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Jurisdictional Limits Locations Report Oracle D.Tech Project

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Jurisdictional Limits Locations Report Oracle D.Tech Project JURISDICTIONAL LIMITS LOCATIONS REPORT ORACLE D.TECH PROJECT Redwood City, San Mateo County, California Prepared for: BKF Engineers 255 Shoreline Drive, Suite 200 Redwood City, CA 94065 Prepared by: WRA, Inc. 2169-G Francisco Blvd East San Rafael, CA 94901 415-454-8868 Contact: Mike Josselyn [email protected] Sean Avent [email protected] Date: September 2015 This page intentionally left blank. TABLE OF CONTENTS 1.0 INTRODUCTION ................................................................................................................... 1 1.1 Regulatory Background ...................................................................................................... 1 1.1.1 Clean Water Act Section 404 .................................................................................... 1 1.1.2 California Fish and Game Code Section 1602 .......................................................... 2 1.1.3 Regional Water Quality Control Board Porter-Cologne Water Quality Control Act. ... 2 1.1.4 San Francisco Bay Conservation and Development Commission ............................. 2 2.0 SITE DESCRIPTION ............................................................................................................. 3 2.1 Location ............................................................................................................................. 3 2.2 Vegetation .......................................................................................................................... 3 2.3 Soils ................................................................................................................................... 4 2.4 Hydrology ........................................................................................................................... 4 2.5 Water Features .................................................................................................................. 5 3.0 METHODS ............................................................................................................................ 5 3.1 Potential Section 404 Waters of the U.S. ........................................................................... 6 3.1.1 Wetlands .................................................................................................................. 6 3.2 Potential U.S. Army Corps of Engineers Non-wetland Waters ............................................ 6 3.3 Areas Potentially Exempt from Section 404 Jurisdiction ..................................................... 7 3.4 California Fish and Game Code Section 1602 ................................................................... 8 3.5 Bay Conservation and Development Commission .............................................................. 9 4.0 RESULTS ............................................................................................................................. 9 4.1 Wetlands or Non-Wetland Waters ....................................................................................... 9 4.2 Jurisdictional Areas ............................................................................................................. 9 4.2.1 Corps Jurisdiction ..................................................................................................... 9 4.2.1 Regional Water Quality Control Board Jurisdiction .................................................... 9 4.3.1 CDFW Jurisdiction .................................................................................................. 10 4.4.1 BCDC Jurisdiction .................................................................................................. 10 5.0 CONCLUSION .................................................................................................................... 10 7.0 REFERENCES .................................................................................................................... 10 ii LIST OF APPENDICES Appendix A - Figures Figure 1. Jurisdictional Delineation Map Appendix B – Project Area Photographs iii LIST OF ACRONYMS CCR California Code of Regulations CDFW California Department of Fish and Wildlife CFGC California Fish and Game Code CFR Code of Federal Regulations Corps United States Army Corps of Engineers CWA Clean Water Act EPA Environmental Protection Agency ESD Environmental Services Division FAC Facultative plant species FACU Facultative upland plant species FACW Facultative wetland plant species NL Not Listed NRCS Natural Resources Conservation Service OBL Obligate plant species OHWM Ordinary High Water Mark PI Prevalence Index RGL Regional Guidance Letter RWQCB Regional Water Quality Control Board ToB Top-of-Bank TNW Traditional Navigable Water UPL Upland plant species USDA United States Department of Agriculture USEPA United States Environmental Protection Agency USGS United State Geologic Survey WRA WRA, Inc. iv This page intentionally left blank. ii 1.0 INTRODUCTION On behalf of Oracle d.tech, WRA, Inc. (WRA) prepared this jurisdictional determination to assess the potential federal, state, and municipal jurisdiction of water features present and adjacent to the area proposed for the Oracle d.tech facility in Redwood City, San Mateo County, California (Figure 1) “hereafter referred to as Project Area”. This report was prepared using the combination of WRA’s professional experience, topographic data, information provided to WRA regarding proposed modifications of the Project Area, and an investigation of existing on-site conditions in adjacent to the Project Area. The purpose of this study is to determine if any of the Project Area lies within jurisdiction of the U.S. Army Corps of Engineers (Corps) or the Regional Water Quality Control Board (RWQCB) under the Clean Water Act (CWA) or Rivers and Harbors Act, or by the California Department of Fish and Wildlife (CDFW) under Section 1602 of the California Fish and Game Code (CFGC). We additionally determine if the Project Areas lies within the jurisdiction of the San Francisco Bay Conservation and Development Commission (BCDC). 1.1 Regulatory Background 1.1.1 Clean Water Act Section 404 Section 404 of the CWA gives the U.S. Environmental Protection Agency (EPA), RWQCB, and the U.S. Army Corps of Engineers (Corps) regulatory and permitting authority regarding discharge of dredged or fill material into “navigable waters of the United States”. Section 502(7) of the CWA defines navigable waters as “waters of the United States, including territorial seas.” Section 328 of Chapter 33 in the Code of Federal Regulations (CFR) defines the term “waters of the United States” as it applies to the jurisdictional limits of the authority of the Corps under the CWA. A summary of this definition of “waters of the U.S.” in 33 CFR 328.3 includes (1) waters used for commerce; (2) interstate waters and wetlands; (3) “other waters” such as intrastate lakes, rivers, streams, and wetlands; (4) impoundments of waters; (5) tributaries to the above waters; (6) territorial seas; and (7) wetlands adjacent to waters. The limits of Corps jurisdiction under Section 404 of the CWA as given in 33 CFR Section 328.4 are as follows: (a) Territorial seas: three nautical miles in a seaward direction from the baseline; (b) Tidal waters of the U.S.: high tide line or to the limit of adjacent non-tidal waters; (c) Non- tidal waters of the U.S.: ordinary high water mark (OHWM) or to the limit of adjacent wetlands; (d) Wetlands: to the limit of the wetland. A discussion of the methodology used to delineate wetlands and waters is presented in Section 4.0. In the Section 404 Preamble certain types of wetlands and waters are excluded from jurisdiction. Exclusions are extended to man-induced wetlands and artificial lakes or ponds created by excavating and/or diking dry land, artificial reflecting or swimming pools, or other similar ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons (51 Fed. Reg. 41206). The EPA and Corps promulgated a new rule defining waters of the U.S. on June 29, 2015 (80 Fed. Reg. 37,054). The new rule amends certain provisions of 33 CFR part 328. The new rule 1 went into effect on August 28, 2015. The rule defined some features as jurisdictional by rule, while others require a case-specific “significant nexus” evaluation. Features that are jurisdictional by rule include adjacent waters (not just wetlands), and adjacent means bordering, contiguous or neighboring. Neighboring waters are also jurisdictional. A neighboring water is defined one located in whole or in part within 100 feet of the ordinary high water mark (OHWM) of a traditional navigable water (TNW) or tributary. Waters located in whole or in part in the 100-year floodplain and that are within 1,500 feet of the OHWM are also considered neighboring. Waters that may be jurisdictional based upon case–specific significant nexus determinations include: Waters within 4,000 feet of the high tide line or ordinary high water mark, of a TNW, interstate water, territorial seas, impoundments, or covered tributary are subject to case-specific significant nexus determinations 1.1.2 California Fish and Game Code Section 1602 Streams and lakes, as habitat for aquatic species, are subject to jurisdiction by California Department of Fish and Wildlife (CDFW) under Sections 1600-1616 of CFGC. Alterations to or work within or adjacent to streambeds or lakes generally require a CFGC Section 1602 Lake and Streambed Alteration Agreement. The term stream, which includes creeks and rivers,
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