 7 lbid.

4 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: 2. Characteristics of wetlands adjacent to non-tnw that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: acres Wetland type. Explain: Wetland quality. Explain: Project wetlands cross or serve as state boundaries. Explain: (b) General Flow Relationship with Non-TNW: Flow is: J.li~!~!. Explain: Surface flow is: ~J~~itk\~ Characteristics: Subsurface ilow: ~~JI.ifk~~i. Explain findings: D Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: D Directly abutting 0 Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: 0 Separated by berm/barrier. Explain: (d) river miles from TNW. aerial (straight) miles from TNW. of wetland as within the jj~;)li~~!~i 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): D Vegetation type/percent cover. Explain: 0 Habitat for: 0 Federally Listed species. Explain findings: D Fish/spawn areas. Explain fmdings: D 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: _ltll \t~~~~* Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (Y /N) Size (in acres) Directly abuts? (Y /N) Size Cin acres) Summarize overall biological, chemical and physical functions being perfonned:

5 C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions ofthe tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and discussed in the Instructional Guidebook. Factors to consider include, for example: Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to cany 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 food webs? Docs 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 TN\Vs. 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 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 fli.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 TILD: 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: l11li! TNWs: linear feet width (ft). Or. 3 acres. [B_ Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TNWs. :1]21 Tributaries oftnws where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Tributaries oftnw where tributaries have continuous How "sea._<;onally" (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 Tributary waters: linear feet width (ft). 13_ Other non-wetland waters: acres. Identify type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. flml 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 1NW is jurisdictional. Data supporting this conclusion is provided at Section TIL C. Provide estimates for jurisdictional waters within the review area (check all that apply):!til Tributary waters: linear feet width (ft). 131]1 Other non-wetland waters: acres. 8 See Footnote# 3.

6 Identify type( s) of waters: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. ~ Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. ~ Wetlands directly abutting an RPW where tributaries typically flow yearwround. 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: m: 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: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. mrj 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 IILC. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs.,lillEJ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 As a general rule, the impoundment of a jurisdictional tributary remains jurisdiciional. ~ Demonstrate that impoundment was created from "waters of the U.S.," Lake Wylie was formed by the impoundment of the Catawba River, a TNW and Section 10 water at the project location. 1 1 Demonstrate that water meets the criteria for one oftbe categories presented above (1-6), or DJ 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 A}'FECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY): 10 rn3i which are or could be used by interstate or foreign travelers for recreational or other purposes. Jm 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. I.illil Interstate isolated waters. Explain: mlj Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): Iill!i Tributary waters: linear feet width (ft). ffil!l Other non-wetland waters: acres. Identify typc(s) of waters: -~- Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): J]i!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. m!l 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 ba..<>ed solely on!he "Migratory Bird Rule" (MBR). ~ Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: Jim Other: (cxplilln, 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, usc of water for irrigated agriculture), using best professional judgment (check all that apply): 9 To complete the analysis refer to the key in Sedion 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 Ad Jurisdiction Following Rapanos.

7 Non-wetland waters (i.e., rivers, streams): linear feet width (ft). Lakes/ponds: acres. Other non-wetland waters: acres. List type of aquatic resource: Wetlands: acres. Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): EEl Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). IJ2lll Lakes/ponds: acres. I@) Other non-wetland waters: acres. List type of aquatic resource: EiLJ 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:.tim 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. )]ill Data sheets prepared by the Corps: 1 1 Corps navigable waters' study: ~ U.S. Geological Survey Hydrologic Atla._~: 0 USGS Nl!D data. 0 USGS 8 and 12 digit IJUC maps. ~ U.S. Geological Survey map(s). Cite scale & quad name: Mount Holly. ~ USDA Natural Resources Conservation Service Soil Survey. Citation: Gaston County, NC. fillid' National wetlands inventory map(s). Cite name: ~ State/Local wetland inventory map(s): D FEMA/FIRM maps: ~ I 00-year Floodplain Elevation is: (National Geodcctic V crtical Datum of 1929) D Photographs: 0 Aerial (Name & Date): or 0 Other (Name & Date): Previous detennination(s). File no. and date of response letter: EEl [[I Applicable/supporting case law: ( ] Applicable/supporting scientific literature: llij Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD:

8 0 t.z ") APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 12, 2013 B. DISTRICT OFFICE, FILE NA:ME, AND NUMBER: CESAW-RG-A, Cane Creek Water and Sewer District of Henderson County, Attn.: Marcus Jones, C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parishfborough: Henderson City: Fletcher Center coordinates of site (laulong in degree decimal format): N, W Universal Transverse Mercator: Name of nearest waterbody: UT to Cane Creek and Cushion Brartch 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 ( ) m: 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): l2rnl Office (Desk) Determination. Date: l:ij Field Determination. Date(s): September 6, 2012 SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There Jli1~~ _"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. r:nr Waters arc presently used, or have been used in the past, or may be susceptible for usc to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (che.ck all that apply): 1 QM TNWs, including territorial seas ~ Wetlands adjacent to TNWs ~ Relatively pennanent waters 2 (RPWs) that flow directly or indirectly into TNWs ~ Non-RPWs that flow directly or indirectly into TNWs m 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 tilil Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs 00B Impoundments of jurisdictional waters Isolated (interstate or intrastate) waters, including isolated wetlands III b. Identify (estimate) size of waters of the U.S. in the review area: Non-wetland waters: 3850 linear feet: 4 width (ft) and/or acres. Wetlands: 0.18 acres. c. Limits (boundaries) of jurisdiction based on: lt~~~j~~jll~!!i~]ij'ftjl \1;6!1]1:j Elevation of established OHWM (if known): 2. Non-regulated waterslwethmds (check if applicable): 3 li!l 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 lil 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). 3 Supporting documentation is presented in Section III.F. 5

9 Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes:!1j;1~i!!l!l~. Primary tributary substrate composition (check all that apply): D Silts 0 Sands D Cobbles D Gravel 0 Bedrock D Vegetation. Type/% cover: D Other. Explain: Tributary condition/stability [e.g. highly eroding. sloughing banks]. Presence of run/riffie/pool complexes. Explain: Tributary geometry:!l!~j!loo!wl Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (e) Flow: ~:~f~:~ ::c~:~ee~:~!~!!!, events in review area/year: i:l]~ij,'i!it Describe flow regime: Other information on duration and volume: Surface flow is: l!l! g~mll~- Characteristics: Subsurface flow: f[~~l!ll~- Explain findings: 0 Dye (or other) test performed: Tributary has (check all that apply): D Bed and banks 0 OHWM 6 (check all indicators that apply): D clear, natural line impressed on the bank D the presence of litter and debris D changes in the character of soil D shelving 0 destruction of terrestrial vegetation 0 the presence of wrack line D vegetation matted down, bent, or absent 0 sediment sorting D leaf litter disturbed or washed away D sediment deposition D water staining D other (list): 0 Discontinuous OHWM. 7 Explain: D scour D multiple observed or predicted flow events 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 apply): lljj! High Tide Line indicated by: lljj! Mean High Water Mark indicated by: 0 oil or scum line along shore objects D survey to available datum; D fine shell or debris deposits (foreshore) D physical markings/characteristics D tidal gauges D other (list): D physical markings; D vegetation lines/changes in vegetation types. (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain: ldentify specific pollutants, if known: (iv) Biological Characteristics. Channel supports (check all that apply): D Riparian corridor. Characteristics (type, average width): 0 Wetland fringe. Characteristics: D Habitat for: D Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings: 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. 7 Ibid. 7

10 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? Docs the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifccyclc support functions for fish and other species, such as feeding, nesting, spawning, or rearing. young for species that are present in the 1N\V? 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 IILD: 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 IILD: 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: lillet TNWs: linear feet width (ft), Or, acres. fml Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TN\Vs. Ji&\ Tributaries oftnws where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Cushion Branch and the UT to Cane Creek exhibit indicators of ordinary high water marks (OH\VM) 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. Cushion Branch and the UT to Cane Creek are depicted as a solid blue line on the USGS 7.5 minute quadrangle map Skyland and both streams are depicted as streams in the most current Natural Resource Conservation Service Soil Survey for Henderson County. Perennial flow has been observed in both streams by representatives of the Corps during numerous visits to the Fletcher, 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): ~. Tributary waters: 3850 linear feet 4 width (ft). mj Other non-wetland waters: acres. IdentifY type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. )J 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): IJll Tributary waters: linear feet width (ft). m Other non~wetland waters: acres. Identify type(s) of waters: 8 See Footnote# 3. 9

11 Lakes/ponds: acres. [jjl Other non-wetland waters: ~fa 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): E& Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). ~ Lakes/ponds: acres. l]i Other non-wetland waters: acres. List type of aquatic resource: ITfl 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): m 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 [S] Office concurs with data sheets/delineation report. 0 Office does not concur with data sheets/delineation report. ~ Data sheets prepared by the Corps: l l Corps navigable waters' study: Uilli 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: Sklyand ~ USDA Natural Resources Conservation Service Soil Survey. Citation: Henderson County, NC. ~ National wetlands inventory map(s). Cite name: State/Local wetland inventory map(s): n:nl D FEMA/F!RM maps: JSfl 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) fid Photographs: 0 Aerial (Name & Date): or 0 Other (Name & Date): lili!1 Previous determination(s). File no. and date of response letter: lllilj Applicable/supporting case law: m3 Applicable/supporting scientific literature: [llg Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD: 11

12 NATIONWIDE PERMIT 27 DEPARTMENT OF THE ARMY CORPS OF ENGINEERS FINAL NOTICE OF ISSUANCE AND MODIFICATION OF NATIONWIDE PERMITS FEDERAL REGISTER AUTHORIZED MARCH 19, 2012 Aquatic Habitat Restoration, Establishment, and Enhancement Activities. Activities in waters of the United States associated with the restoration, enhancement, and establishment of tidal and non-tidal wetlands and riparian areas, the restoration and enhancement of non-tidal streams and other non-tidal open waters, and the rehabilitation or enhancement of tidal streams, tidal wetlands, and tidal open waters, provided those activities result in net increases in aquatic resource functions and services. To the extent that a Corps permit is required, activities authorized by this NWP include, but are not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms, as well as discharges of dredged or fill material to restore appropriate stream channel configurations after small water control structures, dikes, and berms, are removed; the installation of current deflectors; the enhancement, restoration, or establishment of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or banks to restore or establish stream meanders; the backfilling of artificial channels; the removal of existing drainage structures, such as drain tiles, and the filling, blocking, or reshaping of drainage ditches to restore wetland hydrology; the installation of structures or fills necessary to establish or re-establish wetland or stream hydrology; the construction of small nesting islands; the construction of open water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; shellfish seeding; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; re-establishment of submerged aquatic vegetation in areas where those plant communities previously existed; re-establishment of tidal wetlands in tidal waters where those wetlands previously existed; mechanized land clearing to remove non-native invasive, exotic, or nuisance vegetation; and other related activities. Only native plant s ecies should be!anted at the site. d streams This Nationwide Permit and its terms and conditions were mailed to the when Permittee on_ Sept SAW Senders Printed Name_Brandee Boggs conside Senders Signature -Y'.. 1i/ \ C /'' /'/ 1 channel, L~_L_L_L_L_L_L~_L~_L f tidal watb,.,..,==""""""'nr-""'="""-=-==-=r<=~=""'=-=-~~,...==-=r-==-_j wetlands into open water impoundments. Compensatory mitigation is not required for activities authorized by this NWP since these activities must result in net increases in aquatic resource functions and services. 1

13 NATIONWIDE PERMIT 29 DEPARTMENT OF THE ARMY CORPS OF ENGINEERS FINAL NOTICE OF ISSUANCE AND MODIFICATION OF NATIONWIDE PERMITS FEDERAL REGISTER AUTHORIZED MARCH 19, 2012 Residential Developments. Discharges of dredged or fill material into non-tidal waters of the United States for the construction or expansion of a single residence, a multiple unit residential development, or a residential subdivision. This NWP authorizes the construction of building foundations and building pads and attendant features that are necessary for the use of the residence or residential development. Attendant features may include but are not limited to roads, parking lots, garages, yards, utility lines, storm water management facilities, septic fields, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the United States, including the loss of no more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds the district engineer waives the 300 linear foot limit by making a written determination concluding that the discharge will result in minimal adverse effects. This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters. Subdivisions: For residential subdivisions, the aggregate total loss of waters of United States authorized by this NWP cannot exceed 1/2-acre. This includes any loss of waters of the United States associated with development of individual subdivision lots. Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. (See general condition 31.) (Sections 10 and 404) This Nationwide Permit and its terms and conditions were mailed to the Permittee on_ Sept SAW ATF Senders Printed Name_Brandee Boggs,(1 ' ' Senders Signature_-"('b'1 "''"'/'cc'ccjcc -'-; -Lf~'l--'.. c._' -"T--cr

14 APPROVED JURISDICTIONAL DETERM!Nn.,ON FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 12, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, , Emily McBride Fletcher C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Clay City: Hayesville Latitude & Longitude in Decimal Degrees: N, Center coordinates of site (latllong in degree decimal format): w Universal Transverse Mercator: N arne of nearest waterbody: Compass Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Hiwassee River Name of watershed or Hydrologic Unit Code (HUC): Hiwassee River ( ) 8 Check if map/diagram of review area and/or potential jurisdictional areas is/arc available upon request. ~ Check if other sites (e.g., offsite mitigation sites, disposal sites, etc... ) are associated with this action and are recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): ~ Office (Desk) Determination. Date: September J 2, 2013 IJW Field Determination. Date(s): SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There in the!1w ~Ell "navigable waters of the US." within Rivers and Harbors Act (RRA) jurisdiction (as defined by 33 CFRpart 329) area. [Required] Waters subject to the ebb and flow of the tide. Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Explain: B. CW A SECTION 404 DETERMINATION OF JURISDICTION. There "waters Of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Requiredj 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 ~ TNWs, including territorial seas lljlll Wetlands adjacent to TNWs m: Relatively permanent ':aters 2 (~~s) that?ow directly or indirectly into TNWs ~ Non-RPWs that flow directly or md1rectly mto TNWs 1m Wetlands directly abutting RPWs that flow directly or indirectly into TNWs fllij Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs mj Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs ml_ ImpoUndments of jurisdictional waters Isolated (interstate or intrastate) waters, including isolated wetlands E&J b. Identify (estimate) size of waters of the U.S. in the review area: Non-wetland waters: 200 linear feet: 11 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: [ l(~~!itiil!~~m;lt!l~~~ Elevation of established OHWM (if known): 2. Non-regulated waters/wetlands (check ifapplicable): 3 1m_ 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 ITI 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 IILF.

