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HomeMy WebLinkAboutconcurrence_ltr_signedDEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS INDIANAPOLIS REGULATORY OFFICE 8902 OTIS AVENUE, SUITE S106B INDIANPAOLIS, IN 46216 August 26, 2021 Regulatory Division Mitigation, Compliance, & Enforcement Branch ID No. LRL-2021-583-sam Mark Gradison Gradison Land Development 6330 East 75th Street Indianapolis, IN 46250 Dear Mr. Gradison: This is regarding the letter of June 11, 2021, requesting jurisdictional determination on a 71-acre parcel located on southwest of 106th street and Ditch Road, at Latitude 39.9355° and Longitude –86.1894°, in Carmel, Hamilton County, Indiana. A location map of the sites is enclosed. The U.S. Army Corps of Engineers exercises regulatory authority under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) and Section 404 of the Clean Water Act (33 USC 1344) for certain activities in "waters of the United States (U.S.)." These waters include all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce. Based on a reviewed of the submitted information and a site visit conducted on August 12, 2021, we have determined that Stream 1, Wetland A, and Pond 6 are jurisdictional under Section 404 of the Clean Water Act. A Department of Army permit would be required for any discharges of fill into these waters. With regard to Wetland B, Wetland C, Wetland D, Pond 1, Pond 2, Pond 3, Pond 4, and Pond 5, we have determined that the reported features are excluded from regulations under Section 404 of the Clean Water Act. As such, these features are not considered to be "waters of the U.S." and are not regulated under Section 404 of the Clean Water Act. However, this determination does not relieve you of the responsibility to comply with applicable State law. We urge you to contact the Indiana Department of Environmental Management (IDEM), Office of Water Quality, 100 North Senate Avenue Room N1252, Indianapolis, Indiana, 46204 to determine the applicability of State law to the excluded waters mentioned above and verification of the wetland boundaries. Regulatory Division Mitigation, Compliance & Enforcement Branch LRL-2021-583-sam 2 This letter contains an approved jurisdictional determination (JD) for your site. If you object to this JD, you may request an administrative appeal under Corps regulations at 33 CFR Part 331. Enclosed you will find a Notification of Appeal Process (NAP) fact sheet and Request for Appeal (RFA) form. If you request to appeal this JD you must submit a completed RFA form to the Lakes and Rivers Division Office at the following address. US Army Corps of Engineers Attn: Appeal Review Officer, CELRD-PD-REG 550 Main Street, Room 10-714 Cincinnati, OH 45202-3222 In order for an RFA to be accepted by the Corps, the Corps must determine that it is complete, that it meets the criteria for appeal under 33 CFR Part 331.5, and that it has been received by the Division Office within 60 days of the date of the NAP. Should you decide to submit an RFA form, it must be received at the above address by October 25, 2021. This jurisdictional determination is valid for a period of 5 years from the date of this letter unless new information warrants revision of the determination before the expiration date. It is not necessary to submit an RFA form to the Division office if you do not object to the JD in this letter. The delineation included herein has been conducted to identify the location and extent of the aquatic resource boundaries and/or the jurisdictional status of aquatic resources for purposes of the Clean Water Act for the particular site identified in this request. This delineation and/or jurisdictional determination may not be valid for the Wetland Conservation Provisions of the Food Security Act of 1985, as amended. If you or your tenant are USDA program participants, or anticipate participation in USDA programs, you should discuss the applicability of a certified wetland determination with the local USDA service center prior to