HomeMy WebLinkAbout047.1 NWO-2023-00853-MT_20250404_AJDDEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS, OMAHA DISTRICT MONTANA REGULATORY OFFICE 100 NEILL AVENUE HELENA, MT 59601-3329
CENWO-ODR-M April 4, 2025 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-2023-00853-MT, Providence Development - SRX II, MFR 1 of 1 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.
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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. Lateral - Middle Creek Ditch: jurisdictional, water of the United States
ii. Middle Creek Ditch: jurisdictional, water of the United States
iii. Eastern Channel - Middle Creek Ditch: not jurisdictional, not a water of the United
States
iv. Wetland W-A: jurisdictional, water of the United States
v. Stormwater Pond: not jurisdictional, not a water of the United States
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. 651, 143 S. Ct. 1322 (2023)
e. 2008 Rapanos Guidance f. “Memorandum to the Field between the U.S. Department of the Army, U.S. Army
Corps of Engineers, and the U.S. Environmental Protection Agency Concerning the Proper Implementation of “Continuous Surface Connection” under the Definition of “Waters of the United States” under the Clean Water Act”” (March 2025) 3. REVIEW AREA. The JD review area is approximately (~)35 acres in the City of
Bozeman, Gallatin County, Montana in NW ¼ of Section 24, Township 02 South, Range 05 East. The Project is centered at Latitude 45.651194° North, Longitude -111.060088° West; a boundary map for the JD review area is attached.
4. NEAREST TRADITIONAL NAVIGABLE WATER (TNW), INTERSTATE WATER, OR THE TERRITORIAL SEAS TO WHICH THE AQUATIC RESOURCE IS CONNECTED.
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The West Gallatin River is the nearest downstream TNW to which Wetland W-A, Lateral – Middle Creek Ditch, and Middle Creek Ditch are connected to. The West Gallatin River
was determined to be a TNW, after assessing Google Earth Pro aerial imagery (1995 – 2024), State of Montana’s Natural Heritage Program (MTNHP)’s Map Viewer Wetland and Riparian Mapping (MVWRM) tool, the State of Montana’s Lidar Relative Elevation Model Imagery (LREMI) Viewer, and USGS’s National Hydrography Dataset (NHD), in addition to West Gallatin River Navigation Study (1974), and West Gallatin River
commercial/recreational use information from Fins and Feathers Guide Service, Montana Angler, and the US Forest Service; we have determined that this waterbody is currently used for, has the capacity to be used for, and has been historically used for commercial and recreational fishing, fur trapping, and other recreational uses (such as
whitewater rafting) which support interstate and foreign commerce.6 5. FLOWPATH FROM THE SUBJECT AQUATIC RESOURCES TO A TNW, INTERSTATE WATER, OR THE TERRITORIAL SEAS Wetland W-A directly abuts the Lateral of Middle Creek Ditch (RPW), which flows into Mandeville Creek (RPW).
Mandeville Creek starts where the Lateral ends immediately north of the JD review area. Mandeville Creek flows north for ~4.45 miles (mi) through the following series of underground pipes, aboveground channels, and culverts:
i. ~150ft concrete culvert under Stucky Rd (45.656562°, -111.058073°) ii. ~20ft culvert under farm/private access (45.658436°, -111.058030°) iii. ~20ft culvert under farm/private access (45.659418°, -111.057882°) iv. ~70ft concrete culvert under W. Kagy Avenue (45.660215°, -111.057900°)
v. ~475ft culvert system under W. Lincoln Street (45.663867°, -111.054983°) onto MSU Campus, west of Roskie Hall (45.664506°, -111.055375°) vi. ~355ft culvert system under MSU Campus, west of Miller Dining Hall (45.665949°, -111.054771°), outletting just north of 12th Avenue (45.666365°, -111.054397°)
vii. ~35ft culvert under service access to Helen E. Copeland Gallery on MSU Campus (45.667552°, -111.054209°) viii. ~3,250ft culvert system under W. College Street (45.670966°, -111.053100°) and S. 11th Avenue, outletting just north of W. Main Street (45.679474°, -
111.051820°). ix. ~80ft culvert under walking path (45.682173°, -111.051741°) x. ~100ft culvert under Parking Lot entrance (45.683089°, -111.051730°) xi. ~50ft culvert under Parking Lot entrance (45.684776°, -111.051631°) xii. ~100ft concrete culvert under Durston Road (45.685575°, -111.051527°)
xiii. ~150ft concrete culvert under W. Oak Street (45.692987°, -111.050076°)
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.