15 0 Artificial (man-made). Explain: 0 Manipulated (man-altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: Average side slopes::[; "lii:!yjl~. Primary tributary substrate composition (check all that apply): 0 Silts 0 Sands 0 Cobbles 0 Gravel D Bedrock 0 Other. Explain: D Vegetation. Type/% cover: Tributary condition/stability [e.g. higbly eroding. sloughing bariks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: it~lll!!!!,~i Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (e) Flow: Tributary provides for: :g~lltt Estimate average number of flow events in review area/year: ~~ll1jffm~~ Describe flow regime: Other information on duration and volume: Surface flow is: ~~~~~~~- Characteristics: Subsurface flow:!ji_~j ]'f. Explain findings: 0 Dye (or other) test performed: Tributary has (check all that apply): 0 Bed and bariks 0 OHWM 6 (check all indicators that apply): 0 clear, natural line impressed on the bank 0 changes in the character of soil 0 shelving D vegetation matted do\vll, bent, or absent 0 leaf litter disturbed or washed away 0 sediment deposition plant connmmity 0 other (list): 0 Discontinuous OHW11. 7 Explain: D D D D the presence of litter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting D scour D multiple observed or predicted flow events 0 water staining D abrupt change in apply): If factors other than the OHWM were used to determine lateral extent of CWAjurisdiction (check all that D Higb Tide Line indicated by: 0 oil or scum line along shore objects D fme shell or debris deposits (foreshore) D physical markings/characteristics 0 tidal gauges D other (list): Mean High Water Mark indicated by: 0 survey to available datum; 0 physical markings; D vegetation lines/changes in vegetation types. (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): 0 Riparian corridor. Characteristics (type, average width): D Wetland fringe. Characteristics: D Habitat for: D Federally Listed species. 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 OH\VM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 lbid.

16 C. SIGNIFICANT NK J DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine ifthey 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 TN\V. 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 lifccycle 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 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? 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 lii.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 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 Ill.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:!lffi) TNWs: linear feet width (ft). Or. acres. m; 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: Compass 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 ofterrestrial vegetation, sediment sorting and deposition, leaf litter washed away. Compass Creek is depicted as a solid blue line on the USGS 7.5 minute quadrangle map Hayesville and the most current Natural Resource Conservation Service Soil Survey for Clay 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 Hayesville, 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): l1i! Tributary waters: 200 linear feet 11 width (ft). -~ Other non-wetland waters: acres. IdentifY type(s) of waters:

17 0 Prior to tht _ I Supreme Court decision in "SW ANCC," the 1 ~. 1ew area would have been regulated based solely on the "Migratory Bird Rule" (MBR). Elli)' Waters do not meet the "Significant Nexus" standard, where such a fmding 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): Jjl_ Non-wetland waters (i.e., rivers, streams): linear feet width (ft). lillij Lakes/ponds: acres. BXI Other non-wetland waters: acres. List type of aquatic resource: mj 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): "lliln Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). l1lil] Lakes/ponds: acres. ~ Other non-wetland waters: acres. List type of aquatic resource: ~ Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check all that apply- checked items shall be included in case file and, where checked and requested, appropriately reference sources below): m_ Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: fiat Data sheets prepared/submitt;ed by or on behalf of the applicant/consultant. 0 Office concurs with data sheets/delineation report. IilljllSjJ D Office does not concur with data sheets/delineation report. Data sheets prepared by the Corps: Corps navigable waters' study: I U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD datil D USGS 8 and 12 digit HUC maps. ~ U.S. Geological Survey map(s). Cite scale & quad name: Haysville. ~ USDA Natural Resources Conservation Service Soil Survey. Citation: Clay County, NC. i] National wetlands inventory map(s). Cite name: ~-~----.'.. State/Local wetland inventory map(s): E:1 FEMAIFIRM maps: I U 100-year Floodplain Elevation is: (National Geodcctic Vertical Datum of 1929) I Photographs: D Aerial (Name & Date): or D Other (Name & Date): ~ Previous determination(s). File no. and date of response letter: l jj Applicable/supporting case law: ~ Applicable/supporting scientific literature: ~ Other information (please specify): Corps site visits in Spring of2013. B. ADDITIONAL COMMENTS TO SUPPORT JD:

18 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): 817/2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER: Prewitt Bank Stabilization, Asheville Re~?latory Field office, Wilmington District ~E.- f.:,jftvo- rq.bi -14 &O\;;L-VI<(S3 C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Avery County City:_Plumtree Center coordinates of site (I at/long in degree decimal format): Lat o lli!. Long Universal Transverse Mercator: Name of nearest waterbody: North Toe River 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 Jl Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. fill~ 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!l Office (Desk) Determination. Date: 0 Field Determination. Date(s): SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION 01' JURISDICTION. There "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] fii!l Waters subject to the ebb and flow of the tide. ij 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 "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 lij TNWs, including territorial seas iii Wetlands adjacent to 1NWs fil Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs Non-RPWs that flow directly or indirectly into TNWs II Wetlands directly abutting RPWs that flow directly or indirectly into TNWs If 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 :If Impoundments of jurisdictional waters Isolated (interstate or intrastate) waters, including isolated wetlands :If b. Identify (estimate) size of waters of the U.S. in the review area: Non-wetland waters: Stream linear feet: width (ft) and/or Wetlands: 0 acres. acres. c. Limits (boundaries) of jurisdiction based on: IIIILQJmi!~IJIII!ili! Elevation of established OHWM (if known): Unknown. 2. Non~regulated waters/wetlands (check ifapplicable): 3 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 Ill.F.

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

20 SECTION III: CWA ANALYSIS A. TNWs AND WETLANDS ADJACENT TO TNWs The agencies will assert jurisdiction over TNW s and wetlands adjacent to TNW s. If the aquatic resource is a TNW, complete Section lll.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: 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 detennine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non-navigable tributaries oftnws 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 fmding 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 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 ofnon-tnws that flow directly or indirectly into TNW (i) General Area Conditions: '''l!llll ~~::;:~rs::~: ~~~ Average annual rainfall: Average annual snowfall: inches inches (ii) Physical Characteristics: (a) Relationship with TNW:!,g) Tributary flows directly into TNW. D Tributary flows through!fjl;llj~~ tributaries before entering TNW. Project waters are Project waters are Project waters are Project waters are aerial miles from RPW. Project waters cross or serve as state boundaries. Explain: NO. Identify flow route to TNW 5 : from North Toe River Flows into French Broad River. Tributary stream order, if known: 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.

21 (b) General Tributary Characteristics (check all that apply): Tributary is: rg] Natural D Artificial (man-made). Explain: D Manipulated (man-altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: 45 feet Average depth: 2 ",~~~~i!llll~lllllllfli~~. Average side slopes: Primary tributary substrate composition (check all that apply): t:zl Silts I:ZJ Sands t:z1 Cobbles I:ZJ Gravel t:z1 Bedrock D Vegetation. Type/% cover: D Other. Explain: D Concrete 0Muck Banks. Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain: Severe erosion- Vertical and Concave Presence of run/riffle/pool complexes. Explain: Vissible. Tributary geometry: I{~&Dit!l Tributary gradient (approximate average slope): 3% (c) Flow: Tributary provides for: Bi1lliii Estimate average number of flow events in review area/year: mlilliilllid Describe flow regime: Perennial. Other information on duration and volume: Surface flow is: Bl')!lii ~. Characteristics: Perrenial. Subsurface flow: Explain findings: NA. D Dye (or other) test performed: NA. Tributary has (check all that apply): t:z1 Bed and banks I:ZJ OHWM 6 (check all indicators that apply): rg] clear, natural line impressed on the bank [2] the presence of litter and debris 12) changes in the character of soil D destruction of terrestrial vegetation!:g) shelving [2] the presence of wrack line ~ vegetation matted down, bent, or absent [2] sediment sorting [g) leaf litter disturbed or washed away D scour [g) sediment deposition [8J multiple observed or predicted flow events IS] water staining [2] 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 CWA jurisdiction (check all that apply): IJ High Tide Line indicated by: 1]: 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) [8J 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: Water is generally clear Identify specific pollutants, if known: 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 OH\VM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 Ibid.

22 (iv) Biological Characteristics. Channel supports (check all that apply): [2J Riparian corridor. Characteristics (type, average width): 5-30 Feet Mixed Hardwoods. D Wetland fringe. Characteristics: D Habitat for: 0 Federally Listed species. Explain findings: [2J Fish/spawn areas. Explain findings:. [2J Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain findings: 2. Characteristics of wetlands adjacent to non-tnw that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: acres Wetland type. Explain: Wetland quality. Explain:. Project wetlands cross or serve as state boundaries. Explain: (b) General Flow)~.elationship with Non-TNW: Flow is:!ll!lli!t!lil!. Explain:. Surface flow is: ~ Characteristics: Subsurface flow: l!i'jllli. Explain findings: D Dye (or other) test performed: (c) (d) Wetland Adjacency Determination with Non-TNW: D Directly abuttiog 0 Not directly abutting 0 Discrete wetland hydrologic connection. Explain: Water table flow. 0 Ecological connection. Explain: 0 Separated by berm/barrier. Explain: Project wetlands Project waters Flow is from: river miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the ll.~!!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: D 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: 11'11!!1 Approximately ( ) acres in total are being considered in the cumulative analysis.

23 For each wetland, specify the following: Directly abuts? (YIN) Size On acres) Directly abuts? (Y /N) Size On acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a tloodplain 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 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 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 fmdings 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 0 width (ft), Or, acres. Wetlands adjacent to TNWs: acres. I 2. RPWs that flow directly or indirectly into TNWs. 1'1 Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: USGS Blue Line. <\- S \Ljlf'cr-t\S ~ Tributaries of 1NW 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:

24 Provide estimates for jurisdictional waters in the review area (check all that apply): Jl Tributary waters: linear feet width (ft). mil Other non-wetland waters: acres. Identify type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. Ill Waterbody that is not a TNW 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):!illll Tributary waters: linear feet width (ft). II Other non-wetland waters: acres. Identify type(s) of waters: 4. _Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. 61 Wetlands directly abut RPW and thus arc jurisdictional as adjacent wetlands. }I WeUands 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: 1i 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: 1 acres. 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 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. II Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 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 Jll which are or could be used by interstate or foreign travelers for recreational or other purposes. I 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: 8 See Footnote# 3. 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. HI 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 CWAAct]urisdiction Following Rapanos.

25 Provide estimates for jurisdictional waters in the review area (check all that apply): III Tributary waters: 800-linear feet 3width (ft). E Other non-wetland waters: acres. Identify type( s) of waters: Wetlands:.acrcs. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): II: 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. fit 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). ill Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: Jl 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): lij Non-wetland waters (i.e., rivers, streams): linear feet width (ft).!!j.!l Lakes/ponds: acres. Iii Other non-wetland waters: acres. List type of aquatic resource: fi!i 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): II Non-wetland waters (i.e., rivers, streams): linear feet, width (It).!!J.!l Lakes/ponds: acres. D Other no~-wet1and 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 a11d requested, appropriately reference sources below): II_ Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: Jml Data sheets prepared/submitted by or on behalf of the applicant/consultant. tgl Office concurs with data sheets/delineation report. D Office does not concur with data sheets/delineation report. IJ Data sheets prepared by the Corps: 1lilf1!!J.!l Corps navigable waters' study: U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. 0 USGS 8 and 12 digit HUC maps. II U.S. Geological Survey map(s). Cite scale & quad name:1 ;24,000 Carvers Gap. II USDA Natural Resources Conservation Service Soil Survey. Citation: Avery County Soil Survey. Jl National wetlands inventory map(s). Cite name: 11 State/Local wetland inventory map(s):!!j.!l FEMA/FIRM maps: f!ml 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929)!!J.!l Photographs: 1Zl Aerial (Name & Date):2011,Avery county GIS. or 0 Other (Name & Date): Previous determination(s). File no. and date of response letter: Applicable/supporting case law: Applicable/supporting scientific literature: Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD:

26 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 11, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, , Mountain Heritage Land Holdings, l,lc I Attn.: Dr. Suresh Raja C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish!borough: Jackson City: Dillsboro Center coordinates of site (!at/long in degree decimal format): Latitude & Longitude in Decimal Degrees: N, w Universal Transverse Mercator: Name of nearest waterbody: UT to Bart Cove Creek and Bart Cove Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Tuckasegee River Name ofwa!ershed or Hydrologic Unil Code (HUC): Tuckasegee ( ) ~ Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. EiJ Check if other sites (e.g., offsite mitigation sites, disposal sites, etc...) arc associated with this action and are recorded on a different JD fonn. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): ' Office (Desk) Determination. Date; September 10, 2013 ~- Field Determination. Date(s): SECTION IT: SUMMARY OF FINDINGS A. RilA SECTION 10 DETERMINATION m' JURISDICTION. There ~~~;[q "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] EEJ Waters subject to the ebb and flow ofthe tide. )ID: 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 "waters of the U.S." within Clean Water Act (CWA)jurisdiction (as dcfmcd by 33 CFR part 328) in the review area. [Required] l. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): TNWs, including territorial seas Bill Wetlands adjacent to TNWs fiill} Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs m- Non~RPWs that flow directly or indirectly into TNWs i} 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 {ill 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: 5,000 linear feet: 1-6 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on:!fj~~' _ij~~~~wg~~ 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. 1 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.

27 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 lli.d.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections m.a.l and 2 and Section III.D.l.; otherwise, see Section JJI.B below. 1. TNW ldentij'y TNW: Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent": B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non-navigable tributaries oftnws where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 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 ofits 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 IIJ.B.l for the tributary, Section TII.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 IJI.C below. 1. Characteristics of non-tnws that flow directly or indirectly into TNW (i) General Area L'"'""""'"'' Watershed size: Drainage area: Average annual raillfall: Average annual snowfali: inches inches (ii) Physical Characteristics: (a) Relationship with TNW: D Tributary flows directly into TNW. D Tributary flows through ~!~j@12~~ tributaries before entering TNW. Project waters arc river miles from TNW. Project waters arc 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 TNW 5 : 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 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.

28 0 Manipulated (man-altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: ~il;!i;?!!j~i!. Primary tributary substrate composition (check all that apply): 0 Silts 0 Sands 0 Cobbles 0 Gravel D Bedrock D Vegetation. Type/% cover: D Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks J. Presence of run/riffle/pool complexes. Explain: Tributary geometry:!1"i!\!!1i!ill!* Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (c) Flow: Tributary provides for:!n~~~1~! Estimate average number of flow events in review area/year: ~~!'~~li~~ Describe flow regime: Other information on duration and volume: Surface flow is: ~1i!~J~jj~. Characteristics: Subsurface flow: ~l~~ilmj~f. Explain findings: 0 Dye (or other) test performed: Tributary has (check all tl1al apply): D Bed and banks 0 OHWM 6 (check all indicators that apply): 0 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 0 sediment deposition plant community D other (list): D Discontinuous OHWM. 7 Explain: D D D D the presence oflitter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting 0 scour D multiple observed or predicted flow events D water staining D abrupt change in apply): If factors other than the OHWM were used to determine lateral extent ofcwajurisdiction (check all that fiil. High Tide Line indicated by: fii] D oil or scum line along shore objects D fine shell or debris deposits (foreshore) 0 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. (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): 0 Wetland fringe. Characteristics: D Habitat for: D Federally L.isted species. Explain findings: D Fish/spawn areas. 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 OHW1Vl has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 Ibid.

