HomeMy WebLinkAbout2023037 Washington Land Disturbance UCA AJD HQ MFR FinalDEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS, NEW YORK DISTRICT
1 BUFFINGTON ST. BLDG 10, 3RD FL N
WATERVLIET NY 12189-4050
CENAN-OP-RU
MEMORANDUM FOR RECORD
SUBJECT: US Army Corps of Engineers (Corps) Approved Jurisdictional Determination
in accordance with the “Revised Definition of ‘Waters of the United States’”; (88 FR
3004 (January 18, 2023) as amended by the “Revised Definition of ‘Waters of the
United States’; Conforming” (8 September 2023) ,1 NAN-2013-00413-UCA.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
On January 18, 2023, the Environmental Protection Agency (EPA) and the Department
of the Army (“the agencies”) published the “Revised Definition of ‘Waters of the United
States,’” 88 FR 3004 (January 18, 2023) (“2023 Rule”). On September 8, 2023, the
agencies published the “Revised Definition of ‘Waters of the United States’;
Conforming”, which amended the 2023 Rule to conform to the 2023 Supreme Court
decision in Sackett v. EPA, 598 U.S., 143 S. Ct. 1322 (2023) (“Sackett”).
This Memorandum for Record (MFR) constitutes the basis of jurisdiction for a Corps
AJD as defined in 33 CFR §331.2. For the purposes of this AJD, we have relied on
Section 10 of the Rivers and Harbors Act of 1899 (RHA),5 the 2023 Rule as amended,
as well as other applicable guidance, relevant case law, and longstanding practice in
evaluating jurisdiction.
1 While the Revised Definition of “Waters of the United States”; Conforming 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, the territorial seas, or interstate water 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.
August 29, 2024
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SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), NAN-2013-00413-UCA
2
1. SUMMARY OF CONCLUSIONS.
a. Provide a list of each individual feature within the review area and the
jurisdictional status of each one (i.e., identify whether each feature is/is not a
water of the United States and/or a navigable water of the United States).
i. Wetland No. 1, non-jurisdictional
ii. Wetland No. 2, non-jurisdictional
2. REFERENCES.
a. “Revised Definition of ‘Waters of the United States,’” 88 FR 3004 (January 18,
2023) (“2023 Rule”)
b. “Revised Definition of ‘Waters of the United States’; Conforming” 88 FR 61964
(September 8, 2023))
c. Sackett v. EPA, 598 U.S., 143 S. Ct. 1322 (2023)
3. REVIEW AREA. Review area size 8.9 acres, 43.0814176, -73.803031 City of
Saratoga Springs, Saratoga County, New York.
4. NEAREST TRADITIONAL NAVIGABLE WATER (TNW), THE TERRITORIAL SEAS,
OR INTERSTATE WATER TO WHICH THE AQUATIC RESOURCE IS
CONNECTED. Wetland No. 1 and Wetland No. 2 do not have a continuous surface
connection to any TNWs, the territorial seas or interstate waters.6
5. FLOWPATH FROM THE SUBJECT AQUATIC RESOURCES TO A TNW, THE
TERRITORIAL SEAS, OR INTERSTATE WATER. Wetland No. 1 and Wetland No. 2
do not have a flowpath to any TNWs, the territorial seas or interstate waters.
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
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.
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.
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SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), NAN-2013-00413-UCA
3
resource or other feature within the review area and how it was determined to be
jurisdictional in accordance with Section 10.8 N/A
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 2023 Rule as amended, 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 2023 Rule as amended. 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. Traditional Navigable Waters (TNWs) (a)(1)(i): N/A
b. The Territorial Seas (a)(1)(ii): N/A
c. Interstate Waters (a)(1)(iii): N/A
d. Impoundments (a)(2): N/A
e. Tributaries (a)(3): N/A
f. Adjacent Wetlands (a)(4): N/A
g. Additional Waters (a)(5): N/A
8. NON-JURISDICTIONAL AQUATIC RESOURCES AND FEATURES
a. Describe aquatic resources and other features within the review area identified in
the 2023 Rule as amended as not “waters of the United States” even where they
otherwise meet the terms of paragraphs (a)(2) through (5). Include the type of
excluded aquatic resource or feature, the size of the aquatic resource or feature
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 procedure s 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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SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), NAN-2013-00413-UCA
4
within the review area and describe how it was determined to meet one of the
exclusions listed in 33 CFR 328.3(b).9 N/A
b. 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 2023 Rule as amended (e.g.,
tributaries that are non-relatively permanent waters; non-tidal wetlands that do
not have a continuous surface connection to a jurisdictional water).
Wetland No. 1 is completely isolated and surrounded by forested uplands to the
north, west and south. To the east, it is bordered by mowed upland lawns owned
by Country Club Estates. Wetland No. 2 is adjacent to forested uplands to the
south and an upland road to the west, placing it east of West Avenue. On the
west side of West Avenue is a large New York State Department of
Environmental Conservation (NYSDEC) wetland complex which is hydrologically
connected to Putnam Brook. Putnam Brook flows into Geyser Brook which flows
into the TNW, the Kayaderosseras Creek. There used to be a culvert between
the NYSDEC wetland and Wetland No. 2 under West Avenue, however, The
New York State Department of Transportation plugged and filled this culvert prior
to 2014 because it was not conveying any water between the two wetlands, and
they wanted to protect the road by eliminating any unnecessary maintenance. To
the north, Wetland No. 2 is adjacent to uplands and a parking lot owned by the
American Legion. To the east, Wetland No. 2 continues offsite leading to a
culvert inlet located underneath Outlook Avenue which outlets into an
underground municipal stormwater sewer system.
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. A site visit was conducted on 23 April 2024 by a representative of USACE,
Christina Campo.
b. Wetland Determination Data Forms – Northcentral and Northeast Region, dated
Nov/Dec 2012, provided by the applicant’s agent with the JD request submittal,
dated February 1, 2024.
c. “Existing Conditions Plan,” drawing number C100, dated 4/25/2024 and revised
on 24 JULY 2024.
9 88 FR 3004 (January 18, 2023)
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SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), NAN-2013-00413-UCA
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d. Mohr Property Site Location map, by the Chazen Companies, dated January
2013.
e. Mohr Property Orthophoto, by the Chazen Companies, dated January 2013.
f. Mohr Property Soils map, by the Chazen Companies, dated January 2013.
g. Mohr Property Wetland and Streams map, by the Chazen Companies, dated
January 2013.
h. Ground level Site photographs provided with JD request submittal, dated
February 1, 2024.
i. A previous Approved Jurisdictional Determination (AJD) dated May 8, 2014.
10. OTHER SUPPORTING INFORMATION. N/A
11. NOTE: The structure and format of this MFR were developed in coordination with
the EPA and Department of the Army. The MFR’s structure and format may be
subject to future modification or may be rescinded as needed to implement
additional guidance from the agencies; however, the approved jurisdictional
determination described herein is a final agency action.