Appendix_A_Permits.pdf

Appendix A Permits

March 28, 2012

Steve Naylor US Army Corps of Engineers South Dakota Regulatory Office 28563 Powerhouse Road, Room 118 Pierre, SD 57501

RE: Section 404 Nationwide Permits

Dear Mr. Naylor:

The Department of Environment and Natural Resources (DENR) has reviewed the request for water quality certification under Section 401 of the Clean Water Act. This request pertains to the issuance of the Nationwide Permits and Nationwide Permit General Conditions.

The department is granting water quality certification (401) for all Nationwide Permits except Nationwide Permit #16 (Return Water From Upland Contained Disposal Areas), Nationwide Permit #27 (Aquatic Habitat Restoration, Establishment, and Enhancement Activities), Nationwide Permit #29 (Residential Developments), Nationwide Permit #39 (Commercial and Institutional Developments) and Nationwide #44 (Mining Activities).

There is concern with the creation of small nesting islands listed in Nationwide Permit #27.

Allowing this type of activity may compromise the integrity of the state's surface water resources and the state's efforts to protect them. Therefore, DENR will grant 401 certification of Nationwide Permit #27 with the condition that the Corps of Engineers will not allow the creation of small nesting islands in the Missouri River under this Nationwide Permit.

There is concern with Nationwide Permits #29 and #39 that allowable attendant features, specifically the construction of on-site septic systems in wetland areas, will conflict with state water pollution control laws and regulations. Allowing this type of activity compromises the integrity of the state's surface and ground water resources and the state's efforts to protect them.

Therefore, DENR will grant 401 certification of Nationwide Permits #29 and #39 with the condition that the Corps of Engineers will not permit the construction of on-site septic systems in wetland areas.

Compliance with these conditions provides reasonable assurance that the Nationwide Permits will be conducted in a manner that will not violate applicable water quality standards.

The department will be denying water quality certification (401) for Nationwide Permit #16 (Return Water From Upland Contained Disposal Areas) and Nationwide #44 (Mining Activities).

There is concern that these two Nationwide Permits will conflict with state water pollution control laws and regulations.

If you have questions pertaining to this certification, please contact John Miller, at (605) 773- 3351. Thank you for ensuring the continued protection of our natural resources.

Sincerely, Steven M. Pirner Secretary cc: Brent Trustkowski, US EPA, Denver hdrinc.com

6300 S. Old Village Place, Suite 100, Sioux Falls, SD 57108-2102

(605) 977-7740

March 15, 2016

Mr. Doug Sargent USACE – South Dakota Regulatory Office 28563 Powerhouse Road, Room 118 Pierre, SD 57501

Subject: Route 100 Roadway Improvements

Dear Mr. Sargent, Please find enclosed a completed 404 Permit Application for the Route 100 Roadway Improvements Project within the Madison Wetland Management District in Lake County, South Dakota.

The Project includes pulverizing and repaving the existing road surface, and incorporating two low-water crossings along the existing roadway alignment. The existing road will be paved with asphalt cement concrete and raised approximately 9 inches. The low-water crossings will be paved with portland cement concrete, elevated approximately 12 inches, and include abutting buried riprap on each side of the paved roadway. Construction is anticipated to commence in the summer of 2016.

A Preliminary Jurisdictional Determination is being used in conjunction with this 404 Permit Application. If you have any questions concerning this matter or require additional information, please contact me at 303-764-1586.

Sincerely, HDR Engineering, Inc.

Ryan Hammons Environmental Scientist

Clean Water Act Section 404 Permit Application

Route 100 Roadway Improvements

SD FTFW MADI 100(1)

Prepared For:

Federal Highway Administration Central Federal Lands Highway Division

Dakota Building Lakewood, Colorado

U.S. Army Corps of Engineers Pierre, SD Regulatory Office

File Number: Not yet assigned

Prepared by:

Environmental Scientist

Denver, CO

MARCH 10, 2016

TABLE OF CONTENTS

ENG FORM 4345: APPLICATION FOR DEPARTMENT OF THE ARMY PERMIT

ATTACHMENTS

Attachment 1: Delineation and Proposed Jurisdictional Determination of Waters of the U.S.

Attachment 2: Impact Table

Attachment 3: Project Plan Sheets and Maps (also see Appendix A of Attachment 1)

Attachment 4: NEPA Documentation

Attachment 5: Nationwide Permit General Conditions Checklist

Attachment 6: South Dakota Regional Conditions Checklist

ENG FORM 4345: Application for Department of the Army Permit

17. DIRECTIONS TO THE SITE:

The Project site is located approximately 2 miles southeast of Madison, SD.

From Pierre, SD, take South Dakota state highway (SD) 34 174 miles east to the city of Madison, SD. Within the city of Madison, SD take a right on South Highland Avenue (SD-34) for one mile and veer left onto 10th Street Southwest, and continue approximately 2.5 miles to the intersection of SD-19. Turn right onto SD-19 and the project begins approximately 1 mile south at the intersection with Sunset Boulevard. The project includes approximately 1.15 miles of Sunset Boulevard to the west of SD-19.

18. Nature of Activity (Description of project, include all features) The Federal Highway Administration (FHWA) Central Federal Lands Highway Division (CFLHD), in cooperation with the U.S. Fish and Wildlife Service (USFWS) and Lake County, are proposing improvements to Route 100. The purpose of the project is to provide safety enhancements and reduce maintenance requirements to Route 100. The proposed improvements include:

• Pulverizing and repaving the existing road surface

• Incorporate two low-water crossings with associated buried riprap on each side of the roadway

• Low-water crossings will be paved with portland cement concrete and elevated approximately 12 inches above the existing grade

• Remaining portions of the roadway will be elevated approximately 9 inches from the existing grade and paved with asphalt cement concrete

• Incorporate 4 pullouts for wildlife and landscape viewing

The proposed action will only affect the current road footprint with minor widening in certain areas for safety, extended side slopes due to an elevated roadway, and low-water crossings.

