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.

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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, is defined in the California Code of Regulations (CCR) as follows: “a body of water that flows at least periodically or intermittently through a bed or channel having banks and supports fish or other aquatic life. This includes watercourses having a surface or subsurface flow that supports or has supported riparian vegetation” (14 CCR 1.72).

The term stream can include ephemeral streams, dry washes, watercourses with subsurface flows, canals, aqueducts, irrigation ditches, and other means of water conveyance if they support aquatic life, riparian vegetation, or stream-dependent terrestrial wildlife (CDFW Environmental Services Division [ESD] 1994). Removal of riparian vegetation also requires a Section 1602 Lake and Streambed Alteration Agreement from CDFW. The definition of ‘stream’ does not include tidal sloughs or other tidally-influenced areas.

1.1.3 Regional Water Quality Control Board Porter-Cologne Water Quality Control Act.

The 1969 California Water Quality Control Act is the primary legislation guiding water quality protection in California and incorporates parts of the CWA such as National Pollutant Discharge Elimination System permit requirements and Section 401 water quality certification. The Act also includes water quality standards and sets the state’s antidegradation policy. The Act also establishes the State Water Resources Control Board (SWRCB) as the state water quality planning and control agency and gives authority to nine, semi-autonomous Regional Water Quality Control Boards ( RWQCB) to carry out water quality planning and control activities within their regions. Although it does not define wetlands, the Act applies to all waters of the state, which the Water Boards have interpreted to include wetlands and isolated waters. The SWRCB and RWQCB follow the Corps delineation procedures to identify wetlands.

1.1.4 San Francisco Bay Conservation and Development Commission

BCDC has permit authority over development of the Bay and the shoreline pursuant to the McAteer‐Petris Act (California Government Code sections 66000 et seq.). The Act requires the BCDC to prepare a “comprehensive and enforceable plan for the conservation of the water of the San Francisco Bay and the development of its shoreline.” In 1969, BCDC submitted the 2 completed San Francisco Bay Plan to the Governor and Legislature. The McAteer‐Petris Act was later amended to give the Bay Plan the force of law.

BCDC has jurisdiction over all filling, dredging, and changes in use in the San Francisco Bay; regulates new development within 100 feet of the shoreline subject to tidal action to ensure that maximum public access to the Bay is provided; and ensures that the limited amount of shoreline suitable for regional high‐priority water‐oriented uses is reserved for such purposes. Proposed development that does not involve any additional coverage of Bay water and that does not involve any work on piers or pier substructures is treated within the BCDC shoreline band jurisdiction.

2.0 SITE DESCRIPTION

On September 11, 2015, WRA biologists conducted a detailed site survey. The objective of the site survey was to determine the limits of the jurisdictions of federal, state, or municipal regulatory agencies.

Biologists identified and evaluated the features of Belmont Slough adjacent to the Project Area that would be considered jurisdictional wetlands and/or non-wetland waters as well as features with potential CFGC Section 1602 jurisdiction. The limits of jurisdiction for BCDC were also analyzed. WRA investigated the Project Area to determine if any additional wetland features were present that may qualify under the federal or state regulations as a jurisdictional wetland or waters of the U.S.

2.1 Location

The Project Area is located east of Highway 101, generally between Oracle Parkway and the Bay Trail north of and adjacent to the Oracle Conference Center and the larger Oracle building complex in Redwood City, California. The Project Area is surrounded by mostly industrial office buildings, residential uses and open space uses. The Project Area is located south of and adjacent to Belmont Slough.

The Project Area currently contains the parking lot for the Oracle Conference Center, and landscaped areas to the east and an undeveloped parcel to the west. The Project Area extends from just west of the Oracle Conference Center east to Marine View Park. The perimeter of the Project Area is used by the public as a walking and bike path and is part of the larger region wide Bay Trail (Figure 1).

2.2 Vegetation

Vegetation in the Project Area is limited to ruderal and ornamental landscaped plants. The landscaped portions of the Project Area extend from the ToB to Oracle Parkway and are located on both sides of the Bay Trail. The site is dominated mainly by thick stands of non-native ice plant (Carpobrotus edulis, NL) in all upland areas on the north side of the Bay Trail. Ornamental shrubs and trees are interspersed along the ToB. Areas the west and north of the Bay Trail have been replanted.

