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HomeMy WebLinkAbout017 NWO-MT_20240624_AJD-MFR_pre-2015_jurisdiction_post-SackettDEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS, OMAHA DISTRICT MONTANA REGULATORY OFFICE 100 NEILL AVENUE HELENA, MT 59601-3329 CENWO-OD-RMT June 24, 2024 MEMORANDUM FOR RECORD SUBJECT: US Army Corps of Engineers (Corps) Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023) ,1 NWO-2023-01707-MT, 4840 Fowler Lane Property Development 2 BACKGROUND. An Approved Jurisdictional Determination (AJD) is a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel. AJDs are clearly designated appealable actions and will include a basis of JD with the document.3 AJDs are case-specific and are typically made in response to a request. AJDs are valid for a period of five years unless new information warrants revision of the determination before the expiration date or a District Engineer has identified, after public notice and comment, that specific geographic areas with rapidly changing environmental conditions merit re- verification on a more frequent basis.4 For the purposes of this AJD, we have relied on section 10 of the Rivers and Harbors Act of 1899 (RHA),5 the Clean Water Act (CWA) implementing regulations published by the Department of the Army in 1986 and amended in 1993 (references 2.a. and 2.b. respectively), the 2008 Rapanos-Carabell guidance (reference 2.c.), and other applicable guidance, relevant case law and longstanding practice, (collectively the pre-2015 regulatory regime), and the Sackett decision (reference 2.d.) in evaluating jurisdiction. This Memorandum for Record (MFR) constitutes the basis of jurisdiction for a Corps AJD as defined in 33 CFR §331.2. The features addressed in this AJD were evaluated consistent with the definition of “waters of the United States” found in the pre-2015 regulatory regime and consistent with the Supreme Court's decision in Sackett. This AJD did not rely on the 2023 “Revised Definition of ‘Waters of the United States,’” as amended on 8 September 2023 (Amended 2023 Rule) because, as of the date of this decision, the Amended 2023 Rule is not applicable in this state due to litigation. 1 While the Supreme Court’s decision in Sackett had no effect on some categories of waters covered under the CWA, and no effect on any waters covered under RHA, all categories are included in this Memorandum for Record for efficiency. 2 When documenting aquatic resources within the review area that are jurisdictional under the Clean Water Act (CWA), use an additional MFR and group the aquatic resources on each MFR based on the TNW, interstate water, or territorial seas that they are connected to. Be sure to provide an identifier to indicate when there are multiple MFRs associated with a single AJD request (i.e., number them 1, 2, 3, etc.). 3 33 CFR 331.2. 4 Regulatory Guidance Letter 05-02. 5 USACE has authority under both Section 9 and Section 10 of the Rivers and Harbors Act of 1899 but for convenience, in this MFR, jurisdiction under RHA will be referred to as Section 10. CENWO-OD-RMT SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-01707-MT 2 1. SUMMARY OF CONCLUSIONS. a. Provide a list of each individual feature within the review area and the jurisdictional status of each one (i.e., identify whether each feature is/is not a water of the United States and/or a navigable water of the United States). i. W1, jurisdictional, adjacent wetland (Section 404) ii. W2, jurisdictional, adjacent wetland (Section 404) iii. W3, jurisdictional, adjacent wetland (Section 404) 2. REFERENCES. a. Final Rule for Regulatory Programs of the Corps of Engineers, 51 FR 41206 (November 13, 1986). b. Clean Water Act Regulatory Programs, 58 FR 45008 (August 25, 1993). c. U.S. EPA & U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States (December 2, 2008) d. Sackett v. EPA, 598 U.S. _, 143 S. Ct. 1322 (2023) e. 2008 Rapanos Guidance 3. REVIEW AREA. Review area is approximately 20.52 acres near the City of Bozeman, Gallatin County, Montana in Section 23, Township 2 South, Range 5 East, Latitude 45.653821° North, Longitude -111.080756° West; Boundary map (as KML file) for review area is attached. 