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xiv. ~135ft concrete culvert under N. 11th Avenue (45.696487°, -111.051437°) xv. ~375ft concrete culvert under Baxter Lane and I-90 (45.698204°, -111.051978°)
xvi. ~35ft culvert under private farm access (45.699989°, -111.053612°) xvii. ~125ft concrete culvert under Red Wing Drive and Railroad tracks (45.712261°, -111.055375°) xviii. ~85ft concrete culvert under Frontage Road (45.712702°, -111.055270°)
Mandeville Creek continues north from Frontage Road for ~1,100ft before converging with the East Gallatin River (45.715025°, -111.055353°). The East Gallatin River is a fifth order tributary (RPW), which flows northwest for ~27 miles (mi) before converging with the West Gallatin River (TNW) ~2.25mi north of the town of Manhattan
(45.891506°, -111.336708°). 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
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.
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c. Other Waters (a)(3): N/A
d. Impoundments (a)(4): N/A e. Tributaries (a)(5): i. Middle Creek Ditch (totaling ~627 linear feet within the JD review area) was
identified in the wetland delineation report as a stream/ditch that possesses an Ordinary High-Water Mark (OHWM). ii. Lateral - Middle Creek Ditch (totaling ~215 linear feet within the JD review
area) was identified in the wetland delineation report as a stream/ditch that possesses an Ordinary High-Water Mark (OHWM). iii. Utilizing the best available data (see Section 9 below), in conjunction with the wetland delineation report, the Corps assessed Lateral - Middle Creek Ditch
and Middle Creek Ditch and determined that these features are relatively permanent second order tributaries (RPWs) to Mandeville Creek (which exists outside the JD review area), a second order tributary to the East Gallatin River (a fifth order tributary to the West Gallatin River, a TNW).
iv. We have determined that these features are relatively permanent waters (RPWs) based on indicators of relatively permanent flow observed via aerial imagery and topographic data (see Section 9) and discussed in the wetland
delineation report. Indicators include a delineated OHWM, water present in a majority of their reaches, presence of bent/matted/absent vegetation within a defined channel along their entire reaches, observations of scouring along portions of their reaches, evidence of bed and bank along their entire reaches, and changes in vegetation community (relative to the surrounding
uplands) along their reaches. Also, outside the JD review area, Lateral – Middle Creek Ditch flows through the off-site portion of Wetland W-A to empty into Mandeville Creek, and indicators of flow present within the wetland include scouring, bed-and-bank, and bent/absent vegetation within the
wetland, demarking the flowpath. These indicators of relatively permanent flow are described in Engineering Research and Development Center-Cold Regions Research Engineering Laboratory’s 2025 National Ordinary High Water Mark Field Delineation Manual for Rivers and Streams (Section 10.iii) and in US Army Corps of Engineers’ Regulatory Guidance Letter No. 05-05
Ordinary High Water Mark Identification (Section 10.iv). v. Based on the review of climate data from USACE’s Antecedent Precipitation Tool (APT) (which provides a 30 year average of precipitation by month, 30
day rolling precipitation totals, and daily precipitation totals) from January 2024 to January 2025, and from Best Places (which provides average
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monthly precipitation and temperatures), in conjunction with a review of the wetland delineation report, topographic, soils and groundwater, and historic
hydrologic data (see Section 9), we have determined that the hydrology of both Lateral – Middle Creek Ditch and Middle Creek Ditch have continuous, predictable flow at least seasonally, with flows maintained via surface runoff, precipitation events, high groundwater levels, and hydrology from multiple named and unnamed tributaries both upstream and downstream.
vi. In conclusion, both Lateral – Middle Creek Ditch and Middle Creek Ditch were determined to be relatively permanent jurisdictional waters of the United States because they meet the definition of category (a)(5) waters under the
pre-2015 regulatory regime consistent with the Supreme Court’s decision in Sackett. Lateral – Middle Creek Ditch and Middle Creek Ditch are both RPWs which are connected to a downstream TNW (West Gallatin River) via Mandeville Creek (RPW) and the East Gallatin River (RPW).
