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HomeMy WebLinkAbout5.5_NWO-2023-01709-MT_20240624_AJD-MFRDEPARTMENT 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-2023-01709-MT, 6590 Davis 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-2023-01709-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) 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 8.56 acres near the City of Bozeman, Gallatin County, Montana in Section 35, Township 1 South, Range 5 East, Latitude 45.703752° North, Longitude -111.081406° West; Boundary map 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 TNW. 6 5. FLOWPATH FROM THE SUBJECT AQUATIC RESOURCES TO A TNW, INTERSTATE WATER, OR THE TERRITORIAL SEAS. W1 abuts the Section Line ditch (an RPW) and connects to the Gallatin River (a Section 404 TNW) as follows: a. Section Line Ditch flows north from the project location for ~1.1mi and passes through 4 culverts (south to north): 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-2023-01709-MT 3 i. ~20ft Private Access – 6496 Davis Lane ii. ~120ft – Davis Lane iii. ~85ft – Cattail St iv. ~500ft – along the west side of Davis Lane. Section Line Ditch then converges with UT of Buster Gulch (45.714859°, - 111.090344°). b. UT of Buster Gulch flows for ~3.29ni north-northwest, passing through 9 culverts (south to north): i. ~70ft – E. Valley Center Rd ii. ~200ft – I-90 iii. ~50ft – Railroad Tracks iv. ~50ft – Frontage Rd v. ~25ft – Farm Access vi. ~45ft – Sacajawea Peak Dr vii. ~50ft – Cirque Dr viii. ~85ft – Coulee Dr ix. ~20ft – Farm Access UT of Buster Gulch then converges with the Ross – Van Hoorn Ditch system (45.750769°, -111.113316°). c. The Ross – Van Hoorn Ditch system flows for ~0.82mi north-northwest, passing through the 4 culverts (south to north): i. ~25ft – Farm Access ii. ~35ft – Private Drive iii. ~35ft – Private Drive iv. ~25ft – Private Drive The Ross – Van Hoorn Ditch system empties into Buster Gulch (45.765679°, -111.113229°). d. Buster Gulch flows west then north for ~1.80mi, passing through 4 culverts (south to north): i. ~45ft – Airport Rd ii. ~25ft – Farm Access iii. ~25ft – Farm Access iv. ~25ft – 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-2023-01709-MT 4 Buster Gulch then converges with Hyalite Creek (45.777656°, -111.127090°). e. Hyalite Creek flows north for ~1.98mi from this confluence, passing under 7 bridges before emptying into the E. Gallatin River (45.793964°, -111.127768°). f. The E. Gallatin then flows ~18mi north, northwest before converging with the Gallatin River ~2.25mi north of the town of Manhattan. g. The locations of the culverts, pipes, and the flow paths discussed above are shown on the associated KML file, available upon request. 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 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 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-2023-01709-MT 5 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 1.62 acres) was assessed and determined to be an adjacent wetland that possesses a continuous surface connection to relatively permanent tributaries (UT of Buster Gulch, Ross – Van Hoorn Ditch system, Buster Gulch, and Hyalite Creek) to the E. Gallatin River, which is a tributary to the Gallatin River (a Section 404 TNW), via discrete features (culverts and drainage systems). Utilizing Google Earth Pro aerial imagery (2011 – 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), it was determined that W1 possesses a continuous surface connection to Gallatin River via flow paths as discussed above in Section 5. A review of aerial imagery from Google Earth Pro show that the Section Line Ditch, UT of Buster Gulch, the Ross-Van Hoorn Ditch system, and Hyalite Creek all contain relatively permanent flow, as water was evident in the channels in all years reviewed. Based on a review of the data listed below in Section 9, water enters these features via surface runoff, precipitation events, groundwater, and hydrology received from connected irrigation and drainage systems. 