Demystifying The New JD Form

U.S. Army Corps of Engineers Wilmington District Demystifying The New JD Form USACESAW / NCDWQ Consultant Workshop September 25-26, 2007 U.S. Army Corps of Engineers Wilmington District Why? Corps must , whether exerting jurisdiction or not, collect all information and submit all significant nexus determinations to EPA for review. The more information you provide with your JD request, PCN or Permit Application, the faster when can make decisions!!! U.S. Army Corps of Engineers Wilmington District Approved Jurisdictional Determination Form U.S. Army Corps of Engineers CANNOT BE MODIFIED COMPLETE FORM MUST BE SUBMITTED MUST HAVE SEPARATE FORM FOR EACH RELEVANT REACH U.S. Army Corps of Engineers Wilmington District Approved Jurisdictional Determination Form U.S. Army Corps of Engineers 33 CFR 328.3 & 4 Still Apply: Tributary – Tributaries of navigable waters and interstate waters and impoundments of navigable or interstate waters are waters of the US. The lateral limits of jurisdiction extend to the limits of the ordinary high water mark (OHWM). Wetlands – Wetlands adjacent to other waters of the US are waters of the US. The limits of these wetlands are determined by methods set forth in the ’87 Manual. U.S. Army Corps of Engineers Wilmington District Approved Jurisdictional Determination Form U.S. Army Corps of Engineers Relevant Reach – Review Area – Review Area refers to the area under consideration and can be synonymous with project area. However, in those cases where the project area requires the completion of additional JD forms (eg. Larger tracts of land), the review area will be confined to the area assessed on the JD form. U.S. Army Corps of Engineers Wilmington District Approved Jurisdictional Determination Form U.S. Army Corps of Engineers • Section I: Background Information • Section II: Summary of Findings • Section III: CWA Analysis A. B. C. D. E. F. TNWs & Adjacent Wetlands All Other Tributaries & Their Adjacent Wetlands Significant Nexus Determination Determinations of Jurisdictional Findings Isolated Waters Non-Jurisdictional Waters • Section IV: Data Source U.S. Army Corps of Engineers Wilmington District Section I: Background Info. U.S. Army Corps of Engineers Wilmington District Section I: Background Info. Part C        State, County, Nearest City Lat & Long. decimal format: Lat 33.89700 Long. -77.98746 Name of nearest Waterbody: Nearest named waterbody Name of nearest TNW into which aquatic resource flows: Name of Watershed or HUC: USGS 8-digit Check if map available: Should always be included Check if other sites are associated with this action and are recorded on a different JD form : Multiple waters, review areas and/or impact sites on a single and complete project U.S. Army Corps of Engineers Wilmington District Section II: Summary Must Finish Section III D before filling out this part. U.S. Army Corps of Engineers Wilmington District Section II: Summary Review Area refers to the area under consideration and can be synonymous with project area. However, in those cases where the project area requires the completion of additional JD forms the review area will be confined to the area assessed on the JD form. U.S. Army Corps of Engineers Wilmington District Section II: Summary Totals U.S. Army Corps of Engineers Wilmington District Section II: Summary U.S. Army Corps of Engineers Wilmington District Section II: Summary Isolated waters and wetlands and those with no significant nexus U.S. Army Corps of Engineers Wilmington District Section IV: Data Sources U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part A Traditionally Navigable Waters and Their Adjacent Wetlands • Determined to be navigable waters of the US under any of the tests set forth in 33 CFR 329 including Determinations by the Corps or by Federal Courts • Determined to be “navigable-in-fact” under standards used by Federal Courts. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part A Traditionally Navigable Waters and Their Adjacent Wetlands U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Factors to consider: public and private boating access points, historical records of commerce, public boating/rafting activities, “put ins/take outs”, fisheries related activities, forestry related activities (e.g. log rafting) U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part A Traditionally Navigable Waters and Their Adjacent Wetlands U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Adjacent is bordering, neighboring, or contiguous, Wetlands separated by dunes, roads, berms, dikes, culverts, buildings, etc. are adjacent . Factors to consider: flooding connections, Active floodplains, wrack lines, sediment deposits, hydric soil connections, connection by nonjurisdictional features (i.e. ditches). U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part A Traditionally Navigable Waters and Their Adjacent Wetlands U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part A Traditionally Navigable Waters and Their Adjacent Wetlands U.S. Army Corps of Engineers Wilmington District Section II: Summary Include information supporting lateral limits e.g. OHWM indicators or Wetland Data Sheets U.S. Army Corps of Engineers Wilmington District Traditionally Navigable Waters and Their Adjacent Wetlands Sequence: Section I : Part C Section III : Part A (1) Section III : Part D (1) Section II : Part A if under RHA jurisdiction, OR Part B (1) if navigable-in-fact Section II : Part B (1) (b & c) Section IV U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B NON-TNWs and Their Adjacent Wetlands U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B Perennial RPWs and Abutting Wetlands Factors to consider: Watershed size, gage data, local info., map data, faunal data, stream assessment forms, etc. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B Perennial RPWs and Abutting Wetlands Abutting wetlands are those directly touching the tributary, i.e. not separated by any non-jurisdictional feature. U.S. Army Corps of Engineers Wilmington District Section II: Summary Include information supporting lateral limits e.g. OHWM indicators and Wetland Data Sheets U.S. Army Corps of Engineers Wilmington District RPWs with perennial flow and their abutting wetlands Sequence: Section I : Part C Section III : Part D (2) and D (4) if abutting wetlands Section II : Part B (1) (a, b & c) Section IV U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B Everything Else U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B Everything Else Perennial U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B Everything Else U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B Everything Else U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) Watershed Area: The size of the watershed draining into the tributary system upstream of the point the relevant reach joins the next order tributary. Drainage area: The size of the local watershed draining into the relevant reach including all stream orders upstream of the relevant reach U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) Factors to consider: Watershed size, gage data, local info., map data, faunal data (e.g. insects), stream assessment forms, etc. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) JD Guidebook Photos 53 and 54 U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) Factors to consider: overall condition of the feature, natural or anthropogenic disturbance, Spatial and temporal persistence of water marks, natural or anthropogenic features prohibiting formation of water marks, etc. Footnote 6: “A natural or manmade discontinuity in the OHWM does not necessarily sever jurisdiction…” U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) Factors to consider: turbidity, suspended solids, evidence of unnatural sediment load (include inputs if evident). Tributaries located in urban, commercial, residential and agricultural areas typically collect runoff containing fertilizers, herbicides and pesticides. Include sediment inputs if evident. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (1) The Tributary (intermittent RPWs and non-RPWs) Factors to consider: fish spawnig areas, Trout designations, nursery areas, anadromous fish runs, benthic macroinvertebrate diversity, etc. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (2) The Wetlands Pertains to wetlands within the review area U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (2) The Wetlands U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (2) The Wetlands U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (2) The Wetlands U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (3) All Adjacent Wetlands This should be a best estimate based on existing data sources. If a disagreement arises as to the presence or absence of a Significant Nexus, more ground truthing may be appropriate/ necessary. If the review area contains enough wetlands to enable a SN determination to be made, then do not expend a lot of time documenting presence of other wetlands downstream outside of review area. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part B (3) All Adjacent Wetlands Factors to consider: Chemical: Removal of P, N, herbicides, pesticides, runoff from roadways and parking areas, etc. Physical: Sediment removal, flood storage, temperature regulation, groundwater recharge for maintenance of baseflow, etc. Biological: Life-cycle support, organic carbon input, food chain support, rearing, foraging, nesting/spawning area, etc. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part C Significant Nexus U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part C Significant Nexus U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part C Significant Nexus Restate the four bullets above as statements of fact based on discussion provided in Section 3, above . For example, “Based on the discussion in Section 3 above, The tributary, in combination with its adjacent wetlands (if any), has more than a speculative or insubstantial capacity to carry pollutants or flood waters to TNWs” U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part D (2) RPWs with seasonal flow U.S. Army Corps of Engineers Wilmington District Section II: Summary RPWs with seasonal flow Include information supporting lateral limits e.g. OHWM indicators U.S. Army Corps of Engineers Wilmington District RPWs with seasonal flow Sequence: Section I : Part C Section III : Part B (1) Section III : Part D (2) Section II : Part B (1) (a, b & c) Section IV U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part D (3) Non-RPWs U.S. Army Corps of Engineers Wilmington District Section II: Summary RPWs with seasonal flow Include information supporting lateral limits e.g. OHWM indicators U.S. Army Corps of Engineers Wilmington District Non-RPWs Sequence: Section I : Part C Section III : Part B (1) Section III : Part C (1) Section III : Part D (3) Section II : Part B (1) (a, b & c) Section IV U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part D (5) Wetlands adjacent to but not abutting an RPW U.S. Army Corps of Engineers Wilmington District Section II: Summary Wetlands adjacent to but not abutting an RPW Include information supporting lateral limits e.g. Wetland data sheets U.S. Army Corps of Engineers Wilmington District Wetlands adjacent to but not abutting an RPW Sequence: Section I : Part C Section III : Part B (1 & 2) Section III : Part C (3) Section III : Part D (5) Section II : Part B (1) (a, b & c) Section IV U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part D (6) Wetlands adjacent to a non-RPW U.S. Army Corps of Engineers Wilmington District Section II: Summary Wetlands adjacent to a non-RPW Include information supporting lateral limits e.g. Wetland data sheets U.S. Army Corps of Engineers Wilmington District Wetlands adjacent to a non-RPW Sequence: Section I : Part C Section III : Part B (1 & 2) Section III : Part C (2) Section III : Part D (6) Section II : Part B (1) (a, b & c) Section IV U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part D (7) Impoundments of jurisdictional waters: Pursuant to 33 CFR 328 (a), impoundments of waters of the US are waters of the US. When assessing an impoundment, flow characteristics should be estimated by examining the water immediately upstream and downstream. Area should then be assessed accordingly U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part D (7) Impoundments of jurisdictional waters: U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part E Isolated Interstate or intrastate waters including isolated wetlands: Determinations of isolation should be made pursuant to criteria used prior to SWANCC. If a wetland is determined isolated, SWANCC applies and no significant nexus test should be performed. U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part E Isolated Interstate or intrastate waters including isolated wetlands: U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part F Non-jurisdictional waters including wetlands: U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part F Non-jurisdictional waters including wetlands: U.S. Army Corps of Engineers Wilmington District Section III: CWA Analysis Part F Non-jurisdictional waters including wetlands: Questions? U.S. Army Corps of Engineers Wilmington District