f. The territorial seas (a)(6): N/A g. Adjacent wetlands (a)(7):
i. Wetland W-A (totaling ~4.94 acres within the JD review area) was identified in
the wetland delineation report as a palustrine emergent wetland.
ii. The wetland delineation report notes an opinion that this wetland has
expanded in size due to the discharge from a man-made stormwater pond (also referred to as a detention pond, retention pond, and settling basin within the wetland delineation report) that was installed 7 years ago in 2017. It also notes an opinion that the hydrology provided by this stormwater pond should
classify Wetland W-A as not jurisdictional, as the water from the stormwater
pond is providing artificial irrigation and additional hydrology to Wetland W-A. The Corps has investigated the opinions in the wetland delineation report and finds that the water discharging from the stormwater pond is not for the purposes of irrigation; rather, it is unregulated subsurface seepage from the
stormwater pond. Although the preamble to the 1986 regulations (33 CFR 328), does state that, "(b) Artificially irrigated areas which would revert to upland if the irrigation ceased…” are “generally” not considered to be waters of the United States on a case-by-case basis; based on the facts of the site,
this preamble definition is not applicable to this scenario. Based on a review of the wetland delineation report in conjunction with a review of climate data from USACE’s APT and from Best Places, along with topographic, soils and groundwater, and historic hydrologic data (see Section 9), we have determined that the hydrology of the on-site and off-site portions of Wetland
W-A is not solely from the subsurface seepage of the stormwater pond, rather it is a combination of several sources of influence: subsurface flow from the
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man-made stormwater pond, high groundwater levels, surface runoff, precipitation events, changes in adjacent land uses/landscape modifications,
and hydrology received from Lateral – Middle Creek Ditch and Mandeville Creek. iii. Other than the exception of irrigation (as discussed above), the source of a wetland’s hydrology is not a factor in determining its jurisdictional status.
While we have ultimately determined that the man-made stormwater pond is not jurisdictional (discussed further below in Section 8.a. – however, not under the waste treatment exclusion), that determination does not exclude Wetland W-A from being jurisdictional, as the wetland existed prior to the
installation of the stormwater system and it receives hydrology from sources beyond the man-made stormwater pond (as discussed above), and as such, there is no evidence to support that the wetland would cease to exist in its entirety if subsurface flow from the stormwater pond ceased, given the other sources of hydrologic influence.
iv. Utilizing the best available data (see Section 9) in conjunction with the wetland delineation report, the Corps assessed Wetland W-A and determined that this wetland existed prior to the installation of the stormwater system,
although at a smaller extent within the JD review area, is part of a larger off-site wetland which extends north of the JD review area, and has a continuous surface connection to (directly abuts) Lateral – Middle Creek Ditch (nearest RPW) and Mandeville Creek, a relatively permanent first order tributary
(RPW) to the East Gallatin River (a fifth order tributary to the West Gallatin River, a TNW). v. In conclusion, Wetland W-A was determined to be a jurisdictional water of the
United States because it meets the definition of a category (a)(7) water under
the pre-2015 regulatory regime consistent with the Supreme Court’s decision
in Sackett, as Wetland W-A is part of a larger continuous wetland which has a
continuous surface connection to (directly abuts) Lateral – Middle Creek Ditch
(the nearest RPW).
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.
9 51 FR 41217, November 13, 1986.
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i. A stormwater pond (also referred to as a detention pond, retention pond, and
settling basin within the wetland delineation report) (totaling ~0.07 acres) was identified in the wetland delineation report as a man-made stormwater pond excavated in uplands located at the outlet of a municipal stormwater outfall created for the purpose of stormwater management. The wetland delineation report noted that stormwater from the municipal stormwater system was
originally engineered to drain into the detention pond or settling basin, and the pond still continues to function as a temporary settling basin (see Section 10).
ii. The wetland delineation report notes an opinion that the stormwater system should fall under the waste treatment system exclusion (likely correlating to existing NPDES Stormwater Permits: MTR106715 – Yellowstone Theological Institute; Graf Street Improvements and MTR040002 – City of Bozeman; MS4, both permits identified via MT DEQ FACTS GIS Spatial Data Viewer).