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 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-2023-01709-MT 6 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 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 26, 2024 b. July 2023 Aquatic Delineation Report for 6590 Davis Lane, delineated by Sundog Ecological, Inc. on June 4, 2023. c. Google Earth Pro 2011 - 2023 Assessed February 26, 2024; KML file (NWO-2023-01709-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 26, 2024 e. USGS Advanced Map Viewer, https://apps.nationalmap.gov/viewer/ Assessed February 26, 2024 f. USFWS NWI Wetlands Mapper, https://fwsprimary.wim.usgs.gov/wetlands/apps/wetlands-mapper/ Assessed February 26, 2024 CENWO-OD-RMT SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-01709-MT 7 g. USGS StreamStats, https://streamstats.usgs.gov/ss/ Assessed February 26, 2024 h. Bozeman Infrastructure Viewer https://gisweb.bozeman.net/Html5Viewer/?viewer=infrastructure Assessed February 26, 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 City of Bozeman, Montana, Maxar, Bozeman GIS, Montana State Library, Esri, TomTom, Garmin, SafeGraph, METI/ NASA, USGS, Bureau of Land Management, EPA, NPS, USDA, USFWS 0 1.5 3 4.5 60.75 Miles ±NWO-2023-01709-MT 6590 Davis Lane Bozeman, Montana NWO-2023-01709-MT June, 2023 Legend Property Boundary W1 600 ft N➤➤N Image © 2024 Airbus Image © 2024 Airbus Image © 2024 Airbus NWO-2023-01709-MT Flow Path to E. Gallatin River Legend Buster Gulch Culverts E. Gallatin River Gallatin County Waterways Hyalite Creek to E. Gallatin River Property Boundary Ross - Van Hoorn Ditch Section Line Ditch UT of Buster Gulch 1 mi N➤➤N Image © 2024 Airbus Image © 2024 Airbus Image © 2024 Airbus NWO-2023-01709-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 26, 2024 0 0.1 0.20.05 mi 0 0.2 0.40.1 km 1:7,835 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. NWO-2023-01709-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 26, 2024 0 1 20.5 mi 0 2 41 km 1:71,321 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. NWO-2023-01709-MT USGS The National Map: Orthoimagery and US Topo. Data refreshed August, 2023. USGS TNM – National Hydrography Dataset. Data Refreshed January, 2024. 2023-01709 - Wetland 1 2023-01709 - Property Boundary 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 Line - Large Scale Line Tunnel Point Event Point Dam/Weir Other 2/26/2024, 12:43:44 PM 0 0.25 0.50.13 mi 0 0.4 0.80.2 km 1:18,056 USGS Section Line Ditch NWO-2023-01709-MT USGS The National Map: Orthoimagery and US Topo. Data refreshed August, 2023. USGS TNM – National Hydrography Dataset. Data Refreshed January, 2024. 2023-01709 - Wetland 1 2023-01709 - Property Boundary 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 Line - Large Scale Line Tunnel Point Event Point Dam/Weir Other 2/26/2024, 12:49:03 PM 0 0.75 1.50.38 mi 0 1 20.5 km 1:50,000 USGS Section Line Ditch = Culverts W1 Property Boundary City of Bozeman, Montana, Maxar, Microsoft, 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, Garmin, iPC, USGS TNM – National Hydrography Dataset. Data Refreshed January, 2024., Esri, USDA Farm Service Agency µ 0 0.07 0.140.04 mi Legend Coordinate System: WGS 1984 Web Mercator Auxiliary Sphere Projection: Mercator Auxiliary SphereMap Center: 111.080925°W 45.703755°N Map Created by: Hadden J. Carlberg Date: 2/26/2024NWO-2023-01709-MT µ 0 0.45 0.90.23 mi Legend Coordinate System: WGS 1984 Web Mercator Auxiliary SphereMap Center: 111.078726°W 45.725253°N Map Created by: Hadden J. CarlbergNWO-2023-01709-MT Date: 2/26/2024 USGS National Map 3D Elevation Program (3DEP). January 16, 2024., Bozeman GIS, Bureau of Land Management, Esri Canada, Esri, HERE, Garmin, INCREMENT P, USGS, METI/NASA, EPA, USDA, Esri, HERE, Garmin, iPC, USGS TNM – National Hydrography Dataset. Data Refreshed January, 2024., City of Bozeman, Montana, Maxar, Esri, USDA Farm Service Agency