starting work. If we can be of any further assistance, please contact me by writing to the above address or by calling 317-543-9424. Any correspondence on this matter should reference our Identification Number LRL-2021-583-sam. Sincerely, Scott Matthews Regulatory Specialist Indianapolis Regulatory Office Enclosures Copy Furnished: IDEM (Turner) Davey Resources Group June 2021 0 400 800200Feet 1 in = 400 feet Site Location: Gradison, Ditch Road ProjectClay TownshipHamilton County, Indiana Source: Indiana Office of Information Technology, 2018 Attachment 3: Jurisdictional Information for Mapped Water Resources Davey Resource Group ´ Legend Study Area (~71.5 acres) Intermittent Streams (Non-Exempt) Emergent Wetlands (Non-Exempt) Isolated Fringe Wetlands (Exempt) Open-Water Ponds (Exempt) Pond 2 (PUB): 0.062 acre, exempt [33 CFR § 328.3 (b)(8), IC § 13-11-2-265 (b)(2)] Wetland A (PEM): 0.269 acre, non-exempt USACE- and IDEM- jurisdictional Wetland B (0.023 ac): Class I, non-forested, exempt [33 CFR § 328.3 (b)(1), IC § 13-11-2-74.5 (a)(3)] Stream 1 (INT): 487 linear feet, non-exempt, USACE- and IDEM- jurisdictionalDitch RoadWetland C (0.048 ac): Class I, non-forested, exempt [33 CFR § 328.3 (b)(1), IC § 13-11-2-74.5 (a)(3)] Wetland D (0.213 ac): Class I, non-forested, exempt [33 CFR § 328.3 (b)(1), IC § 13-11-2-74.5 (a)(3)] Pond 1 (PUB): 0.309 acre, exempt [33 CFR § 328.3 (b)(8), IC § 13-11-2-265 (b)(2)] Pond 6 (PUB): 0.028 acre, exempt [33 CFR § 328.3 (b)(8), IC § 13-11-2-265 (b)(2)] Pond 3 (PUB): 0.376 acre, exempt [33 CFR § 328.3 (b)(8), IC § 13-11-2-265 (b)(2)]Pond 4 (PUB): 0.213 acre, exempt [33 CFR § 328.3 (b)(8), IC § 13-11-2-265 (b)(2)] Pond 5 (PUB): 1.297 acre, exempt [33 CFR § 328.3 (b)(8), IC § 13-11-2-265 (b)(2)] 892011 NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND REQUEST FOR APPEAL Applicant: Gradison Land Development File Number: LRL-2021-583 Date:8/26/2021 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 at http://www.usace.army.mil/CECW/Pages/reg_materials.aspx or Corps regulations at 33 CFR Part 331. 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 permit. • 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 rights to appeal the permit, including its terms and conditions, and approved jurisdictional 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 Appeal 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 the 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 division 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 the 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 received by the division engineer within 60 days of the date of this 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 your 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. However, you may provide additional information to clarify the location 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: Scott Matthews Indianapolis Regulatory Office 8902 Otis Avenue, Suite S106B Indianapolis, IN 46216 (317) 543-9424 If you only have questions regarding the appeal process you may also contact: U.S. Army Engineer Division, ATTN: Regulatory Appeal Review Officer, CELRD-PD-REG 550 Main Street - Room 10-714 Cincinnati, Ohio 45202-3222 TEL (513) 684-7261 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 15 day notice of any site investigation, and will have the opportunity to participate in all site investigations. _______________________________ Signature of appellant or agent. Date: Telephone number: U.S. ARMY CORPS OF ENGINEERS REGULATORY PROGRAM APPROVED JURISDICTIONAL DETERMINATION FORM (INTERIM) NAVIGABLE WATERS PROTECTION RULE Page 1 of 4 Form Version 29 July 2020_updated I. ADMINISTRATIVE INFORMATION Completion Date of Approved Jurisdictional Determination (AJD): 8/26/2021 ORM Number: LRL-2021-583-sam Associated JDs: N/A Review Area Location1: State/Territory: Indiana City: Carmel County/Parish/Borough: Hamilton Center Coordinates of Review Area: Latitude 39.9356 Longitude -86.1894 II. FINDINGS A. Summary: Check all that apply. At