Per Joint Memo NWS-2023-00923 (Section 10.i), the existence of such permits does not automatically exclude features which convey stormwater under the waste treatment system exclusion, and such features constructed to comply with a CWA 402(p) NPDES permit would generally not be eligible
the waste treatment system exclusion. Per Joint Memo SWS-2001-13740 (Section 10.ii), the pre-2015 regulations do not include a specific exclusion for stormwater features and the waters in question under an approved NPDES permit must function as a waste treatment system and serve a treatment
purpose to be covered under the waste treatment exclusion. Joint Memo NWS-2023-00923 has similarities to the facts in this AJD, in that it discusses a stormwater pond which is covered under a City’s MS4 NPDES permit and that as such, it is not automatically applicable for the waste treatment system exclusion. Joint Memo SWS-2001-13740 has similarities to the facts in this
AJD, in that it discusses stormwater ponds under approved NPDES permitted stormwater plans. Based on a review of the facts in these Joint Memos, the stormwater system in this AJD is not automatically excluded under the waste treatment system exclusion, rather, as also is discussed in both Joint Memos,
the stormwater pond was determined to be non-jurisdictional as it meets other criteria (discussed below). iii. The Corps has investigated the opinions in the wetland delineation report and finds that the stormwater system is not a waste treatment system; rather, the
pond/settling basin meets the criteria in the preamble to the 1986 regulations (33 CFR 328), stated as, "(c) Artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or
rice growing…” are “generally” not considered to be waters of the United States on a case-by-case basis.
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iv. Based on a review of the best available data (see Section 9 below) in
conjunction with the wetland delineation report, the Corps assessed stormwater pond, and determined this pond was created in uplands. Per a review of aerial imagery, topographic data, and hydrologic data (see Section 9), and along with a review the wetland delineation report, which states that in June of 2023, the stormwater pond was converted from a detention pond to a
retention pond (or settling basin), thus eliminating downstream flow from the pond, we have determined that no discrete features presently emanate from the stormwater pond. Based on a review of the wetland delineation report in conjunction with a review of climate data from USACE’s APT and from Best
Places, along with topographic, soils and groundwater, and historic hydrologic data (see Section 9), we have determined that water enters stormwater pond via a municipal stormwater outfall and precipitation events. v. In conclusion, the stormwater pond/settling basin meets the criteria in the
preamble to the 1986 regulations and therefore was determined to be a non-jurisdictional preamble water. 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.
i. Eastern Channel – Middle Creek Ditch (totaling ~0.16 acres within the JD review area) was identified in the wetland delineation report as a man-made drainage ditch which was constructed in uplands, drains only uplands, and does not possess relatively permanent flow.
ii. The 2008 Rapanos Guidance states that “Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water are generally not waters of the United States”. The Corps assessed this feature and determined that Eastern
Channel – Middle Creek Ditch is a non-jurisdictional man-made drainage ditch which was constructed in uplands, drains only uplands, and does not possess relatively permanent flow, as per a review of aerial imagery along with elevation and topographic data (see Section 9). No relatively permanent standing or flowing water was observed beyond dates which correlate to
precipitation events based on a review of USACE APT and US Drought Monitor historic hydrologic data. The site visit photo (0360), which shows water within the ditch, corresponds to a period following increased precipitation and wet conditions. Further, based on a review of the wetland
delineation report in conjunction with a review of climate data from USACE’s APT and from Best Places, along with topographic, soils and groundwater,
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and historic hydrologic data (see Section 9), we have determined that Eastern Channel – Middle Creek Ditch does not meet the relatively permanent
standard. iii. In conclusion, we have determined that Eastern Channel – Middle Creek Ditch meets the criteria in the 2008 Rapanos Guidance and was determined to be a non-jurisdictional feature.