29 0 Other environmentally-sensitive species. Explain findings: 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 a._<; state boundaries. Explain: (b) General Flow Relationship with Non-TNW: Flow is:!f;!!!jj~~t- Explain: Surface flow is: ~Jlt/lil!iJii Characteristics: Subsurface flow: Explain findings: D Dye (or other) test performed: (c) Wetland Adjacencv Determination with Non-TNW: 0 Directly abutting D Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: D Separated by berm/barrier. Explain: (d) Project Project waters Flow is from: river miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the );t~~!!l!lill~ 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!mown: (iii) Biological Characteristics. Wetland supports (check all that apply): D Riparian buffer. Characteristics (type, average width): 0 Vegetation type/percent cover. Explain: D Habitat for: D Federally Listed species. Explain fmdings: D Fish/spawn areas. Explain findings: 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: r~~lat~~ Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? CY IN) Size (in acres) Directly abuts? CY /N) Size (in acres) Summarize overall biological, chemical and physical functions being performed:

30 C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features documented and the effects on the TN\V, 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 TN\Vs, 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 lifccycle 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 JJLD: 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 linear feet width (ft). Or, acres. :Gl 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: The UT to Bart Cove Creek and Bart Cove Creek exhibit indicators of ordinary high water marks (OHWNI) 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. Bart Cove Creek is depicted as a solid blue line on the USGS 7.5 minute quadrangle map Sylva North and the most current Natural Resource Conservation Service Soil Survey for Jackson County. Perennial flow has been observed in both streams by representatives ofthe Corps during numerous site visits to the Dillsboro, 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): ~ill Tributary waters: 5,000 linear feet 1-6 width (ft). f5n Other non-wetland waters: acres. IdentifY type(s) of waters:

31 3. Non-RPWs 8 that flow directly or indirectly into TNWs. ~ Waterbody that is not a TNW or an RPW, but tlows directly or indirectly into a TNW, and it has a significant nexus with a TNW is jurisdictional. Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional waters within the review area (check all that apply): ~ Tributary waters: linear feet width (ft). J!!i Other non-wetland waters: acres. IdentitY type(s) of waters: 4..Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. 00 Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. fell 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: 00 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 IILD.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. lelj 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 arc jurisidictional Data supporting this conclusion is provided at Section III. C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs. lei Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly siluated adjacent wetlands, have a significant nexus with a TNW arc jurisdictional. Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. NiZf Demonstrate that impoundment was created from "waters of the U.S.," or In Demonstrate that water meets the criteria for one of the categories presented above (1-6), or l!lll]. Demonstrate that water is isolated w:ith 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 m 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. Eillf which arc or could be used for industrial purposes by industries in interstate commerce. Bit Interstate isolated waters. Explain: Jjji;f 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!ljij Tributary waters: linear feet width (ft).. m!ll Other non-wetland waters: acres. IdentifY type(s) of waters: J!l Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): lillll 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. mill 8 See Footnote# 3. 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 111 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.

32 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). 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 IvfBR 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): mbj- Non-wetland waters (i.e., rivers, streams): linear feet width (ft). Iilli] Lakes/ponds: acres. m: Other non-wetland waters: acres. List type of aquatic resource: J1li 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): mi Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). ~, Lakes/ponds: acres. leu Other non-wetland waters: acres. List type of aquatic resource: lliill Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check a11 that apply- checked items shall be included in case file and, \Vhere checked and requested, appropriately reference sources below): ~, Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: J!lB 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: l:llif Corps navigable waters' study: [IN U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. D USGS 8 and 12 digit HUC maps. ~ U.S. Geological Survey map(s). Cite scale & quad name: Sylva North. rnm USDA Natural Resources Conservation Service Soil Survey. Citation: Jackson County, NC. ffi] National wetlands inventory map(s). Cite name: State/Local wetland inventory map(s): FEMAIFIRM maps: IZ ] 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) ~ Photographs: 1ZJ Aerial (Name & Date): Google Earth, Apr. 1993, Apr. 1995, Apr. 1998, Dec. 2002, May 2005, Oct 2005, Jun. 2006, Oct. 2008, and Oct or D Other (Name & Date): tid: Previous dctcrmination(s). File no. and date of response letter: ~ Applicable/supporting case law: Ulii Applicable/supporting scientific literature: ~ Other infonnation (please specify): dated January 18, 2013 from Rick Wooten with the NC Geological Survey, summary with photos of recent landslide in the development.. B. ADDITIONAL COMMENTS TO SUPPORT JD: The site is a residential development known as Mountain Heritage Preserve located in Bart Cove north of Dillsboro, in Jackson County, North Carolina. Corps representatives visited the site on February 6, 2013 to view the landslide damage on Bart Cove Creek. Also, the Corps was on-site May 21,2013 to meet with the owner's authorized agent to review the stream impacts.

33 APPROVED njrisdictional DETERMINATION FORM U.S. Army Corps of Engineers 'This form should be completed by following the instructions provided in Section lv of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 11,2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER: CESA W-RG-A, NCDENR- Ecosystem Enhancement Program I Attn.: Guy Pearce, C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Macon City: Franklin Center coordinates of site (laulong in degree decimal format): N, W Universal Transverse Mercator: Name of nearest waterbody: Parrish Branch and Cochran Branch Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Little Tennessee River Name of watershed or Hydrologic Unit Code (HUC): Upper Little Tennessee ( ) f8l Check if map/diagram of review area and/or potential jurisdictional areas is/arc available upon request. Iilli Check if other sites (e.g., offsite mitigation sites, disposal sites, etc... ) are associated with this action and arc recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): lili] Office (Desk) Determination. Date: l ll' Field Determination. Date(s): May 9, 2013 and August 13, 2013 SECTION II: SUMMARY OF FINDINGS A. RIIA SECTION 10 DETERMINATION OF JURISDICTION. There ~~~!00: "navigable waters of the US" within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] Qill 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 usc to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINA TJON OF JURISDICTION. '() ~~ There "waters of the US." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area [Required] I. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 lilii} TNWs, including territorial seas lllijl Wetlands adjacent to TNWs ~ Relatively permanent waters 2 (RPWs) that flow directly or indirectly into 'JNWs ~ Non-RPWs that flow directly or indirectly into TNWs {g} Wetlands directly abutting RPWs that flow directly or indirectly into TNWs ffitii Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TN\Vs ffill Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs wgf Impoundments of jurisdictional waters Isolated (interstate or intra')tate) waters, including isolated wetlands la!!f b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 1,564Jinear feet: 4-7 width (ft) and/or Wetlands: 0.99 acres. acres. c. Limits (boundaries) of jurisdiction based on: ~~.~ :mmzt~~!l~itj»[~i.w*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 detennined 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 IILF. 6

34 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 Ill.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections ill.a.l and 2 and Section IIJ.D.l.; otherwise, see Section III.B below. I. TNW Identify TNW: Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent": B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (TF 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 TN\Vs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 is not an RPW, or a wetland directly abutting an RPW, a.m 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 ID request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section IIJ.B.l for the tributary, Section IJI.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) General Area Conditions: Watershed size: Drainage area: Average annual Average annual snowfall: inches (ii) Physical Characteristics: (a) Relationship with TNW: 0 Tributary flows directly into 'INW. 0 Tributary flows through );}:1f~m 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 1N\V. Project waters are aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: Identify flow route to TNW 5 : Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: D Natural 0 Artificial (man-made). Explain: D Manipulated (man-altered). 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. 7

35 , ~ Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: Primary tributary substrate composition (check all that apply): D Silts D Sands D Cobbles D Gravel D 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:!{~g~~j~ Tributary gradient (approximate average slope): % 0 Concrete 0Muck Explain: (c) Flow: ~~~1:~~ ::~:~~e~~:~~!~~~- events in review area/year: fjjiji1j,~ Describe flow regime: Other information on duration and volume: Surface flow is: ~~~~Jl,2~jl~. Characteristics: Subsurface flow: Ji1~~00l~:[~. Explain findings: D Dye (or other) test performed: Tributary has (check all!hat apply): D Bed and banks D OHWM 6 (check all indicators that apply): 0 clear, natural line impressed on the bank D the presence of litter and debris D changes in the character of soil D shelving D destruction of terrestrial vegetation 0 the presence of wrack line D vegetation matted down, bent, or absent 0 sediment sorting D leaf litter disturbed or washed away D scour 0 sediment deposition D multiple observed or predicted flow events D water staining D other (list): 0 Discontinuous OH\VM. 7 Explain: D abrupt change in plant community If factors other than the OHWM were used to detennine lateral extent of CWAjurisdiction (check all that apply): ~ High Tide Line indicated by: Jllru~ 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; 0 physical markings/characteristics D vegetation lines/changes in vegetation types. D tidal gauges D other (lis!): (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): 0 Wetland fringe. Characteristics: D Habitat for: D Federally Listed species. Explain findings: D FisbJspawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain findings: 2. Characteristics of wetlands adjacent to non-tnw that flow directly or indirectly into TNW 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 OH\VM has been removed by development or agricultural practices). "Where there is a break in the OilWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 Ibid. 8

36 (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: acres We!land type. Explain: We!land quality. Explain: Project wetlands cross or serve as state boundaries. Explain: (b) General Fl()W Relationship with Non-TN\V: Flow is:!"itl~~~- Explain: Surface flow is: ft!!l]i]'i!!~ Characteristics: Subsurface flow: Explain findings: D Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: D Directly abutting D Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: D Separated by bennlbarrier. Explain: (d) Project wetlands Project waters Flow is from: Estimate ap1>rmdmate river miles from TNW. aerial (straight) miles from TNW. of wetland as within the!!~ml:j1~ilfloodplain. (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): D Riparian buffer. Characteristics (type, average width): D Vegetation type/percent cover. Explain: D Habitat for: D Federally Listed species. Explain fmdings: D Fish/spawn areas. Explain findings: 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: ~Jii~1~! Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? CY /N) Size Cin acres) Directly abuts? (YIN) Size Cin acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNTI'ICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TN\V. 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 9

37 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? Docs 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 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 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 I'NWs. linear feet width (ft), Or, acres. md: Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TNWs. [8,1 Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Parrish Branch and Cochran Branch exhibit indicators of ordinary high water marks (OH\VM) including developed bed and bank, scour, presence of aquatic life, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaflitter washed away. Cochran Branch is depicted as a solid blue line on the USGS 7.5 minute quadrangle map Franklin and both stream are depicted as streams in the most current Natural Resource Conservation Service Soil Survey for Macon County. Perennial flow has been observed in both streams by representatives of the Corps during numerous visits to the Burningtown Township, 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 III.B. Provide rationale indicating that tributary flows seasonally: Provide estimates for jurisdictional waters in the review area (check all that apply): Ji!lj' Tributary waters: 1,564 linear feet 4-7 width (ft). 1!]1 Other non-wetland waters: acres. ldcntizy type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. ~ Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a lnw, 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): l1fh Tributary waters: linear feet width (ft). lffill Other non-wetland waters: acres. ldentizy type(s) of waters: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. 8 See Footnote# 3. 10

38 twj Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. m. 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: Flows directly into associated tributary. ftiid Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section IILB and rationale in Section IILD.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: 0.99 acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. fi4j} 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 arc jurisidictional. Data supporting this conclusion is provided at Section III. C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs. Jm" 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 arc jurisdictional. Data supporting this conclusion is provided at Section JII.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 fie]: Demonstrate that impoundment was created from "waters of the U.S.," or mi Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 1@1 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):" E.lH which arc or could be used by interstate or foreign travelers for recreational or other purposes. J:m from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. liillj which are or could be used for industrial purposes by industries in interstate commerce. ggjl Interstate isolated waters. Explain: lq!m Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): tbji Tributary waters: linear feet width (ft). E$ Other non-wetland waters: acres. Identify type(s) of waters: EE:1 Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): ijll lf 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. 0 Prior to the Jan 2001 Supreme Court decision in "SWANCC," the review area would have been regulated based solely on the lj.iill IJiB "Migratory Bird Rule" (MBR). Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: Other: (explain, if not covered above): Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional judgment (check all that apply): rg: Non-wetland waters (i.e., rivers, streams): linear feet width (fi). ra. Lakes/ponds: acres. filitil 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 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 Rapruws. 11

39 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): _[ili1 Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). lli} Lakes/ponds: acres. [ll Other non-wetland waters: acres. List type of aquatic resource: fidj 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): I8i Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant:. m: Data sheets prepared/submitted by or on behalf of the applicant/consultant. ~ Office concurs with data sheets/delineation report. IE! Jim D Office does not concur with data sheets/delineation report. Data sheets prepared by the Corps: Corps navigable waters' study: IEl U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. 0 USGS 8 and 12 digit HUC maps. [81 U.S. Geological Survey map(s). Cite scale & quad name: Franklin ~ USDA Natural Resources Conservation Service Soil Survey. Citation: Macon County, NC. rn 1 National wetlands inventory map(s). Cite name: fjb}: State/Local wetland inventory map(s): l jij FEMNFIRM 1 00-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) I8J. Photographs: rzl Aerial (Name & Date): Google Earth Mar. 20!3. May Jun Jun Apr or 0 Other (Name & Date): fll Previous determination(s). File no. and date of response letter: ffil Applicable/supporting case law: ~-;~:- Applicable/supporting scientific literature: lei Other information (plea')e specify): B. ADDITIONAL COMMENTS TO SUPPORT JD: 12

40 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 13, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER: CESAW-RG-A, Cullowhee River Club LLC, Attn.: Tim Newell, C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Jackson City: Cullowhee Center coordinates of site (Jat/long in degree decimal format): N, W Universal Transverse Mercator: Name of nearest waterbody: UTs to Tuckasegee River and Tuckasegee River Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Tuckasegee River Name of watershed or Hydrologic Unit Code (HUC): Tuckasegee River ( ) J8l Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. 6j 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): E Office (Desk) Determination. Date: J;i!l Field Determination. Date(s): Aprill5, 2013 SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMlNA TION OF JURISDICTION. There "navigable waters qf the US." within Rivers and Harbors Act (RHA) jurisdiction (as defmed by 33 CFR part 329) in the review area [Required] fillll Waters subject to the ebb and flow of the tide. I! Waters arc 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 "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 rg) 1NWs, including territorial seas ~ Wetlands adjacent to TNWs :J81 Relatively permanent waters 2 (RPWs) that flow directly or indirectly into 1NWs 0)] Non-RPWs that flow directly or indirectly into TNWs ~ Wetlands directly abutting RPWs that flow directly or indirectly into TNWs fj8) Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into 'IN\Vs ~ Wetlands adjacent to non-rpws that flow directly or indirectly into 1NWs ilzi 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: 9,386 linear feet: width (ft) and/or Wetlands: acres. acres. c. Limits (boundaries) of jurisdiction based on:!\l!~ulji!l!~ill!il:ifii!l,}j Elevation of established OHW11 (iflmown): 2. Non-regulated waters/wetlands (check if applicable): 3!Eill Potentially jurisdictional waters and/or wetlands were a..<>sessed 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. 5

41 A. TNWs Al'm 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 lll.a.l and Section Ill.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 IdentifY TNW: Tuckasegee River. Summarize rationale supporting determination: Very large watershed, waterway can and has supported navigation of small nonmotorized boats. 2. Wetland adjacent to TN\V Summarize rationale supporting conclusion that wetland is '"adjacent": 'Ib.e wetlands share boundaries with and discharge into the Tuckasegee River. 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 TN\V, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 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 TN\V. 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 Ili.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 m.c below. 1. Characteristics ofnon-tnws that flow directly or indirectly into TNW (i) General Area Condiiti2.rJ~;, Watershed size: Drainage area: Average annual rainfall: Average annual sno-wfall: inches inches (ii) Physical Characteristics: (a) Relationship with TNW: D Tributary flows directly into 1NW. D Tributary flows through tributaries before entering TNW. Project waters are river miles from TNW. Project waters arc 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 1NW 5 : Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: D Natural 0 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. 6