least one box from the following list MUST be selected. Complete the corresponding sections/tables and summarize data sources. ☐ The review area is comprised entirely of dry land (i.e., there are no waters or water features, including wetlands, of any kind in the entire review area). Rationale: N/A or describe rationale. ☐ There are “navigable waters of the United States” within Rivers and Harbors Act jurisdiction within the review area (complete table in Section II.B). ☒ There are “waters of the United States” within Clean Water Act jurisdiction within the review area (complete appropriate tables in Section II.C). ☒ There are waters or water features excluded from Clean Water Act jurisdiction within the review area (complete table in Section II.D). B. Rivers and Harbors Act of 1899 Section 10 (§ 10)2 § 10 Name § 10 Size § 10 Criteria Rationale for § 10 Determination N/A. N/A. N/A N/A. N/A. C. Clean Water Act Section 404 Territorial Seas and Traditional Navigable Waters ((a)(1) waters):3 (a)(1) Name (a)(1) Size (a)(1) Criteria Rationale for (a)(1) Determination N/A. N/A. N/A. N/A. N/A. Tributaries ((a)(2) waters): (a)(2) Name (a)(2) Size (a)(2) Criteria Rationale for (a)(2) Determination Stream 1 487 linear feet (a)(2) Intermittent tributary contributes surface water flow directly or indirectly to an (a)(1) water in a typical year. Stream 1 is an intermittent stream with interstitial pools that provides flow to downstream waters during normal conditions. 1 Map(s)/figure(s) are attached to the AJD provided to the requestor. 2 If the navigable water is not subject to the ebb and flow of the tide or included on the District’s list of Rivers and Harbors Act Section 10 navigable waters list, do NOT use this document to make the determination. The District must continue to follow the procedure outlined in 33 CFR part 329.14 to make a Rivers and Harbors Act Section 10 navigability determination. 3 A stand-alone TNW determination 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. A stand- alone TNW determination should be completed following applicable guidance and should NOT be documented on the AJD Form. U.S. ARMY CORPS OF ENGINEERS REGULATORY PROGRAM APPROVED JURISDICTIONAL DETERMINATION FORM (INTERIM) NAVIGABLE WATERS PROTECTION RULE Page 2 of 4 Form Version 29 July 2020_updated Lakes and ponds, and impoundments of jurisdictional waters ((a)(3) waters): (a)(3) Name (a)(3) Size (a)(3) Criteria Rationale for (a)(3) Determination Pond 6 0.028 acre(s) (a)(3) Lake/pond or impoundment of a jurisdictional water contributes surface water flow directly or indirectly to an (a)(1) water in a typical year. Pond 6 is an inline pond, constructed within Stream 1 an intermittent stream providing water to downstream waterways Adjacent wetlands ((a)(4) waters): (a)(4) Name (a)(4) Size (a)(4) Criteria Rationale for (a)(4) Determination Wetland A 0.269 acre(s) (a)(4) Wetland abuts an (a)(1)- (a)(3) water. Emergent wetland abutting Stream 1 D. Excluded Waters or Features Excluded waters ((b)(1) – (b)(12)):4 Exclusion Name Exclusion Size Exclusion5 Rationale for Exclusion Determination Wetland B 0.023 acre(s) (b)(1) Non- adjacent wetland. Emergent Wetland on fringe of Pond 1 Wetland C 0.048 acre(s) (b)(1) Non- adjacent wetland. Emergent wetland on fringe of Pond 3 Wetland D 0.213 acre(s) (b)(1) Non- adjacent wetland. Emergent wetland on fringe of Pond 5 Pond 1 0.309 acre(s) (b)(8) Artificial lake/pond constructed or excavated in upland or a non- jurisdictional water, so long as the artificial lake or pond is not an impoundment of a jurisdictional water that meets (c)(6). Man-made ponds construction in uplands Pond 2 0.062 acre(s) (b)(8) Artificial lake/pond constructed or excavated in Man-made ponds construction in uplands 4 Some excluded waters, such as (b)(2) and (b)(4), may not be specifically identified on the AJD form unless a requestor specifically asks a Corps district to do so. Corps districts may, in case-by-case instances, choose to identify some or all of these waters within the