4. NEAREST TRADITIONAL NAVIGABLE WATER (TNW), INTERSTATE WATER, OR THE TERRITORIAL SEAS TO WHICH THE AQUATIC RESOURCE IS CONNECTED. The Gallatin River is the nearest Section 404 TNW. 6 5. FLOWPATH FROM THE SUBJECT AQUATIC RESOURCES TO A TNW, INTERSTATE WATER, OR THE TERRITORIAL SEAS. W1, W2, and W3 are connected to West Gallatin Canal via UT of Baxter Creek and unnamed laterals. W1 abuts UT of Baxter Creek, which flows for approximately 0.44 miles, passing through one culvert under Stucky Rd (approximately 95ft in length). W2 and W3 abut unnamed laterals of 6 This MFR should not be used to complete a new stand-alone TNW determination. A stand-alone TNW determination for a water that is not subject to Section 9 or 10 of the Rivers and Harbors Act of 1899 (RHA) is completed independently of a request for an AJD. A stand-alone TNW determination is conducted for a specific segment of river or stream or other type of waterbody, such as a lake, where upstream or downstream limits or lake borders are established. CENWO-OD-RMT SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-01707-MT 3 the West Gallatin Canal. W2 flows for 0.41mi, passing through one culvert under Stucky Rd (approximately 85ft in length) and another culvert approximately 600ft north of Stucky Rd (approximately 25ft in length). Water from W3 flows for approximately 0.42 miles, passing through one culvert under Stucky Rd (approximately 65ft in length). At approximately 0.38mi north of the project boundary, all three flow paths converge. From this point, the converged flow path (West Gallatin Canal) flows for approximately 0.63mi, passing through four culverts, measurements of which are approximately 45ft, 25ft, 65ft (under W. Lincoln St), and 30ft in length, and at which point, the West Gallatin Canal flows under Farmers Canal through a ~125’ siphon connector near the intersection of Technology Blvd & Fowler Ave. The West Gallatin Canal continues north, northwest for ~4mi through pipes and culverts as follows (from south to north): a. ~60’ – Access to Business b. ~140’ – US Highway 191 c. ~20’ – Walking Path d. ~85’ – Laramie Dr e. ~85’ – Fallon St f. ~85’ – Laredo Dr g. ~80’ – Golden Valley Dr h. ~85’ – Ravalli St i. ~30’ – Walking Path – W. Babcock Fields j. ~60’ – Walking Path – W. Babcock Fields k. ~165’ – Parking Lot – W. Babcock Fields l. ~130’ – W. Babcock St m. ~90’ – Meagher Ave n. ~90’ – W. Broadwater St o. ~75’ – Cascade St p. ~20’ – Walking Path q. ~20’ – Walking Path r. ~795’ – Under and along Durston Rd s. ~105’ – Annie St t. ~90’ – Renova Ln u. ~120’ – W Oak St v. ~285’ – Ferguson Avenue w. ~265’ – Baxter Ln x. ~105’ – Equestrian Ln West Gallatin Canal converges with Baxter Border Ditch at Equestrian Ln. Baxter Border Ditch then continues north, northwest for ~4.16mi through pipes and culverts as follows (from south to north): a. ~25’ – walking path b. ~80’ – Kimberwicke St c. ~40’ – Farm Access CENWO-OD-RMT SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-01707-MT 4 d. ~30’ – Farm Access e. ~30’ – Farm Access f. ~35’ – Hidden Valley Rd g. ~25’ – Private Access h. ~25’ – Private Access i. ~30’ – Farm Access j. ~100’ – E. Valley Center Rd k. ~180’ – Interstate 90 (I-90) West Gallatin Canal converges with McDonald Creek ~1,315ft northwest of the I-90 culvert. McDonald Creek then flows north, northwest for ~1.36mi through culverts as follows (from south to north): a. ~30’ – Railroad Tracks b. ~100’ Frontage Rd c. ~20’ – Farm Access d. ~40’ – Farm Access McDonald Creek converges with Hyalite Creek ~1.0mi east of the Bozeman Yellowstone International Airport. Hyalite Creek then continues north for ~3.32mi, passing through one ~35’ culvert under Airport Road, before converging with the E. Gallatin River. The E. Gallatin River flows ~18mi north, northwest before converging with the Gallatin River, a Section 404 TNW, ~2.25mi north of the town of Manhattan. The locations of the culverts, pipes, and the flow paths discussed above are shown on the attached KML file. 6. SECTION 10 JURISDICTIONAL WATERS7: Describe aquatic resources or other features within the review area determined to be jurisdictional in accordance with Section 10 of the Rivers and Harbors Act of 1899. Include the size of each aquatic resource or other feature within the review area and how it was determined to be jurisdictional in accordance with Section 10. N/A 8 7. SECTION 404 JURISDICTIONAL WATERS: Describe the aquatic resources within the review area that were found to meet the definition of waters of the United States in accordance with the pre-2015 regulatory regime and consistent with the Supreme Court’s decision in Sackett. List each aquatic resource separately, by name, consistent with the naming convention used in section 1, above. Include a rationale for each 7 33 CFR 329.9(a) A waterbody which was navigable in its natural or improved state, or which was susceptible of reasonable improvement (as discussed in § 329.8(b) of this part) retains its character as “navigable in law” even though it is not presently used for commerce, or is presently incapable of such use because of changed conditions or the presence of obstructions. 