19. Project Purpose (Describe the reason or purpose of the project, see Instructions) The purpose of the Project is to provide safety enhancements and reduce maintenance requirements to Sunset Boulevard/Route 100.

USE BLOCKS 20-23 IF DREDGED AND/OR FILL MATERIAL IS TO BE DISCHARGED

20. Reason(s) for Discharge Fill for the roadway improvements and placement of riprap associated with the low-water crossings.

21. Type(s) of Material Being Discharged and the Amount of Each Type in Cubic Yards: See Attachment 2

Aquatic Resource Impacted Roadway Fill Riprap

Wetland 4 0.51 6.44 Wetland 5 0.44 0.11 Wetland 6 0 3.23 Wetland 7 1.45 0 Wetland 13 1.13 0

Total 3.53 9.78

22. Shallow Area in Acres of Wetlands or Other Waters Filled (see instructions) Acres Or Liner feet

Aquatic Resource Impacted

Amount of Waters within the Study Area (ac) Permanent Impacts (ac) Temporary Impacts (ac)

Wetland 4 1.35 0.004 0.001 Wetland 5 4.01 0.0003 0.01 Wetland 6 0.65 0.002 0.009 Wetland 7 0.39 0.0009 0 Wetland 13 0.02 0.0007 0

Total 6.42 0.008 0.02

ATTACHMENTS

Attachment 1: Delineation and Proposed Jurisdictional Determination of Waters of the U.S.

Delineation and Proposed Jurisdictional Determination of Waters of the U.S.

Madison Wetland Management District

Lake County, South Dakota

Prepared for:

Federal Highway Administration

Central Federal Lands Highway Division

Prepared by:

1670 S Broadway, Suite 3400

Denver, CO 80202

Page i

Contents

1.0 Introduction

1.1 Background

2.0 Project Study Area

3.0 Regulatory Background

3.1 Regulatory Agencies

3.2 Definitions

3.3 Guidance Based on Supreme Court Rulings

4.0 Delineation and Proposed Jurisdictional Determination

4.1 Methods

4.2 Results

5.0 Summary of Findings

5.1 Regulatory and Permitting Discussion

5.2 Other Clean Water Act Permitting Requirements

6.0 References

Tables

Table 1. Summary of Waters of the U.S. within the Study Area

Table 2. Wetlands within the Study Area

Table 3. Open Waters within the Study Area

Appendices

Appendix A: Figures

Appendix B: Representative Site Photographs

Appendix C: Wetland Determination Data Forms

Page ii

Acronyms and Abbreviations Acronym Definition

CFLHD Central Federal Lands Highway Division

CFR Code of Federal Regulations

CWA Clean Water Act

District Madison Wetland Management District

FHWA Federal Highway Administration

HDR HDR Engineering, Inc.

OHWM ordinary high water mark

RPW relatively permanent water

SWANCC Solid Waste Agency of Northern Cook County

SH State Highway

TNW traditional navigable water

U.S. United States

USACE U.S. Army Corps of Engineers

USEPA U.S. Environmental Protection Agency

USFWS U.S. Fish and Wildlife Service

USGS U.S. Geological Survey

WOUS Waters of the U.S.

January 2016 Page 1 Delineation and Proposed Jurisdictional Determination

1.0 INTRODUCTION

1.1 Background

This report presents the results of a delineation and proposed jurisdictional determination for potential waters of the United States (WOUS), including wetlands, performed along 1.15 miles (approximate 28-acre study area) of Route 100 also known as Sunset Boulevard, a portion of the Auto Tour Route through the Madison

Wetland Management District (District) in Lake County, South Dakota.

The Federal Highway Administration (FHWA) Central Federal Lands Highway Division (CFLHD), in cooperation with the U.S. Fish and Wildlife Service (USFWS) and Lake County, are proposing improvements to Route 100. The proposed project is identified as the Route 100 Roadway Improvements, hereafter referred to as the project. The purpose of the project is to provide safety enhancements and reduce maintenance requirements to Route 100. The proposed improvements include paving the existing gravel road with asphalt, the addition of four pull-outs at each of the four existing interpretive signs, and to incorporate two low-water crossings along the existing roadway alignment. In addition, a gravel parking area for up to four automobiles will be added on the east side of State Highway (SH) 19. These improvements include a total of

1.15 miles of improvements to Route 100.

The delineation and proposed jurisdictional determination of WOUS in this report, including wetlands, was conducted by HDR Engineering, Inc. (HDR) for FHWA CFLHD in support of the requirements of Section

404 of the Clean Water Act (CWA). A field survey for the determination was conducted November 6, 2015, in accordance with the 1987 Corps of Engineers Wetlands Delineation Manual (Environmental Laboratory, 1987) and the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Midwest Region (Version 2.0)

(USACE, 2010). HDR also evaluated the potential for federal jurisdiction under Section 404 of the CWA over aquatic features in the study area based on the most recently approved guidance from the U.S. Army

Corps of Engineers (USACE) and U.S. Environmental Protection Agency (USEPA) published December 2, 2008 (USEPA, 2008). The guidance was issued pursuant to the U.S. Supreme Court findings in the Rapanos and Carabell cases and is referred to as the Rapanos Guidance.

The Final Clean Water Rule: Definition of Waters of the United States was published June 29, 2015, and was set to become effective in South Dakota on August 28, 2015 (Federal Register, Vol. 80, No. 124, pp. 37054-

37127; 40 CFR 230.3). However, the state of South Dakota, among 12 other states, filed an injunction through a North Dakota federal district court halting the implementation of the new Rule on August 28, 2015. In addition, a nationwide stay was issued by the U.S. Court of Appeals for the 6th Circuit on October 9, 2015, which blocked the implementation of the new Rule. Differences between the 2008 Rapanos Guidance, which further explains the 1986 definition of WOUS (33 CFR 328.3), and the new Rule, are difficult to predict without guidance being issued for the new Rule. The USACE has the regulatory authority to issue preliminary and/or approved jurisdictional determinations based on the regulations in place at the time of their assessment. Therefore, the potential jurisdictional status of features identified in this delineation and proposed jurisdictional determination reflect that of the Rapanos Guidance.