The undeveloped area to the west of the parking lot and south of the Bay Trail is dominated mainly by thick stands of non-native ice plant near the trail and crystalline ice plant (Mesembryanthemum crystallinum, FACU) in the middle. Alkalai heath (Frankenia salina, FACW) is interspersed with the iceplant near the Bay Trail in this area. A few individual stickwort 3 (Dittrichia graveolens, NL) plants and sparse occurrences of pickleweed (Salicornia pacifica, OBL) and salt grass (Distichlis spicata, FAC) and a few coyote brush (Baccharis pilularis, NL) individuals are also present within this western undeveloped parcel within the Project Area. A manicured lawn with non-native grasses lies along Oracle Parkway in this western area. East of the parking lot between the Bay Trail and Oracle Parkway is entirely composed of manicured lawn with non-native grasses and interspersed ornamental trees. The parking lot area is entirely paved with the exception of medians which are planted with ornamental trees and shrubs.

Outside of the Project Area and between the Bay Trail and to the ToB of Belmont Slough, the vegetation is dominated by ice plant and other ruderal upland species and areas of alkalai heath, non-native grasses, and salt grass. Other species here include curly dock (Rumex crispus, FAC), yellow starthistle (Centaurea solstitialis, NL), Italian thistle (Carduus pycnocephalus, NL), and bristly ox-tongue (Helminthotheca echioides, FACU).

Below the ToB along Belmont Slough, many areas are still dominated by ice plant and directly abut the pickleweed marsh (roughly at the high tide line) with portions of alkalai heath and salt grass, while other areas are dominated by non-native annual grasses and ornamental shrubs, also continuing to the high tide line and pickleweed marsh. Gum plant (Grindelia sp.) was also present, mainly along the high tide line. Below the high tide line pickleweed almost entirely dominates. Below the mean high water, the pickleweed becomes interspersed with stands of Alkali-bulrush (Bolboschoenus maritimus) and/or other bulrushes (Schoenoplectus spp., OBL) lining small marsh channels.

Trees in the Project Area are limited to ornamental non-native species located within the parking lot and ornamental tree-like shrubs between the parking lot and the Bay Trail. Ornamental poplar and weeping willow trees are scattered throughout the areas east of the parking lot. One large white poplar (Populus alba) is located just north of Oracle Parkway in the area west of the parking lot. Tree-like ornamental shrubs exist in, and surrounding, the parking lot.

2.3 Soils

The soils and topography of the Project Area have been graded, re-sculpted, and covered with fill material to include placement of wood chip mulch over most of the Project Area landward of the Bay Trail and on the western portion of the Project Area outside the Bay Trail. The Bay Trail itself lies atop a man-made berm.

Soil mapping was utilized from the UC Davis and NRCS Soilweb Maps (CSRL 2015). The soil survey indicates that the Project Area lies on 95 percent Novato clay, 0 to 1 percent slopes. Although this area is listed as Novato series, the site has been reworked and includes fill and woodchip mulch. Much of the site has little evidence of remaining native soils.

Novato Series

The Novato series consists of deep, very poorly drained soils that formed in alluvium deposited along the margin of bays. Novato soils are in tidal marshes and have slopes of 0 to 2 percent.

2.4 Hydrology

Hydrologic sources to the Project Area include direct precipitation and urban run-off from adjacent lands. Additionally, portions of the ToB and the lawn areas near Oracle Parkway are irrigated. Slopes within the Project Area are not substantial and no runoff from the site is expected. No hydrologic indications were observed within the Project Area. The tidal influence of Belmont 4 Slough is limited to below the ToB on the slough side. No evidence of tidal inundation was observed on the landward side of the ToB. A single stormwater drain is located in Marine View Park, outside of the Project Area.

2.5 Water Features

Belmont Slough is the only water feature in close proximity to the Project Area. It is separated from the Project Area by a man-made levee or berm. Between the ToB and the waters of Belmont Slough, ruderal upland habitat transitions rapidly to a narrow band of high marsh extending no more than 8 feet landward from the high tide line. At the high tide line, the slope steps down in elevation and the high marsh transitions to a pickleweed marsh. The transition from uplands to pickeweed marsh generally occurs within a lateral distance of 10 feet along this portion of Belmont Slough.