8 This MFR is not to be used to make a report of findings to support a determination that the water is a navigable water of the United States. The district must follow the procedures outlined in 33 CFR part 329.14 to make a determination that water is a navigable water of the United States subject to Section 10 of the RHA. CENWO-OD-RMT SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-01707-MT 5 aquatic resource, supporting that the aquatic resource meets the relevant category of “waters of the United States” in the pre-2015 regulatory regime. The rationale should also include a written description of, or reference to a map in the administrative record that shows, the lateral limits of jurisdiction for each aquatic resource, including how that limit was determined, and incorporate relevant references used. Include the size of each aquatic resource in acres or linear feet and attach and reference related figures as needed. a. TNWs (a)(1): N/A b. Interstate Waters (a)(2): N/A c. Other Waters (a)(3): N/A d. Impoundments (a)(4): N/A e. Tributaries (a)(5): N/A f. The territorial seas (a)(6): N/A g. Adjacent wetlands (a)(7): W1 (totaling approximately 2.027 acres) and W2 and W3 (totaling approximately 0.054 acres) have been evaluated as palustrine emergent wetlands with a continuous surface connection to a TNW via requisite RPWs. W1 was assessed and determined to be a wetland adjacent to an RPW (UT of Baxter Creek), while W2 and W3 were assessed and determined to be wetlands adjacent to laterals of the West Gallatin Canal. UT Baxter Creek intersects with the West Gallatin Canal (Lat 45.660232, Long. - 111.082630), which flows north and continues under Farmers Canal through a siphon connector, with an option of an off-loader structure directly into Farmers Canal. The West Gallatin Canal then continues north northwest through a series of pipes, culverts, and occasionally daylights until it intersects with the Baxter Border Ditch, which is considered as a relocated perennially stream (Lat 45.702230, Long. -111.098682). From this point, Baxter Border Ditch continues flowing north where it intersects with Aajker Creek and then converges with McDonald Creek (Lat. 45.748854, Long. -111.127368). McDonald Creek continues north until in converges with Hyalite Creek (Lat 45.764848, Long. -111.127151). Hyalite Creek continues north until in intersects with the East Gallatin River (Lat 45.793874, Long -111.127986). The East Gallatin River is a tributary with the Gallatin River, a tributary of the Missouri River, a Section 10 TNW. The Farmers Canal flows northeast into a series of pipes and culverts where it then intersects with Mandeville Creek (Lat. 45.703305, Long. -111.055501) which then continues north where it intersects with the East Gallatin River (Lat. 45.703305, CENWO-OD-RMT SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-01707-MT 6 Long. -111.055501). The East Gallatin River is a tributary with the Gallatin River (a Section 404 TNW). These flow paths were evaluated utilizing Google Earth Pro aerial imagery (2014 – 2023) and data from Bozeman Infrastructure Viewer, along with USGS’s National Hydrography Dataset (NHD), 3D Elevation Program (3DEP) Digital Elevation Model (DEM), and 3DEP Hillshade layers, and USFWS’s National Wetland Inventory (NWI) dataset within the Corps’ National Regulatory Viewer (NRV), and it was determined that these features maintain relatively permanent flows, as water was evident in the channels for all years of aerial imagery reviewed, as well as maintain a continuous surface connection to a TNW (the Gallatin River) via culverts and RPWs as discussed above and in Section 5. 