USACE 2021-68.NPR Letter.pdf

DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS, ALBUQUERQUE DISTRICT

4101 JEFFERSON PLAZA NE

ALBUQUERQUE, NM 87109-3435

June 4, 2021

Regulatory Division

SUBJECT: No Permit Required – Action No. SPA-2021-00068, Eastern New Mexico Water Utility Authority/Finished Water 1 Pipeline; Request for an Approved Jurisdictional Determination (AJD)

Jim Honea Jacobs 3721 Rutledge Road Suite B1 Albuquerque, NM 87109

Dear Mr. Honea:

This letter responds to your request for a determination of Department of the Army (DA) permit requirements for the proposed Eastern New Mexico Water Utility Authority Finished Water-1 Pipeline project located at approximately latitude 34.52247, longitude -103.33793, in Curry County, New Mexico. The work, as described in your email, will consist of the construction of a finished water pipeline. We have assigned Action No.

SPA-2021-00068 to this project. Please reference this number in all future correspondence concerning the project.

Based on the document titled “Eastern New Mexico Rural Water System Finished Water Pipeline-Aquatic Resources”, dated March 10, 2021, and information obtained by the Corps, we have determined that a DA permit is not required since the project would not result in the discharge of fill material into waters of the United States. This decision is based on the requested approved jurisdictional determination (JD) [attached] that there are no waters of the United States on the project site. The basis for the JD is that the review contains a non-adjacent wetland (i.e. DP1-28-05-34), which is excluded from regulation under the Navigable Waters Protection Rule [33 CFR 328.3 (b)(1)], and uplands (i.e. DP1-23-04-34 & DP1-36-04-34). A copy of this JD is also available at http://www.spa.usace.army.mil/reg/JD. This approved JD is valid for five (5) years unless new information warrants revision of the determination before the expiration date.

The delineation included herein has been conducted to identify the location and extent of the aquatic resource boundaries and/or the jurisdictional status of aquatic resources for purposes of the Clean Water Act for the particular site identified in this request. This delineation and/or jurisdictional determination may not be valid for the Wetland Conservation Provisions of the Food Security Act of 1985, as amended. If you or your tenant are USDA program participants, or anticipate participation in USDA http://www.spa.usace.army.mil/reg/JD

- 2 -programs, you should discuss the applicability of a certified wetland determination with the local USDA service center, prior to starting work.”

You may accept or appeal this approved JD or provide new information in accordance with the attached Notification of Administration Appeal Options and Process and Request for Appeal (NAAOP-RFA). If you elect to appeal this approved JD, you must complete Section II of the form and return it to the Army Engineer Division, South Pacific, CESPD-PDS-O, 2052B, Attn: Tom Cavanaugh, Administrative Appeal Review Officer, P.O. Box 36023, 450 Golden Gate Ave, San Francisco, CA 94102 within 60 days of the date of this notice. Failure to notify the Corps within 60 days of the date of this notice means that you accept the approved JD in its entirety and waive all rights to appeal the approved JD.

It should be noted that it is incumbent upon you to remain informed of any changes in regulations and policies as they relate to your project. If your plans change such that waters of the U.S. could be impacted by the proposed project, please contact our office for a re-evaluation of permitting requirements.

If you have any questions concerning our regulatory program, please contact me at

(505) 342-3220 or by e-mail at Daniel.i.Delgado@usace.army.mil. At your convenience, please complete a Customer Service Survey on-line available at http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0.

Sincerely, Daniel Delgado Regulatory Specialist

Enclosures:

1. USACE JD Form

2. USACE JD Appeals Form

3. Review Area Map mailto:Daniel.i.Delgado@usace.army.mil http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0

NOTIFICATION OF

ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND

REQUEST FOR APPEAL

Applicant: Mr. Jim Honea File Number: SPA-2021-00068 Date: June 4, 2021

Attached is: See Section below

INITIAL PROFFERED PERMIT (Standard Permit or Letter of Permission) A

PROFFERED PERMIT (Standard Permit or Letter of Permission) B

PERMIT DENIAL C

X APPROVED JURISDICTIONAL DETERMINATION D

PRELIMINARY JURISDICTIONAL DETERMINATION E

SECTION I - The following identifies your rights and options regarding an administrative appeal of the above decision. Additional information may be found at http://usace.army.mil/inet/functions/cw/cecwo/reg or Corps regulations at 33 CFR Part 331.

A: INITIAL PROFFERED PERMIT: You may accept or object to the permit.

ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the DISTRICT ENGINEER for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit.

OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer. Your objections must be received by the DISTRICT ENGINEER within 60 days of the date of this notice, or you will forfeit your right to appeal the permit in the future. Upon receipt of your letter, the DISTRICT ENGINEER will evaluate your objections and may: (a) modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or (c) not modify the permit having determined that the permit should be issued as previously written. After evaluating your objections, the DISTRICT ENGINEER will send you a proffered permit for your reconsideration, as indicated in Section B below.

B: PROFFERED PERMIT: You may accept or appeal the permit

ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the DISTRICT ENGINEER for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the

Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit.

APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the DIVISION (not district) ENGINEER (address on reverse). This form must be received by the DIVISION

ENGINEER within 60 days of the date of this notice.

C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the DIVISION (not district) ENGINEER. This form must be received by the

DIVISION (not district) ENGINEER within 60 days of the date of this notice.

D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new information.

ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD.

APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative Appeal

Process by completing Section II of this form and sending the form to the DIVISION (not district) ENGINEER (address on reverse).

This form must be received by the DIVISION ENGINEER within 60 days of the date of this notice. Exception: JD appeals based on new information must be submitted to the DISTRICT ENGINEER within 60 days of the date of this notice.

EXCEPTION: Appeals of Approved Jurisdictional Determinations based on new information must be submitted to the District engineer within 60 days of the date of this notice.

E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps regarding the preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an approved

JD (which may be appealed), by contacting the Corps district for further instruction. Also you may provide new information for further consideration by the Corps to reevaluate the JD.

SECTION II - REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT

REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an initial proffered permit in clear concise statements. You may attach additional information to this form to clarify where your reasons or objections are addressed in the administrative record.)

ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However, you may provide additional information to clarify the location of information that is already in the administrative record.

POINT OF CONTACT FOR QUESTIONS OR INFORMATION:

If you have questions regarding this decision and/or the appeal process you may contact:

DISTRICT ENGINEER

Albuquerque District, Corps of Engineers

Attn: Kelly Allen, Regulatory Division Chief

4101 Jefferson Plaza NE

Albuquerque, New Mexico 87109-3435

Phone: 505-342-3216, Fax: 505-342-3668

Kelly.E.Allen@usace.army.mil

If you only have questions regarding the appeal process you may also contact:

DIVISION ENGINEER

Army Engineer Division, South Pacific, CESPD-PDS-O, 2052B

Attn: Tom Cavanaugh, Administrative Appeal Review Officer P.O. Box 36023, 450 Golden Gate Ave.

San Francisco, CA 94102

Phone: 415-503-6574, Fax: 415-503-6646 thomas.j.cavanaugh@usace.army.mil

RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 15 day notice of any site investigation, and will have the opportunity to participate in all site investigations.

Signature of appellant or agent.

Date: Telephone number:

mailto:thomas.j.cavanaugh@usace.army.mil

U.S. ARMY CORPS OF ENGINEERS

REGULATORY PROGRAM

APPROVED JURISDICTIONAL DETERMINATION FORM (INTERIM)

NAVIGABLE WATERS PROTECTION RULE

1 Map(s)/Figure(s) are attached to the AJD provided to the requestor.

2 If the navigable water is not subject to the ebb and flow of the tide or included on the District’s list of Rivers and Harbors Act Section 10 navigable waters list, do NOT use this document to make the determination. The District must continue to follow the procedure outlined in 33 CFR part 329.14 to make a Rivers and Harbors Act Section 10 navigability determination.

3 A stand-alone TNW determination 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 independent upstream or downstream limits or lake borders are established. A stand-alone TNW determination should be completed following applicable guidance and should NOT be documented on the AJD form.

4 Some excluded waters, such as (b)(2) and (b)(4), may not be specifically identified on the AJD form unless a requestor specifically asks a Corps district to do so. Corps Districts may, in case-by-case instances, choose to identify some or all of these waters within the review area.

5 Because of the broad nature of the (b)(1) exclusion and in an effort to collect data on specific types of waters that would be covered by the (b)(1) exclusion, four sub-categories of (b)(1) exclusions were administratively created for the purposes of the AJD Form. These four sub-categories are not new exclusions, but are simply administrative distinctions and remain (b)(1) exclusions as defined by the NWPR.

Page 1 of 3 Form Version 29 July 2020_updated

I. ADMINISTRATIVE INFORMATION

Completion Date of Approved Jurisdictional Determination (AJD): June 4, 2021 ORM Number: SPA-2021-00068 Associated JDs: SPA-2016-00142 (Eastern NM Rural Water System First Pipeline Package) Review Area Location1:

State/Territory: NM City: N/A County/Parish/Borough: Curry County Center Coordinates of Review Area: Latitude 34.522472 Longitude -103.337936

II. FINDINGS

A. Summary: Check all that apply. At least one box from the following list MUST be selected. Complete the corresponding sections/tables and summarize data sources.

