HomeMy WebLinkAboutMONTAVA - PHASE G & IRRIGATION POND - BDR210013 - SUBMITTAL DOCUMENTS - ROUND 3 - WETLANDS DOCUMENTSDEPARTMENT OF THE ARMY
CORPS OF ENGINEERS, OMAHA DISTRICT
DENVER REGULATORY OFFICE, 9307 SOUTH WADSWORTH BOULEVARD
LITTLETON, COLORADO 80128-6901
August 5, 2022
RE: Approved Jurisdictional Determination, Mountain Vista Drive and Giddings
Road, Larimer County, Colorado, Corps File No. NWO-2018-01605-DEN
Max Moss
Montava
430 North College Ave, Suite 410
Fort Collins, CO 80524
Dear Mr. Dillon:
This letter is in reference to the property located at approximately 40.612320°N,
-105.016457°W, in Larimer County, Colorado. The submittal dated June 30, 2022,
consists of a request for an Approved Jurisdictional Determination for th e above project.
The project area has been reviewed in accordance with Section 404 of the Clean
Water Act under which the U.S. Army Corps of Engineers regulates the discharge of
dredged and fill material, and any excavation activity associated with a dredge and fill
project in waters of the United States. Based on the information submitted, the Corps
has determined that Irrigation Ditches 1, 2, 3, 4 and 5 are non-tidal irrigation ditches
constructed in uplands and Wetlands 1, 2 and 3, are artificially irrigated areas which
would revert to upland if the irrigation ceased. Therefore Irrigation Ditches 1, 2, 3, 4 and
5, as well as Wetlands 1, 2 and 3, are not waters of the United States.
The JD is attached to this letter. If you are not in agreement with the JD decision,
you may request an administrative appeal under regulation 33 CFR 331, by using the
attached Appeal Form and Administrative Appeal Process form. The request for appeal
must be received within 60 days from the date of this letter. It is not necessary to
submit a Request for Appeal if you do not object to the JD.
This JD is valid for a period of five years from the date of this letter, unless new
information warrants revisions of the JDs before the expiration date, or unless the Corps
has identified, after a possible public notice and comment, that specific geographic
areas with rapidly changing environmental conditions merit re-verification on a more
frequent basis.
2
If there are any questions please feel free to contact Aaron Eilers at (303) 979-4120
or by e-mail at aaron.r.eilers@usace.army.mil and reference Corps File No. NWO-
2018-01605-DEN.
Sincerely,
Kiel Downing
Chief, Denver Regulatory Office
Enclosures:
Approved Jurisdictional Determination (August 5, 2022)
Notice of Administrative Appeal Options
Cc: Moneka Worah, ERO Resources (via email)
NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND
REQUEST FOR APPEAL
Applicant: Max Moss File Number: NWO-2018-01605-DEN Date: August 5, 2022
Attached is: See Section below
INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) A
PROFFERED PERMIT (Standard Permit or Letter of permission) B
PERMIT DENIAL C
X APPROVED JURISDICTIONAL DETERMINATION D
PRELIMINARY JURISDICTIONAL DETERMINATION E
SECTION I - The following identifies your rights and options regarding an administrative appeal of the above
decision. Additional information may be found in Corps regulations at 33 CFR Part 331, or at
http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/FederalRegulation.aspx
A: INITIAL PROFFERED PERMIT: You may accept or object to the permit.
• ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights
to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the perm it.
• OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that
the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer.
Your objections must be received by the district engineer within 60 days of the date of this notice, or you will forfeit your right
to appeal the permit in the future. Upon receipt of your letter, the district engineer will evaluate your objections and may: (a)
modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or (c) not modify
the permit having determined that the permit should be issued as previously written. After evaluating your objections, the
district engineer will send you a proffered permit for your reconsideration, as indicated in Section B below.
B: PROFFERED PERMIT: You may accept or appeal the permit
• ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rig hts
to appeal the permit, including its terms and conditions, and approved jurisd ictional determinations associated with the permit.
• APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you
may appeal the declined permit under the Corps of Engineers Administrative Ap peal Process by completing Section II of this
form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of th e
date of this notice.
C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process
by completing Section II of this form and sending the form to the division engineer. This form must be received by the divis ion
engineer within 60 days of the date of this notice.
D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or
provide new information.
• ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of th e
date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD.
• APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative
Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be receiv ed
by the division engineer within 60 days of the date of t his notice.