Tides in Belmont Slough are estimated by taking the mean of the San Mateo Bridge, West Side (NOAA tidal station ID: 9414458) which lies to the north of the Project Area and Redwood City Wharf 5 (NOAA tidal station ID: 9414523) which lies to the south. Table 1 shows the relevant tidal elevations for both NOAA tidal stations and the mean, used for the Belmont Slough. The mean sea level for Belmont Slough is 3.37 feet NAVD 88; the mean high water is 6.45 feet NAVD 88; and the high tide line is 8.26 feet NAVD 88.

Table 1. Elevations for the 1983-2001 Tidal Epoch, referenced to NAVD 1988. High Tide Line (ft) Mean High Mean Sea (2015 max. NOAA Water Level tide Geodetic Station ID Station Name (ft) (ft) predictions) Basis 9414458 San Mateo Bridge , West Side 6.23 3.25 8.04 Vertcon 9414523 Redwood City Wharf 5, S. F. Bay 6.67 3.50 8.48 Inferred Belmont Slough (Average of Redwood City and San Mateo None Bridge) 6.45 3.37 8.26 Averaged All data from NOAA (J. Hubbard and G. Hovis), May 2005.

3.0 METHODS

WRA biologists reviewed the on-site conditions to determine presence of potential wetlands and non-wetland waters. Determining if the existing water features meet the federal and state parameters that define wetlands and non-wetland waters is a primary step in determining whether or not the water features will fall under Corps, RWQCB, or CDFW regulatory jurisdiction. WRA biologists are experienced and trained to interpret Corps and CDFW guidance and determine if an area or feature meets the definition of wetlands. The Corps, RWQCB, and CDFW, as regulatory agencies, then have the responsibility for making final jurisdictional determinations within their jurisdictional limits.

WRA used topographic lines generated from a topographic survey to create a digital elevation model (DEM) using the Topo to Raster Tool included with the Spatial Analyst Extension for ArcGIS. Using the Contour List tool also with the Spatial Analyst Extension, two contour lines were created at 6.45’ for Mean High Water (MHW) and 8.26’ for the High Tide Line (HTL) as 5 referenced above to represent those elevations on a plan view map (Figure 1). These lines were minimally manually edited to smooth out any obvious anomalies to account for deviations in the topographic data

In the field, the HTL was verified by observation of tidal influence to include vegetation communities and wrack lines. The areas of marsh were identified and delineated by elevation and vegetation species communities. The Top of Bank (ToB) was identified by the point closest to the boundary of the active floodplain of Belmont Slough where a break in the slope of the land occurs such that the grade beyond the break is flatter than 3:1 at any point for a minimum distance of 15 feet measured perpendicularly from the break. A handheld sub-meter accuracy GPS unit was used to record the location of the HTL, the ToB and the extent of marsh habitat.

3.1 Potential Section 404 Waters of the U.S.

3.1.1 Wetlands

The methods used in this study to identify and delineate wetlands and non-wetland waters are based on the so-called three parameter approach of the U.S. Army Corps of Engineers Wetlands Delineation Manual (Corps Manual; Environmental Laboratory 1987), the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Arid West Supplement; Corps 2008), and the U.S. Army Corps of Engineers Regulatory Guidance Letter No. 05-05 (“RGL 05- 05”, Corps 2005).

Under both the existing regulations and the new rule, Section 328.3 of the Federal Code of Regulations defines wetlands as:

Those 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. 33 CFR 328.3 (b) (existing) and 33 CFR 328.3(c)(4) (new rule)

If an area was determined, on a reconnaissance level, to be a potential jurisdictional water of the U.S., then it would be examined more closely for the three wetland parameters: vegetation, hydrology and soils. If an area was determined to be a wetland using the three parameter approach, its boundary was mapped using sub-meter accuracy global positioning system equipment and mapped on a topographic map. The areas of on-site water features were measured digitally using ArcGIS software.

3.2 Potential U.S. Army Corps of Engineers Non-wetland Waters

This study also evaluated the presence of “Waters of the U.S.” other than wetlands potentially subject to Corps jurisdiction under Section 404 of the CWA. Other areas, besides wetlands, subject to Corps jurisdiction include lakes, rivers and streams (including intermittent streams) in addition to all areas below the high tide line in areas subject to tidal influence. Jurisdiction in non- tidal areas extends to the OHWM defined as under existing regulations and the new rule:

that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impresses on the bank, shelving, changes in the characteristics of the soil, destruction of terrestrial vegetation, the presence of litter

6 and debris, or other appropriate means that consider the characteristics of the surrounding areas. 33 CFR 328.3(e) (existing) and 33 CFR 328.3(c)(6) (new rule)

The methods used in this study to delineate the OHWM in variable, ephemeral, or intermittent non-wetland waters (e.g. ‘washes’ or ‘dry washes’) followed guidance described in the publication A Field Guide to the Identification of the Ordinary High Water Mark in the Arid West Region of the Western United States (Lichvar and McColley 2008) and the Updated Datasheet for the Identification of the Ordinary High Water Mark in the Arid West Region of the Western United States (“Updated Datasheet”, Curtis and Lichvar 2010). The Corps has issued specific guidance and data sheets for delineation of streams in the arid west region (Lichvar and McColley 2008, Curtis and Lichvar 2010). This guidance applies to “low-gradient, alluvial, ephemeral/intermittent channel forms” that may have a broad lateral extent and are often referred to as “washes” or “dry washes.”

3.3 Areas Potentially Exempt from Section 404 Jurisdiction

The preamble to the existing regulations (51 Fed Register 41206) lists several categorical exemptions that exclude certain types of water features from Section 404 jurisdiction. Some of these exemptions are also described in the 1987 Corps Manual. Exemptions included in this category are:

• Some man-induced wetlands, including areas that are maintained only due to the presence of man-induced hydrology (1987 Corps Manual).

• Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (33 CFR 328.3a).

• Ditches dug wholly in, and draining only uplands and that do not carry a relatively permanent flow of water (51 Fed. Reg. 41206, Corps 2008).

• Artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing (51 Fed. Reg. 41206).

• 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).

New guidance published in the Federal Register by the EPA clearly defines which Waters of the United States are jurisdictional under the Clean Water Act and further defines what “Waters of the United States” means. This new rule (80 Fed Reg. 37,054) also clearly defines areas that are NOT jurisdictional under the Clean Water Act. The new rule states that:

The following features are not “waters of the United States” even where they would otherwise qualify as jurisdictional:

(A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.

(B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. 7 (C) Ditches that do not flow, either directly or through another water, into a water

(D) Artificially irrigated areas that would revert to dry land should application of water to that area cease;

(E) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds;

(F) Artificial reflecting pools or swimming pools created in dry land;

(G) Small ornamental waters created in dry land;

(H) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and

(I) Puddles

Additionally, groundwater, including groundwater drained through subsurface drainage systems, and stormwater control features constructed to convey, treat, or store stormwater that are created in dry land are not jurisdictional.

Several of these exclusions use the phrase “dry land.” This phrase appears in the 1986 and 1988 preambles, and the agencies believe the term is well understood based on the more than 30 years of practice and implementation. But in keeping with the goal of providing greater clarity, the agencies state that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like. However, it is important to note that a “water of the United States” is not considered “dry land” just because it lacks water at a given time. Similarly, an area remains “dry land” even if it is wet after a rainfall event.

3.4 California Fish and Game Code Section 1602

Section 1602 of CFGC protects natural streams that support native and/or sensitive plants and animals. As a part of the Section 1602 process, it is necessary to define the exact areas that qualify for this protection from CDFW. Standard guidance on these issues is provided in A Field Guide to Lake and Streambed Alteration Agreements, Sections 1600-1607, California Fish and Game Code (“handbook”; CDFG 1994).

The handbook states that “biologic components of a stream may include aquatic and riparian vegetation, all aquatic animals including fish, amphibians, reptiles, invertebrates, and terrestrial species which derive benefits from the stream system.”

For streams that support aquatic wildlife and/or vegetation that derives a benefit from the stream system, the handbook provides the following information for defining the lateral extent of the stream system or riparian area for CDFW jurisdictional purposes:

The outer edge of riparian vegetation is generally used as the line of demarcation between riparian and upland habitats and is therefore a reasonable and identifiable boundary for the lateral extent of a stream. In most cases, the use of this criterion should result in protecting the fish and wildlife resources at risk.

8 …Most streams have a natural bank which confines flows to the bed or channel except during flooding. In some instances, particularly on smaller streams or dry washes with little or no riparian habitat, the bank should be used to mark lateral extent of a stream.

Thus, field guidance for CFGC Section 1602 jurisdiction is typically understood to include all natural streams, most natural aquatic features, and typically does not apply to artificially created water features. Jurisdiction does not include tidal areas such as tidal sloughs.

3.5 Bay Conservation and Development Commission

BCDC jurisdiction includes all areas of San Francisco Bay subject to tidal action, including all sloughs, and specifically, the marshlands lying between mean high tide and 5 feet above mean sea level; tidelands (land lying between mean high tide and mean low tide); and submerged lands (land lying below mean low tide). Jurisdiction also includes a shoreline band consisting of all territory located between the shoreline of San Francisco Bay and a line 100 feet landward of and parallel with that line.

4.0 RESULTS

WRA conducted a site investigation and reviewed the applicable regulations in order to determine the potential for regulatory agencies to claim jurisdiction in the Project Area. WRA also assessed any exemptions within the applicable regulations that may exclude the water features from jurisdiction.

4.1 Wetlands or Non-Wetland Waters

No wetlands or non-wetland waters were present in the Project Area based on the site investigation. WRA biologists observed no potential for wetlands to occur within the Project Area because the site conditions failed to meet the defined criteria for vegetation, soils, and hydrology. Although patches of hydrophytic vegetation were present in the Project Area, these were sparse and distributed across the site and upland vegetation dominated the site. The site also exhibited a lack of hydrology and lack of hydric soils.

4.2 Jurisdictional Areas

4.2.1 Corps Jurisdiction

The Project Area does not contain any waters of the U.S, including non-wetland waters and jurisdictional wetlands. No navigable, saline, or tidal waters are present and no special aquatic sites occur within the Project Area.

Although Belmont Slough is located adjacent to the Project Area, the Corps jurisdictional limit is at the high tide line (8.26 feet NAVD 88), located outside of the Project Area (Figure 1) as determined by using the elevation contour map. In the field a wrack or debris line was observed along this HTL elevation contour as mapped, thus confirming the location of the HTL.

4.2.1 Regional Water Quality Control Board Jurisdiction

The RWQCB jurisdiction applies to all waters within the Corps jurisdiction and all waters of the state, which the Water Boards have interpreted to include wetlands and isolated waters. The

9 Project Area is outside of Corps jurisdiction as described above and contains no wetlands and isolated waters. Therefore, the Project Area is outside the jurisdiction of RWQCB.

4.3.1 CDFW Jurisdiction

The Project Area does not contain any waters that fall under the jurisdiction of CFGC Section 1602. Belmont Slough is a tidal water and is not subject to CDFG Section 1602. In addition, areas landward of the ToB do not support riparian vegetation, nor native aquatic dependent species, and have no natural habitat connection that would provide migration of native aquatic species into Belmont Slough. Even if Belmont Slough itself were jurisdictional, the CDFW limit of jurisdiction would be located at the ToB or the edge of riparian vegetation. The ToB is located outside the Project Area (Figure 1) and therefore the Project would not encroach into CDFW Section 1602 jurisdiction.

4.4.1 BCDC Jurisdiction

The BCDC shoreline of the adjacent Belmont Slough is located at mean high tide (6.45 feet NAVD 88) or the extent of marsh lands beyond that up to an elevation of 8.37 feet NAVD 88 (5 feet above mean sea level). The fringing marsh of Belmont Slough extends to the high tide line (8.26 feet NAVD 88) and this is where the shoreline as defined by BCDC is located. The shoreline band extends 100 feet inland and parallel to that line (Figure 1). The Project Area is located within the BCDC shoreline band.

5.0 CONCLUSION

After consideration and review of regulatory documents and current on-site conditions, it is WRA’s professional opinion that there are no jurisdictional features of Corps or CFGC Section 1602 present within the Project Area. The Project Area does extend into the BCDC shoreline band and a permit must be obtained.

7.0 REFERENCES

[CDFG] California Department of Fish and Game. Environmental Services Division (ESD). 1994. A Field Guide to Lake and Streambed Alteration Agreements, Sections 1600- 1607, California Fish and Game Code.

[Corps] (Corps Manual) Environmental Laboratory. (1987). "Corps of Engineers Wetlands Delineation Manual," Technical Report Y-87-1, U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS.

[Corps] U.S. Army Corps of Engineers (Corps). 2005. Regulatory Guidance Letter No. 05-05. Ordinary High Water Mark Identification.

[Corps] U.S. Army Corps of Engineers. 2008. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0). September. Engineers; Final Rule. Vol. 51, No. 219; page 41217.

10 [CSRL] California Soil Resource Lab. 2015. SoilWeb: An online soil resource browser. Accessed online at http://casoilresource.lawr.ucdavis.edu/gmap/. Accessed in January 2015.

Curtis, KE and RW Lichvar. 2010. Updated data sheet for the identification of the ordinary high water mark (OHWM) in the Arid West region of the Western United States. Cold Regions Research and Engineering Laboratory, U.S. Army Engineer Research and Development Center. Prepared for the U.S. Army Corps of Engineers.

Environmental Laboratory. 1987. Corps of Engineers Wetlands Delineation Manual. Department of the Army, Waterways Experiment Station, Vicksburg, Mississippi 39180-0631.

Federal Register. July 13, 1994, U.S. Department of Agriculture, NRCS

Federal Register. November 13, 1986. Department of Defense, Corps of Engineers, Department of the Army, 33 CFR Parts 320 through 330, Regulatory Programs of the Corps of Engineers; Final Rule. Vol. 51, No. 219; page 41217.

Federal Register. June 29, 2015 Environmental Protection Agency 40 CFR Parts 110, 112, 116, et al. Clean Water Rule: Definition of ‘‘Waters of the United States’’; Final Rule. Vol. 80 No. 124 page 37054.

Lichvar, RW and SM McColley. 2008. A Field Guide to the Identification of the Ordinary High Water Mark (OHWM) in the Arid West Region of the Western United States. Cold Regions Research and Engineering Laboratory, U.S. Army Engineer Research and Development Center. Prepared for the U.S. Army Corps of Engineers Wetland Regulatory Assistance Program. 84 pp.

Lichvar, RW. 2014. The National Wetland Plant List: 2014 Update of Wetland Ratings. Phytoneuron 2014-41: 1-42.

Munsell Soil Color Book Revised 2009 Production 2013

[USDA] U.S. Department of Agriculture, [NRCS] Natural Resources Conservation Service. 2014. Official List of US Hydric Soils.

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Appendix A - Figures This page intentionally left blank.

Oracle Shores D-Tech San Mateo County, California

6 6 Belmont Slough 9

13 12 Figure 1. 12 10 Jurisdictional 11 9 11 6 Delineation Map

8 11

9 Oracle Parkway 9

12 12

9 8 8 12 Marine 9 Oracle 11 View Conference Park Center

Project Area Marsh Top of Bank . 0 50 100 150 Mean High Water - 6.45' Feet High Tide Line (CORPS) - 8.26' Map Prepared Date: 9/30/2015 Map Prepared By: czumwalt Shoreline Band (BCDC) Base Source: USGS EROS Data Source(s): WRA, Inc., BKF Vertical Datum: NAVD88 Path: L:\Acad 2000 Files\06000\06064-2\GIS\ArcMap\Fig 1 Delineation.mxd This page intentionally left blank. Appendix B – Project Area Photographs This page intentionally left blank. Photograph 1. Looking southeast from the interior of the Photograph 2. Looking northwest from the interior of the Project Area. Note landscape fill and ruderal upland Project Area. Note landscape fill and ruderal upland vegetation. vegetation.

Photograph 3.Looking west from outside of the Project Area. Photograph 4. Looking east from outside of the Project Area. Note iceplant ruderal upland vegetation extending from Bay Note iceplant ruderal upland vegetation extending from Bay Trail to high tide line. Trail to high tide line.

Appendix B. Site Photographs 1 Photograph 5. Looking southwest from the interior of the Photograph 6. Looking west from the interior of the Project Project Area with parking lot in background. Note landscape Area with parking lot in background. Note landscape fill and fill and ruderal upland vegetation and ornamental trees. ruderal upland vegetation and ornamental trees.

Photograph 7. Looking south from western portion of the Photograph 8. Looking west from outside of the Project Area. Project Area near the top of bank. Note irrigation and Note ruderal vegetation extending to high tide line located on landscaped upland vegetation extending north of Bay Trail. the improvised path and upland limit of pickleweed.

Appendix B. Site Photographs 2 Photograph 9. Looking west at the parking lot. Note paved Photograph 10. Looking west towards the parking lot the Bay surfaces and ornamental trees. Trail. Note the manicured lawns and ornamental trees. The top of bank is to the north (right) of the Bay Trail.

Photograph 11. Looking east near the eastern limit of the Project Photograph 12. Looking east from north of the parking lot outside of Area near the top of bank. Note the Bay Trail above the top of bank the Project Area. Note upland vegetation extending from the top of and bank slopes consisting of upland ruderal vegetation. bank to high tide line located at the upland limit of pickleweed.

Appendix B. Site Photographs 3