CFLHD can request an approved jurisdictional determination from the Omaha District of the USACE to determine jurisdictional waters of the U.S., including wetlands that require permitting for proposed construction activities. However, a preliminary jurisdictional determination from the USACE may be used, if appropriate.

January 2016 Page 2 Delineation and Proposed Jurisdictional Determination

2.0 PROJECT STUDY AREA

The study area encompasses approximately 28 acres along Route 100, approximately 1,500 feet south of the

District office and approximately 2 aerial miles southeast of the town of Madison. (Appendix A). The study area is found in the U.S. Geological Survey (USGS) 7.5-minute Quadrangle Lake Madison (1978) and has the approximate coordinates of northing 43.97225 and easting 97.08037 (datum in North American Datum

1983).

The District is located within the prairie pothole region of the northern Great Plains. Shallow wetlands known as potholes occur within the landscape. These resulted from the glacier activity in which the receding ice sheets left behind depressions, kettles, or potholes. Prairie potholes range in size from tiny puddles to large glacial lakes that contain complex ecosystems.

The District is located along the western edge of the Tallgrass Prairie Region, arguably one of the most threatened terrestrial ecosystems on the continent. The District’s combination of grasslands and wetlands offer abundant food, nesting, and cover sites for waterfowl making the prairie pothole region known as the largest duck production area in the continental U.S. (USFWS, 2015).

Aquatic features in the study area drain south and east to an unnamed slough which drains east into Lake

Madison. Lake Madison is drained by Skunk Creek which converges with the Big Sioux River approximately

30 aerial miles southeast of the study area. The Big Sioux River drains to the Missouri River, the nearest traditional navigable water, approximately 108 aerial miles south of the study area.

The project is located in the Central Feed, Grains, and Livestock Land Resource Region and the Till Plains

Major Land Resource Area (NRCS, 2006). The types of soil within the study area are comprised of the following soil series (NRCS, 2015):

Baltic silty clay loam;

Dempster silt loam, 2 to 6 percent slopes;

Egan-Ethan complex, 6 to 9 percent slopes, eroded;

Egan-Wentworth silty clay loams, 2 to 6 percent slopes;

Lamo silty clay loam, cool, 0 to 2 percent slopes, occasionally flooded;

Worthing silty clay loam, ponded, 0 to 1 percent slopes;

Rauville silty clay loam;

Talmo-Delmont loams, 6 to 21 percent slopes;

Arlo silty clay loam; and

Whitewood silty clay loam.

Baltic silty clay loam, is a soil formed from clayey alluvium and often occurs at the toe slope of pothole landforms. Baltic silty clay loam is a poorly drained soil and is not considered prime farmland.

Dempster silt loam, 2 to 6 percent slopes, is a well-drained soil that is considered prime farmland. It occurs on outwash terraces from parent material consisting of loess over outwashes.

Egan-Ethan complex, 6 to 9 percent slopes, eroded, is a soil that occurs on plains originating from silty drift parent material over loamy till. The soil is well drained and not considered prime farmland.

January 2016 Page 3 Delineation and Proposed Jurisdictional Determination

Egan-Wentworth silty clay loams, 2 to 6 percent slopes, is a soil that occurs on plains landforms usually on the back slope. The soil originates from silty drift over loamy till parent material. Egan-Wentworth silty clay loams, 2 to 6 percent slopes is a well-drained soil and is considered prime farmland.

Lamo silty clay loam, cool, 0 to 2 percent slopes, occasionally flooded, is a soil that occurs on floodplain steps landforms in a linear form. These soils originate from calcareous alluvium parent material and is poorly drained; however, the soil is considered prime farmland if drained.

Worthing silty clay loam, ponded, 0 to 1 percent slopes, is a soil that occurs on depressional landforms, usually in a concave positon. These soils originate from local alluvium parent material. The soils are not considered prime farmland, and are very poorly drained.

Rauville silty clay loam, is a soil that occurs in floodplains in outwash plains. The parent material is silty alluvium occurring over outwashes. These soils are very poorly drained and are not considered prime farmland.

Talmo-Delmont loams, 6 to 21 percent slopes, is a soil that occurs on outwash terraces within moraine landforms. The soil type originates from outwash parent material, is not considered prime farmland, and is excessively drained.

Arlo silty clay loam is a soil that occurs on floodplains in outwash plains, usually on the toe slope. These soils originate from loamy alluvium over outwash. Arlo silty clay loam is poorly drained but is considered prime farmland if drained.

Whitewood silty clay loam, is a soil that usually occurs in swale landforms at the toe slope. These soils originate from silty alluvium parent material. Whitewood silty clay loam is somewhat poorly drained soil, and is considered prime farmland if drained.

All of the soil classes in the study area are hydric soils listed in the National Hydric Soils List with the exception of Lamo silty clay loam, cool, 0 to 2 percent slopes, occasionally flooded (NRCS, 2014).

Elevation in the study area is approximately 1,608 feet above sea level. The historic climax plant community in the study area was primarily open mixed grass prairie which included little bluestem (Schizachyrium scoparium), green needlegrass (Nassella viridula), indiangrass (Sorghastrum nutans), big bluestem (Andropogon gerardii), and tall and mid cool-season grasses.

At the time of the delineation, wetland and riparian species within the study area included plains cottonwood (Populus deltoides), reed canarygrass (Phalaris arundinacea), milkweed (Asclepias spp.), and cattail (Typha spp.), with upland plants consisting primarily of introduced species such as smooth brome (Bromus inermis).