42 D Manipulated (man-altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes:!l!l:~l!!l!:!l Primary tributary substrate composition (check all that apply): D Silts 0 Sands D Cobbles D Gravel D Bedrock 0 Vegetation. Type/% cover: 0 Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riflle/pool complexes. Explain: Tributary geometry: :Jl!l~l~l-~{ Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (c) Flow: Tributary provides for: Jf:!:~if]~! Estimate average number of flow events in review area!year: )":if'j{j~il! Describe flow regime: Other information on duration and volume: Surface flow is: ~iiljl;1~1 00. Characteristics: Subsurface flow: f:j:~gy~~j. Explain findings: D Dye (or other) test performed: Tributary has (check all that apply): 0 Bed and banks 0 OHWM 6 (check all indicators that apply): 0 clear, naturallinc 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 D sediment sorting D leaflitter disturbed or washed away D scour 0 sediment deposition D multiple observed or predicted flow events D water staining 0 other (list): D Discontinuous OHWM. 7 Explain: D abrupt change in plant community If factors other than the OH\VM were used to determine lateral extent of CWAjurisdiction (check all that apply): D High Tide Line indicated by: D Mean High Water Mark indicated by: D oil or scum line along shore objects 0 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. 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: Identify specific pollutants, if known: (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 fmdings: 0 Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings: 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. 7 lbid. 7

43 2. Characteristics of wetlands adjacentto non-tn\v 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 K~ow l{_elationship with Non-TNW: Flow is: ~t![~jii'f,l Explain: Surface flow is: ~f.jf~j,p~~ Characteristics: Subsurface flow: ~!G~~l Explain findings: 0 Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-INW: 0 Directly abutting D Not directly abutting D Discrete wetland hydrologic cmmection. Explain: D Ecological connection. Explain: 0 Separated by berm/barrier. Explain: (d) miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the )l!!~~j\{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): D lliparian buffer. Characteristics (type, average width): D Vegetation type/percent cover. Explain: D Habitat for: 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: 3. Characteristics of all wetlands adjacent to the tributary (if a~~l..,.."'-~'- All wetland(s) being considered in the cumulative analysis: :.m~~~~a: Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetlan~ specify the following: Directlv abuts? CY /N) Size (in acres) Directly abuts? CY /N) Size (in acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions ofthe 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 TN\V, and the functions performed by the tributary and all its adjacent 8

44 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 TN\V, 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? Docs 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 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 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 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 IILD: 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: 181 TNWs: 7,928 linear feet 120 width (ft). Or. acres. lg} Wetlands adjacent to 1NWs: acres. 2. RPWs that flow directly or indirectly into TN\Vs. tej Tributaries oftn\vs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Six (6) UTs to the Tuckasegee River exhibit indicators of ordinary high water marks (011\VM) including developed bed and bank, scour, presence of litter and debris, destruction of terrestrial vegetation, sediment sorting and deposition, leaf litter washed away. Tributaries of1nw where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional. Data supporting thls 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): 181 Tributary waters: 1,458 linear feet 3 width (ft). fel Other non-wetland waters: acres. IdentifY type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. EEl Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a lnw, 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): JIN Tributary waters: linear feet width (ft). titl1{ Other non-wetland waters: acres. Identify type(s) of waters: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. ~- Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. 8 See Footnote# 3. 9

45 'fbi Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale indicating that tributary is perennial in Section Ul.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Flows directly into associated tributary. IZillJ Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seao;onal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TN\Vs. JE!l Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this conclusion is provided at Section III. C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs. EZJ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and """" with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional llill! Demonstrate that impoundment was created from "waters of the U.S.," or flifll Demonstrate that water meets the criteria for one of the categories presented above (1-6), or ln1f 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):'" JillU which are or could be used by interstate or foreign travelers for recreational or other purposes. rbj from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. Ui which are or could be used for indu::.irial purposes by industries in interstate commerce. _~ ill] Interstate isolated waters. Explain: lful Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): B21 Tributary waters: linear feet width (ft). li l Other non-wetland waters: acres. IdentifY type( s) of waters: {$1 Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): Ji! 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. llij 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 JlliJ Hili~' "Migratory Bird Rule" (MBR). Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: Other: (explain, if not covered above): Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR factors (i.e., presence of migratory birds, presence of endangered species, usc of water for irrigated agriculture), using best professional judgment (check all that apply): EB2J Non-wetland waters (i.e., rivers, streams): linear feet width (ft). ~ Lakes/ponds: acres. lij Other no~-wetland waters: acres. List type of aquatic resource: mjl 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. 10

46 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): IliLt Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). [illl Lakes/ponds: acres. {llij Other non-wetland waters: acres. List type of aquatic resource: lli±j. Wetlands: acres. SECTIONIV: DATASOURCES. 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): [gl_ Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant:. }g] Data sheets prepared/submitted by or on behalf of the applicant/consultant [S] Office concurs with data sheets/delineation report. 0 Office does not concur with data sheets/delineation report. Bt Data sheets prepared by the Corps: rij Corps navigable waters' study: Gil U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. D USGS 8 and 12 digit HUC maps. U.S. Geological Survey map(s). Cite scale & quad name: Sylva North [gj USDA Natural Resources Conservation Service Soil Survey. Citation; Jackson County, NC. C3 National wetlands inventory map(s). Cite name: 1]1 State/Local wetland inventory map(s): fb FEMA/FIRM maps: IZ I 100-year Floodplain Elevation is: (National Geodcctic Vertical Datum of 1929) 0 Photographs: 0 Aerial (Name & Date): or 0 Other (Name & Date): Q Previous detennination(s). File no. and date of response letter: [ill Applicable/supporting case law: Q1 Applicable/supporting scientific literature: [2} Other infonnation (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD: 11

47 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): September 10, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, , Mill Creek Property Owner's Association I Attn.: John Russell C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Macon City: Franklin Center coordinates of site (lat!long in degree decimal format): J.. atitude & Longitude in Decimal Degrees: N, w Universal Transverse Mercator: Name of nearest waterbody: Mill Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Little Tennessee River Name of watershed or Hydrologic Unit Code (lfljc): Upper Little Tennessee River ( ) ~ 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 arc recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): liiiij Office (Desk) Determination. Date: September 10, 2013 ij@ Field Determination. Datc(s): SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There in the 12ill 12ill "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) area. [Required) Waters subject to the ebb and flow of the tide. Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There "waters of the U.S." within Clean Water Act (CWA)jurisdiction (as defined by 33 CFRpart 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 1m TNWs, including territorial seas J2ill Wetlands adjacent to TNWs f : Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs filill Non-RPWs that flow directly or indirectly into TNWs Hl!!J Wetlands directly abutting RPWs that flow directly or indirectly into TNWs DOOf 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 mj m Impoundments of jurisdictional waters if_ Isolated (interstate or intrastate) waters, including isolated wetlands b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 400 linear feet: 10 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: ~j!!!j[1j!oo!i~ji! l!~~~rml Elevation of established OHWM (if known): 2. Non-regulated waters/wetlands (check if applicable): 3 m!) 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.

48 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 TN\V, complete Section III.A.l and Section III.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections IU.A.l and 2 and Section TII.D.l.; otherwise, see Section III.B below. l. TNW Identify TNW: Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent": B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter oflaw. If the waterbody 4 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 lli.b.l for the tributary, Section IILB.2 for any onsite wetlands, and Section lli.b.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section Ill.C below. 1. Characteristics ofnon-tnws that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: Drainage area: A veragc annual Average annual snowfall: inches (ii) Physical Characteristics: (a) Relationship with TNW: 0 Tributary flows directly into TNW. 0 Tributary flows through llwif~ tributaries before entering TNW. Project waters are river miles from 1NW. 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. Explaill: Identify flow route to 1NW 5 : Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: D Natural 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.

49 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:!'f~r1jr~f. Primary tributary substrate composition (check all that apply): 0 Silts 0 Sands 0 Cobbles 0 Gravel 0 Bedrock 0 V cgctation. Type/% cover: 0 Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence ofrunlrifflelpi)_ol complexes. Explain: Tributary geometry: Mi!\J!r;J;;~i Tributary gradient (approximate average slope): % 0 Concrete 0Muck Explain: (c) Flow: Tributary provides for: JJ:t~~m 1 Estimate average number of flow events in review area/year: fij~\ll!!i/~ Describe flow regime: Other information on duration and volume: Surface flow is:!i!i~.iij![l:ji!i. Characteristics: Subsurface flow:!m~m~- Explain findings: 0 Dye (or other) test perfonned: Tributary has (check all that apply): 0 Bed and banks 0 OHWM 6 (check all indicators that apply): D clear, natural line impressed on the bank D changes in the character of soil 0 shelving D vegetation matted down, bent, or absent D leaflitter disturbed or washed away D sediment deposition plant community 0 other (list): D Discontinuous OHWM. 7 Explain: the presence of litter 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 apply): If factors other than the OHWM were used to determine lateral extent of CWAjurisdiction (check all that!lilll D oil or scum line along shore objects D fine shell or debris deposits (foreshore) D physical markings/characteristics 0 tidal gauges 0 other (list): (@ Higb Tide Line indicated by: Mean High Water Mark indicated by: D survey to available datum; D physical markings; D vegetation lines/changes in vegetation types. (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: 0 Habitat for: D Federally Listed species. Explain fmdings: 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. 7 1bid.

50 D Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain findings: 2. Characteristics of wetlands adjacent to non-tnw that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: acres Wetland type. Explain: Wetland quality. Explain: Project wetlands cross or serve as state boundaries. Explain: (b) General Flow Relationship with Non-1NW: Flow is: ~~~~'l!lll~- Explain: Surface flow is: Jt~Ji1Jm~ Characteristics: Subsurface flow: ~i~r:jsi~. Explain findings: D Dye (or oth~~)"i~;; performed: (c) Wetland Adjacency Determination with Non-TNW: D Directly abutting 0 Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: 0 Separated by berm/barrier. Explain: (d) river miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the 1!1!'11!1'!~~ 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, iflmown: (iii) Biological Characteristics. Wetland supports (check all that apply): D Riparian buffer. Characteristics (type, average width): 0 Vegetation type/percent cover. Explain: 0 Habitat for: 0 Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: 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: fii~~( Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (Y JN) Size fin acres) Directly abuts? (YIN) Size (in acres) Summarize overall biological, chemical and physical functions being perfonned:

51 C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine ifthey significantly affect the chemical, physical, and biological integrity of a TN\V. 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 TN\V, 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 TN\Vs. 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 IILD: 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 TN\Vs. ~ Tributaries oftnws where tributaries typically flow year-round are jurisdictional Provide data and rationale indicating that tributary is perennial: Mill Creek exhibits indicators of ordinary high water marks (OH\VM) 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. Mill Creek is depicted as a solid blue line on the USGS 7.5 minute quadrangle map Franklin and the most current Natural Resource Conservation Service Soil Survey for Macon 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 Franklin, 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): ~ Tributary waters: 400 linear feet 10 width (ft). I Other non-wetland waters: acres. Identuytype(s) of waters:

52 3. Non-RPWs 8 that flow directly or indirectly into TNWs. 1m 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): Em Tributary waters: linear feet width (ft). m1! Other non-wetland waters: acres. IdentifY type(s) of waters: 4. _Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. lillij Yfetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. Eij 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: _fllij 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 IILD.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. _\Vetlands adjacent to but not directly abutting an RPW that tlow directly or indirectly into TNWs. t l 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 arc jurisidictional. Data supporting this conclusion is provided at Section III. C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs. m. 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 e::.'timates 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. mil Demonstrate that impoundment was created from "waters of the U.S.," or m Demonstrate that water meets the criteria for one of the categories presented above (1-6), or mm Demonstrate that water is isolated with a nexus to commerce (sec 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):" 1m which are or could be used by interstate or foreign travelers for recreational or other purposes. ti@l from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. Bffil which are or could be used for industrial purposes by industries in interstate commerce. ftml Interstate isolated waters. Explain: ~iii]. Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): fl!!l Tributary waters: linear feet width (ft). fl Other non-wetland waters: acres. IdentifY type(s) of waters: ll!l!l Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): E,ill: 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. fm Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. 8 See Footnote# 3. 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook 10 Prior to asserting or declining C\V 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.

53 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: 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 :MER 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): f@ll Non-wetland waters (i.e., rivers, streams): linear feet width (fl.). II Il: Lakes/ponds: acres. 001 Other non-wetland waters: acres. List type of aquatic resource: IEZJ' 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): llia Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). lillij Lakes/ponds: acres. il Other non-wetland waters: acres. List type of aquatic resource: ~ Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check all that apply- checked items shall be included in case file and, where checked and requested, appropriately reference sources below): 8l Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: m Data sheets prepared/submitted by or on behalf of the applicant/consultant. D Office concurs with data sheets/delineation report. l3lil lioo) E.fill D Office does not concur with data sheets/delineation report. Data sheets prepared by the Corps: Corps navigable waters' study: U.S. Geological Survey Hydrologic Atlas: 0 USGS NTID data. D USGS 8 and 12 digit HUC maps. ~ U.S. Geological Survey rnap(s). Cite scale & quad name: Franklin. ijl USDA Natural Resources Conservation Service Soil Survey. Citation: Macon County, NC. E!ilJ National wetlands inventory rnap(s). Cite name: ~ State/Local wetland inventory map(s): l3lil FEMA/FIRM maps: El J 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) l3lil Photographs: D Aerial (Name & Date): or D Other (Name & Date): rnl' Previous determination(s). File no. and date of response letter: 1m Applicable/supporting ca...;;e law: bmj Applicable/supporting scientific literature: Other infonnation (please specif)'): lii!ji B. ADDITIONAL COMMENTS TO SUPPORT JD:

54 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): 9/6/13 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:SAW NCDOT/TIP B-4984/Div 13 C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Madison City: near Barnard Center coordinates of site (lat/long in degree decimal format): Lat N, Long W. Universal Transverse Mercator: Name of nearest waterbody: Big Pine Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: the French Broad River Name of watershed or Hydrologic Unit Code (HUC): French Broad Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. Check if other sites (e.g., offsite mitigation sites, disposal sites, etc ) are associated with this action and are recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): Office (Desk) Determination. Date: 9/6/13 Field Determination. Date(s): SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There Pick List navigable waters of the U.S. within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] Waters subject to the ebb and flow of the tide. Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Explain:. B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There Pick List waters of the U.S. within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 TNWs, including territorial seas Wetlands adjacent to TNWs Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs Non-RPWs that flow directly or indirectly into TNWs Wetlands directly abutting RPWs that flow directly or indirectly into TNWs Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs Impoundments of jurisdictional waters Isolated (interstate or intrastate) waters, including isolated wetlands b. Identify (estimate) size of waters of the U.S. in the review area: Non-wetland waters: 60 linear feet: 13 width (ft) and/or approx. acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: Established by OHWM. Elevation of established OHWM (if known):. 2. Non-regulated waters/wetlands (check if applicable): 3 Potentially 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.

