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1 Page 1 of 7 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): 26-Dec-2013 B. DISTRICT OFFICE, FILE NAME, AND NUMBER: New York District, NAN JD1 C. PROJECT LOCATION AND BACKGROUND INFORMATION: State : NY - New York County/parish/borough: Orange City: Wallkill Lat: Long: Universal Transverse Mercator Folder UTM List UTM list determined by folder location NAD83 / UTM zone 18N Waters UTM List UTM list determined by waters location NAD83 / UTM zone 18N Name of nearest waterbody: Unnamed Tributary to Masonic Creek Name of nearest Traditional Navigable Water (TNW): Wallkill River Name of watershed or Hydrologic Unit Code (HUC): 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 the action and are recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION: Office Determination Date: Field Determination Date(s): 18-Sep-2013 SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF 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. 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 CFR part 328) in the review area. 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area: 1
2 Page 2 of 7 Water Name Wetland A Water Type(s) Present Wetlands directly abutting RPWs that flow directly or indirectly into TNWs b. Identify (estimate) size of waters of the U.S. in the review area: Area: (m²) Linear: (m) c. Limits (boundaries) of jurisdiction: based on: OHWM Elevation: (if known) 2. Non-regulated waters/wetlands: 3 Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain: SECTION III: CWA ANALYSIS A. TNWs AND WETLANDS ADJACENT TO TNWs 1.TNW 2. Wetland Adjacent to TNW B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): 1. Characteristics of non-tnws that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: acres Drainage area: 550 acres Average annual rainfall: inches Average annual snowfall: inches (ii) Physical Characteristics (a) Relationship with TNW: Tributary flows directly into TNW. Tributary flows through [ ] tributaries before entering TNW. :Number of tributaries Project waters are 1 (or less) river miles from TNW. Project waters are 1 (or less) river miles from RPW. Project Waters are 1 (or less) aerial (straight) miles from TNW. Project waters are 1 (or less) aerial(straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: Identify flow route to TNW: 5 Water within Wetland A flows within the channel of a seasonal, unnamed tributary to Masonic Creek, off site into a second seasonal unnamed
3 Page 3 of 7 tributary to Masonic Creek, into Masonic Creek, then into the Wallkill River. Tributary Stream Order, if known: (b) General Tributary Characteristics: Tributary is: Tributary properties with respect to top of bank (estimate): Primary tributary substrate composition: Tributary (conditions, stability, presence, geometry, gradient): (c) Flow: Surface Flow is: Subsurface Flow: Tributary has: If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction: High Tide Line indicated by: Mean High Water Mark indicated by: (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality;general watershed characteristics, etc.). (iv) Biological Characteristics. Channel supports: 2. Characteristics of wetlands adjacent to non-tnw that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland Name Size (Acres) Wetland Type Wetland Quality Cross or Serve as State Boundaries. Explain Wetland A 6.16 Emergent Fair No
4 Page 4 of 7 (b) General Flow Relationship with Non-TNW: Flow is: Wetland Name Flow Explain Wetland A Intermittent flow. - Surface flow is: Wetland Name Flow Characteristics Wetland A Discrete and confined - Subsurface flow: Wetland Name Subsurface Flow Explain Findings Dye (or other) Test Wetland A - (c) Wetland Adjacency Determination with Non-TNW: Discrete Wetland Separated by Wetland Name Directly Abutting Ecological Connection Hydrologic Connection Berm/Barrier Wetland A Yes - (d) Proximity (Relationship) to TNW: Wetland Name River Miles From TNW Aerial Miles From TNW Flow Direction Within Floodplain Wetland A 1 (or less) 1 (or less) Wetland to navigable waters year (ii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Wetland Name Explain Identify specific pollutants, if known Wetland A (iii) Biological Characteristics. Wetland supports: Wetland Name Riparian Buffer Characteristics Vegetation Explain Wetland A X - X Emergent/85% Scrub Shrub/15% 3. Characteristics of all wetlands adjacent to the tributary (if any): All wetlands being considered in the cumulative analysis: 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
5 Page 5 of 7 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. Findings for: Wetland A Wetland A and the seaonal stream that it directly abuts, can retain, convert, and cycle the pollutants from nearby roads, businesses and former farms that would otherwise directly enter the TNW. Furthermore, during large storm events, the wetlands can serve as a flood storage areas. D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE: 1. TNWs and Adjacent Wetlands: 2. RPWs that flow directly or indirectly into TNWs: Provide estimates for jurisdictional waters in the review area: 3. Non-RPWs that flow directly or indirectly into TNWs: 8 Provide estimates for jurisdictional waters in the review area: 4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. Wetland Name Flow Explain Wetland A SEASONAL Water within this wetland flows within the channel of a seasonal unnamed tributary to Masonic Creek. Aerial photography, the Middletown, NY USGS quadrangle map, field observations clearly showing the on-site seasonal stream, and annual rainfall of inches indicate that the on-site stream flows at least 3 consecutive months. Provide acreage estimates for jurisdictional wetlands in the review area: Wetland Name Type Size (Linear) (m) Size (Area) (m²) Wetland A Wetlands directly abutting RPWs that flow directly or indirectly into TNWs Total: Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs: Provide acreage estimates for jurisdictional wetlands in the review area: 6. Wetlands adjacent to non-rpws that flow directly or indirectly into TNWs:
6 Page 6 of 7 Provide estimates for jurisdictional wetlands in the review area: 7. Impoundments of jurisdictional waters: 9 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: 10 Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area: F. NON-JURISDICTIONAL WATERS. INCLUDING WETLANDS 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 soley 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): Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR factors (ie., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional judgment: 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. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (listed items shall be included in case file and, where checked and requested, appropriately reference below): Data Reviewed Source Label Source Description --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 --U.S. Geological Survey map(s). Middletown, NY -
7 Page 7 of 7 --USDA Natural Resources Conservation Service Soil Survey. --National wetlands inventory map(s). Middletown, NY - --State/Local wetland inventory map(s): Middletown, NY - --State/Local wetland inventory map(s): Middletown, NY - --Photographs ----Aerial ----Other --Previous determination(s). Jurisdictional Determination Jurisdictional determination issued June 9, 2008, under Application Number NAN WOR. B. ADDITIONAL COMMENTS TO SUPPORT JD: 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. 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 -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. 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.
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