The climate in the study area is semiarid. The average winter temperature is 17 degrees Fahrenheit with an average summer temperature of 69 degrees Fahrenheit. Annual precipitation based on 30-year averages (1981-

2010) in the study area is 26 inches, with the greatest amount of precipitation received during the spring and summer. Rainfall typically occurs as high-intensity, convective thunderstorms during the summer, while winter precipitation occurs mostly as snow. The freeze-free period averages 165 days and ranges from 155 to

175 days (NCDC, 2011; NRCS, 2006).

January 2016 Page 4 Delineation and Proposed Jurisdictional Determination

3.0 REGULATORY BACKGROUND

3.1 Regulatory Agencies

Agencies that regulate impacts to the nation’s surface water resources within South Dakota include the

USACE and USEPA. WOUS are protected under Sections 401 and 404 of the CWA and Executive Order

11990 (Protection of Wetlands). The USACE has the primary regulatory authority for enforcing Section 404 requirements for jurisdictional WOUS, including wetlands. The USEPA has final authority in jurisdictional determination rulings.

The stated objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Section 404 of the Act requires the issuance of a permit by the USACE for the release of dredged or fill material into jurisdictional WOUS.

3.2 Definitions

The Code of Federal Regulations (33 CFR 328.3), defines WOUS as:

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.

All interstate waters including interstate wetlands.

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:

o Which are, or could be, used by interstate or foreign travelers for recreational or other purposes; or o From which fish or shellfish are, or could be, taken and sold in interstate or foreign commerce; or o Which are used, or could be used, for industrial purposes by industries in interstate commerce.

All impoundments of waters otherwise defined as WOUS under the definition.

Tributaries of WOUS identified above.

The territorial seas.

Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in the paragraphs above. The term “adjacent” means bordering, contiguous, or neighboring. Wetlands separated from other WOUS by humanmade dikes or barriers, natural river berms, beach dunes, and the like are “adjacent wetlands.”

3.2.1 Streams

The jurisdictional extent of streams and WOUS is generally delineated by the ordinary high water mark

(OHWM), which is defined as the line on the shore/bank established by flowing and/or standing water, marked by such characteristics 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 (USACE, 2007).

January 2016 Page 5 Delineation and Proposed Jurisdictional Determination

3.2.2 Wetlands

Wetlands are a category of WOUS and are defined by 33 CFR part 328.3 as areas that are “inundated or saturated by surface or ground water 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. Wetlands generally include swamps, marshes, bogs, and similar areas.” However, temporarily or seasonally flooded depressions that receive overland storm runoff or overbank floodwaters can meet the three wetland indicator criteria and be considered wetlands. This is often due to the slowly permeable soils that remain inundated or saturated and result in anaerobic, hydric soils after just 12 to 14 consecutive days.

The presence of wetlands was determined by the positive indication of three criteria: hydrophytic vegetation, hydrology, and hydric soils. When evidence of the three criteria was found, a Wetland Determination Data

Form was completed on site (Appendix C). Recorded information includes the dominant plant species in each vegetation layer (i.e., tree, sapling/shrub, herbaceous, and vine). The indicator status of each recorded plant species is determined from The National Wetland Plant List: 2014 Update of Wetland Ratings (Lichvar et al., 2014).

The determination of wetland hydrology is based on the presence of at least one primary or two secondary indicators of a prolonged hydroperiod (i.e., period of inundation/saturation). Primary indicators include surface water, high water table, saturation, water marks, sediment deposits, drift deposits, algal mat or crust, iron deposits, inundation visible on aerial imagery, water-stained leaves, salt crust, aquatic fauna, hydrogen sulfide odor, dry-season water table, oxidized rhizospheres along living roots (where not tilled), presence of reduced iron, and thin muck surface. Secondary indicators include surface soil cracks, sparsely vegetated concave surface, drainage patterns, oxidized rhizospheres on living roots (where tilled), crayfish burrows, saturation visible on aerial imagery, geomorphic position, and FAC-neutral test.

Hydric soils are defined as soils which are flooded, ponded, or saturated long enough during the growing season to develop anaerobic conditions in the upper part of the soil profile. The determination of hydric soils is generally based on the presence of indicators of an aquic moisture regime and hydric conditions. Aquic moisture regimes occur under anaerobic conditions and could develop from continuous saturation for at least five percent of the growing season. At least one positive hydric soil indicator at each site is required to classify the soil as hydric. For example, soils in prolonged anaerobic conditions undergo chemical reduction of iron and manganese, thereby producing low-chroma soil colors. Additionally, if reduced iron and manganese in inundated or saturated soil is exposed to oxygen in other areas of the soil ped (e.g., root pores and ped faces), areas of concentrated high-chroma mottles develop that are referred to as redoximorphic features. During the field survey, colors of the soil profile matrix and mottles are identified using Munsell® soil color charts.

Additional characteristics of soil profile, texture, color, topography, and field indicators of hydrology are also considered in determining the presence of hydric soil.

3.2.3 Open Water

Open water features, also referred to as deepwater aquatic habitats, are defined as areas that are permanently inundated at mean annual water depths greater than 6.6 feet or permanently inundated areas less than or equal to 6.6 feet in depth that do not support rooted-emergent or woody plant species. Open water features are delineated based on areas with standing water, void of vegetation at the time of the delineation, as well as historical aerial photographs predominantly showing the same characteristics (Environmental Laboratory, 1987).

January 2016 Page 6 Delineation and Proposed Jurisdictional Determination

3.3 Guidance Based on Supreme Court Rulings

In January 2003, the USACE issued guidance in response to the U.S. Supreme Court’s findings in the case of the Solid Waste Agency of Northern Cook County (SWANCC) v. USACE (531 U.S. 159 [2001]) that limited the jurisdiction over non-tidal isolated waters, including wetlands and open water areas excavated in uplands.

In general, only wetlands that have a direct hydrological connection to WOUS, or are within their floodplains, are considered potentially jurisdictional under Section 404.