55 SECTION III: CWA ANALYSIS A. TNWs AND WETLANDS ADJACENT TO TNWs The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section III.A.1 and Section III.D.1. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2 and Section III.D.1.; otherwise, see Section III.B below. 1. TNW Identify TNW:. Summarize rationale supporting determination:. 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is adjacent :. B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are relatively permanent waters (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.1 for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.C below. 1. Characteristics of non-tnws that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: Pick List Drainage area: Pick List Average annual rainfall: inches Average annual snowfall: inches (ii) Physical Characteristics: (a) Relationship with TNW: Tributary flows directly into TNW. Tributary flows through Pick List tributaries before entering TNW. Project waters are Pick List river miles from TNW. Project waters are Pick List river miles from RPW. Project waters are Pick List aerial (straight) miles from TNW. Project waters are Pick List aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain:. Identify flow route to TNW 5 :. Tributary stream order, if known:. 4 Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional 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.

56 (b) General Tributary Characteristics (check all that apply): Tributary is: Natural Artificial (man-made). Explain:. Manipulated (man-altered). Explain:. Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: Pick List. Primary tributary substrate composition (check all that apply): Silts Sands Concrete Cobbles Gravel Muck Bedrock Vegetation. Type/% cover: Other. Explain:. Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain:. Presence of run/riffle/pool complexes. Explain:. Tributary geometry: Pick List Tributary gradient (approximate average slope): % (c) Flow: Tributary provides for: Pick List Estimate average number of flow events in review area/year: Pick List Describe flow regime:. Other information on duration and volume:. Surface flow is: Pick List. Characteristics:. Subsurface flow: Pick List. Explain findings:. Dye (or other) test performed:. Tributary has (check all that apply): Bed and banks OHWM 6 (check all indicators that apply): clear, natural line impressed on the bank changes in the character of soil shelving vegetation matted down, bent, or absent leaf litter disturbed or washed away sediment deposition water staining other (list): Discontinuous OHWM. 7 Explain:. the presence of litter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting scour multiple observed or predicted flow events abrupt change in plant community If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction (check all that apply): High Tide Line indicated by: Mean High Water Mark indicated by: oil or scum line along shore objects survey to available datum; fine shell or debris deposits (foreshore) physical markings; physical markings/characteristics vegetation lines/changes in vegetation types. tidal gauges other (list): (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain:. Identify specific pollutants, if known:. 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. 7 Ibid.

57 (iv) Biological Characteristics. Channel supports (check all that apply): Riparian corridor. Characteristics (type, average width):. Wetland fringe. Characteristics:. Habitat for: Federally Listed species. Explain findings:. Fish/spawn areas. Explain findings:. Other environmentally-sensitive species. Explain findings:. Aquatic/wildlife diversity. Explain findings:. 2. Characteristics of wetlands adjacent to non-tnw that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: acres Wetland type. Explain:. Wetland quality. Explain:. Project wetlands cross or serve as state boundaries. Explain:. (b) General Flow Relationship with Non-TNW: Flow is: Pick List. Explain:. Surface flow is: Pick List Characteristics:. Subsurface flow: Pick List. Explain findings:. Dye (or other) test performed:. (c) Wetland Adjacency Determination with Non-TNW: Directly abutting Not directly abutting Discrete wetland hydrologic connection. Explain:. Ecological connection. Explain:. Separated by berm/barrier. Explain:. (d) Proximity (Relationship) to TNW Project wetlands are Pick List river miles from TNW. Project waters are Pick List aerial (straight) miles from TNW. Flow is from: Pick List. Estimate approximate location of wetland as within the Pick List floodplain. (ii) Chemical Characteristics: Characterize wetland system (e.g., water color is clear, brown, oil film on surface; water quality; general watershed characteristics; etc.). Explain:. Identify specific pollutants, if known:. (iii) Biological Characteristics. Wetland supports (check all that apply): Riparian buffer. Characteristics (type, average width):. Vegetation type/percent cover. Explain:. Habitat for: Federally Listed species. Explain findings:. Fish/spawn areas. Explain findings:. Other environmentally-sensitive species. Explain findings:. Aquatic/wildlife diversity. Explain findings:. 3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: Pick List Approximately ( ) acres in total are being considered in the cumulative analysis.

58 For each wetland, specify the following: Directly abuts? (Y/N) Size (in acres) Directly abuts? (Y/N) Size (in acres) Summarize overall biological, chemical and physical functions being performed:. C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and discussed in the Instructional Guidebook. Factors to consider include, for example: Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to TNWs, or to reduce the amount of pollutants or flood waters reaching a TNW? Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW? Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that support downstream foodwebs? Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or biological integrity of the 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, approx. acres. Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TNWs. Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: According to the information in the PCN and CE, this stream is perennial/flows year round and exhibits morphology indicative of a perennial stream, including an OHWM. 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:.

59 Provide estimates for jurisdictional waters in the review area (check all that apply): Tributary waters: 60 linear feet 13 width (ft). Other non-wetland waters: acres. Identify type(s) of waters:. 3. Non-RPWs 8 that flow directly or indirectly into TNWs. Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a TNW is jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional waters within the review area (check all that apply): Tributary waters: linear feet width (ft). Other non-wetland waters: acres. Identify type(s) of waters:. 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW:. Wetlands directly abutting an RPW where tributaries typically flow seasonally. Provide data indicating that tributary is seasonal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW:. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this conclusion is provided at Section III.C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs. Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. Demonstrate that impoundment was created from waters of the U.S., or Demonstrate that water meets the criteria for one of the categories presented above (1-6), or Demonstrate that water is isolated with a nexus to commerce (see E below). E. ISOLATED [INTERSTATE OR INTRA-STATE] WATERS, INCLUDING ISOLATED WETLANDS, THE USE, DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY): 10 which are or could be used by interstate or foreign travelers for recreational or other purposes. from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. which are or could be used for industrial purposes by industries in interstate commerce. Interstate isolated waters. Explain:. Other factors. Explain:. 8 See Footnote # 3. 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWA jurisdiction based 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.

60 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:. Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engineers Wetland Delineation Manual and/or appropriate Regional Supplements. Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. Prior to the Jan 2001 Supreme Court decision in SWANCC, the review area would have been regulated based solely on the Migratory Bird Rule (MBR). Waters do not meet the Significant Nexus standard, where such a finding is required for jurisdiction. Explain:. Other: (explain, if not covered above):. Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional judgment (check all that apply): Non-wetland waters (i.e., rivers, streams): linear feet width (ft). Lakes/ponds: acres. Other non-wetland waters: acres. List type of aquatic resource:. Wetlands: acres. Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the Significant Nexus standard, where such a finding is required for jurisdiction (check all that apply): Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). Lakes/ponds: acres. Other non-wetland waters: acres. List type of aquatic resource:. Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check all that apply - checked items shall be included in case file and, where checked and requested, appropriately reference sources below): Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant:. Data sheets prepared/submitted by or on behalf of the applicant/consultant. Office concurs with data sheets/delineation report. Office does not concur with data sheets/delineation report. Data sheets prepared by the Corps:. Corps navigable waters study:. U.S. Geological Survey Hydrologic Atlas:. USGS NHD data. USGS 8 and 12 digit HUC maps. U.S. Geological Survey map(s). Cite scale & quad name:. USDA Natural Resources Conservation Service Soil Survey. Citation:. National wetlands inventory map(s). Cite name:. State/Local wetland inventory map(s):. FEMA/FIRM maps:. 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) Photographs: Aerial (Name & Date):. or Other (Name & Date):. Previous determination(s). File no. and date of response letter:. Applicable/supporting case law:. Applicable/supporting scientific literature:. Other information (please specify): GIS map prepared by the USACE and CE. B. ADDITIONAL COMMENTS TO SUPPORT JD:.

61 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 I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 6, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SAW , Carriage Park Homeowners Association INC C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project site is located in subdivision Carriage Park on an Unnamed Tributary to Mill Pond Creek State: NC County/parish/borough: Henderson City: Hendersonville Center coordinates of site (lat!long in degree decimal fonnat): Latitude & Longitude in Decimal Degrees: N, w Universal Transverse Mercator: Name of nearest water body: Brittain Creek Name of nearest Traditional Navigable Water (TN\V) into which the aquatic resource flows: Upper French Broad Name of watershed or Hydrologic Unit Code (HUC): Uper French Broad, NC-Tenn E } 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 fonn. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): lllilj Office (Desk) Determination. Date: fitl Field Determination. Date(s): Aug SECTION ll: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There in the li2i! mil "navigable waters of the US" within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) 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 he susceptible for usc to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 1m TNW s, incl~ding territorial seas filill_ Wetlands adjacent to TNWs ~ Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs ~ Non-RPWs that ilow directly or indirectly into TNWs 6i Wetlands directly abutting RPWs that flow directly or indirectly into TN\Vs lirnl Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into 1NWs J@i Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs If 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: 15 linear feet: 2 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: f~~~! Elevation of established OHWM (if known): 2. Non-regulated waters/wetlands (check if applicable): m 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 Ill 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.

62 A. TNWs AND WETLANDS ADJACENT TO TNWs The agencies will assert jurisdiction over TNWs and wetlands adjacent to TN\Vs. If the aquatic resource is a TNW, complete Section IU.A..l and Section Ill.D.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections Jll.A.l and 2 and Section III.D.l.; otherwise, see Section IIJ.B below. 1. TNW ldentily 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 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 III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section ill.d.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the 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 Ul.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 offsitc. The determination whether a significant nexus exists is determined in Section m.c below. l. Characteristics ofnon-tnws that flow directly or indirectly into TNW (i) (ii) General Area Conditions: Watershed size: it!fijic!!f~! Drainage area: lq~~il})~f Average annual rainfall: inches Average annual sno-wfall: inches Physical Characteristics: (a) Relationship with TNW: 0 Tributary flows directly into TNW. 0 Tributary flows through 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 1NW. Project waters are aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: Identify flow route to TNW 5 : Tributary stream order, ifknovm: (b) General Tributarv Characteristics (check all that apply): 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.

63 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: ~[!<J.~]!!l- Primary tributary substrate composition (check all that apply): D Silts D Sands Cobbles 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: j!(~l!:~t Tributary gradient (approximate average slope): % D Concrete 0Muck Explilln: (c) Flow: Tributary provides for: jt) ;l;1~ Estimate average number of flow events in review area/year: ~J:[JI!~:i'! Describe flow regime: Other information on duration and volume: Surface flow is: ~igijl!1jl!!~ Characteristics: plant community Subsurface flow: ~Jil!l!I!lt~!- Explain findings: D Dye (or other) test performed: Tributary has (check all that apply): D Bed and banks D OHWM 6 (check all indicators that apply): 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 Jeaflitter disturbed or washed away D sediment deposition D other (list): D Discontinuous OH\VJve Explain: D D D D the presence of litter 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 apply): If factors other than the OHWM were used to determine lateral extent ofcwajurisdiction (check all that 1!@1 High Tide Line indicated by: jjjj 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. (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): 0 Wetland fringe. Characteristics: D Habitat for: 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). Vlhere there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 Ibid.

64 D Federally Listed species. Explain findings: D Fishispawn areas. Explain findings: D Other environmentally~sensitive species. Explain findings: D 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 flo_w_!_{;elationship with Non-'JNW: Flow is: It~~~~~!- Explain: Surface flow is: ~Jit~~I;S,~ Characteristics: Subsurface flow: :~!~J?l:B!~~- Explain fmdings: D Dye (or other) test performed: (c) Wetland Adjacency Determination with Non~TNW: 0 Directly abutting 0 Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: D Separated by berm/barrier. Explain: (d) river miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the!il!'!~!jll$1 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): D Riparian buffer. Characteristics (type, average width): D Vegetation type/percent cover. Explain: D Habitat for: 0 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!ml~i~ Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (Y /N) Size (in acres) Directly abuts? (YIN) Size Cin acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION

65 A significant nexus analysis will assess the flow character-istics and functions of the tr-ibutary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integr-ity of a TNW. For each ofthe 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 therapanmi 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 lifecyclc 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 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 ofsignifi.eant 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 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 IILD: 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: ll!!j INWs: linear feet width (ft), Or, acres. mil 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: 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 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): ll!!j Tributary waters: linear feet width (ft). ~ Other non-wetland waters: acres. Identify type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. 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. 8 See Footnote# 3.

66 Provide estimates for jurisdictional waters within the review area (check all that apply): [ } Tributary waters: linear feet width (ft). tziil Other non-wetland waters: acres. Identify type(s) of waters: 4. _W_etlands directly abutting an RPW that flow directly or indirectly into TNWs. ijj 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 IILD.2, above. Provide rationale indicating that wetland is directly abutting an RPW: till] Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section lll.b and rationale in Section Ill.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. lled Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional Data supporting this conclusion is provided at Section III. C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TN\Vs. ~ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. 00 Demonstrate that impoundment was created from "waters of the U.S.," or m1 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. ISOLA TED [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 APPLYV' l@ which are or could be used by interstate or foreign travelers for recreational or other purposes. m from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. lllili which are or could be used for industrial purposes by industries in interstate commerce. m Interstate isolated waters. Explain: (ill~_ Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): ll!ll Tributary waters: linear feet width (ft). JmU Other non-wetland waters: acres. Identi:fY type(s) of waters: Jlliil- 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. ~Jill~ 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). 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.

67 ~ Waters do not meet the "Significant Nexus" standard, where such a fmding 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): m.ij Non-wetland waters (i.e., rivers, streams): linear feet width (ft). ~- Lakes/ponds: acres. Ji. Other non-wetland waters: acres. List type of aquatic resource: lij 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): EJm Non-wetland waters (i.e., rivers, streams): linear feet, width Lakes/ponds: acres.!bill Other non-wetland waters: acres. List type of aquatic resource: llill1 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): 1 1_ Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: ~fin Data sheets prepared/submitted by or on behalf ofthe applicant/consultant. 0 Office concurs with data sheets/delineation report. 0 Office does not concur with data sheets/delineation report. f] l Data sheets prepared by the Corps: E!ill' Corps navigable waters' study: f] l U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. 0 USGS 8 aod 12 digit HUC maps. IJljJ U.S. Geological Survey map(s). Cite scale & quad name:nc-horse Shoe. lillij USDA Natural Resources Conservation Service Soil Survey. Citation: Iii National wetlands inventory map(s). Cite name: IZEl. State/Local wetland inventory map(s): fj l FEMAIFIRM maps: ~ill$] 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) l11ij. Photographs: IZJ Aerial (Name & Date): or 0 Other (Name & Date): iii Previous determination(s). File no. and date of response letter: llil] Applicable/supporting case Applicable/supporting scientific literature: l!e Other infonnation (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD:

68 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Anny Corps of Engineers 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): September 4, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SAW , Dan Rawn, LW Investments C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project site is located on John Berry Rd off Eagle Nest Ln NW, on McGalliard Creek which feeds to the Catawba River in Drexel, NC State: NC County/parish/borough: Burke City: Knoxville Center coordinates of site (lat'long in degree decimal format): Latitude & Longitude in Decimal Degrees: , Universal Transverse Mercator: Name of nearest water body: Catawba River Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Catawba Name of watershed or Hydrologic Unit Code (IDJC): Upper Catawba, NC-SC Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. _tillf: Check if other sites (e.g., offsitc mitigation sites, disposal sites, etc...) are associated with this action and arc recorded on a different JD form. D. REVJEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): ~- Office (Desk) Determination. Date: September 4, 2013 Him Field Determination. Date(s): SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There~~~~ "navigable waters of the US" within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFRpart 329) in the review area [RequiredJ ~ Waters subject to the ebb and flow of the tide. I]Il 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. 'Jbere "waters of the US." within Clean Water Act (CWA) jurisdiction (as dcfmcd 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): I!J 1 TNWs, including territorial seas ll!!l Wetlands adjacent to TNWs W Relatively permanent waters 2 (RPWs) that flow directly or indirectly into 'INWs ljj Non-RPWs that flow directly or indirectly into TNWs Jllla Wetlands directly abutting RPWs that flow directly or indirectly into 1NWs m Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs if 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: 120 linear ieet: 2 width (it) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on:!1j&!i!~jj!jj~~m~l~~~~~] Elevation of established OHWM (if known): 2. Non-regulated waters/wetlands (check if applicable): 3 JJm 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 IIlF.