The review area is comprised entirely of dry land (i.e., there are no waters or water features, including wetlands, of any kind in the entire review area). Rationale: N/A or describe rationale.

There are “navigable waters of the United States” within Rivers and Harbors Act jurisdiction within the review area (complete table in section II.B).

There are “waters of the United States” within Clean Water Act jurisdiction within the review area (complete appropriate tables in section II.C).

There are waters or water features excluded from Clean Water Act jurisdiction within the review area (complete table in section II.D).

B. Rivers and Harbors Act of 1899 Section 10 (§ 10)2

§ 10 Name § 10 Size § 10 Criteria Rationale for § 10 Determination

N/A N/A N/A N/A

C. Clean Water Act Section 404

Territorial Seas and Traditional Navigable Waters ((a)(1) waters)3

(a)(1) Name (a)(1) Size (a)(1) Criteria Rationale for (a)(1) Determination

Tributaries ((a)(2) waters):

(a)(2) Name (a)(2) Size (a)(2) Criteria Rationale for (a)(2) Determination

Lakes and ponds, and impoundments of jurisdictional waters ((a)(3) waters):

(a)(3) Name (a)(3) Size (a)(3) Criteria Rationale for (a)(3) Determination

Adjacent wetlands ((a)(4) waters):

(a)(4) Name (a)(4) Size (a)(4) Criteria Rationale for (a)(4) Determination

2 If the navigable water is not subject to the ebb and flow of the tide or included on the District’s list of Rivers and Harbors Act Section 10 navigable waters list, do NOT use this document to make the determination. The District must continue to follow the procedure outlined in 33 CFR part 329.14 to make a Rivers and Harbors Act Section 10 navigability determination.

3 A stand-alone TNW determination 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 independent upstream or downstream limits or lake borders are established. A stand-alone TNW determination should be completed following applicable guidance and should NOT be documented on the AJD form.

4 Some excluded waters, such as (b)(2) and (b)(4), may not be specifically identified on the AJD form unless a requestor specifically asks a Corps district to do so. Corps Districts may, in case-by-case instances, choose to identify some or all of these waters within the review area.

5 Because of the broad nature of the (b)(1) exclusion and in an effort to collect data on specific types of waters that would be covered by the (b)(1) exclusion, four sub-categories of (b)(1) exclusions were administratively created for the purposes of the AJD Form. These four sub-categories are not new exclusions, but are simply administrative distinctions and remain (b)(1) exclusions as defined by the NWPR.

Page 2 of 3 Form Version 29 July 2020_updated

D. Excluded Waters or Features

Excluded waters ((b)(1) – (b)(12))4:

Exclusion Name Exclusion Size Exclusion5 Rationale for Exclusion Determination

DP1-28-05-34 15 acres (b)(1) Non-adjacent wetland The wetland does not exhibit a connection to any nearby aquatic resource and is categorized as a non-adjacent wetland excluded from jurisdiction.

III. SUPPORTING INFORMATION

A. Select/enter all resources that were used to aid in this determination and attach data/maps to this document and/or references/citations in the administrative record, as appropriate.

_X_ Information submitted by, or on behalf of, the applicant/consultant: “Eastern New Mexico

Rural Water System Finished Water Pipeline-Aquatic Resources” (March 10, 2021).

This information is sufficient for purposes of this AJD.

Rationale: N/A

___ Data sheets prepared by the Corps: N/A _X_ Photographs: Applicant submitted photos (Photos 1-3) [“Eastern New Mexico Rural Water

System Finished Water Pipeline-Aquatic Resources” (2021)].

___ Corps Site visit(s) conducted on: N/A _X_ Previous Jurisdictional Determinations (AJDs or PJDs): ORM Number(s) and date(s).

_X_ Antecedent Precipitation Tool: provide detailed discussion in Section III.B.

___ USDA NRCS Soil Survey: N/A ___ USFWS NWI maps: N/A ___ USGS topographic maps: N/A

Other data sources used to aid in this determination:

Data Source (select) Name and/or date and other relevant information

USGS Sources N/A.

USDA Sources N/A.

NOAA Sources N/A.

USACE Sources N/A.

State/Local/Tribal Sources N/A.

Other Sources N/A.

B. Typical year assessment(s): The Antecedent Precipitation Tool (APT) was used to determine if the applicant’s onsite examination on November 2 & 3, 2021 was conducted during a climatological “typical year” for the review area. Data was gathered from three (3) weather stations located approximately 7.3-miles (Clovis 13 N), 12.1-miles (Clovis), and 18.9-miles (Melrose) from the review area. Results from the APT note that on the day of the applicant’s field visit the review area was in the dry season and experiencing severe drought. The APT results indicate that the field visit was conducted during drier than normal conditions for the rolling 30-year period.

