Loading...
DR1502-ST160126 26 January 2016 Mr. William Wallace, P.E. Nathan D. Maier Consulting Engineers, Inc. 8080 Park Lane, Suite 600 Dallas, Texas 75231 Re: Waters of the United States Delineation Coppell G6, City of Coppell, Dallas County, Texas Dear Mr. Wallace, Integrated Environmental Solutions, LLC. (IES) performed a survey to identify and delineate water features that meet a definition of a water of the United States along approximately 800 feet of forested corridor located within a residential area east of Moore Road, between Villawood Lane and Meadowview Lane in the City of Coppell, Dallas County, Texas (Attachment A, Figure 1). This report will identify any potential jurisdictional waters to ensure compliance with Section 404 of the Clean Water Act (CWA) for the proposed bank stabilization along the property lines of the houses within the residential area. INTRODUCTION Agencies that regulate impacts to the nation’s water resources within Texas include the U.S. Army Corps of Engineers (USACE), the U.S. Environmental Protection Agency (USEPA), the U.S. Fish and Wildlife Service (USFWS), and the Texas Commission on Environmental Quality (TCEQ). Jurisdictional waters of the United States are protected under guidelines outlined in Sections 401 and 404 of the Clean Water Act (CWA), in Executive Order 11990 (Protection of Wetlands), and by the review process of the TCEQ. The USACE has the primary regulatory authority for enforcing Section 404 requirements for waters of the United States, including wetlands. The definition of waters of the United States, in 33 Code of Federal Regulations (CFR) 328.3, includes waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, wetlands, sloughs, wet meadows, or natural ponds and all impoundments of waters otherwise defined as waters of the United States. Also included are wetlands adjacent to waters (other than waters that are themselves wetlands). The term adjacent is defined as bordering, contiguous, or neighboring. Jurisdictional wetlands are a category of waters of the United States and have been defined by the USACE as areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Waters of the United States are defined in 33 CFR 328.3 (a) as: 1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; 2. All interstate waters including interstate wetlands 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: Mr. William Wallace, P.E. Page 2 Coppell G6 – Waters of the United States Delineation 26 January 2016 i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or iii. Which are used or could be used for industrial purpose by industries in interstate commerce; 4. All impoundments of waters otherwise defined as waters of the United States under the definition; 5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section; 6. The territorial seas; 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs 1- 6 above. 8. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States. On 05 June 2007, the USACE and the USEPA issued joint guidance on delineation of waters on the United States based on the U.S. Supreme Court decisions in Rapanos and Carabell. Under this guidance, potential waters of the United States have been classified as traditional navigable waters (TNW), relatively permanent waters (RPW) (i.e., having flow most of the year or at least seasonally), or non-RPWs. This guidance states that TNWs and RPWs and contiguous or adjacent wetlands to these water features are waters of the United States. Wetlands that are bordering, contiguous, or neighboring another water of the United States is considered adjacent. Additionally, wetlands that are within the 100-year floodplain of another water of the United States are also considered adjacent. Non-RPWs, wetlands contiguous or adjacent to non-RPWs, and isolated wetlands must undergo a “significant nexus” test on a case-by-case basis to determine the jurisdictional nature of these water features. Under the “significant nexus” test a water feature must have substantial connection to a TNW by direct flow, or by indirect biological, hydrologic, or chemical connection. Under the “significant nexus” test the USACE District Engineer must submit the jurisdictional determination (JD) to the regional USEPA office, which makes the decision whether to move the JD to Headquarters USACE to make the final determination. The new guidance does not void the January 2001 decision of the U.S. Supreme Court in Solid Waste Agency of Northern Cook County (SWANCC) v. USACE which disallowed