On December 2, 2008, the USACE and the USEPA issued the Clean Water Act Jurisdiction Following the U.S.

Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States Memorandum, which provided joint guidance for jurisdictional determinations to implement the U.S. Supreme Court’s findings in the consolidated court cases (126 S. Ct. 2208 [2006]), herein referred to as the “Rapanos Guidance” (USACE, 2008). The guidance generally does not allow the agencies to assert jurisdiction over ephemeral features, including erosional features, swales, small washes characterized by low volume, infrequent, or short-duration flow; and ditches excavated wholly in, and draining only, uplands and that do not carry a relatively permanent flow of water.

Jurisdiction over water resources that are not traditional navigable waters (TNW) or wetlands adjacent to a

TNW is generally based on meeting one of the following two standards: (1) if a water body is relatively permanent, or if the water body is a wetland that “directly abuts” a relatively permanent water (RPW); or (2) if a water body, in combination with all wetlands adjacent to that water body, has a “significant nexus” to a

TNW.

4.0 DELINEATION AND PROPOSED JURISDICTIONAL

DETERMINATION

4.1 Methods

The field delineation and proposed jurisdictional determination of WOUS, including wetlands, for the project was conducted November 6, 2015, by HDR environmental scientists Ryan Hammons and Tina Fricke. The surveys were conducted in accordance with the 1987 Corps of Engineers Wetlands Delineation Manual

(Environmental Laboratory, 1987) and the Regional Supplement to the Corps of Engineers Delineation Manual:

Midwest Region (Version 2.0) (USACE, 2010). The delineations were also performed to reflect guidance from the USACE in accordance with the U.S. Supreme Court rulings in the SWANCC and Rapanos cases. HDR reviewed a recent aerial photograph and topographic map of the study area, as well as Natural Resources

Conservation Service soil survey data and National Wetlands Inventory data, to identify potential locations for aquatic resources, including WOUS. HDR evaluated the study area using routine on-site delineation methods. Spatial data on the extent of aquatic resources and potential WOUS, including wetlands, within the study area was collected by HDR using a Trimble GeoXT hand-held Global Positioning System, post-processed for differential correction with Trimble Positions, and mapped as a data layer using ArcGIS 10.3.

Following the collection of spatial data, acres of aquatic resources and potential WOUS were calculated in

ArcGIS 10.3.

4.2 Results

WOUS within the study area consists of 14 wetlands and 3 open water features considered potentially jurisdictional (Table 1). Figures characterizing the study area, as well as the delineation of potential WOUS are provided in Appendix A. Representative site photographs are located in Appendix B; wetland determination data forms are located in Appendix C.

January 2016 Page 7 Delineation and Proposed Jurisdictional Determination

Table 1. Summary of Waters of the U.S. within the Study Area

Description Acreage Within

Study Area

Open Waters 0.42

Wetlands 13.48

Total 13.90

4.2.1 Wetlands

The study area contains 12 emergent and 2 forested wetlands considered to be potentially jurisdictional

WOUS that total 13.9 acres (Table 2).

Table 2. Wetlands within the Study Area

Resource ID Description* Classification

Acreage Within

Study Area

W-1 Palustrine Emergent Abutting 0.21

W-2 Palustrine Emergent Abutting 0.37

W-3 Palustrine Emergent Abutting 1.01

W-4 Palustrine Emergent Abutting 1.35

W-5 Palustrine Emergent Abutting 4.01

W-6 Palustrine Emergent Adjacent 0.65

W-7 Palustrine Emergent Adjacent 0.39

W-8 Palustrine Emergent Abutting 4.53

W-9 Palustrine Forested Adjacent 0.17

W-10 Palustrine Emergent Adjacent 0.30

W-11 Palustrine Emergent Adjacent 0.20

W-12 Palustrine Forested Adjacent 0.17

W-13 Palustrine Emergent Adjacent 0.02

W-14 Palustrine Emergent Abutting 0.10

Total - - 13.48 *Classification according to Cowardin et al. (1979).

**Adjacent: Wetland adjacent to a relatively permanent water.

Abutting: Wetland abutting a relatively permanent water.

Located throughout the study area, emergent wetlands W-1, W-2, W-3, W-4, W-5, W-6, W-7, W-8, W-10, W-

11, W-13, and W-14 are represented by wetland data forms DP-1 and DP-3, and by upland data form DP-2.

Wetland data form DP-1 represents portions of the emergent wetlands that are dominated by reed canarygrass, and generally occur in the more upslope portions of wetland depressions. Wetland data form

DP-3 characterizes portions of emergent wetlands that are dominated by cattail. Wetlands W-3, W-5, W-8, and W-14 are located on the south side of Sunset Boulevard and are depressional features located in the

January 2016 Page 8 Delineation and Proposed Jurisdictional Determination floodplain of the nearby slough (OW-3). Wetland W-1 abuts OW-1, while wetlands W-2 and W-4 abut OW-

2. Wetlands W-6, W-7, W-10, W-11, and W-13 are located on the north side of Route 100.

Located in the western portion of the study area and on the south side of Sunset Boulevard, forested wetlands W-9 and W-12 are dominated by plains cottonwood and reed canarygrass. Redoxmorphic concentrations were located throughout the 12-inch soil profile. Wetlands W-9 and W-12 are represented by data form DP-4, and within the study area, are both 0.17 acre in size.

Because all wetlands are abutting or adjacent to RPWs which have a surface hydrologic connection to Lake

Madison and eventually the Big Sioux River, they are considered to be WOUS (i.e., jurisdictional).

4.2.2 Streams

There are no streams located within the study area.

4.2.3 Open Waters

The study area contains 3 open water features considered to be potentially jurisdictional WOUS that total approximately 0.4 acre (Table 3).

Table 3. Open Waters within the Study Area

Resource ID Description* Classification** Acreage Within

Study Area

OW-1 Open Water RPW 0.20

OW-2 Open Water RPW 0.12

OW-3 Open Water RPW 0.09

Total - - 0.42

*Classification according to Cowardin et al. (1979).