69 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 lli.a.l and Section III.D.l. only; ifthe aquatic resource is a wetland adjacent to a TN\V, complete Sections III.A.l and 2 and Section III.D.l.; otherwise, see Section III.B below. 1. TNW IdentifY 'INW: Summarize rationale supporting determination: 2. Wetland adjacentto 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 oftnws 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 TN\V, 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 Ul.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 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. 1. Characteristics ofnon-tnws that flow directly or indirectly into TNW (i) (ii) General Area Conditions: Watershed size: [!jj~~l!~j Drainage area: ~!~ll!j!~! Average annual rainfall: inches Average annual snowfall: inches Physical Characteristics: (a) Relationship with 'INW: D Tributary flows direc!ly into TNW. D Tributary flows through f~l!~' i tributaries before entering TNW. Project waters are river miles from 'INW. 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 sen'e as state boundaries. Explain: Identify flow route to TNW 5 : Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): 4 Note that 1l1e 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.

70 Tributary is: U _.. ;Jural 0 Altificial (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: ~ij: ~1~- Primary tributary substrate composition (check all that apply): 0 Silts 0 Sands 0 Cobbles 0 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~~t~.t~ Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (c) Flow: Tributary provides for: )tf<'fi;i'~ii!j Estimate average number of How events in review area/year: 1[,1!1~~~~~ Describe flow regime: Other information on duration and volume: Surface flow is: i[\j~!ijj[i. Characteristics: plant community Subsurface flow: Explain findings: D Dye (or other) test performed: Tributary has (check all that apply): 0 Bed and banks 0 0HWM 6 (check all indicators that apply): D clear, natural line impressed on the bank D changes in the character of soil 0 shelving D vegetation matted down, bent, or absent D leaf litter disturbed or washed away D sediment deposition D other (list): D Discontinuous OHWJvL 7 Explain: D D D D the presence of litter 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 apply): If factors other than the OHWM were used to determine lateral extent ofcwajurisdiction (check all that.iilli High Tide Line indicated by: Iilli D oil or scum line along shore objects 0 fine shell or debris deposits (foreshore) 0 physical markings/characteristics D tidal gauges D other (list): Mean High Water Mark indicated by: 0 survey to available datum; D physical markings; D vegetation lines/changes in vegetation types. (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain: Identify specific pollutants, ifknown: (iv) Biological Characteristics. Channel supports (check all that apply): D Riparian corridor. Characteristics (type, average width): D Wetland fringe. Characteristics: D Habitat for: 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). VVhcre there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 Ibid.

71 D Fedt..~~.lY Listed species. Explain findings: D Fish/spawn areas. Explain findings:. D Other environmentally-sensitive species. Explain findings: D 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: (h) General Flow Relationship with Non-TN\V: Flow is: ft~~~~;f Explain: Surface flow is:.'!li~.!l!li!ll~[t Characteristics: Subsurface flow: f:!~~~f. Explain findings: D Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: 0 Directly abutting D Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: D Separated by berm/barrier. Explain: (d) river miles from TNW. aerial (straight) miles from TNW. (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, iflmuwn: (iii) Biological Characteristics. Wetland supports (check all that apply): D Riparian buffer. Characteristics (type, average width): D Vegetation type/percent cover. Explain: 0 Habitat for: 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: 3. Characteristics of all wetlands adjacent to the tributary (if ao,ll.'"~" * All wetland(s) being considered in the cumulative analysis: J;'[~~Ilfi~t Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (Y JN) Size Cin acres) Directly abuts? (Y /N) Size (in acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION

72 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 TN\V, 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 therapanos 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 lifccycle support functions for fish and other species, such as feeding, nesting, spawning, or rearing young for species that arc 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 foodwcbs? 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 lij.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: l!!!l fnws linear fee! width (ft), Or, acres. Jlti Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TN\Vs. ~- 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 ofbed and bank structures in the stream, indicative of perennial. Tributaries of1nw 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): Ell Tributary waters: linear feet width (ft). ~ Other non-wetland waters: acres. IdentifY type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. m Water body that is not a TNW or an RPW, but flows directly or indirectly into a 1NW, and it has a significant nexus with a TNW is jurisdictional Data supporting this conclusion is provided at Section IILC. 8 Sec Foo1note # 3.

73 Provide estimates ~-A jurisdictional waters within the review area (check c..~- that apply): ITI1 Tributary waters: linear feet width (ft). IJ4l Other non-wetland waters: acres. Identizy type(s) of waters: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TN\Vs. ill] Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. llij 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: 1 1 Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section IILB and rationale in Section JII.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. :Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. tl ] Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they arc adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this conclusion is provided at Section IILC. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs. [!!) Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional mj Demonstrate that impoundment wa" created from "waters of the U.S.," or JillE) Demonstrate that water meets the criteria for one of the categories presented above ( 1-6), or till Demonstrate t.hat 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 WinCH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY): 10 fi@ 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. ij which are or could be used for industrial purposes by industries in interstate commerce. Ell] Interstate isolated waters. Explain: m Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): Jill Tributary waters: linear feet width (ft). l.iiil Other non-wetland waters: acres. ldcntizy type(s) of waters: Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): ~ If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engineers Wetland Delineation Manual and/or appropriate Regional Supplements. ~ Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. 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). 9 To complete the analysis refer to the key in Section IILD.6 of the Instructional Guidebook. HI 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.

74 Eiill Waters do not meet the "Signifit.-,. Nexus" standard, where such a finding is required~-- Jurisdiction. Explain: _it Other: (explain, if not covered above): Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential ba_<;is of jurisdiction is the IvlBR 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): mf Non-wetland waters (i.e., rivers, streams): linear feet width (ft). ~ Lakes/ponds: acres. lffiill Other non-wetland waters: acres. List type of aquatic resource: l1m: 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 (fi.). ENf Lakes/ponds: acres..ffia Other non-wetland waters: acres. List type of aquatic resource: mill 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): m l Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: _I.Ulif 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 El2J Data sheets prepared by the Corps: IBJ]- Corps navigable waters' study: Jjf U.S. Geological Survey Hydrologic Atlas: 0 USGS NHIJ data. 0 USGS 8 and 12 digit HUC maps. ~- U.S. Geological Survey map(s). Cite scale & quad name:nc-drexel. -~ USDA Natural Resources Conservation Service Soil Survey. Citation: Ell National wetlands inventory map(s). Cite name: J!lj] State/Local wetland inventory map(s): J!lil FEMAJFIRM maps: ~ 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) l1il!l Photographs: [gj Aerial (Name & Date):UNK. or D Other (Name & Date): IH Previous determination(s). File no. and date of response letter: tlilll Applicable/supporting ca_<;e law: lli& Applicable/supporting scientific literature: llilll Other information (please specify); B. ADDITIONAL COMMENTS TO SUPPORT JD:

75 APPROVED JURlSDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Fonn Instructional Guidebook. SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, , Piedmont Natural Gas, Jim Kalish C. PROJECT LOCATION AND BACKGROUND INFORMATION:.): The project site is located in a three mile linear stretch from Messer Road to Bethel Road on McGalliard and Hnnting Creek in Bnrke Connty. State: NC County/parish/borough: Burke City:Morganton Latitude & Longitude in Decimal Degrees_;_ Coordinates Center coordinates of site (Jatllong in degree decimal format): extend from N, Wto N, W. Universal Transverse Mercator: Name of nearest water body: McGalliard Creek, Hunting 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 NC-SC lim llliij Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. Check if other sites (e.g., offsitc 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): ~?];I Office (Desk) Determination. Date: Sept 17, 2013 il Field Determination. Date(s): SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. Tllere ~~qij "navigable waters of the US" within Rivers and Harbors Act (RUA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] lej Waters subject to the ebb and flow of the V/aters are presently used, or have been used in the past, or may be susceptible for usc to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There '"waters of the U.S" within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 m±ll TNW s, including territorial seas l!iiil Wetlands adjacent to TNW s ll3li Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs fli Non-RPWs that flow directly or indirectly into TNWs mi Wetlands directly abutting RPWs that flow directly or indirectly into TNWs l ZI Wetlands adjacent to but not directly abutting RPWs that How directly or indirectly into TNWs Wetlands adjacent_ to _no?-~ws that flow directly or indirectly into TNWs ml (W Impoundments of JUnsdictlonal waters lil?j Isolated (interstate or intrastate) waters, including isolated wetlands b. Identify (estimate) size of waters ofthe U.S. in the review area: Non-wetland waters: 380 linear feet: 2-12 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: ~~: t1!moo:~iljj1}li]!i!1i~~ Elevation of established OHWM (ifknown): 2. Non-regulated waters/wetlands (check if applicable): 3 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 Ill.F.

76 Gill" Potentially J _.dictional waters and/or wetlands were assessed wit,a _ d1e review area and determined to be not jurisdictional. Explain: 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 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 III.D.l.; otherwise, see Section UJ.B below. L TNW IdentifY TNW: Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent": B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non-navigable tributaries oftnws 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 IU.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. If the waterbody 4 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. 1. Characteristics of non-tnws that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: Drainage area: Average annual rainfall: Average annual snowfall: inches inches (ii) Physical Characteristics: (a) Relationship with TNW: D Tributary flows directly into TNW. D Tributary flows through ir~jt(ft tributaries before entering TNW. Project waters are river miles from TNW. Project waters are river miles from RPW. Project waters arc 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 TNW 5 : Tributary stream order, ifknmvn: 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.

77 (b) General Tributary Characteristics (check all that apply): Tributary is: 0 Natural 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: J:dltm!l!lll~- Primary tributary substrate composition (check all that apply): D Silts D Sands D Cobbles D Gravel 0 Bedrock 0 V cgetation. Type/% cover: D Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: ll/i1jii;rjl~f Tributary gradient (approximate average slope): % 0 Concrete 0Muck Explain: (c) Flow: Tributary provides for: f1~~1\m\~ Estimate average number of flow events in review area/year: i'j,~ll:lji.'!j!! Describe flow regime: Other information on duration and volume: Surface How is: ~ijw~!,"'t. Characteristics: Subsurface flow:!m}!:@:]~j~. Explain fmdings: D Dye (or other) test performed: Tributary has (check all that apply): D Bed and banks D Ol!WM 6 (check all indicators that apply): 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 plant community D other (list): D Discontinuous OHWM. 7 Explain: D D D the presence of litter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting 0 scour D multiple observed or predicted flow events D water staining D abrupt change in apply): If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that IIjl! 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):!ij!! High Tide Line indicated by: Mean High Water Mark indicated by: D survey to available datum; D physical markings; D vegetation lines/changes in vegetation types. (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): 6 A natural or man-made discontinuity in the OH\VM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 Ibid.

78 0 Wetlanu,_mge. Characteristics: D Habitat for: 0 Federally Listed species. Explain findings: 0 Fishlspawn areas. Explain fmdings: 0 Other environmentally-sensitive species. Explain findings: 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 W ctland type. Explain: Wetland quality. Explain: Project wetlands cross or serve as state boundaries. Explain: (b) General F'_low Relationship with Non-TNW: Flow is: lli!fl!l!iti!! j. Explain: Surface flow is: Jt\l~Xiilf:l'l Characteristics: Subsurface flow: f::jf!ii1jll!~t Explain findings: 0 Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: 0 Directly abutting D Not directly abutting 0 Discrete wetland hydrologic connection. Explain: 0 Ecological connection. Explain: 0 Separated by berm/barrier. Explain: (d) Project wetlands Project waters Flow is from: river miles from TNW. aerial (straight) miles from 1NW. Estimate ap]prc,xilnat:e J<>canonofwetland as within the I'J~I!li!:~!:t 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, iflmown: (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: 0 Federally Listed species. Explain findings: 0 Fishlspawn areas. Explain fmdings: 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: I,J~I ;f:f{~ 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? (Y/N) Size (in acres) Summarize overall biological, chemical and physical functions being performed:

79 C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each ofthe 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 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 TN\V, 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 cany 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? Docs 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 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 fmdings 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 III.D: D. DETI':RMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARI': (CHECK ALL THAT APPLY): 1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: ffilj TNWs: linear feet width (ft), Or, acres. ~Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TNWs. ]~;l 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 perelldial. 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): ll!!l Tributary waters: linear feet width (ft) Other non-wetland waters: acres. Identify type( s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. 8 See Footnote# 3.

80 ~ Water body L, _is not a TNW or an RPW, but flows directly or ind'-.:.tly into a TNW, and it has a significant nexus with a 1N\V is jurisdictional. Data supporting this conclusion is provided at Section IILC. Provide estimates for jurisdictional waters within the review area (check all that apply): fi l Tributary waters: linear feet width (ft). ffij Other non-wetland waters: acres. IdentifY type(s) of waters: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. ~- Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. :ml 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: Features shown 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 f.illl 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 IILD.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TN\Vs. EillJ 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 arc jurisidictional. Data supporting this conclusion is provided at Section III. C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TN\Vs.,j]]} Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with sin1ilarly situated adjacent wetlands, have a significant nexus with a TNW arc jurisdictional Data supporting this conclusion is provided at Section ULC. Provide estimates for jurisdictional wetlands in the review area: acres. 7. Impoundments of jurisdictional waters. 9 A..:; a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. ~ Demonstrate that impoundment was created from "waters of the U.S.," or llllil 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). iti4t E. ISOLATED [INTERSTATE OR INTRA-STATE] WATERS; INCLUDING ISOLATED WETLANDS, THE USE, DEGRADATION OR DESTRUCTION OF WIITCH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY): 10 mj which are or could be used by interstate or foreign travelers for recreational or other purposes. H\ill from which fish or shellfish are or could be taken and sold in interstate or foreign which are or could be used for industrial purposes by industries in interstate commerce. fi{f Interstate isolated waters. Explain: fi l Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): mj Tributary waters: linear feet width (:ft). IIJ Other non-wetland waters: acres. IdentifY type( s) of waters: fi J Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): 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.

