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DEPARTl1~NT OF THE ARMY CORPS OF ENGINEERS, OMAf1A DISTRICT DENVER REGULATORY OFFICE, 9707 SOUTH WADSWORTH BOULEVARD [1TTIE1'ON, COLORADO 80I28fi901 May 36, 2004 Mr. Michael Savage Savage and Savage 4610 Haystack Drive Windsor, CO 80550-2597 RE: Tucson Project Fill Area, Preliminary and Approved Jurisdictional Determination, Jurisdictional Areas: Brighton Ditch; Non-Jurisdictional Areas: Brantner Ditch and its Wetlands, Two Side Slope Seeps Below the Brantner Ditch, Ephemeral Depression Pond Corps File No. 200480251 Dear Mr. Savage: I have reviewed this project located in the SW '/. of Section 1, T1S, R67W, Adams County, Colorado on behalf of Aggregate Industries, Ina This review was in accordance with Section 404 of the Clean Water Act under which the U.S. Army Corps of Engineers regulates the discharge of dredged and fill material, and any excavation activities associated with a dredged and fill project, into waters of the United States. Waters of the United States include ephemeral, intermittent and perennial streams, their surface connected wetlands and adjacent wetlands and certain lakes, ponds, irrigation and drainage ditches that have a nexus to interstate commerce. Under the authority of the Clean Water Act, a preliminary jurisdictional determination has determined that the Brighton Ditch may be waters of the U.S. If a proposed activity requires work within the above-described waters of the U.S., a proponent of the project should notify this office for Department of the Army permits. This jurisdictional delineation is valid for a period of five years from the date of this letter unless new information warrants revision of the determination before the expiration date. Based upon the ruling by the Supreme Court in the matter of Solid Wane Agf-ncy of Nnrthem Cook County v r r s Armes ~nmc of Fn 'ng nn~, No. 99-1178 (January 9, 2001), the Department of the Army's (DA) regulatory authority over isolated, non-navigable, intrastate waters has been eliminated if the sole nexus to interstate commerce was use of the waters by migratory birds. It is apparent under the ruling above that the DA does not have the authority to regulate work in Brantner Ditch, the two side slope seeps below the Branmer Ditch and the ephemeral depression pond. These areas are not waters of the U.S. and therefore non jurisdictional. No permit or other authorization by the DA is required for work in these areas. This jurisdictional determination is valid for a period of five years from the date of this letter unless new information warrants revision of the determination before the expiration date. The attached Jurisdictional Determination form provides the basis jurisdiction for the Brantner Ditch, the two side slope seeps below the Brantner Ditch and the ephemeral depression pond. If the applicant wishes to appeal this approved jurisdictional determination, the attached Notification of Administrative Appeal Options form should be completed and sent to Mr. Mores Bergman at the address noted on the form. This jurisdictional determination is valid for a period of five years from the date of this letter unless new information warrants revision of the determination before the expiration date.