regulation of isolated wetlands under the CWA through the “Migratory Bird Rule.” Previously, the USACE assumed jurisdiction over isolated waters of the United States based on its 1986 preamble stating that migratory birds used these habitats. The “Migratory Bird Rule” provided the nexus to interstate commerce and thus protection under the CWA. However, the new guidance does require that the “significant nexus” test be performed in addition to an analysis of other potential interstate commerce uses for isolated waters. METHODOLOGY Prior to conducting fieldwork, the U.S. Geological Survey (USGS) topographic map (Attachment A, Figure 2), the Soil Survey of Dallas County, Texas, and the Natural Resources Conservation Service (NRCS) digital soil database for Dallas County (Attachment A, Figure 3), the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) (Attachment A, Figure 4), and aerial photographs of the proposed project site were studied to identify possible waters of the United States and areas prone to wetland development. Mr. Shae Kipp of IES delineated all water features in the field in accordance with the USACE procedures on 11 January 2016. Wetland determinations and delineations were performed on location using the methodology outlined in the 1987 Corps of Engineers Wetland Delineation Manual and the Regional Supplement to the Corps of Engineer Wetland Delineation Manual: Great Plains Region (Version 2.0). The presence of a wetland is determined by the positive indication of three criteria (i.e., hydrophytic vegetation, hydrology, and hydric soils). Potential jurisdictional boundaries for other water resources (i.e., non-wetland) were delineated in the field at the ordinary high water mark (OHWM). The 33 Code of Federal Regulations (CFR) 328.3(e) defines OHWM as the line on the shore/bank established by flowing and/or standing water, marked by characteristics such as a clear, natural line impressed on the bank, erosion shelving, changes in the character of soil, destruction of terrestrial vegetation, presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. Mr. William Wallace, P.E. Page 3 Coppell G6 – Waters of the United States Delineation 26 January 2016 Water feature boundaries were recorded on a Trimble GeoExplorer XT global positioning system (GPS) unit capable of sub-meter accuracy. Photographs were taken at representative points and their locations recorded, within the study area (Attachment B). RESULTS Literature Review The USGS topographic map (Carrollton 7.5’ Quadrangle, 1978) illustrated one feature within the project site; an un-named tributary of Grapevine Creek. The tributary is illustrated with a west to east orientation; the surrounding topography suggesting the historic confluence of multiple drainages to the un-named tributary. The topographic map illustrated the elevation above mean sea level (amsl) between 490 feet and 470 feet. The Soil Survey of Dallas County, Texas illustrated one soil series within the project site – Altoga silty clay, 5 to 12 percent slopes, eroded. This soil series was not listed on the Hydric Soils of Texas list prepared by the National Technical Committee for Hydric Soils (revision March 2014; Dallas County, Texas). The soil survey depicted the un- named tributary of Grapevine Creek within the project site, similar to the USGS topographic map. The FEMA FIRM (Map Panel FM48113C0155J, effective date 23 August 2001) illustrates the project site within Zone X (Areas determined to be outside the 0.2% annual chance floodplain). The FEMA FIRM does illustrate a tributary within the project site, an un-named tributary of Grapevine Creek, similar to the USGS topographic map and Soil Survey of Dallas County, Texas. Site Survey The project site was characterized as a combination of two plant communities – a maintained grassland community and a forested riparian corridor. The project site was centered around a tributary, but the property lines of the residential homes meet at the center of the project site so forested areas were also observed with maintained grasslands and naturalized areas. The maintained grassland community was dominated by routinely mowed grasses such as Bermudagrass (Cynodon dactylon) and St. Augustine grass (Stenotaphrum secundatum). The forested riparian corridor was predominantly composed of Osage-orange (Maclura pomifera) as the dominant tree species, particularly in the western portion of the project site. Other species observed included cedar elm (Ulmus crassifolia), Japanese