8. NON-JURISDICTIONAL AQUATIC RESOURCES AND FEATURES a. Describe aquatic resources and other features within the review area identified as “generally non-jurisdictional” in the preamble to the 1986 regulations (referred to as “preamble waters”).9 Include size of the aquatic resource or feature within the review area and describe how it was determined to be non-jurisdictional under the CWA as a preamble water. N/A b. Describe aquatic resources and features within the review area identified as “generally not jurisdictional” in the Rapanos guidance. Include size of the aquatic resource or feature within the review area and describe how it was determined to be non-jurisdictional under the CWA based on the criteria listed in the guidance. N/A c. Describe aquatic resources and features identified within the review area as waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA. Include the size of the waste treatment system within the review area and describe how it was determined to be a waste treatment system. N/A d. Describe aquatic resources and features within the review area determined to be prior converted cropland in accordance with the 1993 regulations (reference 2.b.). Include the size of the aquatic resource or feature within the review area and describe how it was determined to be prior converted cropland. N/A e. Describe aquatic resources (i.e. lakes and ponds) within the review area, which do not have a nexus to interstate or foreign commerce, and prior to the January 2001 Supreme Court decision in “SWANCC,” would have been jurisdictional based solely on the “Migratory Bird Rule.” Include the size of the aquatic resource or feature, and how it was determined to be an “isolated water” in accordance with SWANCC. N/A 9 51 FR 41217, November 13, 1986. CENWO-OD-RMT SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-01707-MT 7 f. Describe aquatic resources and features within the review area that were determined to be non-jurisdictional because they do not meet one or more categories of waters of the United States under the pre-2015 regulatory regime consistent with the Supreme Court’s decision in Sackett (e.g., tributaries that are non-relatively permanent waters; non-tidal wetlands that do not have a continuous surface connection to a jurisdictional water). N/A 9. DATA SOURCES. List sources of data/information used in making determination. Include titles and dates of sources used and ensure that information referenced is available in the administrative record. a. Office evaluation conducted on February 22, 2024 b. July 2023 Aquatic Delineation Report for 4840 Fowler Lane, delineated by Sundog Ecological, Inc. on May 31, 2023. c. Google Earth Pro 2014 - 2023 Assessed February 22, 2024; KML File (NWO-2023-01701-MT) is attached and is also located in the administrative file. d. USACE – National Regulatory Viewer – Montana, https://arcportal-ucop-corps.usace.army.mil/s0portal/apps/experiencebuilder/experience/?id=9e1a61cbac2341d1b75b58c6ffa5a5ca&page=Montana Assessed February 22, 2024 e. USGS Advanced Map Viewer, https://apps.nationalmap.gov/viewer/ Assessed February 22, 2024 f. USFWS NWI Wetlands Mapper, https://fwsprimary.wim.usgs.gov/wetlands/apps/wetlands-mapper/ Assessed February 22, 2024 g. USGS StreamStats, https://streamstats.usgs.gov/ss/ Assessed February 22, 2024 h. Bozeman Infrastructure Viewer https://gisweb.bozeman.net/Html5Viewer/?viewer=infrastructure Assessed February 22, 2024 10. OTHER SUPPORTING INFORMATION. N/A 11. NOTE: The structure and format of this MFR were developed in coordination with the EPA and Department of the Army. The MFR’s structure and format may be subject to future modification or may be rescinded as needed to implement additional guidance from the agencies; however, the approved jurisdictional determination described herein is a final agency action. City of Bozeman, Montana, Maxar, Microsoft, Sources: Esri, Airbus DS, USGS, NGA, NASA, CGIAR, N Robinson, NCEAS, NLS, OS, NMA, Geodatastyrelsen, Rijkswaterstaat, GSA, Geoland, FEMA, Intermap and the GIS user community, Esri Community Maps Contributors, Bozeman GIS, Montana State Library, © OpenStreetMap, Microsoft, Esri, TomTom, Garmin, SafeGraph, GeoTechnologies, Inc, METI/ NASA, USGS, Bureau of Land Management, EPA, NPS, US Census Bureau, USDA, USFWS Esri, NASA, NGA, USGS, City of Bozeman, Montana, Earthstar Geographics, Montana State University, Bozeman GIS, Montana State Library, Esri, TomTom, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, Bureau of Land Management, EPA, NPS, USDA, USFWS¯ Legend Culvert W1 W2 W3 4840 Fowler Lane Project Boundary NWO-2023-01707-MT