81 If potential wetlands were asses::.~- within the review area, these areas did not meet the ~",Leria 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). 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 J\.1BR 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): ll.w Non-wetland waters (i.e., rivers, streams): linear feet width (ft). ~ Lakes/ponds: acres. lij Other non-wetland waters: acres. List type of aquatic resource: Jlill 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): ll3l Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). R11l Lakes/ponds: acres. Jill~ Other non-wetland waters: acres. List type of aquatic resource: ~ Wetlands: acres. SECTIONIV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JU (check all that apply- checked items shall be included in ca<;e "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: mn! 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. lli 1 Data sheets prepared by the Corps: llill] Corps navigable waters' study: jjjjjj U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. 0 USGS 8 and 12 digit HUC maps. l2!jj U.S. Geological Survey map(s). Cite scale & quad name:nc-valdese. mid: USDA Natural Resources Conservation Service Soil Survey. Citation: ffim National wetlands inventory map(s). Cite name: J1ID State/Local wetland inventory map(s): jjjjjj" FEMAIFIRM maps: l!llil too-year Floodplain Elevation is: (National Geodectie V crtical Datum of 1929) jjjjjj; Photographs: 12J Aerial (Name & Date):Unk. or I2J Other (Name & Date):Unk. ~ Previous determination(s). File no. and date of response letter: &ill!- Applicable/supporting case law: JYm Applicable/supporting scientific literature:!el Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD:

82 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section lv of the JD Form Instructional Guidebook. SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 20, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, , William Liu C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Buncombe City: Potomac Center coordinates of site (latllong in degree decimal fonnat): Latitude & Longitude in Decimal Degrees: N W Universal Transverse Mercator: Name of nearest water body: Reeds Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Upper French Broad Name of watershed or Hydrologic Unit Code (HUC): Upper French Broad ffil Check if map/diagram of review area and/or potential jmisdictional areas is/are available upon request. fm Check if other sites (e.g., offsite mitigation sites, disposal sites, etc...) arc associated with this action and are recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): lllj Office (Desk) Determination. Date: li!!;l Field Determination. Date(s): 3/5/2013 SECTION II: SUMMARY OF FINDINGS A. RIIA SECTION 10 DETERMINATION OF JURISDICTION. There ;(g~]fl: "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] flel Waters subject to the ebb and flow of the tide. J1mf 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 "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters ofthe U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 filg TNWs, including territorial seas I Wetlands adjacent to TNWs ~ Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs ~ Non-RPWs that flow directly or indirectly into TNWs ~if 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 FlliiJ Wetlands adjacent to non-rpws that flow directly or indirectly into 'JNWs m_ Impoundments of jurisdictional waters.11 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: 6 linear feet: 2 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: l[~!i!~~ Elevation of established OHWM (if known): 2. Non-regulated waters/wetlands (check if applicable): m 3 Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain: A. TNWs AND WETLANDS ADJACENT TO TNWs 1 Boxes checked below shall be supported by completing the appropriate sections in Section lii below. 1 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 IJLF.

83 The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. Ifthe aquatic resource is a TNW, complete Section IIJ.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 IILD.l.; otherwise, see Section III.B below. 1. TNW ldentijy TNW: Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent": B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non-navigable tributaries oftnws 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 oflaw. If the waterbody 4 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 ~rea 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 IIJ.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. 1. Characteristics ofnon-tnws that flow directly or indirectly into TNW (i) (ii) General Area Conditions: ~:~~;:rse~~: Average annual rainfall: Average annual snowfall: ~~~~~~t inches inches Physical Characteristics: (a) Relationship with TNW: 0 Tributary flows directly into TNW. D Tributary flows through :f~j~(~ 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: IdentifY flow route to TN\ 5 : Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: 0 Natural D Artificial (man-made). Explaill: 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.

84 U A.,~.anipulated (man-altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: Average side slopes: miiili~ii!!!j. Primary tributary substrate composition (check all that apply): 0 Silts 0 Sands 0 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/pool complexes. Explain: Tributary geometry: HfJJ 1:~~ Tributary gradient (approximate average slope): % 0 Concrete 0Muck Explain: (c) Flow: Tributary provides for: :!f!i\liji!ll!~ Estimate average number of flow events in review area/year: i!!elj:i~~ Describe flow regime: Other information on duration and volume: Surface flow is: f~i1!!!l'!il'!l[i. Characteristics: Subsurface flow: ~-i.]l Explain findings: 0 Dye (or other) test performed: Tributary has (check all that apply): D Bed and banks 0 OHWM 6 (check all indicators that apply): D clear, natural line impressed on the bank D changes in the character of soil D shelving D vegetation matted down, bent, or absent 0 leaf litter disturbed or washed away D sediment deposition plant community D other (list): D Discontinuous OHWJ'v1. 7 Explain: D D D the presence of litter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting 0 scour 0 multiple observed or predicted flow events D water staining 0 abrupt change in apply): If factors other than the OHWM were used to determine lateral extent of CW A jurisdiction (check all that m High Tide Line indicated by: IW 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. (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): 0 Riparian corridor. Characteristics (type, average width): 0 Wetland fringe. Characteristics: 0 Habitat for: D Federally Listed species. Explain fmdings: D Fish/spawn areas. 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. 7 Ibid.

85 0 Oth,.:llvironmentally-sensitive species. Explain findings: 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) Surface flow is:!fl~iljij!~ Characteristics: Subsurface flow: Explain findings: D Dye (or other) test performed: (c) Wetland Adjacency Detetmination with Non-TNW: D Directly abutting D Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: 0 Separated by bennlbarrier. Explain: (d) river miles from TNW. aerial (straight) miles from TNW. of wetland as within the Ji~!l\l~l:\~~~ 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: D Federally Listed species. Explain fmdings: D Fish/spawn areas. Explain findings: 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:~~~~~ Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (YIN) Size Cin acres) Directly abuts? CY/N) Size (in acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION

86 A significant nexus analysis will asst.. " the flow characteristics and functions ofthe tribb~.. ry itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and discussed in the Instructional Guidebook. Factors to consider include, for example: Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to TNWs, or to reduce the amount of pollutants or flood waters reaching a TNW? Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW? Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that support downstream foodwebs? Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or biological integrity of the TNW? Note: the a hove 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 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 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: IJll TNWs: linear feet width (ft), Or, acres. mlf 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: Feature shows on USGS topographk map as a blue line stream. Professionals in the field ohserved flow levels and development ofhed and bank structures in the stream, indicative of perennial. Tributaries oftnw where tributaries have continuous flow "sea..<;;onally" (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): IJll Tributary waters: linear feet width (ft). ffij Other non-wetland waters: acres. Identify typc(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. ~ Water body tl1at is not a TNW or an RPW, but flows directly or indirectly into a TNV!, and it has a significant nexus with a TNW is jurisdictional. Data supporting this conclusion is provided at Section JII.C. Provide estimates for jurisdictional waters within the review area (check all that apply): 8 See Footnote# 3.

87 l]lf TributaJ)"..vaters: linear feet width (ft). ffij Other non-wetland waters: acres. IdentifY type(s) of waters: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. m1) Wetlands directly abut RPW and thus are jurisdictional a'> adjacent wetlands. 11 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: l!ffil 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 tl1e review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. fii 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. ~ 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 arc jurisdictional. Data supporting this conclusion is provide~ 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. Ilillf Demonstrate that impoundment was created from "waters of the U.S.," or mj Demonstrate that water meets the criteria for one of the categories presented above (1-6), or fil 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 mlj which are or could be used by interstate or foreign travelers for recreational or other purposes. m from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. ~ which arc or could be used for industrial purposes by industries in interstate commerce. ~ Interstate isolated waters. Explain: _llffil 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!lll Tributary waters: linear feet width (ft). Em) Other non-wetland waters: acres. Identify type(s) of waters: _fillll_ Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): IJ 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 Jidl solely on the "Migratory Bird Rule" (MBR). 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 1II.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 CWAAct Jurisdiction Following Rapanos.

88 mill: Other: (explain, if not covered abvve): 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!hat apply): fmn Non~wetland waters (i.e., rivers, streams): linear feet width (ft). trnq: Lakes/ponds: acres. ~ Other non-wetland waters: acres. List type of aquatic resource: Jlilll Wetlands: acres. 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): ll i Non~wetland waters (i.e., rivers, streams): linear feet, width (ft). m.a: Lakes/ponds: acres. l2@ Other non-wetland waters: acres. List type of aquatic resource: JlOO 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 7 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. D Office concurs with data sheets/delineation report D Office does not concur with data sheets/delineation report. ~....;. Data sheets prepared by the Corps: E::tJ IE!fl Corps navigable waters' study: U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. 0 USGS 8 and 12 digit HUC maps. E$l U.S. Geological Survey map(s). Cite scale & quad name:nc-asheville. H@l USDA Natural Resources Conservation Service Soil Survey. Citation: 118] National wetlands inventory map(s). Cite name: fid State/Local wetland inventory map(s): FEMAIFIRM maps: flid I ) 1 00-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) ~ Photographs: D Aerial (Name & Date): or lsi Other (Name & Datc):Unk. li] Previous detennination(s). File no. and date of response letter: flid Applicable/supporting case law: fzm Applicable/supporting scientific literature: I~J Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD:

89 APPROVED JURISDICTIONAL DETERMINA T!ON FORM U.S. Army Corps of Engineers This fonn should be completed by following the instructions provided in Section N of the JD Form Instructional Guidebook. SECTION!: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 11, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SAW , James & Karen Dugas C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Buncombe City: Candler. NC Center coordinates of site (lat!long in degree decimal format): Latitude & Longitude in Decimal Degrees: N, w Universal Transverse Mercator: Name of nearest water body: Hominy Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: French Broad Name of watershed or Hydrologic Unit Code (HUC): French Broad -Holston m 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 TIIA T APPLY): l!lij. Office (Desk) Determination. Date: 3 Sept 2013 ~ Field Determination. Datc(s): SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. 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] lli2} Waters subject to the ebb and flow ofthe tide. fmll 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 "waters of the US." within Clean Water Act (CWA) jurisdiction (a<> defined 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 l:izll TNW s, including territorial seas tiffii Wetlands adjacent to TNWs E9: Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs ~ Non-RPWs that flow directly or indirectly into TNWs m1j Wetlands directly abutting RPWs that flow directly or indirectly into 1NWs m Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into 1NWs 1m Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs mj Impoundments of jurisdictional waters l]!jjf 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: 90 linear feet: 3 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: ~~!~tii~ ~i~jill~~~lj~m~ 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 detennined 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 yeahound or has continuous flow at least "seasonally" (e.g., typically 3 months). 3 Supporting documentation is presented in Section JJI.F.

90 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 lli.d.l. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections UI.A.l and 2 and Section lli.d.l.; otherwise, see Section III.B below. I. TNW Identify TNW: Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent": B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics 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) tlow, sltip to Section ID.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. If the waterbody 4 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 lli.b.l for the tributary, Section JII.B.2 for any onsite wetlands, and Section lu.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: ~:~~:~~s::~: Average annual rainfall: Average annual snowfall: ~1tl~i inches inches Physical Characteristics: (a) RelationshiP with TNW: D Tributary flows directly itl~o TNW- D Tributary flows through :f:!{lif~j!f 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: Identify flow route to 1NW 5 : Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: D Natural 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.

91 0 Artificial (man-made). Explain: 0 Manipulated (man-altered). Explain: Tributary properties with respect to top of bank (estimate); Average width: feet Average depth: Average side slopes: 'l!ii~jj:fil')lf!. 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: ~~l!if~j Tributary gradient (approximate average slope): % 0 Concrete 0Muck Explain: (c) Flow: Tributary provides for: :ll~i]i~~ Estimate average number of flow events in review area/year:!!!i!l!!ilti'l\t Describe flow regime: Other information on duration and volume: Surface flow is: 'ltiif~i-l~[~. Characteristics: Subsurface flow:!fj~~~~;:~~ Explain findings: 0 Dye (or other) test performed: Tributary has (check all that apply): 0 Bed and banks 0 0HWM 6 (check all indicators that apply): 0 clear, natural line impressed on the bank D changes in the character of soil 0 shelving D vegetation matted down, bent, or absent D leaf litter disturbed or washed away D sediment deposition plant community 0 other (list): D Discontinuous OHWJ\1. 7 Explain: D D D D the presence of litter and debris destruction of terrestrial vegetation the presence of wrack line sediment sorting D scour D multiple observed or predicted flow events 0 water staining D abrupt change in apply): If factors other than the OHWM were used to detennine lateral extent of CWAjurisdiction (check all that lj!i High Tide Line indicated by: D oil or scum line along shore objects D fine shell or debris deposits (foreshore) 0 physical markings/characteristics 0 tidal gauges 0 other (list): Mean High Water Mark indicated by: D survey to available datum; 0 physical markings; 0 vegetation lines/changes in vegetation types. (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: 0 Habitat for: D Federally Listed species. Explain findings: 6 A natural or man-made discontinuity in the OHW:M does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OH\VM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 Ibid.

92 D Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain findings: 2. Characteristics of wetlands adjacent to non-tnw that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: acres Wetland type. Explain: Wetland quality. Explain: Project wetlands cross or serve as state boundaries. Explain: (b) General Flow Re~ationship with Non-TN\V: Flow is: lli1li~ill\l:i'!. Explain: Surface flow is: Ci~!iU~!if Characteristics: Subsurface flow: ~ ~}:!- Explain fmdings: D Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: D Directly abutting D Not directly abutting D Discrete wetland hydrologic connection. Explain: D Ecological connection. Explain: 0 Separated by berm/barrier. Explain: (d) river miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the tl!~~i1tt1~i 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): D Vegetation type/percent cover. Explain: D Habitat for: D Federally Listed species. Explain findings: 0 Fish/spawn areas. Explain findings: D Other environmentally-sensitive species. Explain findings: D Aquatic/wildlife diversity. Explain findings: 3. Characteristics of all wetlands adjacent to the tributary (if a~;y_l"'"'' All wetland(s) being considered in the cumulative analysis: :~i~ja!~ Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? CY/N) Size (in acres) Directly abuts? CY/N") Size fin acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION

93 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. }'or 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: Docs 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 1NW? Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support ftmctions 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 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? 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 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 IJLD: 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. ijiil 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 oftnw where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional. Data supporting this conclusion is provided at Section Ill.B. Provide rationale indicating that tributary flows seasonally: Provide estimates for jurisdictional waters in the review area (check all that apply): J&fl Tributary waters: linear feet width (ft). E 1. Other non-wetland waters: acres. Identify type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. ~ 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): 8 See Footnote# 3.

94 l ll Tributary waters: linear feet width (ft). filll!l Other non-wetland waters: acres. Identify type(s) of waters: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. l!!idj 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: Dlj 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 IILD.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. t2ii Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they arc adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional Data supporting this conclusion is provided at Section III.C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TN\Vs. ID!H 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. Provid~ 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 [221 Demonstrate that impoundment was created from "waters of the U.S.," or iilillj Demonstrate that water meets the criteria for one of the categories presented above (1-6), or lili1ij' 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 mm which are or could be used by interstate or foreign travelers for recreational or other purposes. l!2i from which fish or shellfish arc or could be taken and sold in interstate or foreign commerce. m which are or could be used for industrial purposes by industries in interstate commerce. Eill]l Interstate isolated waters. Explain: mf Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): Iii!] Tributary waters: linear feet width (ft). ~~ Otl1er non-wetland waters: acres. Identify type(s) of waters: ~ Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): Bill< 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. 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). ~ 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 IJI.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.