E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps regarding the
preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an approved JD (which may be
appealed), by contacting the Corps district for further instruction. Also you may provide new information for further
consideration by the Corps to reevaluate the JD.
SECTION II - REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT
REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an
initial proffered permit in clear concise statements. You may attach additional information to this form to clarify where yo ur reasons
or objections are addressed in the administrative record.)
ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the
record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to
clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. H owever,
you may provide additional information to clarify the locat ion of information that is already in the administrative record.
POINT OF CONTACT FOR QUESTIONS OR INFORMATION:
If you have questions regarding this decision and/or the appeal
process you may contact:
US Army Corps of Engineers, Denver Regulatory Office
Attn: Kiel Downing
9307 S. Wadsworth Blvd
Littleton, CO 80128 Telephone (303) 979 -4120
If you only have questions regarding the appeal process you may
also contact:
US Army Corps of Engineers, Northwestern Division
Attn: Melinda Larsen, Regulatory Appeals Review Officer
1201 NE Lloyd Blvd Ste 400
Portland, OR 97232-1257 Telephone (503) 808-3888
Melinda.M.Larsen@usace.army.mil
RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government
consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 1 5 day
notice of any site investigation, and will have the opportunity to participate in all site inve stigations.
_______________________________
Signature of appellant or agent.
Date: Telephone number:
APPROVED JURISDICTIONAL DETERMINATION FORM
U.S. Army Corps of Engineers
This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook.
SECTION I: BACKGROUND INFORMATION
A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): August 5, 2022
B. DISTRICT OFFICE, FILE NAME, AND NUMBER: Denver Regulatory Office, Approved Jurisdictional Determination for Isolated
Irrigation Ditches and Wetlands, NWO-2018-01605-DEN
C. PROJECT LOCATION AND BACKGROUND INFORMATION
State: Colorado County/parish/borough: Larimer City: Fort Collins
Center coordinates of site (lat/long in degree decimal format): Lat. 40.615691 N; Long. -105.029117 W
Universal Transverse Mercator: 497683.78 E, 4496410.56 N, Zone 13 N
Name of nearest waterbody: Long Pond (Water Supply and Storage Reservoir No. 5)
Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Long Pond (Water Supply and Storage
Reservoir No. 5)
Name of watershed or Hydrologic Unit Code (HUC): HUC: Cache la Poudre 10190007
Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request.
Check if other sites (e.g., offsite mitigation sites, disposal sites, etc…) are associated with this action and are recorded on a
different JD form.
D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY):
Office (Desk) Determination. Date: August 5, 2022
Field Determination. Date(s):
SECTION II: SUMMARY OF FINDINGS
A. RHA SECTION 10 DETERMINATION OF JURISDICTION.
There Are no “navigable waters of the U.S.” within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the
review area. [Required]
Waters subject to the ebb and flow of the tide.
Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign co mmerce.
Explain: .
B. CWA SECTION 404 DETERMINATION OF JURISDICTION.
There Are no “waters of the U.S.” within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required]
1. Waters of the U.S.
a. Indicate presence of waters of U.S. in review area (check all that apply): 1
TNWs, including territorial seas
Wetlands adjacent to TNWs
Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs -
Non-RPWs that flow directly or indirectly into TNWs
Wetlands directly abutting RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs
Impoundments of jurisdictional waters
Isolated (interstate or intrastate) waters, including isolated wetlands
b. Identify (estimate) size of waters of the U.S. in the review area:
Non-wetland waters:
Wetlands:
c. Limits (boundaries) of jurisdiction based on: Pick List
Elevation of established OHWM (if known):
2. Non-regulated waters/wetlands (check if applicable):3
Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional.
Explain: Regarding Irrigation Ditches 1, 2, 3, 4, and 5, reference is made to the November 13, 1986 Federal Register, Part 328
(a) which states the Corps of Engineers generally does not consider non-tidal drainage and irrigation ditches excavated on dry
1 Boxes checked below shall be supported by completing the appropriate sections in Section III below.
2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year -round or has continuous flow at least “seasonally”
(e.g., typically 3 months).
3 Supporting documentation is presented in Section III.F.
2
land as waters of the U.S. except on a case-by-case basis. In this case, Irrigation Ditches 1, 2, 3, 4, and 5 are non-tidal
irrigation ditches constructed on dry land which terminate in uplands and do not contribute RPW flows to a waters of the U.S
and are not jurisdictional.