privet (Ligustrum japonica), Chinese privet (Ligustrum sinense), roughleaf dogwood (Cornus drummondii), greenbriar (Smilax bona-nox), poison-ivy (Toxicodendron radicans), and southern dewberry (Rubus trivialis). Pecan (Carya illinoinensis) became the dominant tree species in the eastern portion of the project site. The overall project site topography slopes to the east with hillsides sloping from the north and south to the top-of- bank of the un-named tributary of Grapevine Creek. The tributary observed within the project site is the main drainage for the project site and drains into Grapevine Creek, which ultimately empties into Elm Fork Trinity River. Elm Fork Trinity River ultimately empties into Trinity River, a TNW. There was one potentially jurisdictional water feature delineated within the project site and detailed below (Attachment A, Figure 5 and Table 1). Table 1. Waters Delineated within Project Site Water Identification Potential Water of the United States? Water Feature Type Hydrology Characteristics Length (Linear Feet) Area (Acres) Tributary 1 Yes Yes Ephemeral 942 0.12 JURISDICTIONAL TOTAL 942 0.12 Tributary 1 was the only water feature observed within the project site at the time of the evaluation. This tributary was identified on the Soil Survey of Dallas County, Texas, USGS topographic map, and FEMA FIRM. The limits of Tributary 1 were identified and delineated in the field at the OHWM based on the presence of bed and bank, natural shelving, sediment sorting, and destruction of terrestrial vegetation. The tributary was incised into the landscape between four and eight feet from ground elevation with some pooled and flowing water observed in the eastern portion of the project site. The flowing water was likely due to the recent rainfall and the presence of Mr. William Wallace, P.E. Page 4 Coppell G6 – Waters of the United States Delineation 26 January 2016 a storm water management outfall. The vegetation surrounding this tributary was detailed in the habitat descriptions described above. The channel was observed with some gravel and cobble but predominantly clay soils. Portions of Tributary 1 were armored with a combination of rock rip-rap, bag/sack-crete concrete retaining walls, or wood timber retaining walls. Based on the geomorphology of the channel and the tributary’s location within the landscape, it is IES’ professional opinion that Tributary 1 would likely be considered and ephemeral tributary and a non-RPW. It is IES’ professional opinion that this tributary would meet definition 5 of a water of the United States; as such, Post Oak Creek would be regulated under Section 404 of the CWA. Significant Nexus Determination Tributary 1, as a non-RPW, requires a significant nexus test to determine the jurisdictional status of the feature. The significant nexus test must prove direct flow or an indirect hydrological, biological, and chemical connection to a TNW. Water from Tributary 1 flows into Grapevine Creek which ultimately empties into the Elm Fork Trinity River, a tributary of the Trinity River, a TNW, providing an indirect hydrologic connection for these water features to a TNW. This water feature provides biological functions as habitat for amphibians and invertebrates, as well as mammals. The vegetation detritus provides the basis of a food web that supports the wildlife community downstream. These functions provide an indirect biological connection to the TNW. This water feature provides for the nutrient and chemical uptake of waters that enter the stream and the waters that percolate into the soils. This nutrient and chemical uptake provides for a reduced nutrient/chemical loading in the downstream water column. This provides an indirect chemical connection to a TNW. It is IES’ professional opinion that Tributary 1 would be considered a waters of the United States as it provides an indirect biological, chemical, and hydrological connection to a TNW. This tributary would, therefore, be regulated under Section 404 of the CWA. CONCLUSIONS To summarize the delineation, one tributary was identified and delineated within the project site. A summary of this feature is presented in Table 1. Tributary 1 would be considered a water of the United States as it meets definition 5, a tributary to a TNW. As a water of the United States, discharges into the tributary would be regulated under Section 404 of the CWA. This delineation is based on professional experience in the approved methodology and from experience with the USACE Fort Worth