95 flei Other: (explain, if not covered above): Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential basis ofjurisdiction is the :MER 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): m1l Non-wetland waters (i.e., rivers, streams): linear feet width (ft). 6J: Lakes/ponds: acres. foo.tt Other non-wetland waters: acres. List type of aquatic resource: Ilia 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): Qffil Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). ~ Lakes/ponds: acres. ~ Other non-wetland waters: acres. List type of aquatic resource: IIJ 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: mj 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. Etl Data sheets prepared by the Corps: iji Corps navigable waters' study: lll!l U.S. Geological Survey Hydrologic Atlas: 0 USGS NIID data. 0 USGS 8 and 12 digit HUC maps. 13] U.S. Geological Survey map(s). Cite scale & quad name:nc Enka_ USDA Natural Resources Conservation Service Soil Survey. Citation: I22J IE] National wetlands inventory map(s). Cite name: ~ State/Local wetland inventory FEMAIFIRM maps: lllil] 1 00-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) lllj Photographs: 0 Aerial (Name & Date): or D Other (Name & Date): ~ Previous detennination(s). File no. and date of response Jetter: dji\ Applicable/supporting case law: m Applicable/supporting scientific literature: lllj Other indonnation (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD:

96 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION 1: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): September 12, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, SAW , Harold Schutte C. PROJECT LOCATION AND BACKGROUND INFORMATION: The project site is located at 430 Upper Flat Creek Road State: NC County/parish/borough: Buncombe City: Weaverville Center coordinates of site (lat/long in degree decimal format): Latitude & Longitude in Decimal Degrees: N, ~ Universal Transverse Mercator: Name of nearest water body: Flat Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Upper French Broad Name of watershed or Hydrologic Unit Code (HUC): Upper French Broad NC-Tenn ~, Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. ES] Check if other sites (e.g., offsite mitigation sites, disposal sites, etc... ) are associated with this action and are recorded on a dijierent JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): ~ Office (Desk) Determination. Date:.C!S! Field Determination. Date(s): July SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There m;~j "navigable waters of the US." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] fij Waters subject to the ebb and flow of the tide. ~ Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There "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 ~. TNWs, including territorial seas Jl!!l Wetlands adjacent to TNWs m Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs fjl Non-RPWs that flow directly or indirectly into TNWs t1i1 Wetlands directly abutting RPWs that flow directly or indirectly into TNWs ll]!l Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs If Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs ~ Impoundments of jurisdictional waters I?Jll Isolated (interstate or intrastate) waters, including isolated wetlands b. Identify (estimate) size of waters of the U.S. in the review area:: Non-we1land waters: 60 linear feet: 2 width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: ft~~!!'ji!!l Elevation of established-ohwivf (if known): 2. _Non-regulated waters/wetlands (check if applicable): 3 i l 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 l1l 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 lll.f.

97 A. TNWs AND WETLANDS ADJACENT TO TNWs The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. lfthe aquatic resource is a TNW, complete Section IILA.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 JU.D.l.; otherwise, see Section III.B below. 1. TNW Identify TNW: Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent": B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapano!1 have been met. The agencies will assert jurisdiction over non-navigable tributaries of TN\Vs 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 oflaw. If the waterbody 4 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 TN\V. 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. (fthe 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 ULB.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 ofnon-tn\vs that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: Drainage area: Average annual rainfall: Average annual snowfall: inches inches (ii) Physical Characteristics: (a) Relationship with TNW: 0 Tributary flows directly into TNW. 0 Tributary flows through ~~~j~~l 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 arc aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: Identify flow route to 'fnw 5 : Tributary stream order, ifknmvn: (b) General Tributarv Characteristics (check all that apply): 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.

98 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: :!Jii'ji~~!i- Primary tributary substrate composition (check all that apply): 0 Silts 0 Sands 0 Cobbles 0 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: i![\!1!~ ~ Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (c) Flow: Tributary provides for: :fci]!~j!llil!~ Estimate average number of flow events in review area/year: t'!jf(<'jjj!!lt Describe flow regime: Other information on duration and volume: Surface flow is:!f;~~~~~~ Characteristics: plant community Subsurface flow: Explain findings: D Dye (or other) test performed: Tributary has (check all that apply): 0 Bed and banks 0 OHWM 6 (check all indicators that apply): D clear, natural line impressed on the bank D changes in the character of soil D shelving D vegetation matted dowfl; bent, or absent D leaf litter disturbed or washed away D sediment deposition D other (list): D Discontinuous OH\VM. 7 Explain: D D D D the presence of litter 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 apply): If factors other than the OHWM were used to determine lateral extent of CWAjurisdiction (check all that s ""' l1!m High Tide Line indicated by: D oil or scum line along shore objects 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; 0 vegetation lines/changes in vegetation types. (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain: Identify specific pollutants, iflmown: (iv) Biological Characteristics. Channel supports (check all that apply): D Riparian corridor. Characteristics (type, average width): D Wetland fringe. Characteristics: 0 Habitat for: 6 A natural or man-made discontinuity in the OHWI\1 does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 lbid.

99 D Federally Listed species. Explain findings: D Fish/spawn areas. Explain findings: 0 Other environmentally-sensitive species. Explain findings: 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 Flow Relationship with Non-TNW: flow is: ~~"E~~!!. Explain: Surface flow is: gji!~]llf~j Characteristics: Subsurface flow: ~!C~~!~- Explain findings: D Dye (or other) test performed: (c) (d) Wetland Adjacency Determination with Non-TNW: 0 Directly abutting D Not directly abutting D Discrete wetland hydrologic connection. Explain: 0 Ecological connection. Explain: D Separated by berm/barrier. Explain: river miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the IDitjllii':,l\~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): D Riparian buffer. Characteristics (type, average width): 0 V cgctation type/percent cover. Explain: D Habitatfor: D Federally Listed species. Explain fmdings: D Fish/spawn areas. Explain findings: 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: ~~~i;~ Approximately ( ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (YIN) Size fin acres) Directly abuts? (YIN) Size (in acres) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION

100 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 TN\V. 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 TN\V. 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 TN\V, 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 TN\V). 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 TN\V, as identified in therapanos 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 arc 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 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? 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 TN\Vs. Explain findings of presence or absence of significant nexus below, ba<>ed 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 TN\Vs. 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 JJLD: 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: f ltnws: linear feet width (ft), Or, acres. ml} Wetlands adjacentto TNWs: acres. 2. RPWs that flow directly or indirectly into TNWs. :mj- 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 oftnw where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional Data supporting this conclusion is provided at Section IU.B. Provide rationale indicating that tributary flows seasonally: Provide estimates for jurisdictional waters in the review area (check all that apply): I Tributary waters: linear feet width (ft). GITl Other non-wetland waters: acres. Identify type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. ~ Water body that is not a TNW or an RPW, but flows directly or indirectly into a 'INW, and it has a significant nexus with a TNW is jurisdictional. Data supporting this conclusion is provided at Section lit. C. 8 Sec Footnote# 3.

101 Provide estimates for jurisdictional waters within the review area (check all that apply): [jijj Tributary waters: linear feet width (fi). 12?1. Other non-wetland waters: acres. Identify type(s) of waters: 4. _Wetlands directly abutting an RPW that flow directly or indirectly into TN\Vs. Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. E2iJ ---- Ji: 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: (ffil 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 IJJ.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. _m 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 INW are jurisidictional. Data supporting this conclusion is provided at Section III. C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs. ~ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section IILC. 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. mi. Demonstrate that impoundment was created from "waters of the U.S.," or m:l Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 't1e1 Demonstrate that water is isolated with a nexus to commerce (see E below). E. ISOLA TED [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 m which are or could be used by interstate or foreign travelers for recreational or other purposes. ij,u from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. mm which are or could be used for industrial purposes by industries in interstate commerce. fillj Interstate isolated waters. Explain: R&{ 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 (fi). f1±j Other non-wetland waters: acres.!dentifytype(s) of waters: ~U Wetlands: acres. F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): _tmj 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. Il!ill 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). 9 To complete the analysis refer to the key in Section lli.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.

102 ~ Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: t1lill Oilier: (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, usc of water for irrigated agriculture), using best professional judgment (check all that apply): feb Non-wetland waters (i.e., rivers, streams): linear feet width (ft). ll Lakes/ponds: acres. tillill Other non-wetland waters: acres. List type of aquatic resource: m 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): fit Non-wetland waters (i.e., rivers, streams): linear feet, width (ft). Bz:l Lakes/ponds: acres. Efi] Other non-wetland waters: acres. List type of aquatic resource: Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check all that apply- checked items shall be included in case file and, where checked and requested, appropriately reference sources below): m Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: l;ili;j 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: ffilil- Corps navigable waters' study: lffib U.S. Geological Survey Hydrologic Atlas: 0 USGS NHD data. 0 USGS 8 and 12 digit HUC maps. mj U.S. Geological Survey map(s). Cite scale & quad name:nc-weavervillc. 00 USDA Natural Resources Conservation Sen'icc Soil Survey. Citation: ffil National wetlands inventoi)' map(s). Cite name: fill] State/Local wetland inventory map(s): E]ill FEMAIFIRM maps: ~ 1 00-year floodplain Elevation is: (National Geodectic Vertical Datum of 1929) Photographs: 0 Aerial (Name & Date): or 0 Other (Nan1c & Date): lili!j Previous determination(s). File no. and date of response letter: mj Applicable/supporting case law: fizi Applicable/supporting scientific literature: ~. Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD:

103 APPROVED ITJRISDICTIONAL 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 '1,0 A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINA TTON (JD): AugustS, 2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:CESAW-RG-A, \444, Barbara Hershey C. PROJECT LOCATION AND BACKGROUND INFORMATION: State: NC County/parish/borough: Watauga City: Boone Center coordinates of site (laulong in degree decimal format): Latitude & Longitude in Decimal Degrees: , Universal Transverse Mercator: Name of nearest waterbody: Howards Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: New River Name of watershed or Hydrologic Unit Code (HUC): New River 1m Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. f1ili] Check if other sites (e.g., offsite mitigation sites, disposal sites, etc...) are a<;sociated with this action and are recorded on a difterent JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): IllS! Office (Desk) Determination. Dale: ~ Field Detennination. Date(s): SECTION II: SUMMARY OF FINDINGS A. RIIA SECTION 10 DETERMINATION OF JURISDICTION. There fjfm1~ "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&:l Waters subject to the ebb and flow of the tide. IJ]ll Waters arc presently used, or have been used in ilie past, or may be susceptible for use to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINA T!ON OF JURISDICTION. There "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required} 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): 1 lilf.l TNWs, including territorial seas ~ Wetlands adjacent to TNWs fml Relatively permanent waters 2 (RPWs) that flow directly or indirectly into TNWs filllt Non-RPWs that flow directly or indirectly into TNWs RiliJ 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 Eill: Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs lfilllf Impoundments of jurisdictional waters Eilil} 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: 15 linear feet: width (ft) and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: m~lt~l~llj!j!lf~!!lj!~e Elevation of established OHWM (if known): 2. Non-regulated waters/wetlands (check if applicable): 3 fillll Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain: A. TNWs AND WETLANDS ADJACENT TO TNWs 1 Boxes checked below shall be supported by completing the appropriate sections in Section IU below. 2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows yeahound or has continuous flow at least "seasonally" (e.g., typically 3 months). 3 Supporting documentation is presented in Section IILF.

104 The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TN\V, 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: 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 oftnws where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody 4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine ifthe water body has a significant nexus with a TN\V. 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 lli.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 Ill.C below. 1. Characteristics ofnon-tnws that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: Drainage area: A veragc annual Average annual snowfall: inches inches (ii) Physical Characteristics: (a) Relationship with TNW: D Tributary flows directly into TNW. 0 Tributary flows through :lfj M11!!!~ 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: Identify flow route to TNW 5 : Tributary stream order, iflmown: (b) General Tributary Characteristics (check all that apply): Tributary is: 0 Natural 0 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.

105 D Manipulated (man-altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: Primary tributary substrate composition (check all that apply): D Silts D Sands D Cobbles D Gravel D Bedrock 0 Vegetation. Type/% cover: D Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks]. Presence of run/riffle/pool complexes. Explain: Tributary geometry: ~~~Rj~!~1 Tributary gradient (approximate average slope): % D Concrete 0Muck Explain: (c) Flow: Tributary provides for: ~:~~~l~!~ Estimate average number of flow events in review area/year: ):l!,!~!$1][! Describe flow regime: Other information on duration and volume: Surface flow is:!:i!~!\l]!ll~!. Characteristics: Subsurface tlow: ;gi&~~~- Explain findings: D Dye (or other) test performed: Tributary has (check all that apply): D Bed and banks D OHWM 6 (check all indicators that apply): D clear, natural line impressed on the bank 0 changes in the character of soil 0 shelving D vegetation matted down, bent, or absent D leaf litter disturbed or washed away D sediment deposition plant community D other (list): D Discontinuous OHWM. 7 Explain: D D D ihe 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 D water staining 0 abrupt change in apply): If factors other than the OHWJvf were used to determine lateral extent of CWA jurisdiction (check all that ~ High Tide Line indicated by: lji1f,_. D oil or scum line along shore objects D fine shell or debris deposits (foreshore) 0 physical markings/characteristics D 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. (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: 0 Federally Listed species. Explain findings: D Fish/spa\ 11 areas. 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 OHWrvf has been removed by development or agricultural practices). "Where there is a break in tl1e OHWM that is unrelated to the watcrbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 7 1bid.

106 0 Other environmentally-sensitive species. Explain findings: 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 Flow Relationship with Non-TNW: Flow is:!)l!til'ji;i~!. Explain: Surface flow is: g'if~f'jl,j~ Characteristics: Subsurface flow: ~!~OO.lfim. Explain findings: 0 Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TN\V: 0 Directly abutting 0 Not directly abutting 0 Discrete wetland hydrologic connection. Explain: 0 Ecological connection. Explain: 0 Separated by berm/barrier. Explain: (d) miles from TNW. aerial (straight) miles from TNW. Estimate approximate location of wetland as within the ~~~[i;:l'!jij\t±loodplain. (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, ifknown: (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: 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: 3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: ~i~~] l 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) Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION

107 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 TN\V. 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. [tis not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributar-y and its adjacent wetland or between a tributary and the TN\V). 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 lifecyclc 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? Docs 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 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 lll.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 lll.d: D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL THAT APPLY): l. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: EiiJ TNWs: linear feet width (ft). Or. acres. j]]} Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TN\Vs. ~ Tributaries oftnws where tributaries typically flow year-round are jurisdictional Provide data and rationale indicating that tributary is perennial: Howard Creek is a blue line on the USGS topographic map, NC-Boone Quad, which in NC indicates it has flow more than 3 months out of the year. Additionally Howard creek supports trout mjd 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): ~ Tributary waters: 20 linear feetls-20 width (ft). Jilill Other non-wetland waters: acres. Identify type(s) of waters: 3. Non-RPWs 8 that flow directly or indirectly into TNWs. ~ Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a TNW is jurisdictional Data supporting this conclusion is provided at Section III. C. Provide estimates for jurisdictional waters within the review area (check all that apply): lila Tributary waters: linear feet widlh (ft). ~ Other non-wetland waters: acres. 8 See Footnote# 3.