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
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. Corps Site Visit conducted June 2024
b. October 2024 Wetland Delineation Report – 2024 Update for South Range Crossing II (SRX-II), delineated Morrison-Maierle staff in August and September of 2024. c. Google Earth Pro 1995-2024 Assessed February 25, 2025
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d. USACE – National Regulatory Viewer – Montana, https://arcportal-ucop-corps.usace.army.mil/s0portal/apps/experiencebuilder/experience/?id=9e1a61cbac2
341d1b75b58c6ffa5a5ca&page=Montana Assessed February 25, 2025
e. USGS Advanced Map Viewer, https://apps.nationalmap.gov/viewer/ Assessed February 25, 2025
f. USFWS NWI Wetlands Mapper, https://fwsprimary.wim.usgs.gov/wetlands/apps/wetlands-mapper/ Assessed February 25, 2025
g. USDA-NRCS Web Soil Survey, https://websoilsurvey.nrcs.usda.gov/app/WebSoilSurvey.aspx Assessed February 25, 2025 h. Best Places – Climate, https://www.bestplaces.net/climate/city/montana/bozeman
Assessed February 25, 2025 i. USACE Antecedent Precipitation Tool Assessed February 25, 2025
j. Montana Natural Heritage Map Viewer – Wetlands and Riparian Mapping, https://mtnhp.org/mapviewer/?t=8 Assessed February 25, 2025 k. Digital Globe, https://evwhs.digitalglobe.com/myDigitalGlobe/login Assessed
February 25, 2025
l. USGS Earth Explorer https://earthexplorer.usgs.gov/ Assessed February 25, 2025 m. EPA EnviroAtlas https://enviroatlas.epa.gov/enviroatlas/interactivemap/ February 25,
2025 n. NOAA/NIDIS – US Drought Monitor – Historical Conditions Montana: https://www.drought.gov/historical-
information?dataset=0&selectedDateUSDM=20250128&state=Montana February 25, 2025 o. Montana Lidar Inventory Viewer - https://montana.maps.arcgis.com/apps/MapSeries/index.html?appid=55cc886ec7d2
416d85beca68d05686f4 Assessed February 25, 2025 p. Copernicus Browser - https://browser.dataspace.copernicus.eu/?zoom=17&lat=45.65044&lng=-111.06082&themeId=DEFAULT-
THEME&visualizationUrl=U2FsdGVkX1%2FNJHUW%2B10L2heDj1MzHVLVVl2TcZ
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0xOyVnIaukBALGxoI3TZx7pinlZPcDV40mvLTRRUKEcYssJME1NixGncS7QkOtcuonM6ZDkZWChUHXXLCLctbbfeQx&datasetId=S2_L2A_CDAS&fromTime=2024-08-
27T00%3A00%3A00.000Z&toTime=2024-08-27T23%3A59%3A59.999Z&layerId=6-
SWIR&demSource3D=%22MAPZEN%22&cloudCoverage=30&dateMode=SINGLE Assessed February 25, 2025 q. MT DEQ FACTS GIS Spatial Data Viewer,
https://gis.mtdeq.us/portal/apps/webappviewer/index.html?id=8fcbb1f7a6f84296b10fb0aab50aba99 Assessed February 27, 2025 r. Newell, Alan, and Gary Williams. 1974. West Gallatin River Navigation Study.
Contract No. DACW45-74-C-0138, U.S. Army Corps of Engineers: Omaha District. Assessed February 28, 2025 s. Fins and Feathers Guide Service – Gallatin River Fly Fishing Guide, https://flyfishingbozeman.com/montana-fly-fishing-rivers/gallatin-river-fishing-guide
Assessed February 28, 2025 t. Montana Angler – Gallatin River Fly Fishing Guide https://www.montanaangler.com/montana-fly-fishing-rivers/gallatin-river-fishing-
guides Assessed February 28, 2025 u. USFS, Fisheries – Gallatin River https://www.fs.usda.gov/detail/custergallatin/landmanagement/resourcemanagement
/?cid=stelprdb5127195 Assessed February 28, 2025
10. OTHER SUPPORTING INFORMATION. This site has had hydrology introduced via a City municipal stormwater discharge since
2017, causing Wetland W-A to increase in size compared to the delineation completed in 2015 for a permit action completed on the site under NWO-2016-00336-MT. In the summer of 2023, the City converted the stormwater pond from a detention pond into a retention pond (settling basin), thus eliminating the surface flow from the pond to
Wetland W-A. However, subsurface flow from the retention pond due to a relatively high ground water table along with other sources of hydrologic influence has continued to contribute hydrology to the wetland. For historical context, wetland delineations (conducted for different property owners by
different delineators) associated with a permit were completed in the area: NWO-2024-00141-MT (no associated JD; covers the area to the north and the northern part of this site and includes Wetland W-A (W-01), Lateral - Middle Creek Ditch (W-02c/Field Ditch), Eastern Channel - Middle Creek Ditch (Field Ditch), and Mandeville Creek) and NWO-2006-90625-MT (has associated AJD; covers this site and the area to the south and
CENWO-ODR-M SUBJECT: Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light
of Sackett v. EPA, 143 S. Ct. 1322 (2023), NWO-2023-00853-MT
13
includes Wetland W-A (W-1 and W-2), Eastern Channel - Middle Creek Ditch (W-3), and Middle Creek Ditch (W-4).