Regarding Wetlands 1, 2 and 3, reference is made to the November 13, 1986 Federal Register, Part 328 (b) which states the
Corps of Engineers generally does not consider artificially irrigated areas which would revert to upland if the irrigation ceased
as waters of the U.S., except on a case-by-case basis. In this case, the Wetlands 1, 2 and 3 are artificially irrigated wetlands
which would revert to upland if irrigation ceased and are not jurisdictional.
SECTION III: CWA ANALYSIS
A. TNWs AND WETLANDS ADJACENT TO TNWs
The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete
Section III.A.1 and Section III.D.1. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2
and Section III.D.1.; otherwise, see Section III.B below.
1. TNW
Identify TNW: .
Summarize rationale supporting determination: .
2. Wetland adjacent to TNW
Summarize rationale supporting conclusion that wetland is “adjacent”: .
B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY):
This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps
determine whether or not the standards for jurisdiction established under Rapanos have been met.
The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are “relatively permanent
waters” (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3
months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round
(perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow,
skip to Section III.D.4.
A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and
EPA regions will include in the record any available information that documents the existence of a significant nexus between a
relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, ev en
though a significant nexus finding is not required as a matter of law.
If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the
waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must
consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for
analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is
the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.1 for
the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite
and offsite. The determination whether a significant nexus exists is determined in Section III.C below.
1. Characteristics of non-TNWs that flow directly or indirectly into TNW
(i) General Area Conditions:
Watershed size: square miles
Drainage area: acres
Average annual rainfall:
Average annual snowfall:
(ii) Physical Characteristics:
(a) Relationship with TNW:
Tributary flows directly into TNW.
4 Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional featur es generally and in the arid
West.
3
Tributary flows through Pick List tributaries before entering TNW.
Project waters are Pick List river miles from TNW.
Project waters are Pick List river miles from RPW.
Project waters are Pick List aerial (straight) miles from TNW.
Project waters are Pick List aerial (straight) miles from RPW.
Project waters cross or serve as state boundaries. Explain: .
Identify flow route to TNW5:
Tributary stream order, if known: .
(b) General Tributary Characteristics (check all that apply):
Tributary is: Natural
Artificial (man-made). Explain
Manipulated (man-altered). Explain:
Tributary properties with respect to top of bank (estimate):
Average width:
Average depth:
Average side slopes: Pick List.
Primary tributary substrate composition (check all that apply):
Silts Sands Concrete
Cobbles Gravel Muck
Bedrock Vegetation. Type/% cover:
Other. Explain: .
Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain:
Presence of run/riffle/pool complexes. Explain:
Tributary geometry: Pick List
Tributary gradient (approximate average slope):
(c) Flow:
Tributary provides for: Pick List
Estimate average number of flow events in review area/year: Pick List
Describe flow regime:
Other information on duration and volume: .
Surface flow is: Pick List. Characteristics:
Subsurface flow: Unknown. Explain findings: .
Dye (or other) test performed: .
Tributary has (check all that apply):
Bed and banks
OHWM6 (check all indicators that apply):
clear, natural line impressed on the bank the presence of litter and debris
changes in the character of soil destruction of terrestrial vegetation
shelving the presence of wrack line
vegetation matted down, bent, or absent sediment sorting
leaf litter disturbed or washed away scour
sediment deposition multiple observed or predicted flow events
water staining abrupt change in plant community
other (list):
Discontinuous OHWM.7 Explain: .
If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction (check all that apply):
High Tide Line indicated by: Mean High Water Mark indicated by:
oil or scum line along shore objects survey to available datum;
fine shell or debris deposits (foreshore) physical markings;
physical markings/characteristics vegetation lines/changes in vegetation types.
tidal gauges
5 Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW.
6A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where
the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody’s flow
regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break.
7Ibid.
4
other (list):
(iii) Chemical Characteristics:
Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.).
Explain:
Identify specific pollutants, if known: .
(iv) Biological Characteristics. Channel supports (check all that apply):
Riparian corridor. Characteristics (type, average width): .
Wetland fringe. Characteristics:
Habitat for:
Federally Listed species. Explain findings: .
Fish/spawn areas. Explain findings: .
Other environmentally-sensitive species. Explain findings: .
Aquatic/wildlife diversity. Explain findings:.
2. Characteristics of wetlands adjacent to non-TNW that flow directly or indirectly into TNW
(i) Physical Characteristics:
(a) General Wetland Characteristics:
Properties:
Wetland size:
Wetland type. Explain:
Wetland quality. Explain:
Project wetlands cross or serve as state boundaries. Explain: .