2 If the navigable water is not subject to the ebb and flow of the tide or included on the District’s list of Rivers and Harbors Act Section 10 navigable waters list, do NOT use this document to make the determination. The District must continue to follow the procedure outlined in 33 CFR part 329.14 to make a Rivers and Harbors Act Section 10 navigability determination.

3 A stand-alone TNW determination 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 independent upstream or downstream limits or lake borders are established. A stand-alone TNW determination should be completed following applicable guidance and should NOT be documented on the AJD form.

4 Some excluded waters, such as (b)(2) and (b)(4), may not be specifically identified on the AJD form unless a requestor specifically asks a Corps district to do so. Corps Districts may, in case-by-case instances, choose to identify some or all of these waters within the review area.

5 Because of the broad nature of the (b)(1) exclusion and in an effort to collect data on specific types of waters that would be covered by the (b)(1) exclusion, four sub-categories of (b)(1) exclusions were administratively created for the purposes of the AJD Form. These four sub-categories are not new exclusions, but are simply administrative distinctions and remain (b)(1) exclusions as defined by the NWPR.

Page 3 of 3 Form Version 29 July 2020_updated

C. Additional comments to support AJD: The review area encompasses an approximately 15.4-mile length of a planned finished water pipeline corridor and contains one (1) identified aquatic resource [AR] (i.e. DP1-28-05-34 [wetland]) and two (2) aquatic features (i.e. DP1-23-04-34 [Running Water Draw] & DP1-36-04-34). The review area is found within the 12-digit Hydrologic Unit Code (HUC) boundary of Cannon Air Force Base (120500020105), Town of Ranchvale (120500020107), no name (120500050301), and Garrett Ranch-Running Water Draw (120500050104).

The applicant has submitted a delineation report titled “Eastern New Mexico Rural Water System Finished Water Pipeline-Aquatic Resources”, dated March 10, 2021, of the review area. A delineation was originally conducted at DP1-28-05-34, DP1-23-04-34 [Running Water Draw], and DP1-36-04-34 in 2008 and follow-up field work to confirm the status of these features was conducted on November 2 & 3, 2021. The report indicates the presence of a wetland at site DP1-28-05-34. Furthermore, the report categorizes aquatic features DP1-23-04-34 (i.e. Running Water Draw) and DP1-36-04-34 as upland vegetated swales with no defined bed and bank.

Aerial photographs of the review area were examined using Google Earth. Aerial photographs of imagery dated March 1997, November 2003, July 2005, September 2006, August 2009, August 2011, March 2012, January 2014, and February 2020 were examined as part of this review. Surface water flow was not observed within the examined aerial photographs for aquatic features DP1-23-04-34 (i.e.

Running Water Draw) and DP1-36-04-34. Inundation was observed within the aerial photographs for AR DP1-28-05-34 during the dates of November 2003 and February 2020. The aerial photographs indicate AR DP1-28-05-34 (wetland) receives sheet flow from the surrounding uplands and lacks an outlet with a connection to any nearby ARs. AR DP1-23-04-34 (i.e. Running Water Draw) is located within a draw that extends several miles upstream and downstream of the review area. Aerial imagery appears to confirm the review area within the draw does not contain a defined bed and bank.

DP1-36-04-34 appears to be a segment of a draw with a discontinues flow path which eventually flows into a playa outside of the review. Aerial imagery appears to confirm the lack of a defined bed and bank within the review area. Furthermore, the playa appears to receive flows from DP1-36-04-34 and lacks an outlet with a connection to any nearby ARs.

ARs DP1-23-04-34 (i.e. Running Water Draw) and DP1-36-04-34 have been excluded from this review as they lack a defined bed and bank and are, therefore, considered non-jurisdictional upland areas.

Based on the review of aerial imagery and the submitted delineation report, the Corps has determined DP1-28-05-34 is a non-adjacent wetland categorized as a (b)(1) water in 33 CFR 328.3 (b)(1). In accordance with 33 CFR 328.3 and the June 22, 2020 implementation of the Navigable Water Protection Rule, DP1-28-05-34 does not meet the definition of “Waters of the United States” and, therefore, is not subject to regulation under Section 404 of the Clean Water Act.

Figure 4

Figure 2

Figure 3

Prepared for: Jacobs File: 10674 FW1WetlandFig1.mxd (KC) March 10, 2021

±Figure 1 Map Index

Eastern New Mexico Rural Water System Finished Water 1 Pipeline Wetland Studies

Portions of this document include intellectual property of ESRI and its licensors and are used herein under license. Copyright:© 2013 National Geographic Society, i-cubed Source: Esri, DigitalGlobe, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AeroGRID, IGN, and the GIS User Community, ESRI and its licensors. All rights reserved.

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