**RPW: Relatively permanent water that flows indirectly into traditional navigable water.

Located in the eastern portion of the study area at the northwest corner of the intersection of SH 19 and

Route 100, open water OW-1 is adjacent to the western boundary of SH 19 and abuts emergent wetland W-1 on its southern boundary. Riparian vegetation includes plains cottonwood, cattail, and reed canarygrass.

Within the study area, open water OW-1 is 0.20 acre in size.

Located in the eastern portion of the study area, open waters OW-2 and OW-3 appear to be a portion of the

Park Creek overflow that empties into an unnamed slough south of the study area. They are separated by the upland construction of Route 100 and have two constructed culverts that allow for water flow. Riparian vegetation includes cattail and reed canarygrass. Open water OW-2 abuts wetlands W-2 and W-4 on the eastern and western boundaries, respectively. Open water OW-3 abuts wetlands W-3 and W-5 on the eastern and western boundaries, respectively. Within the study area, they are 0.12 acre and 0.09 acre in size, respectively.

Because open waters OW-1, OW-2, and OW-3 are considered RPWs and have a surface hydrologic connection to Lake Madison and eventually the Big Sioux River, they are considered to be WOUS (i.e., jurisdictional).

January 2016 Page 9 Delineation and Proposed Jurisdictional Determination

5.0 SUMMARY OF FINDINGS

Based on this delineation, the approximate 28-acre study area contains 14 wetlands (13.48 acres) and 3 open water features (0.42 acre) that are considered WOUS.

5.1 Regulatory and Permitting Discussion

This field delineation/verification and proposed jurisdictional determination of WOUS, including wetlands, for the project is based on the best professional judgment of HDR’s team of environmental scientists who have experience with delineation of similar resources in the north-central U.S. region. However, it does not constitute an approved jurisdictional determination or significant nexus determination, which can only be officially rendered by the USACE Regulatory Branch through the formal review process. HDR recommends that FHWA CFLHD coordinate with the USACE, Omaha District Regulatory Branch, if impacts to features identified as potential WOUS would result from the project.

5.2 Other Clean Water Act Permitting Requirements

Section 401 of the CWA requires that projects permitted under Section 404 permits meet conditions to ensure water quality protection during and following placement of fill into WOUS (e.g., construction activities). Within South Dakota, the Department of Environment and Natural Resources administers the

Section 401 water quality certification program.

January 2016 Page 10 Delineation and Proposed Jurisdictional Determination

6.0 REFERENCES

Cowardin, L.M., V. Carter V., F.C. Golet, E.T. LaRoe. 1979. Classification of Wetlands and Deepwater

Habitats of the United States. U.S. Fish and Wildlife Service Report No. FWS/OBS/-

79/31.Washington, D.C.

Environmental Laboratory. 1987. Corps of Engineers Wetlands Delineation Manual. Technical Report Y-87-

1, Department of the Army, Waterways Experiment Station.

Lichvar, R.W., M. Butterwick, N.C. Melvin, and W.N. Kirchner. 2014. The National Wetland Plant List: 2014

Update of Wetland Ratings. Phytoneuron 2014-41: 1-42.

National Climatic Data Center (NCDC). 2011. National Oceanic and Atmospheric Administration’s

(NOAA’s) 1981-2010 Climate Normals. U.S. Department of Commerce. Available online:

<http://www.ncdc.noaa.gov/oa/climate/normals/usnormals.html>. Accessed December 2015.

Natural Resources Conservation Service (NRCS). 2006. Land Resource Regions and Major Land Resource

Areas of the United States, the Caribbean, and the Pacific Basin. U.S. Department of Agriculture, U.S. Department of Agriculture Handbook 296.

. 2014. National Hydric Soils List (updated April 2014). U.S. Department of Agriculture.

. 2015. Web Soil Survey. United States Department of Agriculture.

<http://websoilsurvey.nrcs.usda.gov/ >. Accessed December 2015.

United States Army Corps of Engineers (USACE). 2007. U.S. Army Corps of Engineers Jurisdictional

Determination form Instructional Guidebook. Appendix H RGL 05-05 Ordinary High Water Mark

(OHWM) Identification, May 30, 2007.

. 2010. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Midwest

Region (Version 2.0), ed. J.S. Wakeley, R.W. Lichvar, and C.V. Noble, ERDC/EL TR-10-16.

Vicksburg, MS: U.S. Army Engineer Research and Development Center.

United States Environmental Protection Agency (USEPA). 2008. Clean Water Act Jurisdiction Following the

U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States. December 2, 2008.

United States Fish and Wildlife Service (USFWS). 2015. About the Refuge. Available online:

<http://www.fws.gov/refuge/Madison_WMD/about.html>. Accessed December 2015.

http://www.fws.gov/refuge/Madison_WMD/about.html

Appendix A Delineation and Proposed Jurisdictional Determination

Appendix A:

Figures

GENERAL LOCATION o

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STUDY AREA

ND

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SOUTH DAKOTA

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MN

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JAN 2016 FIGURE 1

0 84

MILES

COUNTY BOUNDARY

LAKE CO, SOUTH DAKOTA

ROUTE 100 ROADWAY IMPROVEMENTS

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STREAM (NHD)

STUDY AREA OVERVIEW (AERIAL)

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STUDY AREA OVERVIEW (TOPO)

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!A!A

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OW-2

OW-3

W-3 W-5

W-4 W-2

OW-1

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JAN 2016 FIGURE 4-1

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POTENTIAL WATERS OF THE U.S.

EMERGENT WETLAND

FORESTED WETLAND

OPEN WATER

FEATURES NOT WATERS OF THE U.S.

DATA POINT

!A PHOTO POINT

STUDY AREA

4 3 2 1

WATERS OF THE U.S.