June, 2023 Legend Culvert Project Boundary W1 W2 W3 600 ft N➤➤N Image © 2024 Airbus Image © 2024 Airbus Image © 2024 Airbus NWO-2023-01707-MT Flow Path to E. Gallatin River Legend Baxter Border Ditch Culverts E. Gallatin River Farmers Canal Siphon/Connector Gallatin County Waterways Hyalite Creek McDonald Creek Project Boundary W1 Flow Path/UT of Baxter Creek/West Gallatin Canal W2 Flow Path W3 Flow Path 2 mi N➤➤N Image © 2024 Airbus Image © 2024 Airbus Image © 2024 Airbus CULVERT W3 W1 W2 Property/Project Boundary Bozeman GIS, Bureau of Land Management, Esri Canada, Esri, HERE, Garmin, INCREMENT P, USGS, EPA, USDA, USGS National Map 3D Elevation Program (3DEP). January 16, 2024., Esri, HERE, iPC, USGS TNM – National Hydrography Dataset. Data Refreshed January, 2024., Esri, USDA Farm Service Agency µ 0 0.1 0.20.05 mi Legend Coordinate System: WGS 1984 Web Mercator Auxiliary Sphere Projection: Mercator Auxiliary SphereMap Center: 111.080845°W 45.653298°N Map Created by: Hadden J. Carlberg Date: 2/22/2024NWO-2023-01707-MT µ 0 0.4 0.80.2 mi Legend Coordinate System: WGS 1984 Web Mercator Auxiliary SphereMap Center: 111.080302°W 45.663383°N Map Created by: Hadden J. CarlbergNWO-2023-01707-MT Date: 2/22/2024 Montana State University, State of Montana, Esri, HERE, Garmin, iPC, USGS National Map 3D Elevation Program (3DEP). January 16, 2024., Montana State University, Bozeman GIS, Bureau of Land Management, Esri Canada, Esri, HERE, Garmin, INCREMENT P, USGS, METI/NASA, EPA, USDA, USGS TNM – National Hydrography Dataset. Data Refreshed January, W1W2 Culvert W3 Project/Property Boundary NWO-2023-01707-MT USGS The National Map: Orthoimagery and US Topo. Data refreshed August, 2023. USGS National Map 3D Elevation Program (3DEP). January 16, 2024. USGS The National Map: National Hydrography Dataset. Data Lines Override 1 Override 2 Override 3 Override 4 normPointStyle 1708620846908r7299892532436654_1 style30 style20 1708620846908r7299892532436654_0 falseColor0 falseColor2 Waterbody - Large Scale Estuary Ice Mass Lake Pond Playa Reservoir Swamp Marsh Area - Large Scale Area of Complex Channels Area to be Submerged BayInlet Bridge CanalDitch DamWeir Flume Foreshore Hazard Zone Inundation Area Lock Chamber Rapids SeaOcean Special Use Zone Spillway StreamRiver Submerged Stream Wash Water IntakeOutflow Flowline - Large Scale Perennial Intermittent Ephemeral Artificial Path Canal Ditch Coastline Connector Pipeline Underground Conduit Flow Direction Connector CanalDitch Underground Conduit StreamRiver StreamRiver - Perennial StreamRiver - Intermittent StreamRiver - Ephemeral Pipeline Artificial Path 3DEP Elevation - Auto Contours 0 255 2/22/2024, 11:02:11 AM 0 0.1 0.20.05 mi 0 0.2 0.40.1 km 1:9,028 USGS NWO-2023-01707-MT USGS The National Map: Orthoimagery and US Topo. Data refreshed August, 2023. USGS TNM – National Hydrography Dataset. Data Refreshed January, 2024. normPointStyle 1708620846908r7299892532436654_1 style30 style20 1708620846908r7299892532436654_0 falseColor0 falseColor2 Waterbody - Large Scale Estuary Ice Mass Lake Pond Playa Reservoir Swamp Marsh Area - Large Scale Area of Complex Channels Area to be Submerged BayInlet Bridge CanalDitch DamWeir Flume Foreshore Hazard Zone Inundation Area Lock Chamber Rapids SeaOcean Special Use Zone Spillway StreamRiver Submerged Stream Wash Water IntakeOutflow Flowline - Large Scale Perennial Intermittent Ephemeral Artificial Path Canal Ditch Coastline Connector Pipeline Underground Conduit Flow Direction Connector CanalDitch Underground Conduit StreamRiver StreamRiver - Perennial StreamRiver - Intermittent StreamRiver - Ephemeral Pipeline Artificial Path 2/22/2024, 11:44:40 AM 0 0.55 1.10.28 mi 0 0.85 1.70.42 km 1:36,112 USGS NWO-2023-01707-MT U.S. Fish and Wildlife Service, National Standards and Support Team,wetlands_team@fws.gov Wetlands Estuarine and Marine Deepwater Estuarine and Marine Wetland Freshwater Emergent Wetland Freshwater Forested/Shrub Wetland Freshwater Pond Lake Other Riverine February 22, 2024 0 0.5 10.25 mi 0 0.85 1.70.425 km 1:31,559 This page was produced by the NWI mapper National Wetlands Inventory (NWI) This map is for general reference only. The US Fish and Wildlife Service is not responsible for the accuracy or currentness of the base data shown on this map. All wetlands related data should be used in accordance with the layer metadata found on the Wetlands Mapper web site.