District regulatory biologists; however, this delineation does not constitute a jurisdictional determination of waters of the United States. This delineation has been based on the professional experience of IES staff and our interpretation of USACE regulations at 33 CFR 328.3, the joint USACE/USEPA guidance regarding the Rapanos and Carabell decisions, and the Regulatory Guidance Letter (RGL) 08-02. While, IES believes our delineation to be accurate, final authority to interpret the regulations lies solely with the USACE and USEPA. The USACE Headquarters in association with the USEPA often issue guidance that changes the interpretation of published regulations. USACE/USEPA guidance issued after the date of this report has the potential to invalidate the report conclusions and/or recommendations, which may create the need to reevaluate the report conclusions. IES has no regulatory authority, as such, proceeding based solely upon this report does not protect the Client from potential sanction or fines from the USACE/USEPA. The Client acknowledges that they have the opportunity to submit this report to the USACE for a preliminary jurisdictional determination for concurrence prior to proceeding with any work within water features located on the project site. If the Client elects not to do so, then the Client proceeds at their sole risk. Mr. William Wallace, P.E. Page 5 Coppell G6 – Waters of the United States Delineation 26 January 2016 IES appreciates the opportunity to work with you and Nathan D. Maier Consulting Engineers Inc. on this project, and hope we may be of assistance to you in the future. If you have any comments, questions, or concerns, please do not hesitate to contact me or Rudi Reinecke at 972/562-7672 (skipp@intenvsol.com or rreinecke@intenvsol.com). Sincerely, Integrated Environmental Solutions, LLC. Mr. Shae Kipp Ecologist Attachments File ref: 04.051.040 ATTACHMENT A Figures Figure 1General Location Map 1 inch = 1,500 feet 0 1,500 3,000 4,500Feet County: TarrantState: Texa sDate map created: 01/06/201 5Source: (c) 20 10 Micro so ft C orporation and its d ata sup plie rs . Map Extent Project Site Figure 2United States Geological SurveyTopographic Map County: DallasState: TexasDate map created: 0 1/0 6/2 015Source: USG S To pograp hic Ma pCarrollton 7.5' Quad rangle, 197 8 Project Site . 1 inch = 4 00 fee t 0 800 1,600400Feet Figure 3Soils Map County: DallasState: TexasDate map created: 0 1/06/2015Source: 200 7 U SD ANRCS D igital Soils Databa se;(c) 2009 Microsoft Corp oration and its da ta suppliers Project SiteSoils Soils outside the project site1 - Altoga silty clay, 5 to 12 percent slopes, eroded . 1 inch = 400 feet 0 800 1,600400Feet Figure 4Federal Emergency Management Agency Flood Insurance Rate Map County: DallasState: TexasDate map created: 0 2/0 6/2 016Source: Fede ral Emerg ency Man agement Age ncy Flood Insuran ce Ra te Map Panel,48113C 0155JEffective D ate : 08/23/2001 FEMA FIRM Zone Descriptions Zone X - Areas determined to be outside the 0.2% annual chance floodplain Zone X - Areas of 0.2% annual chance flood; areas of 1% annual chance flood with average depths of less than 1 foot or with drainage areas less than 1 square mile; and areas protected by levees from 1% annual chance flood Zone AE - Special Flood Hazard Areas subject to inundation by the 1% annual chance flood; Base flood elevations determined Zone AE - Floodway areas in Zone AE Zone A - Special Flood Hazard Areas subject to inundation by the 1% annual chance flood; No base flood elevations determined Project Site 1 inch = 4 00 fee t 0 650Feet . Figure 5Water Features identifiedwithin the Project Site County: DallasState: TexasDate map created: 0 1/14/2015Source: (c) 20 10 Micro soft Corporation and its da ta suppliers Project Site Features that meet a definition of a water of the United States Tributary .1 inch = 100 feet 0 200 400100Feet ATTACHMENT B Representative Photographs Photograph Location Map County: DallasState: TexasDate map created: 0 1/14/2015Source: (c) 20 10 Micro soft Corporation and its da ta suppliers Project Site "Ph oto graph Locatio ns Features that meet a definition of a water of the United States Tributary .1 inch = 100 feet 0 200 400100Feet Photograph 1 Photograph 2 Photograph 3 Photograph 4 Photograph 5 Photograph 6 Photograph 7 Photograph 8 Photograph 9 Photograph 10 Photograph 11 Photograph 12 Photograph 13 Photograph 14 Photograph 15 Photograph 16 Photograph 17 Photograph 18 Photograph 19 Photograph 20 Photograph 21 Photograph 22