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 REGULATORY BACKGROUND UNITED STATES ARMY CORPS OF ENGINEERS The United States Army Corps of Engineers (Corps) regulates discharges of dredged or fill material into waters of the United States (waters of the U.S.). These waters include wetland and nonwetland bodies of water that meet specific criteria. Corps regulatory jurisdiction pursuant to Section 404 of the Clean Water Act (CWA) is founded on a connection, or nexus, between the water body in question and interstate commerce. This connection may be direct, through a tributary system linking a stream channel with traditionally navigable waters (TNWs) used in interstate or foreign commerce, or may be indirect, through a nexus identified in the Corps regulations. The following definition of waters of the U.S. is from 33 Code of Federal Regulations (CFR) 328.3: The term waters of the United States means: (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce ... ; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams) ... the use, degradation or destruction of which could affect interstate or foreign commerce ... ; (4) All impoundments of waters otherwise defined as waters of the United States under the definition; and (5) Tributaries of waters defined in paragraphs (a) (1)—(4) of this section. The Corps typically regulates as waters of the U.S. any body of water displaying an Ordinary High Water Mark (OHWM). Corps jurisdiction over nontidal waters of the U.S. extends laterally to the OHWM or beyond the OHWM to the limit of any adjacent wetlands, if present (33 CFR 328.4). The OHWM is defined as "... that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding area" (33 CFR 328.3). Corps jurisdiction typically extends upstream to the point where the OHWM is no longer perceptible. As discussed above, Corps regulatory jurisdiction under Section 404 of the CWA is founded on a connection between the water body in question and interstate commerce. This connection may be direct, through a tributary system linking a stream channel with TNW used in interstate or foreign commerce, or may be indirect, through a nexus identified in the Corps regulations. In the past, an indirect nexus could potentially be established if isolated waters provided habitat for migratory birds, even in the absence of a surface connection to navigable water of the U.S. The 1984 rule that enabled the Corps to expand jurisdiction over isolated waters of this type became known as the Migratory Bird Rule. On January 9, 2001, the United States Supreme Court narrowly limited the \\vcorp12\projects\WKE1702\N ES- MI\November 2018 Sub mittal\Fairview Street I m proveme nts_Draft JD 110918.docx all/09/18»