LAKE CO, SOUTH DAKOTA

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FEATURES NOT WATERS OF THE U.S.

DATA POINT

!A PHOTO POINT

STUDY AREA

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JAN 2016 FIGURE 4-4

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POTENTIAL WATERS OF THE U.S.

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OPEN WATER

FEATURES NOT WATERS OF THE U.S.

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STUDY AREA

SOIL MAP UNIT

SOILS MAP

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JAN 2016 FIGURE 6

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STUDY AREA

100-YEAR FLOODPLAIN

FEMA NATIONAL FLOOD HAZARD

LAKE CO, SOUTH DAKOTA

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JAN 2016 FIGURE 7

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STUDY AREA

FRESHWATER EMERGENT

WETLAND (NWI)

FRESHWATER FORESTED/

SHRUB WETLAND (NWI)

RIVERINE (NWI)

STREAM (NHD)

WATER BODY (NHD)

NWI & NHD

LAKE CO, SOUTH DAKOTA

Appendix B Delineation and Proposed Jurisdictional Determination

Appendix B:

Representative Site Photographs

Photo 1. Looking west at the edge of wetland W-1.

Photo 2. Looking east at emergent wetland W-1 and open water OW-1. Note State Highway 19 in the background.

Photo 3. Looking west along Route 100 in the eastern portion of the study area.

Note wetlands W-4 on the right and W-5 on the left.

Representative Site Photographs B-1 January 2016 Route 100 Road Improvements Appendix B

Photo 4. Looking east in the eastern portion of the study area. Note open water OW-2 on the left and open water OW-3 on the right. In the background are abutting wetlands W-2 (on the left) and W-3 (on the right).

Photo 5. Looking northwest at wetland W-6. Note the large stand of reed canarygrass (Phalaris arundinacea) in the emergent wetland.

Photo 6. Looking west at emergent wetland W-7 (on the left) and an actively managed agricultural field (on the right).

Representative Site Photographs B-2 January 2016

Photo 7. Looking northwest along Route

100. Note emergent wetland W-8 on the left and an agricultural field on the right.

Photo 8. Looking northwest along Route

100. Note emergent wetland W-8 on the left and forested wetland W-9 in the background.

Photo 9. Looking north along Route 100 at an upland area. Note the abundance of smooth brome with some little bluestem in the distance.

Representative Site Photographs B-3 January 2016

Photo 10. Looking east along Route 100.

Note emergent wetland W-8 on the right and forested wetland W-9 in the background.

Photo 11. Looking west along Route 100.

Note the dominance of little bluestem (Schizachyrium scoparium), a facultative upland species, on the right with some reed canarygrass mixed in.

Representative Site Photographs B-4 January 2016

Appendix C Delineation and Proposed Jurisdictional Determination

Appendix C:

Wetland Determination Data Forms

US Amy Corps of Engineers Midwest Region

Project/Site

Slope (%):

Are climatic/hydrologic conditions of the site typical for this time of the year? (If no, explain in remarks) Are vegetation , soil significantly disturbed?

Are vegetation , soil naturally problematic?

SUMMARY OF FINDINGS

Hydrophytic vegetation present?

Hydric soil present? Is the sampled area within a wetland?

Indicators of wetland hydrology present?

Remarks: (Explain alternative procedures here or in a separate report.)

Dominance Test Worksheet

1 (A) 3 (B) 5 (A/B)

=Total Cover Sapling/Shrub stratum ) Prevalence Index Worksheet 1 Total % Cover of:

2 OBL species x 1 = 3 FACW species x 2 = 4 FAC species x 3 = 5 FACU species x 4 =

=Total Cover UPL species x 5 = Herb stratum ) Column totals (A) (B)

1 Prevalence Index = B/A = 3 Hydrophytic Vegetation Indicators:

4 Rapid test for hydrophytic vegetation 5 Dominance test is >50% 6 X Prevalence index is ≤3.0*

=Total Cover

Woody vine stratum )

=Total Cover

Remarks: (Include photo numbers here or on a separate sheet)

Investigator(s): Ryan Hammons and Tina Fricke Landform (hillslope, terrace, etc.):

Applicant/Owner: Central Federal Lands State:

plains Section, Township, Range:

Soil Map Unit Name Y

Rauville silty clay loam NWI Classification:

0 Lat: Long:43.971182 Datum:-97.075366

Y Y

VEGETATION -- Use scientific names of plants.

Are "normal circumstances" present? Yes

Absolute % Cover f yes, optional wetland site ID:

in concave depression north of road

Y

Dominan t Species

Indicator Staus

0 0

2.40

100 240

Problematic hydrophytic vegetation* (explain)

Phalaris arundinacea 80 Y FACW

(Plot size:

Bromus inermis 20 Y FACU

Hydrophytic vegetation present?

(Plot size:

(Plot size:

Tree Stratum (Plot size:

NAD83

80 160

Morphogical adaptations* (provide supporting data in Remarks or on a separate sheet)

Y

20 80

50.00%

Number of Dominant Species that are OBL, FACW, or FAC:

Total Number of Dominant Species Across all Strata:

Percent of Dominant Species that are OBL, FACW, or FAC:

WETLAND DETERMINATION DATA FORM - Midwest Region City/County: Lake Sampling Date:

*Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic

6 November 2015 Sampling Point: DP-1SD

Local relief (concave, convex, none): concave S21 T10N R52W

(If needed, explain any answers in remarks.)

PEM

, or hydrology , or hydrology

US Army Corps of Engineers Midwest Region

Iron-Manganese Masses (F12) (LRR K, L, R) Very Shallow Dark Surface (TF12)

X

Aquatic Fauna (B13) True Aquatic Plants (B14) X Hydrogen Sulfide Odor (C1)

X Presence of Reduced Iron (C4)

X

Sampling Point: DP-1

Depth (Inches)

Matrix Redox Features Texture RemarksColor (moist) % Color (moist) % Type* Loc**

0-36 10YR 2/1 100 clay

Remarks:

Water-Stained Leaves (B9)

Oxidized Rhizospheres on Living Roots (C3)

Drainage Patterns (B10)

Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.)