review area. 5 Because of the broad nature of the (b)(1) exclusion and in an effort to collect data on specific types of waters that would be covered by the (b)(1) exclusion, four sub-categories of (b)(1) exclusions were administratively created for the purposes of the AJD Form. These four sub-categories are not new exclusions, but are simply administrative distinctions and remain (b)(1) exclusions as defined by the NWPR. U.S. ARMY CORPS OF ENGINEERS REGULATORY PROGRAM APPROVED JURISDICTIONAL DETERMINATION FORM (INTERIM) NAVIGABLE WATERS PROTECTION RULE Page 3 of 4 Form Version 29 July 2020_updated Excluded waters ((b)(1) – (b)(12)):4 Exclusion Name Exclusion Size Exclusion5 Rationale for Exclusion Determination upland or a non- jurisdictional water, so long as the artificial lake or pond is not an impoundment of a jurisdictional water that meets (c)(6). Pond 3 0.376 acre(s) (b)(8) Artificial lake/pond constructed or excavated in upland or a non- jurisdictional water, so long as the artificial lake or pond is not an impoundment of a jurisdictional water that meets (c)(6). Man-made ponds construction in uplands Pond 4 0.213 acre(s) (b)(8) Artificial lake/pond constructed or excavated in upland or a non- jurisdictional water, so long as the artificial lake or pond is not an impoundment of a jurisdictional water that meets (c)(6). Man-made ponds construction in uplands Pond 5 1.297 acre(s) (b)(8) Artificial lake/pond constructed or excavated in upland or a non- jurisdictional water, so long as the artificial lake or pond is not an impoundment of a jurisdictional water that meets (c)(6). Man-made ponds construction in uplands U.S. ARMY CORPS OF ENGINEERS REGULATORY PROGRAM APPROVED JURISDICTIONAL DETERMINATION FORM (INTERIM) NAVIGABLE WATERS PROTECTION RULE Page 4 of 4 Form Version 29 July 2020_updated III. SUPPORTING INFORMATION A. Select/enter all resources that were used to aid in this determination and attach data/maps to this document and/or references/citations in the administrative record, as appropriate. ☒ Information submitted by, or on behalf of, the applicant/consultant: Waters Report – June 11, 2021 This information is not sufficient for purposes of this AJD. Rationale: Waters Report documented Pond 6 as an excluded feature. However, Pond 6 is a pond constructed within Stream 1, a juirisdictional intermittent feature that provides flow to downstream water and is deemed jurisdictional. ☐ Data sheets prepared by the Corps: Title(s) and/or date(s). ☒ Photographs: Aerial and Other: Photos and data sheets prepared in report; Site photos from site visit conducted on August 12, 2021 ☒ Corps site visit(s) conducted on: August 12, 2021 ☐ Previous Jurisdictional Determinations (AJDs or PJDs): ORM Number(s) and date(s). ☒ Antecedent Precipitation Tool: provide detailed discussion in Section III.B. ☐ USDA NRCS Soil Survey: Title(s) and/or date(s). ☒ USFWS NWI maps: Provided in Delineation Report ☐ USGS topographic maps: Title(s) and/or date(s). Other data sources used to aid in this determination: Data Source (select) Name and/or date and other relevant information USGS Sources N/A. USDA Sources N/A. NOAA Sources N/A. CorpsMap ORM Map Layers Topo and aerial layers State/Local/Tribal Sources N/A. Other Sources N/A. B. Typical year assessment(s): The consultant conducted a site visit on January 29, 2021, where Stream 1 had water and was flowing. The APT data for that visit indicates that the visit was conducted during the wet season but the conditions were drier than normal. The flow of Stream 1 during the initial visit is consistant with an intermittent stream and not in direct response to rain event. During the Corps site visit on August 12, 2021, the APT data indicated that the site visit was conducted during the dry season under wet conditions. During this visit flow was not observed, however interstitial pools were observed within the stream, a clear indicator to support a classification of an intermittent stream channel. C. Additional comments to support AJD: N/A