Appendix A Natural Environment Study (Minimal Impacts)

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JURISDICTIONAL DELINEATION REPORT FAIRVIEW STREET IMPROVEMENTS A N OVEMBER 2018 FROM 9TH STREET TO 16TH STREET AND BRIDGE REPLACEMENT PROJECT `J" SANTA ANA, CALIFORNIA Corps jurisdiction of "... nonnavigable, isolated, intrastate ..." waters based solely on the use of such waters by migratory birds and, particularly, the use of indirect indicators of interstate commerce (e.g., use by migratory birds that cross state lines) as a basis for jurisdiction. The Supreme Court's ruling derives from the case Solid Waste Agency of Northern Cook County vs. United States Army Corps of Engineers, No. 99-1178. The Supreme Court determined that the Corps exceeded its statutory authority by asserting CWA jurisdiction over an abandoned sand and gravel pit in northern Illinois that provided habitat for migratory birds. In 2006, the United States Supreme Court further considered the Corps jurisdiction of "... waters of the United States ..." in the consolidated cases Rapanos vs. United States and Carabell vs. United States (126 Supreme Court 2208), collectively referred to as "Rapanos." The United States Supreme Court concluded that wetlands are "waters of the United States" if they significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable. On June 5, 2007, the Corps issued guidance regarding the Rapanos decision. After consideration of public comments and agencies' experience, revised guidance was issued on December 2, 2008. This guidance states that the Corps will continue to assert jurisdiction over TNW, wetlands adjacent to TNW, relatively permanent nonnavigable tributaries that have a continuous flow at least seasonally (typically 3 months), and wetlands that directly abut relatively permanent tributaries. The Corps will determine jurisdiction over waters that are nonnavigable tributaries that are not relatively permanent and wetlands adjacent to nonnavigable tributaries that are not relatively permanent only after making a significant nexus finding. The Corps will generally not assert jurisdiction over swales or erosional features, or ditches excavated wholly in and draining only uplands that do not carry a relatively permanent flow of water. However, the Corps does reserve the right to regulate these waters on a case -by -case basis. Furthermore, the preamble to the Corps regulations at 33 CFR Section 328.3, Definitions, states that the Corps does not generally consider the following waters to be waters of the U.S. (the Corps does, however, reserve the right to regulate these waters on a case -by -case basis): • Nontidal drainage and irrigation ditches excavated on dry land • Artificially irrigated areas that would revert to upland if irrigation ceased • Artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing • Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons • Water -filled depressions created in dry land incidental to construction activity and pits excavated in dry land for purposes of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the U.S. \\vcorp12\projects\WKE1702\N ES- MI\November 2018 Sub mittal\Fairview Street I m proveme nts_Draft JD 110918.docx all/09/18» 4