Depleted Matrix (F3) Loamy Gleyed Matrix (F2)

Gauge or Well Data (D9) Other (Explain in Remarks)

Hydric Soil Indicators:

Describe recorded data (stream gauge, monitoring well, aerial photos, previous inspections), if available:

*Indicators of hydrophytic vegetation and weltand hydrology must be present, unless disturbed or problematic

Remarks:

Type:

Sandy Mucky Mineral (S1)

YHydric soil present?

Dry-Season Water Table (C2) Water Marks (B1) Crayfish Burrows (C8)

Saturation Visible on Aerial Imagery (C9) problematic soils; thick dark surface - soils may be too dark to see redox features. Also, a depleted matrix may be located lower in the profile. Based on these conditions, as well as hydrophytic vegetation and wetland hydrology, the soils are assumed hydric.

Depth (inches): N/A

Sediment Deposits (B2)

SOIL

Wetland Hydrology Indicators:

Saturation (A3)

HYDROLOGY

Surface Water (A1) Surface Soil Cracks (B6) High Water Table (A2)

2 cm Muck (A10)

5 cm Mucky Peat or Peat (S3)

Restrictive Layer (if observed):

Histisol (A1) Histic Epipedon (A2) Black Histic (A3) Hydrogen Sulfide (A4) Stratified Layers (A5)

N/A

Depleted Below Dark Surface (A11) Thick Dark Surface (A12)

Stripped Matrix (S6) Loamy Mucky Mineral (F1)

Primary Indicators (minimum of one is required; check all that apply)

Redox Dark Surface (F6) Depleted Dark Surface (F7) Redox Depressions (F8)

No X

Recent Iron Reduction in Tilled Soils (C6)

Algal Mat or Crust (B4)

Depth (inches):

FAC-Neutral Test (D5) Iron Deposits (B5)

Drift Deposits (B3)

(includes capillary fringe)

Inundation Visible on Aerial Imagery (B7) Sparsely Vegetated Concave Surface (B8)

Surface water present?

Yes NoSaturation present?

Field Observations:

Depth (inches):

Thin Muck Surface (C7)

Y Water table present? Yes No X Depth (inches):

X

Failed FAC Neutral test 1:1

*Type: C = Concentration, D = Depletion, RM = Reduced Matrix, MS = Masked Sand Grains. **Location: PL = Pore Lining, M = Matrix

Indicators of wetland hydrology present?

Coast Prairie Redox (A16) (LRR K, L, R) Dark Surface (S7) (LRR K, L)

Sandy Gleyed Matrix (S4) Sandy Redox (S5)

Indicators for Problematic Hydric Soils:

Other (explain in remarks)

Stunted or Stressed Plants (D1) Geomorphic Position (D2)

Secondary Indicators (minimum of two required)

Yes

Slope (%):

Are climatic/hydrologic conditions of the site typical for this time of the year? (If no, explain in remarks) Are vegetation , soil significantly disturbed?

Are vegetation , soil naturally problematic?

SUMMARY OF FINDINGS

Hydrophytic vegetation present?

Hydric soil present? Is the sampled area within a wetland?

Indicators of wetland hydrology present?

Remarks: (Explain alternative procedures here or in a separate report.)

Dominance Test Worksheet

1 (A) 3 (B) 5 (A/B)

=Total Cover Sapling/Shrub stratum ) Prevalence Index Worksheet 1 Total % Cover of:

2 OBL species x 1 = 3 FACW species x 2 = 4 FAC species x 3 = 5 FACU species x 4 =

=Total Cover UPL species x 5 = Herb stratum ) Column totals (A) (B)

1 Prevalence Index = B/A = 3 Hydrophytic Vegetation Indicators:

4 Rapid test for hydrophytic vegetation 5 Dominance test is >50% 6 Prevalence index is ≤3.0*

=Total Cover

Woody vine stratum )

=Total Cover

Remarks: (Include photo numbers here or on a separate sheet)

Number of Dominant Species that are OBL, FACW, or FAC:

Total Number of Dominant Species Across all Strata:

Percent of Dominant Species that are OBL, FACW, or FAC:

WETLAND DETERMINATION DATA FORM - Midwest Region City/County: Lake Sampling Date:

*Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic

6 November 2015 Sampling Point: DP-2SD

Local relief (concave, convex, none): convex S21 T10N R52W

(If needed, explain any answers in remarks.)

N/A

, or hydrology , or hydrology

Route 100 Roadway Improvements

Hydrophytic vegetation present?

(Plot size:

(Plot size:

Tree Stratum (Plot size:

NAD83

FACU

20 40

Morphogical adaptations* (provide supporting data in Remarks or on a separate sheet)

N

80 320

50.00%

N

Asclepias syriaca 10 N

Bromus inermis 70 Y FACU

Phalaris arundinacea 20 Y FACW

3.60

100 360

Problematic hydrophytic vegetation*

Absolute % Cover f yes, optional wetland site ID:

upslope from wetland point.

N

Indicator Staus

N N

VEGETATION -- Use scientific names of plants.

Are "normal circumstances" present? Yes

Y Rauville silty clay loam NWI Classification:

1 Lat: Long:43.97113 Datum:-97.07533

Investigator(s): Ryan Hammons and Tina Fricke Landform (hillslope, terrace, etc.):

Applicant/Owner: Central Federal Lands State:

slope Section, Township, Range:

Soil Map Unit Name

Very Shallow Dark Surface (TF12)

Aquatic Fauna (B13) True Aquatic Plants (B14) Hydrogen Sulfide Odor (C1)

Presence of Reduced Iron (C4) X

Failed FAC Neutral test 1:1

*Type: C = Concentration, D = Depletion, RM = Reduced Matrix, MS = Masked Sand Grains.