Appendix C - Biological Resources Supporting Information COMBINED

-2- your submittal. This approved jurisdictional determination will expire in five years from the date of this letter, unless new information or a change in field conditions warrants a revision to the delineation map prior to the expiration date. The basis for this approved jurisdictional determination is explained in the enclosed Approved Jurisdictional Determination Form. This approved jurisdictional determination is presumed to be consistent with the U.S. Supreme Court decision of January 9, 2001, concerning the Solid Waste Agency of Northern Cook County v. United States Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC"). In the SWAN CC decision, the Court invalidated, at least, portions of the Migratory Bird Rule as a sole nexus to the Commerce Clause, and ruled that the U.S . Army Corps of Engineers had exceeded its statutory authority in exerting jurisdiction over non-navigable isolated, intrastate waters that did not provide some other interstate or foreign commerce use (33 C.F.R § 328.(a)(3)). This approved jurisdictional determination is also presumed to be consistent with the U.S. Supreme Court decision of June 19, 2006, concerning Rapanos v. United States, 126 S. Ct. 2208 (2006) ("Rapanos"). In the Rapanos decision, the Court determined, in part, that jurisdiction may not be asserted over certain categories of waters that lack a "significant nexus" effect with a traditional navigable waters. Those categories of waters requiring a significant nexus effect determination include: Non-navigable tributaries that are not relatively permanent (do not typically flow year-round or have continuous flow at least seasonally); wetlands adjacent to non- navigable tributaries that are not relatively permanent; and wetlands adjacent to but not directly abutting a relatively permanent non-navigable tributary. Waters of the United States do not generally include non-tidal drainage and irrigation ditches excavated on dry land; artificially irrigated areas which would revert to upland, if the irrigation ceased; artificial lakes or ponds created by excavating and/or diking dry land to collect and retain wate r, and which are used exclusively for such purposes as stock watering, irrigation, settling basin s, or rice growin g; artificial reflecting or swimming pool , or other small ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons; or water-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel, unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of a waters of the United States (51 Fed. Reg. 41,217; Nov. 13, 1986). Based on a case-by-case analysis, the U.S. Army Corps of Engineers may elect to not exert jurisdiction over these categories of water bodies. The current absence of jurisdictional wetlands within the boundary area of the site does not obviate any requirement to obtain other Federal, State, or local approvals necessitated by law for such non-jurisdictional waters. Any impacts to federally-listed threatened or endangered species and/or designated critical habitat may be subject to regulation by the U .S. Fish and Wildlife Service and/or the National Marine Fisheries Service under Section 10 of the Endangered Species Act ofl 973, as amended (16 U.S.C. § 1531 et seq.). If "waters of the state" are