Joint Memos and other guidance referenced in this AJD: i. US Army-EPA Joint Memo NWS-2023-00923 (December 2024)
ii. US Army-EPA Joint Memo SWS-2001-13740 (February 2024) iii. US Army Corps of Engineers Regulatory Guidance Letter No. 05-05 Ordinary
High Water Mark Identification (December 2005)
iv. Engineer Research and Development Center-Cold Regions Research Engineering Laboratory: National Ordinary High Water Mark Field Delineation Manual for Rivers and Streams (January 2025)
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.
Middle Creek Ditch/Mandeville Creek
/Mandeville Creek
Middle Creek Ditch
Lateral
W-A
Stormwater Retention Pond
NWO-2023-00853-MT; SRX II
USGS National Map 3D Elevation Program (3DEP). January 02,
2025.
USGS, USDA, The National Map: Orthoimagery. September 12,
2024.
USGS The National Map: National Boundaries Dataset, 3DEP
2/24/2025, 3:26:27 PM
0 0.06 0.110.03 mi
0 0.09 0.180.04 km
1:3,842
USGS
Review Area Boundary
Eastern
Channel
Advanced Map Viewer; Shows slope, topography and hydrologic data
Lateral
Middle Creek Ditch
Stormwater Retention Pond
W-A
USGS National Map 3D Elevation Program (3DEP). January 02, 2025., Bozeman GIS, Bureau of Land Management, Esri Canada, Esri, HERE, Garmin, INCREMENT P,
USGS, EPA, USDA, USGS TNM – National Hydrography Dataset. Data Refreshed January, 2025.
µ
0 0.1 0.20.05
mi Coordinate System: WGS 1984 Web Mercator Auxiliary Sphere
Projection: Mercator Auxiliary SphereMap Center: 111.059888°W 45.651335°N
Map Created by: Hadden J. Carlberg
Date: 2/25/2025NWO-2023-00853-MT; SRX II
Montana Regulatory Viewer
Review Area Boundary
Eastern
Channel
R4SBA
Lateral
Middle Creek Ditch
Eastern Channel
Stormwater Retention Pond
W-A
µ
0 0.1 0.20.05
mi
Coordinate System: WGS 1984 Web
Mercator Auxiliary SphereMap Center: 111.059888°W 45.651672°N
Map Created by: Hadden J. CarlbergNWO-2023-00853-MT; SRX II
Montana Regulatory Viewer Date: 2/25/2025
USGS National Map 3D Elevation Program (3DEP). January 02, 2025., Bozeman GIS, Bureau of Land Management, Esri Canada, Esri, HERE, Garmin, INCREMENT P, USGS, EPA, USDA,
USGS TNM – National Hydrography Dataset. Data Refreshed January, 2025.
Project Area Boundary
Review Area Boundary
Digital Globe - August 06, 2018
Eastern Middle Creek Ditch
Middle Creek Ditch Lateral to Mandeville Creek
W-A
Western Middle Creek Ditch
Stormwater Retention Pond
Review Area Boundary
Digital Globe - July 12, 2024
Eastern Middle Creek Ditch
Middle Creek Ditch Lateral to Mandeville Creek
W-A
Western Middle Creek Ditch
Stormwater Retention Pond
Review Area Boundary
Digital Globe - February 08, 2025
Eastern Middle Creek Ditch
Middle Creek Ditch Lateral to Mandeville Creek
W-A
Stormwater Retention Pond
Review Area Boundary
Western Middle
Creek Ditch
Groundwater data
LiDAR data showing
slope of wetland,
Middle Creek Ditch,
Lateral - Middle Creek
Ditch, Eastern Channel
- Middle Creek Ditch,
and Stormwater Pond
LiDAR data showing
topography of wetland,
Middle Creek Ditch,
Lateral - Middle Creek
Ditch, Eastern Channel
- Middle Creek Ditch,
and Stormwater Pond
Review Area Boundary
State of Montana Natural Heritage Program (MTNHP): mapped wetlands