(b) General Flow Relationship with Non-TNW:
Flow is: Pick List. Explain:
Surface flow is: Pick List
Characteristics:
Subsurface flow: Pick List. Explain findings: .
Dye (or other) test performed: .
(c) Wetland Adjacency Determination with Non-TNW:
Directly abutting
Not directly abutting
Discrete wetland hydrologic connection. Explain:
Ecological connection. Explain: .
Separated by berm/barrier. Explain: .
(d) Proximity (Relationship) to TNW
Project wetlands are Pick List river miles from TNW.
Project waters are Pick List aerial (straight) miles from TNW.
Flow is from: Pick List.
Estimate approximate location of wetland as within the Pick List floodplain.
(ii) Chemical Characteristics:
Characterize wetland system (e.g., water color is clear, brown, oil film on surface; water quality; general watershed
characteristics; etc.). Explain:
Identify specific pollutants, if known:
(iii) Biological Characteristics. Wetland supports (check all that apply):
Riparian buffer. Characteristics (type, average width): .
Vegetation type/percent cover. Explain:
Habitat for:
Federally Listed species. Explain findings: .
Fish/spawn areas. Explain findings: .
Other environmentally-sensitive species. Explain findings: .
Aquatic/wildlife diversity. Explain findings: .
3. Characteristics of all wetlands adjacent to the tributary (if any)
All wetland(s) being considered in the cumulative analysis:
Approximately () acres in total are being considered in the cumulative analysis.
For each wetland, specify the following:
5
Directly
abuts? (Y/N) Size (in acres)
Summarize overall biological, chemical and physical functions being performed:
C. SIGNIFICANT NEXUS DETERMINATION
A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions per formed
by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological i ntegrity
of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent
wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integri ty of a TNW.
Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the f low
of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its ad jacent
wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. betw een a
tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies w ithin or
outside of a floodplain is not solely determinative of significant nexus.
Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and
discussed in the Instructional Guidebook. Factors to consider include, for example:
• Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to
TNWs, or to reduce the amount of pollutants or flood waters reaching a TNW?
• Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and
other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW?
• Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that
support downstream foodwebs?
• Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to t he physical, chemical, or
biological integrity of the TNW?
Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented
below:
1. Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain
findings of presence or absence of significant nexus below, based on the tributary itself, then go to Section III.D: .
2. Significant nexus findings for non-RPW and its adjacent wetlands, where the non-RPW flows directly or indirectly into
TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its
adjacent wetlands, then go to Section III.D: .
3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain findings of
presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to
Section III.D: .
D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL
THAT APPLY):
1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area:
TNWs: linear feet width (ft), Or, acres.
Wetlands adjacent to TNWs: acres.
2. RPWs that flow directly or indirectly into TNWs.
Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that
tributary is perennial: .
Tributaries of TNW where tributaries have continuous flow “seasonally” (e.g., typically three months each year) are
jurisdictional. Data supporting this conclusion is provided at Section III.B. Provide rationale indicating that tributary flows
seasonally:
Provide estimates for jurisdictional waters in the review area (check all that apply):
Tributary waters:
Other non-wetland waters:
Identify type(s) of waters:.
6
3. Non-RPWs8 that flow directly or indirectly into TNWs.
Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a
TNW is jurisdictional. Data supporting this conclusion is provided at Section III.C.
Provide estimates for jurisdictional waters within the review area (check all that apply):
Tributary waters: linear feet width (ft).
Other non-wetland waters:.
Identify type(s) of waters:.
4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs.
Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.
Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale
indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is
directly abutting an RPW: .
Wetlands directly abutting an RPW where tributaries typically flow “seasonally.” Provide data indicating that tributary is
seasonal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly
abutting an RPW:
Provide acreage estimates for jurisdictional wetlands in the review area: acres.
5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs.
Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent
and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this
conclusion is provided at Section III.C.
Provide acreage estimates for jurisdictional wetlands in the review area: acres.
6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs.
Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent
and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this
conclusion is provided at Section III.C
Provide estimates for jurisdictional wetlands in the review area: acres.
7. Impoundments of jurisdictional waters.9
As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional.
Demonstrate that impoundment was created from “waters of the U.S.,” or
Demonstrate that water meets the criteria for one of the categories presented above (1-6), or
Demonstrate that water is isolated with a nexus to commerce (see E below).
E. ISOLATED [INTERSTATE OR INTRA-STATE] WATERS, INCLUDING ISOLATED WETLANDS, THE USE,
DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY
SUCH WATERS (CHECK ALL THAT APPLY):10
which are or could be used by interstate or foreign travelers for recreational or other purposes.
from which fish or shellfish are or could be taken and sold in interstate or foreign commerce.
which are or could be used for industrial purposes by industries in interstate commerce.
Interstate isolated waters. Explain: .
Other factors. Explain: .
Identify water body and summarize rationale supporting determination: .
Provide estimates for jurisdictional waters in the review area (check all that apply):
Tributary waters: linear feet width (ft).
Other non-wetland waters: acres.
Identify type(s) of waters: .
Wetlands: acres.
8See Footnote # 3.
9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook.
10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for
review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.
7
F. NON-JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY):
If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engine ers
Wetland Delineation Manual and/or appropriate Regional Supplements.
Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce.
Prior to the Jan 2001 Supreme Court decision in “SWANCC,” the review area would have been regulated based solely on the
“Migratory Bird Rule” (MBR).
Waters do not meet the “Significant Nexus” standard, where such a finding is required for jurisdiction. Explain: .
Other: (explain, if not covered above):
Regarding Irrigation Ditches 1, 2, 3, 4, and 5, reference is made to the November 13, 1986 Federal Register, Part 328 (a) whi ch states
the Corps of Engineers generally does not consider non-tidal drainage and irrigation ditches excavated on dry land as waters of the U.S.
except on a case-by-case basis. In this case, Irrigation Ditches 1, 2, 3, 4, and 5 are non -tidal irrigation ditches excavated and constructed
on dry land which terminate in uplands and do not contribute RPW flows to a waters of the U.S and are not jurisdictional.
Regarding Wetlands 1, 2 and 3, reference is made to the November 13, 1986 Federal Register, Part 328 (b) which states the Corps of
Engineers generally does not consider artificially irrigated areas which would revert to upland if the irrigation ceased as waters of the
U.S., except on a case-by-case basis. In this case, the Wetlands 1, 2 and 3 are artificially irrigated wetlands which would revert to
upland if irrigation ceased and are not jurisdictional.
Provide acreage estimates for non-jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR
factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional
judgment (check all that apply):
Non-wetland waters (i.e., rivers, streams): linear feet width (ft).
Lakes/ponds: acres.
Other non-wetland waters: acres. List type of aquatic resource: .
Wetlands: acres.
Provide acreage estimates for non-jurisdictional waters in the review area that do not meet the “Significant Nexus” standard, where such
a finding is required for jurisdiction (check all that apply):
Non-wetland waters (i.e., rivers, streams): linear feet, width (ft).
Lakes/ponds: acres.
Other non-wetland waters: acres. List type of aquatic resource: .
Wetlands: acres.
SECTION IV: DATA SOURCES.
A. SUPPORTING DATA. Data reviewed for JD (check all that apply - checked items shall be included in case file and, where checked
and requested, appropriately reference sources below):
Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: Request for Approved Jurisdictional Determination
for Isolated Irrigation Ditches and Wetlands, Larimer County, Colorado, dated June 30, 2022.
Data sheets prepared/submitted by or on behalf of the applicant/consultant.
Office concurs with data sheets/delineation report.
Office does not concur with data sheets/delineation report.
Data sheets prepared by the Corps: .
Corps navigable waters’ study: .
U.S. Geological Survey Hydrologic Atlas: .
USGS NHD data.
USGS 8 and 12 digit HUC maps. HU10190007; Cache la Poudre River
U.S. Geological Survey map(s). Cite scale & quad name:1:24,000 Fort Collins, Colorado
USDA Natural Resources Conservation Service Soil Survey. Citation: .
National wetlands inventory map(s). Cite name: .
State/Local wetland inventory map(s): .
FEMA/FIRM maps: .
100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929)
Photographs: Aerial (Name & Date): Google Earth, 2017
or Other (Name & Date):
Previous determination(s). File no. and date of response letter:
Applicable/supporting case law:.
Applicable/supporting scientific literature: .
Other information (please specify): ERO Resources Corporation, on behalf of Montava, prepared a report documenting aquatic
resources on the project site. This report is entitled Request for Approved Jurisdictional Determination for Isolated Irrigation Ditches
and Wetlands, Larimer County, Colorado, dated June 30, 2022.
B. ADDITIONAL COMMENTS TO SUPPORT JD: