Report on Conditions on and Adjacent to the Appel Property, 111

Report on Conditions on and Adjacent to the Appel
Property, 111 Creek Road, Ojai, Ventura County
California Relative to Section 404 of the Clean Water Act
Prepared By
Robert J. Pierce, Ph.D.
Wetland Science Applications, Inc.
P.O. Box 1022
Poolesville, Maryland 20837-1022
March 27, 2014
On May 8, 2014, Reuven L. Cohen of Dordi Williams Cohen, LLP obtained a complete
acquittal on all charges against his client, John Appel, in the United States District Court
for the Central District of California. Mr. Appel was charged with two counts of illegally
discharging pollutants into waters of the United States, in violation of the Clean Water
Act, and two counts of criminal contempt for violating a permanent injunction issued in
2002 by former United States District Judge Lourdes Baird. The charges were prosecuted
by the Environment and Natural Resources Division of the United States Department of
Justice in conjunction with the United States Attorney's Office for the Central District of
California. The 2002 injunction followed nine years of Clean Water Act litigation
brought against Mr. Appel by the Civil Division of the United States Attorney's Office
and a 1995 felony conviction that Mr. Appel sustained in California Superior Court for
violations of the Clean Water Act. Reuven obtained the May 8, 2014 acquittal after an
eight day jury trial before United States District Judge George Wu. The jury deliberated
for approximately forty five minutes before returning its verdict of "Not Guilty" on all
four counts. Reuven was assisted by Celeste Bacchi. Read about the verdict here in the
Daily Journal.
***
www.dordiwilliamscohen.com
Section 1: Introduction & Methods
This report has been prepared at the request of the Federal Public Defender, Central
District of California concerning the matter of United States v. John Appel. It presents the
results of field inspection of the applicable Appel Property and my evaluation of policy
issues related to the alleged violation of the Clean Water Act (CWA).
The Appel Property is approximately 33 acres in size located on the eastern side of the
Ventura River and west of the southern end of Oak View, Ventura County, California
(CA) (Figure 1-1). The Ventura River passes through a portion of the western side of the
tract and/or meanders adjacent to its western edge. An unnamed tributary (hereafter East
Channel) that originates in and passes through Oak View, CA passes through the eastern
portion of the Appel Property before its confluence with the Ventura River on the Appel
Property (Figure 1-1).
This report addresses three specific issues:
1. The natural flowpath of the Ventura River, Ventura County California, and the
human activities that have altered the path;
2. What constitutes the OHWM and where it exists on the Appel Property; and
3. Whether the Appel Property is technically located in the “Arid West” as identified
for jurisdictional determinations by the U. S. Army Corps of Engineers (COE).
Background
Discharges of dredged or fill material into navigable waters of the United States (U.S.)
are regulated at the federal level under Section 404 pf the Clean Water Act (CWA). The
definitions of dredged and fill material as well as the definitions of discharges of each are
found at 33 CFR Part 323.
The all-inclusive limits of waters of the U.S. subject to jurisdiction under Section 404 are
specified at 33 CFR Part 328.3. Specifically:
a. The term “waters of the United States” means:
1. All waters which are currently used, or were used in the past, or may
be susceptible to use in interstate or foreign commerce, including all
waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use,
degradation or destruction of which could affect interstate or foreign
commerce including any such waters:
i. Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
1
ii. From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
iii. Which are used or could be used for industrial purpose by
industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the United
States under the definition;
5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this
section;
6. The territorial seas;
7. Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (a)(1)-(6) of this section.
8. Waters of the United States do not include prior converted cropland.
Notwithstanding the determination of an area's status as prior
converted cropland by any other federal agency, for the purposes of
the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with the EPA.
Waste treatment systems, including treatment ponds or lagoons designed to
meet the requirements of CWA (other than cooling ponds as defined in 40
CFR 123.11(m) which also meet the criteria of this definition) are not waters
of the United States.
The definition of ordinary high water mark (OHWM) states:
e. The term “ordinary high water mark” means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank, shelving,
changes in the character of soil, destruction of terrestrial vegetation, the
presence of litter and debris, or other appropriate means that consider the
characteristics of the surrounding areas. [33 CFR 328.3(e)]
The terms perennial, intermittent and ephemeral are not defined at 33 CFR Part 328.
While technically, a distinction can be made, from a policy standpoint they are all simply
waters of the U.S. All nonwetland waters of the U.S. must be identified consistently using
the same concept of OHWM to specify limits. The terms perennial, intermittent and
ephemeral do occur at 33 CFR Part 330. However, all definitions found in 33 CFR Part
330 are specifically limited to application of nationwide permits (NWP) and do not have
a jurisdictional meaning.
2
Figure 1-1. Vicinity map of Appel Property (yellow) and environs. The Ventura River
passes in a southerly direction through the western portion of the tract. An unnamed
tributary originating in Oak View, California passes in a southerly direction through the
eastern portion of the tract before joining the Ventura River. San Antonio Creek has its
confluence with the Ventura River near the southern extent of the Appel Property.
3
Methods
Field sampling followed the 1987 Wetland Delineation Manual protocol (Environmental
Laboratory 1987) as supplemented (USACE 2010). Specifically, Section D for areas
greater in size than 5 acres was employed. The approximate boundaries of the property
and the transect locations are depicted in Figure 1-2.
Much of this report is based upon existing documents, data, maps and aerial photographs.
Some of the information is derived from old printed documents. In some cases, the
documents may not have been published in publicly available venues; however, most of
the information is from sources readily available on the Internet.
Field data were collected during a site visit in February 2013. These consist of notes, gps
coordinates, relative elevation data and landscape photographs. Locations of all points
were documented using a Magellan MobleMapper 6 Global Positioning Instrument
(GPS) with post-processing capability. Submeter accuracy was attained after post
processing with Ashtech MobleMapper Office version 2.1.5 software. Post-processed
data were exported both as Microsoft Excel comma-separated values files and as KML
files that could be imported directly into Google Earth Internet application.
Maps were generally prepared using Google Earth with various aerial photographs as the
base. The Appel Property boundaries and the four “areas of concern” identified in
Butterwick (2010) were approximated within Google Earth from examination of paper
prints of aerial images provided by the Environmental Protection Agency (EPA). Some
maps were prepared using DeLorme Topo USA v. 7.0.
All elevations were determined using a Realist Transit Model Meridian L6-20 and survey
rods graduated to hundredths of feet. The instrument tripod was stabilized at rough level
(using the instrument bubble and tripod leg adjustments) at each location and then the
level was fine-tuned by adjusting the four tension screws between the instrument and the
plate on the tripod. The instrument was swung through a full 360o arc to verify level
before any measurements were taken. Locations of instrument and rod were documented
with the MobleMapper GPS unit.
4
Section 2: Ventura River
The Ventura River flows generally in a southerly direction. It originates in the Los Padres
National Forest on the North Fork Matilija Creek. A road, variably referred to as
California Route 33, Maricopa Highway, Wheeler Springs Road and Forest Route 5N24,
follows and repeatedly crosses the North Fork. Below Matalija Lake, the Creek
discharges into the Ojai alluvial valley and the waterbody is identified as the Ventura
River (River). Appendix A is a graphic depiction of the Creek/River from the first tunnel
heading north on Route 33 in Los Padres to Foster Park, north of Ventura California.
There can be little doubt that absent human intervention, the River would, primarily
through episodic events, migrate in a west by southwesterly direction, that is, away from
the Appel Property. Figure 2-1 depicts the extent of levees that are readily observable
from monoscopic examination of aerial photographs. The occurrence of some of these
levees was field verified. Except for short segments of levees armoring bridge abutments
at Santa Anna Boulevard and Baldwin Road, all are located on the west side of the River.
I strongly suspect that there are other levees that have overgrown with vegetation and are
not as readily observable.
Figure 2-1. Red lines depict levees readily visible by examination of a time series of
aerial photographs. Note that with the exception of the two short levees armoring the
east side of the Ventura River floodplain at the Baldwin Road and Santa Ana
Boulevard Bridges, all of the levees are on the west side of the River.
5
Some of the levees that have been constructed are public works projects by the Ventura
County government. These are primarily to protect roads (most notably Santa Anna Road
running along the west side of the River) and developed lands such as the community of
Live Oaks Acres (Figure 2-2) on the west side of the River north of Santa Anna Blvd.1
Other levees most likely were constructed by private concerns to protect individual
properties and agricultural lands.
Figure 2-2. Location of levee protecting Live
Oaks Acres.
Figure 2-3 depicts the River adjacent to the Appel Property during the period from 1978
through August 1994. In February and March, 1978 major flood flows occurred on the
River and scoured much of the valley bottom. In response to those events what I refer to
below as Levee 1 was either constructed or rebuilt (Figure 2-3(a)). By September 1, 1983
(Figure 2-3(b)), the River had reached a meander pattern that did not change dramatically
as the valley revegetated (Figure 2-3(c-e).
1
http://portal.countyofventura.org/portal/page/portal/PUBLIC_WORKS/engineeringservices/Capital%20Pr
ojects/WatershedProtection.pdf
6
(a)
(c)
(b)
(d)
(e)
Figure 2-3. Time sequence of the Ventura River near the Appel Property: (a) May 17, 1978; (b)
September 1, 1983; (c) June 20, 1989; (d) December 13, 1993; and (e) August 16, 1994.
Source: Pacific Western.
7
Figure 2-4 depicts River conditions and flowpaths (turquoise lines) on September 2,
1994. It is unclear when Levee 2 was constructed, however, in February 1998, another
large flooding event occurred. According to COE files, Ventura County conducted work
in the River to the west of the Appel Property and just north of its confluence with San
Antonio Creek. From the initial response to the flood event in 1978 into 2000 when
mitigation work was performed, major realignment of the River and work in the
floodplain occurred. Figure 2-5 shows a diversion channel being constructed as part of a
“mitigation plan.”
As part of the extensive record associated with the 1998-2000 discharge activities, the
COE files indicate that a levee was already in existence and that it was repaired. Absence
of plans in the COE files provided to us, leave the exact location of the levee unknown.
The overall outcome of the work was that the River was relocated to the east, a diversion
berm and channel constructed, and mitigation was established. Figure 2-6 shows the
condition of the River on April 1, 2000.
Figure 2-4. September 2, 1994, aerial photograph with flow paths (turquoise lines) of
the East Channel, Live Oak Creek to the west and Ventura River in the center.
8
Figure 2-5. Padre report on mitigation work (Project 50298, Sheet 6 of 10, dated
1/12/2000) for levee repair activities in 1998. Likely remnants of barriers and
channel from repair and/or mitigation still visible in February 2013.
In response to the activities conducted by Ventura County immediately after the 1998
flooding, the COE initiated an enforcement action against the County alleging regulated
modification of 5.8 acres of waters of the U.S. The record supplied by the COE is
incomplete, but for some reason the COE later determined that all of the materials moved
by the County was “pure excavation” (the quotation marks were actually part of the COE
correspondence at FOIA 14-0007 File_1, p.126) and therefore, not regulated. Based upon
the presence of a new berm (Figure 2-6, red arrow) where none had previously existed
(Figures 2-3 and 2-4) it is unclear how the conclusion that the discharge of dredged
and/or fill material was “pure excavation” was reached.
9
Figure 2-6. April 1, 2000 aerial photograph depicting portion of the Ventura River
and environs were work was conducted in 1998 through 2000. Red arrow points to
new diversion berm and the yellow arrow points to diversion channel being
constructed in Figure 2-5. Source: http://www.terraserver.com/
10
Figure 2-7 depicts the extent of levees that are readily observable from monoscopic
examination of multiple years of aerial photographs and field verified immediately
upstream and adjacent to the Appel Property in September 2004 as well as the flow path
(heavy purple line) that had established since the work was completed in 2000 (Figure 26)
Figure 2-7. September 30, 2004 aerial with Levees 1 & 2 (red) and flow path of
Ventura River (heavy purple).
Another large flood event occurred in January 2005.The peak flow reached 41,000 cfs on
January 10, 2005 (USGS Gage Station 11118500), the fifth largest peak flow since data
collection began in 1933. This and other large events in the 2005 water year contributed
to a mean annual flow of 323.2 cfs compared with the average mean annual flow
(average MAF is the average of the annual flows for all years of record) for 52 years of
record of 68.9 cfs.
By February 1, 2005, Ventura County had constructed a diversion levee (Levee 3) and
rerouted the River (Figure 2-8, red arrow) through a new channel. In addition, they
pushed materials from the old channel to rebuild Levee 2 (yellow arrow). While these
activities caused the direct (discharge associated with construction of Levee 3) and
indirect (draining because of channel realignment) loss of several acres of the Ventura
River, I can find no record of permit authorization for the work in the FOIA files. In
FOIA 14-0007 File_3, there are tables of emergency permit actions, but it is unclear
11
which if any of the activities listed are for the work conducted adjacent to the Appel
Property.
Figure 2-8. Red arrow identifies location of initial diversion levee (3) constructed by
February 1, 2005. yellow depicts rebuilding of Levee 2. Levee 3 remains to this day.
Source: http://www.terraserver.com/
During the period February 19 to 28, 2005, another large flood (although smaller than the
January 2005 flood) flowed down the Ventura River. Because of the constraint caused by
Levee 3, the February flood realigned the River downstream of Levee 3 as well as the
East Channel discussed below. As seen from the changes in flow path that is evidenced in
the preceding aerial photographs, every constraint (such as levees or channelization) on
the natural geomorphic processes that influence a river’s path has consequences that
result in downstream (and sometime upstream) physical adjustments to the system as well
as potential regulatory consequences. One of the well-documented consequences of
armoring a riverbank such that meanders are constrained is that the channel will attempt
to reach equilibrium by eroding downstream segments of bank to reestablish its stable
meander pattern. Because the state of the science is advanced (in appreciable part by
engineers and scientists with the Corps of Engineers) such physical problems should
routinely be assessed before levees/flood walls are authorized or constructed. An
understanding of the physical changes likely to occur in a river as a result of construction
work should then be used by the regulator in compliance with the public interest review
mandated by COE regulations to assess potential problems that may result to neighboring
property owners prior to the issuance of any Department of Army authorization to
discharge dredged or fill material associated with the project.
12
Figure 2-9. May 1, 2005, photo showing the realignment of the Ventura River after
construction of Levee 3 (red). The River has been relocated well east of Levee 2
(Yellow). Source: http://www.terraserver.com/
13
Figure 2-10. December 30, 2005 aerial photograph showing the three main levees and
the realignment of the River channel resulting from construction of Levee 3. Heavy
purple line is flow path pre-Levee 3. Thin purple line is flow path post-Levee 3.
As can be observed comparing the before modification (Figure 2-9) with the after
modification and large storm event (Figure 2-10) it is obvious that major alterations
occurred to the Appel Property. In contrast, during the period from September 1, 1983
(Figure 2-3(b)) to September 2, 1994 (Figure 2-4), (and probably until the 1998 flood
although there are no aerial photographs to document it) before the channel was
intentionally relocated, and with years with the two highest mean annual flows (1995 –
382.8 cfs) and 1998 (365.0 cfs) occurred. Despite peak flows reaching 43,700 cfs (1995)
and 38,800 cfs (1998), there was much less damage done to the active floodplain
although the channel did continue to migrate to the west. It was not until the flow was
diverted and the channel was relocated after the flood of 1998 (Figure 2-6) that there was
an appreciable realignment of the channel, and that only after Ventura County realigned
it.
Perhaps most consequential from the standpoint of the current action is the fact that the
Ventura River and its associated floodplain were relocated much further east and in large
measure “moved” (by human intervention) onto the Appel Property. I can state with
reasonable scientific certainty that left unconstrained and under natural conditions, it
would have continued to migrate in a southwesterly direction away from the Appel
Property.
14
While there certainly are smaller bed material sizes intermixed, it is clear (Appendix B)
that many boulders are present in the Ventura River and that channel very high velocity
flow are required to move them. Thus, rapid change in channel geometry is not expected,
and in fact, absent the frequent ministrations of Ventura County, relatively little change
would likely have occurred – aside from the continued migration of the River away from
the Appel Property.
Dunne and Leopold (1978) provide Figure 27 (reproduced here as Figure 2-11) depicting
the relationship between particle size (horizontal axis) and the velocity of water necessary
to erode soil particles (vertical axis). 100 mm is approximately 4 inches and 400 cm/sec
(~ velocity to move a 4-inch cobble) is approximately 13 ft/sec. The velocity of the water
in the Ventura River at the MAF (~”ordinary flow, see Section 3) of 68.9 cfs is a little
less than 0.9 ft/sec. Thus, only during large storm events do the cobles, let alone the
boulders in the Ventura River move.
Cardno Entrix 2012 observed the channel condition of the Ventura River and provided
the following:
The morphology of the Ventura River reflects the changes in topography that
occur from the headwaters to the lagoon at the ocean. Channel slopes are
generally greater than 0.05 ft/ft on the tributary streams, but decrease to
approximately 0.02 ft/ft between Matilija Dam and Robles Diversion. Slopes
decrease further to between 0.015 ft/ft and 0.01 ft/ft from the Robles
Diversion Dam to the confluence with San Antonio Creek. Below San
Antonio Creek, the channel gradient generally decreases to 0.005 ft/ft to the
mouth (ENTRIX 2001b).
The significant change in channel gradient reduces the capacity of the river to
transport bed and suspended sediment loads derived from the upper
watershed. In addition to the downstream reduction in channel slope, the
Figure 2-11.
15
more highly entrenched and narrow tributary streams give way to a wide
alluvial valley that has comparatively much less energy to transport
sediments. The multiple channel morphology of the mainstem is a result of
the high sediment yields and reduced sediment transport capacity relative to
tributary streams that creates a series of various bar types and unvegetated
islands that are subject to shifting positions during high-flow events
(ENTRIX 2001b).
The D-type channels indicative of the Ventura River are associated with
unstable bar features and frequent lateral channel adjustments. Based on the
historic aerial photography, the low- and high-flow channels may change
position within a dynamic floodplain, but the floodplain width and terrace
features have remained relatively stable. Over geologic time periods, there
has been an approximate balance between rate of uplift due to faulting and
the rate of river down-cutting (Reclamation 2000). … In response to this
uplift, the Ventura River has been adjusting by down-cutting at an
approximately equal rate as to uplift, from about 0.5 to 1.3 millimeters (mm)
per year (Rockwell et al. 1984). Cross-section data from Reclamation (2003)
suggests that channel down-cutting has accelerated in recent decades.
Channel downcutting could result in disconnecting the floodplain from the
channel, depending upon the relative magnitude of incision.
Interpretation of the time-series aerial photography indicates that the Ventura
River between Foster Park and Robles Diversion has likely always possessed
the morphological characteristics and functionality of a D-type channel.
However, recent decades of channel incision is an indicator that sections of
the Ventura River are evolving into a different stream type that is associated
with the loss of multiple high- and low-flow channels and is more
characteristic of a single-thread channel, which is becoming disconnected
from its former floodplain. As such, the river is not vertically stable, although
the extent to which continued vertical incision may occur is not known.
Under natural conditions, not only was the Ventura River moving away from it, but
because of downcutting (the relict channel abandoned after construction of Levee 3 in
2005 is substantially lower than the realigned channel), the channel may have been
disconnected from the floodplain adjacent to the Appel Property, thus, diminishing the
recurrence frequency of inundation.
A braided stream is one that has multiple threads carrying ordinary flow – not simply a
stream that engages abandoned channels during storm events. My examination of the site
and observations along the River from the Casitas Vista Road Bridge near Foster Park up
along the North Fork of Matilija Creek just past the tunnel on Maricopa Highway (Rte
33), suggests that the River is primarily a single thread channel that in the valley has been
migrating in a westerly direction during infrequent, very high flow, episodic events.
During these events, new channels may be cut in some reaches and old ones abandoned.
The abandoned channels in the Ojai Valley were all east of the current active channel. At
the southern end of my examination, my understanding is that the River was intentionally
relocated to the east at Foster Road some years ago, abandoning the naturally formed
western channel where the original USGS stream gage remains. During very high flows,
16
the abandoned channels may be reengaged and scoured more than the remainder of the
active floodplain. Thus aerial photographs from periods after major flood events show
many bare channel segments that do not carry water during ordinary flows. Most of these
are extreme flood flow distributary channels that lack ordinary flow and, therefore,
should not be regulated under Sec 404 of the CWA. Where channels are and what their
origins were has become all but undecipherable because of the massive earthwork
projects that Ventura County has conducted in the valley.
All the human efforts to constrain the natural migration pattern of the Ventura River,
however, have had their effect. In particular, the construction of the Live Oaks Acres
community on the west side of the River and its levee (Figure 2-2) that was constructed
to protect the community, coupled with the levee on the east side of the river at the Santa
Ana Boulevard Bridge has created a massive flume (Figure 2-12) that during large storm
events shoots flows through at an accelerated rate towards the Appel Property.
Because of the extensive and long-term human manipulation of the River, its exact
stream classification is really impossible to determine. Certainly the human actions of
constructing deep and armored channels as was done at the northwest corner of the Appel
Property is reinforcing the natural single thread channel configuration as discussed above
(Entrix 2012). At the same time, actively realigning the channel back to the east leaves
abandoned channels on the landscape that may be engaged by the River under extreme
events.
The eastern “lowflow channel” of Butterwick (2010) did not form as a braid of the
Ventura River and does not carry ordinary flow from the River. As depicted in Figure 11, the East Channel that runs through the Appel property formed as a small stream course
that originates in what is now the community of Oak View. Every map from every source
that I have seen shows the East Channel as an unnamed tributary to the Ventura River. In
a similar manner to the River capturing the lower portion of San Antonio Creek following
the extreme storm of January 2005 and channel realignment in 2005, during some
episodic flood event, flood waters scoured a connection from the Ventura River to the
East Channel on the east side of the Appel Property.
Figure 2-13 summarizes the changes in flow in the Ventura River and the East Channel
over the last 3+ decades. As in the rest of the Ojai valley, the Ventura River has
continuously migrated in a west, southwest direction during episodic, large flow events.
Ventura County has after each such event, worked diligently to entrain the River to the
location which is most advantageous to the County – i.e., away from Santa Ana Road and
incidentally towards the Appel Property. Presumably, the activity of Ventura County,
which entails the movement of thousands of cubic yards of material and loss of waters of
the U.S., are authorized by the COE. As such and pursuant to 33 CFR Part 328.5, such
authorized relocations of waters of the U.S. establish new jurisdictional limits under the
CWA and any activity which occurs in locations that are no longer waters of the U.S. can
occur without need for CWA authorization under Section 404.
17
Figure 2-12. April 17, 2013
aerial depicting the locations of
east and west levees at Santa Ana
Boulevard Bridge, which act as a
“flume” to accelerate water
velocity. Above the flume, the
water “backs up” reaching a
higher water surface elevation
than below the flume, where it
can spread out into the less
constrained valley. As it
approaches the Appel Property,
Levee 3 again constricts the flow,
which in turn causes the water to
back up and engage the East
Channel and increases its velocity
as it passes by the Appel
Property.
18
Figure 2-13. April 17,
2013 aerial photograph
depicting major changes
in flow paths over time
established by “natural
conditions.” Turquoise –
1994 flow path; heavy
purple – 2004 flow path;
light purple – 2005; and
blue and yellow 2013
OHWMs. Each change
occurred because of major
flood event, but was
predicated on construction
activity by Ventura
County that constrained
flow.
19
Section 3. Ordinary High Water Mark
Determination of the OHWM on the Appel Property
Figure 3-1 depicts the approximate boundaries of the Appel Property and the locations of the
four transects that were traversed across the property in February 2013 in conformance with
standard COE methods for jurisdictional delineations (Environmental Laboratory 1987).
Figure 3-1. The approximate limits of the Appel Property (yellow) and transects traversed to
identify potential waters of the U.S. (orange).
Throughout the entire Appel Property, a GPS point was taken at each point along the edge of the
channels where there was a break in direction such that an accurate representation of the OHWM
could be documented. Figure 3-2 depicts the February 2013 locations of the OHWMs in relation
to the approximate Appel Property boundary and the approximate areas of concern as identified
in Butterwick (2010). The blue and yellow lines representing the OHWMS were constructed by
connecting individual field documented GPS OHWM points. A close-up of the Northeast area of
concern is presented as Figure 3-3 to demonstrate the frequency of OHWM field observations.
Butterwick (2010) is concerned with conditions on the Appel Property during the period from
2006 to 2009. As discussed in Section 2 of this report, the fifth largest flow of record occurred in
January 2005.1 By February 1, 2005 (Figure 2-8), Ventura County had constructed a diversion
1
file:///C:/wsa/appel%20ventura%20Calif/usgs%20hydro/ventura%20river%20foster%20park/USGS%20Surface%2
0Water%20for%20USA%20%20Peak%20Streamflow.htm
20
levee (Levee 3) and redirected the River closer to the Appel Property. Soon after completion of
Levee 3, a second storm occurred between February 18 – 28, 2005. Floodwaters, while not as
high as the January storm, were constrained by Levee 3 and substantially realigned the channel
and eroded a large section of the Appel Property. Figure 3-4 depicts the flow path (heavy purple)
of the Ventura River on September 30, 2004 before levee construction and channel relocation.
Figure 3-5 depicts conditions on December 30, 2005, after levee construction, channel relocation
and the February 2005 flood. The light purple line depicts the new flow path. Figure 3-6 is the
same as Figure 3-5 except the OHWM line (blue) from February 2013 has been superimposed.
The flow-path lines are the approximate center of the river as derived from aerial images. The
OHWM lines are based upon ground location of the edge of the River. Figures 3-7 through 3-10
depict conditions on the Ventura River at specified dates into 2013. The 2013 OHWM differs
little from the 2005 flow-path indicating that the channel has remained relatively stable over the
eight-year time period.
Figure 3-2. Overall location of
OHWMs (blue and heavy
yellow) on the Appel Property
relative to the approximate
property boundaries (thin
yellow) and the Butterwick
(2010) areas of concern (red).
Lines constructed by connecting
field located GPS points.
Most importantly, even after Levee 3 was constructed and the channel relocated to the east in
2004, from 2005 to February 2013, the OHWM never intruded into the two areas of concern
along the Ventura River identified by Butterwick (2010).
Figure 3-11 (a), (b) and (c) are additional landscape photographs of OHWMs in the Ventura
River adjacent to the Appel Property taken in February 2013. The vertical red lines have been
superimposed on the photographs to indicate the approximate OHWMs. Compare these images
with the photographs from the Raponos Guidebook (Appendix C). The indicated OHWMs are in
the same juxtaposition as those depicted in the Guidebook.
21
Figure 3-3. Example of density of OHWM points. Approximate Northeast area of concern
(red) with actual OHWM GPS locations (yellow dots).
Figure 3-4. September 30, 2004
depiction of Ventura R. with two
older levees in place. River
flowpath depicted with heavy
purple line.
22
Figure 3-5. December 30,
2005 depiction of Ventura
River after Levee 3 was
constructed and the channel
relocated to the east. Thin
purple line depicts new
flowpath.
Figure 3-6. This is the
same as Figure 3-5 except
that the 2013 OHWM
survey (blue) has been
added. Note that the 2005
flowpath (thin purple)
differs little from the 2013
OHWM survey (blue).
23
Figure 3-e.
May 24, 2009
Figure 3-7. August 31, 2007
Figure 3-8. May 24, 2009.
24
Figure 3-9. April 26, 2011.
Figure 3-10. April 17, 2013
25
(a)
(b)
(c)
Figure 3-11. Images (a), (b) and (c) were taken along the Ventura River adjacent
to the Appel Property. Vertical red lines show approximate locations of the
OHWM.
26
East Channel
All topographic maps that I have viewed of the system (e.g., Figures 1-1 and Figure 4-12)
identify the East Channel as an independent, unnamed tributary reaching a confluence with the
Ventura River on the Appel Property. Figures 3-12 to 3-14 are a time series of the northeast
corner of the Appel Property and the valley north of it.
All of the images (Figure 3-12) taken before Levee 3 (Figures 2-8 and 2-9) was constructed and
the Ventura River Channel relocated to the east, show the East Channel disconnected from the
Ventura River. The floodflow of January 2005, engaged a historic distributary channel and
connected the Ventura River to the East Channel. After diversionary Levee 3 was constructed
and the River channel relocated, the floodflow of February 2005 being constrained from flowing
to the west, reengaged the distributary and eroded a new, sinuous flow path for the East Channel
(Figure 13(a)). As time progressed, the eroded scar revegetated (Figure 3-13(b-d) and Figure 314).
The Ventura River Valley as it passes through Ojai Valley is an alluvial fan floodplain.2
SPD200110 discusses flooding on alluvial fans. While the Ventura River is not in the arid region
(see Section 4 of this report), the general discussion of geomorpholigical characteristics of
meandering channels on alluvial fans is valid. SPD2001 states in part:
The feeder channel connects the catchment area to the fan and is usually constricted as
a result of confinement within a tight valley. The channels below the feeder channel are
the distributaries and the local braided discharges on the fan itself (Cook et al. 1993).
Based on the above physical characteristics, alluvial fans in arid areas will include
some channels subject to Section 404 of the Clean Water Act. However, due to channel
migration, alluvial fans will also support numerous historic channels, which only
convey flow during extremely large storm events. Based on the above, Corps
jurisdiction over channels occurring on alluvial fans will usually be confined to the
feeder channel, the current main distributary channels for the alluvial fan and their
direct tributaries. [p.5]
In the case of the Ventura River above the Appel Property, the constriction is not natural, but the
result of constructed levees on both the east and west side of the feeder channel at the Santa
Anna Bridge (see Section 2 of this report). This constriction literally forms a funnel, which
directs floodwaters in a southwesterly direction. The floodwaters are then constricted again by
Levee 3 constructed in February 2005, which prevented flood flow continuing in the
southwesterly direction away from the Appel Property. The result of the double constriction was
the erosion of the East Channel. Because this connecting distributary channel is only engaged
during flood flows and not ordinary flows, consistent with SPD2001, it should not be regulated.
The East Channel as it meanders through Oak View and south is an independent tributary.
2
http://portal.countyofventura.org/portal/page/portal/PUBLIC_WORKS/Watershed_Protection_District/
Watersheds/Ventura_River/WPD_FLO2D_11_09.pdf
27
(a)
(b)
(c)
(d)
Figure 3-12. (a) June 11, 2002; (b) December 31, 2002; (c) June 3, 2003; (d) September 30, 2004.
The East Channel is hardly discernable to the west of the sinuous line on the right side in the white
rectangle. All images before the big flood of January 2005.
28
(a)
(b)
(c)
(d)
Figure 3-13. (a) December 30, 2005; (b) September 30, 2007; (c) May 24, 2009; (d) April21, 2011.
The East Channel is to the west of the sinuous line on the right side in the white rectangle. All
images after the big flood of January 2005. Notice the denuded, connecting channel eroded by the
flood in (a). Gradually, the channel has become vegetated because of lack of ordinary flow from the
Ventura River ((b), (c), and (d).
29
(a)
(b)
(c)
(d)
Figure 3-14. (a) August 26, 2012; (b) April 17, 2013. The East Channel is to the west of the
sinuous line on the right side in the white rectangle. All images after the big flood of January
2005.
Cross-sectional Surveys at the “Areas of Concern” on the Appel Property
The real issue related to whether there were impacts in the areas of concern identified by
Butterwick (2010) is whether those areas were waters of the U.S. during the time of the alleged
violation. Evidence in the horizontal plane is compelling that the areas were not jurisdictional.
The vertical separation between the channels and the areas of concern adds weight to the
argument. Cross-sectional profiles of the elevations of the areas of concern (Butterwick 2010) in
relation to the stream channels were constructed at each location.
Northeast Area of Concern
Figure 3-15 depicts the location of the surveyed points, landscape views and the cross-sectional
profile. The instrument was located between the channel and the first indication of bank
stabilization (alleged fill). Height of instrument (I) was 3.38’. Reading of rod at far OHWM was
6.80’ at 18’ distance from the instrument. Reading at the base of concrete barrier was 0.98’ at 16’
distance from the instrument. Total elevation rise from land surface at OHWM to base of
concrete barrier (Figure 3-15 bottom) was 5.82’ over a distance of 34’. Width of the portion of
the channel to the west of the cobble bar was 6’.
Since the ordinary flow is contained entirely within the active channel between the OHWMs, I
can state with reasonable scientific certainty that for flow to reach the elevation of the concrete
blocks and the EPA-identified area of concern the water level would have to rise ~ 6 feet or ~five
times the height of the MAF. To the extent that the SPD2001 guidance10 would apply to this
30
Northeast Site
Relative Elevation (feet)
6
Barrier
4
I
2
0
-2
0
10
20
30
Distance (feet)
Profile
OHWM
31
40
Figure 3-15. Alleged violation
“Northeast Site” (NE). Top: April
17, 2013 aerial depicting
approximate NE impact area
(red), OHWM (yellow) and crosssectional survey points. Middle:
Landscape view of approximate
OHWMs (red) at survey location.
Bottom: Elevation of the transit
instrument (I) and Barrier relative
to the OHWM (red). Broken line
extension is conceptual depiction
of streambed below the OHWM
elevation.
location (since it does not have an arid climate), the elevation difference between the OHWM
and the area of concern should immediately disqualify it as a jurisdictional water:
…However, flood terraces that are several feet higher than the active stream channel
may not be inundated by small or moderate storm events and, as a result, may not be
regulated as waters of the United States…. [p.8]
Aerial Photographs from pre-2005 flood do not show any channel present though the area
identified as the Northeast Area of Concern (Figure 3-13). It is likely that peak stage of the 2005
flood at least threatened the bank in this area as it is in direct line with the upstream channel.
NWP 45 currently states in part:
Note: The uplands themselves that are lost as a result of a storm, flood, or other
discrete event can be replaced without a section 404 permit, if the uplands are restored
to the ordinary high water mark (in non-tidal waters) or high tide line (in tidal waters).
(See also 33 CFR 328.5.) [77 FR 10280]
The same statement was contained in the 2007 NWP 45 (72 FR 11190). In 2002, NWP 3 stated
in part parenthetically:
Uplands lost as a result of a storm, flood, or other discrete event can be replaced
without a Section 404 permit provided the uplands are restored to their original preevent location. This NWP is for the activities in waters of the US associated with the
replacement of the uplands. [67 FR 2078].
Thus, the COE has long had the policy that allowed landowners to protect and replace their lands
lost as a result of discrete storm events without the requirement to obtain a Section 404 permit.
(a)
(b)
Figure 3-16. Before (a: September 30, 2004) and after (b: December 30, 2005) aerial
photographs showing the dramatic realignment of both the Ventura River and the East Channel
following the January 2005 flood that had the fifth largest flow event on record. Realignment of
flow paths in both the Ventura River and East Channel resulted from construction of Levee 3.
32
In September 2004, the East Channel was more or less a straight line (Figure 3-16(a)). Because
of the construction of Levee 3 and the resultant narrowing of the floodplain, after the 2005 major
flood event, both the Ventura River and the East Channel were severely realigned (Figure 3-16
(b)) The bare ground visible in Figure 3-16 (b) attests to the level of erosion precipitated by the
construction of Levee 3. The aerial photograph from August 12, 2006 (Figure 3-17), very clearly
depicts the East Channel in the vicinity of the Northeast Area of Concern. The East Channel
exhibits a characteristic sinuous meander in the area through and downslope from where the
concrete barriers ultimately were placed and presents no evidence that the channel has been
realigned at that location. The concrete barrier in the Northeast Area of Concern first appeared in
an August 31, 2007 aerial photograph and are placed well upslope of the OHWM.
Figure 3-17. August 12, 2006 aerial photograph of the East Channel. The sinuous meander is
characteristic of a natural stream course.
Consistent with 33 CFR 328.5, the natural realignment of the East Channel in the vicinity of the
Northeast Area of Concern, caused a change in CWA jurisdiction such that the reestablished
OHWMs now are the correct limits of jurisdiction. To the extent that it ever was, I can state with
reasonable scientific certainty that the elevation of the Northeast area of concern is not a water of
the U.S and has not been since the flood-induced channel realignment in 2005. I find no evidence
that any fill was placed in the East Channel below and channelward of the OHWM in the vicinity
of the Northeast Area of Concern.
33
Middle Bridge Area of Concern
Surveyed elevations were measured and recorded at two locations within this overall site based
upon relative position to the OHWMs adjacent to each.
- Middle Bridge (North) Area of Concern
Figure 3-18 depicts the location of the surveyed points, landscape views and the cross-sectional
profile. The instrument was located South of the bridge road in the red Area of Concern. Height
of instrument (I) was 3.28’ and 3.44’ above OHWM elevation. Reading of rod at OHWM was
6.72’ Reading at the base of the gunite was 6.09’ at a distance of 3’ from the OHWM. Reading at
the base of concrete barrier was 4.00’ at 7’ distance from the OHWM. Reading at the eucalyptus
tree was 1.25’ at a distance of 32’ from the OHWM. Total elevation rise from land surface at
OHWM to base of concrete block was 2.72’ over a distance of 7’. Width of the channel was 16’
at the OHWMs.
Since the ordinary flow is contained entirely within the active channel between the OHWMs, I
can state with reasonable scientific certainty that for flow to reach the elevation of the concrete
barrier and the EPA-identified area of concern the water level would have to rise ~ 4 feet above
the bed of the East Channel (Figure 3-28(e)).
- Middle Bridge (South) Area of Concern
Figure 3-19 depicts the location of the surveyed points, landscape views and the cross-sectional
profile. The instrument was located to the east of the East Channel in the area of concern. Height
of instrument (I) was 3.12’. Reading of rod at the OHWM was 7.83’ at 57’ distance from the
instrument. Reading at the thalweg was 9.34’ at 8’ from the OHWM. Reading at the top of slope
was 4.54’ at 26” distance from the OHWM. Reading at edge of woods was 6.14’ at 42’ distance
from the OHWM. Total elevation rise from land surface at OHWM to the top of slope was 3.29’
and from the thalweg was 4.8’. Rise from OHWM to the area of concern was 2’ to 4’. Width of
the channel was 19’ at the OHWMs.
Since the ordinary flow is contained entirely within the active channel between the OHWMs, I
can state with reasonable scientific certainty that for flow to reach the elevation of the concrete
blocks and the EPA-identified area of concern the water level would have to rise over 3’ to reach
the area of concern (Figure 3-19 Bottom).
To summarize for the entire Middle Bridge site, the Levee 3-induced, realignment of the East
Channel adjacent to the Middle Bridge Area of Concern during the flood of 2005 changed the
CWA jurisdiction limits as depicted in Figure 3-16 (b). Consistent with 33 CFR 328.5, the
realigned channel from 2006 conforms to the 2013 OHWM delineation. To the extent that it ever
was, I can state with reasonable scientific certainty that the elevation of the Middle Bridge area
of concern is not a water of the U.S and has not been since the flood-induced channel
realignment in 2005. I find no evidence that any fill was placed in the East Channel below and
channelward of the OHWM in the vicinity of the Middle Bridge Area of Concern.
Northwest Area of Concern
Figure 3-20 depicts the location of the surveyed points, landscape views and the cross-sectional
profile at the Northwest area of concern. The instrument was located between the channel and
the first indication of bank stabilization (alleged fill). Height of instrument was 3.64’. Reading of
rod at near OHWM was 6.03’ at 17’ distance from the instrument. The reading at the thalweg
34
(a)
Middle Bridge (North)
(b)
(d)
(c)
6
Relative Elevation (ft)
(e)
Tree
4
Barrier
' I
2
Gunite
0
-2
-20
-10
0
10
20
30
40
Distance (ft)
OHWM
Profile ' Instrmnt
Figure 3-18. Alleged violation “Middle Bridge Site North [MB(N)].” (a): April
17, 2013 aerial depicting approximate MB impact area (red), OHWM (yellow)
and cross-sectional survey points. (b): OHWM (yellow), edge of Gunite and
Barrier; (c) Tree east of .Barrier; (d): Landscape view from instrument location
for MB(N) depicting Barrier and Tree (yellow); and (e): Cross-section depicting
elevation relative to the OHWM. Broken line extension is conceptual depiction
of streambed below the OHWM elevation.
35
Middle Bridge (South)
5
Relative elevation (ft)
Top of
Slope
4
I
3
2
Edge Woods
1
0
-1
-2
-20
0
20
40
60
Distance (ft)
Profile
Thalweg
OHWM
36
Figure 3-19. Alleged violation “Middle
Bridge Site South [MB(S)].” Top: April
17, 2013 aerial depicting approximate MB
impact area (red), OHWM (yellow and
blue) and cross-sectional survey points.
Middle: Landscape view from instrument
location for MB(N). Red line points to
location of instrument for MB(S); yellow
line points to rod at Edge Woods. Bottom:
Cross-section depicting elevation relative
to the OHWM. Broken line extension is
conceptual depiction of streambed below
the OHWM elevation.
(a)
(b)
Northwest Site
(c)
(d)
(e)
Figure 3-20. Alleged violation “Northwest Site” (NW). (a): April 17, 2013
aerial depicting approximate NW impact area (red), OHWM (blue) and crosssectional survey points. (b): Landscape view from engineered Thalweg east
towards Barrier at survey location. (c): Tree1 from transit instrument (I’) and
Barrier. (d): Tree2 from transit instrument (I’) and north Barrier. (e): Tree3
from transit instrument (I’). Bottom: Cross-section depicting elevation relative
to the OHWM. Broken line extension is conceptual depiction of streambed
below the OHWM elevation.
37
was 7.63’ at 56’ distance from the instrument. Reading at base of concrete block was 0.33’ at 14’
distance from the instrument. Total elevation rise from land surface at OHWM to base of
concrete block was 6.36’ over a distance of 31’. Total elevation rise from land surface at thalweg
to base of concrete block was 7.96’ over a distance of 70’ (Figure 20 Bottom). Width of the
channel was ~50’. Total elevation rise from thalweg to OHWM is 1.60’
Since the ordinary flow is contained entirely within the active channel between the OHWMs, I
can state with reasonable scientific certainty that for flow to reach the elevation of the concrete
blocks and the Northwest Area of Concern, the water level would have to rise over three feet. To
the extent that it ever was, I can state with reasonable scientific certainty that the elevation of the
Northwest area of concern is not a water of the U.S and has not been at least since the floodinduced channel realignment in 2005. I find no evidence that any fill was placed in the Ventura
River below and channelward of the OHWM by Mr. Appel in the vicinity of the Northwest Area
of Concern. There is, however, photographic evidence that Ventura County placed fill into the
Ventura to construct Levee 3 during January 2005, which subsequently resulted in severe erosion
to the Appel Property and a realignment of both the Ventura River and the East Channel.
South Area of Concern
Figure 3-21 depicts the location of the surveyed points, landscape views and the cross-sectional
profile at the South area of concern. The instrument was located between the channel and the
concrete barrier. Height of instrument was 3.48’. Reading of rod at OHWM was 6.03’ at 17’
distance from the instrument. The reading at the thalweg was 7.09’ at 16’ distance from the
OHWM. Reading at the top of the berm was 3.45’ at a distance of 28” from the OHWM.
Reading at base of concrete barrier was 2.98’ at 95’ from the OHWM and 37’ distance beyond
the instrument. Total elevation rise from land surface at OHWM to base of concrete barrier was
2.37’ (Figure 3-21 Bottom). Total elevation rise from land surface at thalweg to base of concrete
barrier was 4.72’ over a distance of 111’.
The pre-2005 channel crossed a portion of the South Area of Concern (Figure 3-22(a))
Examination of Figure 3-22(b) indicates that the channel realigned during the February flood of
2005 as a result of constraints placed upon the floodplain after construction of Levee3. The
realigned channel (thin purple line Figure 3-22(b)) just bordered the edge of the South Area of
Concern. Apparently, channel stability was not reached in 2005 as the channel continued to
migrate in its normal, southwesterly direction (see APPEL005408, APPEL005407 and
APPEL005406). Between 2005 and 2013, it appears that the channel has migrated ~67’ away
from the Appel Property. There is no indication that channel migration was caused by Mr. Appel.
By 2009 (Figure 3-23) the channel appeared to have stabilized, at least for the midterm because
the OHWM surveyed in 2013 (blue line) followed closely the 2009 channel.
38
(a)
South Site
(b)
(c)
3
Relative Elevation (ft)
Barrier
I
Top Berm
2
1
0
-1
-2
-20
0
20
40
60
80
100
Distance (ft)
Profile
Thalweg
OHWM
Figure 3-21. Alleged violation “South Site” (S) (a): April 17, 2013 aerial depicting approximate S impact
area (red), OHWM (blue) and cross-sectional survey points. (b): Landscape view from engineered
Thalweg upstream at survey location. (c): Barrier from transit instrument (I) and Barrier. Bottom: Crosssection depicting elevation relative to the OHWM. Broken line extension is conceptual depiction of
streambed below the OHWM elevation.
39
(a)
(b)
Figure 3-22. Before (a): September 30, 2004) and after (b): December 30, 2005) aerial photographs
During the
the dramatic
Februaryrealignment
2013 site visit
I observed
berm following
along a portion
of the 2005
western
bank
ofhad
thisthe
showing
of the
VenturaaRiver
the January
flood
that
reach
of
the
active
channel
opposite
the
Appel
Property
and
the
thalweg
had
the
appearance
of
an
fifth largest flow event on record and the February 2005 flooding. Realignment of flow paths in the
excavated,
When this work
was3.done
by whom
unknown.
Ventura
Riveruniform
resultedchannel.
from construction
of Levee
Theand
heavy
purple is
line
is the before flowpath
and thin purple line the after. Red polygon is ~ South area of concern.
Since the ordinary flow is contained entirely within the active channel between the OHWMs, I
can state with reasonable scientific certainty that for flow to reach the elevation of the concrete
barrier at the South Area of Concern, the water level would have to rise ~2.5 feet (Figure 3-31
Bottom). The barrier is 95 ‘ from the OHWM – well out of jurisdictional waters. Consistent with
33 CFR 328.5, the 2005 flood caused a realignment of the channel and over the next three years
the channel continue to migrate away from the Appel Property. Such natural shifting of a river
results in a change in CWA jurisdictional limits. I find no evidence that any fill was placed in the
Ventura River below and channelward of the OHWM by Mr. Appel in the vicinity of the South
Area of Concern.
40
Figure 3-23. Aerial photograph depicting the readjustment of the OHWM in the Ventura
River between December 30, 2005 (thin purple line and Figure 3-22(b)) and May 24, 2009.
Intervening images indicate a natural readjustment and not the result of intentional grading.
By 2009, the channel had stabilized and maintained ~ the same OHWM until February 2013
(blue line).
41
Technically Based Approximation of OHWM
Butterwick (2010) concluded that discharges of fill material had been deposited below the
OWHM in four areas on the Appel Property. My examination of the OHWMs on the
property reveled that the four areas identified by Butterwick (2010) were as much as 5.8 feet
above the OHWMs. Because of the appreciable difference, it is useful to determine the
approximate depth of ordinary high flows to see which field analysis was more accurate.
The COE from 1975 to 1977 defined OHWM as the line on the shore established by the
flow that occurred on average 25% of the year. Dunne and Leopold (1978) discuss the
relationship between mean annual and bankfull discharge. Leopold (1994) observed that:
The mean annual flow of a river is equaled or exceeded 25-30 percent of the time, or
about 91 to 106 days a year, so about 265 days a year the discharge is less than the
average value. In other words, the average discharge is a rather large flow.
The average discharge fills the channel about one-third full that is the depth is onethird bankfull when the average discharge occurs. Bankfull discharge occurs 1 or 2
days each year and has a recurrence interval that averages 1.5 years. Less frequent
discharges exceed the channel capacity and overflow the flood plain. [p.129]
The 25-30 percent duration of flows represented by the elevation reached by the long-term MAF
corresponds well to the concept of OHWM promulgated in 1975 (40 FR 31325) and the ~ onethird bankfull closely mimics the field locations of OHWMs. Figures 3-24, 3-25 and 3-26 were
extracted from the Rapanos/Carabell Guidebook5 released by EPA and the COE in 2007. On
each picture, a vertical line was superimposed from the bed of the stream. Two horizontal lines
were then superimposed: a blue line at the OHWM and a yellow line at bankfull stage. Notice in
each case that the blue line representing the OHWM is approximately one-third of the vertical
distance from the bed of the stream to the bankfull stage.
Mean annual flow is routinely reported for all gaged stations in the United States. Mean annual
flow is routinely estimated on ungaged streams by a number of different approaches. One
method uses the relationship between drainage basin sizes to discharge characteristics of gaged
streams to compute the discharge in an ungaged stream in the same region. For example, if a
gaged stream had a MAF of 10.00 cfs for a catchment basin size of 100.00 miles2, then each
square mile would produce 0.10 cfs. If the catchment size of an ungaged stream in the region
were 80.00 miles2, then the estimated MAF would be 8.00 cfs.
Table 3-1 presents data for stream gages near the Appel Property. For simplicity sake, I have
assumed that the MAF adjoining the Appel Property approximates the MAF recorded at the
USGS Ventura River gage at Ventura (11118500). While there are at least two tributaries that
enter the Ventura River between the southern end of the Appel Property and Foster Park where
the gage is located, for this example, I am assuming the input is counterbalanced by transmission
loss south of the Appel Property. From the period of record data for the USGS gage 11118500, I
have computed that the average MAF is 68.87 cfs over the entire period of record (Table 3-1).
42
Figure 3-24. Photo 18. Intermittent tributary, with continuous seasonal flow, South
Atlantic Division. White lines mark approximate location of OHWM. Blue line connects
~ OHWMs. Yellow line is ~ bankfull elevation.
Figure 3-25. Photo 22. Desert
ephemeral tributary, Los
Angeles County, CA. Blue line
connects OHWMs. Yellow line
is ~ bankfull elevation.
43
Figure 3-26. Photo 28. Ephemeral tributary, Converse County, WY. White lines
mark approximate location of OHWM. Blue line connects OHWMs. Yellow line is ~
bankfull elevation.
Table 3-1. Average Mean Annual Flow (MAF) for USGS gage stations on the Ventura River
and its tributaries. Source: http://waterdata.usgs.gov/ca/nwis/sw/
Name of Gage
Average MAF
(cfs)
Period of Record
11116550
Ventura R Near Meiners
Oaks Ca
20.87
1960-1988 incomplete
11118500
Ventura R. Near
Ventura (Foster Park)
68.87
1960-2011
11117500
San Antonio Creek Nr
Casitas Springs
14.87
1950-1983
11118000
Coyote Creek Nr
Ventura
10.1
1928-1982 incomplete
USGS Gage ID
Discharge (flow in cfs) in a stream can be computed based upon Manning’s equation:
Q=
1.486
AR 2 / 3 S 1 / 2
n
where:
44
Q = discharge in cfs;
A = the cross-sectional area of the channel, in square feet
R = the hydraulic radius, in feet (ratio of cross-sectional area of flowing water to wetted
perimeter);
S = Energy gradient (approximated by the slope of the water surface); and
n = Manning’s roughness coefficient
The depth of water at a particular discharge rate in a channel of known geometry can be
estimated using the Manning relation and solving for depth if Q and the width and the slope of
the stream are known. An n value was determined by photographic comparison of the roughness
in natural channels to those in the Ventura River, from Barnes (1967). Site 11-2645 from Barnes
(1967) was similar to the Ventura River near the Appel Property and had an n value of 0.065.
Based upon February 2013 field measurements of the Ventura River, channel widths at 7
locations adjacent to the Appel Property, ranged from 22.5’ to 49.5’. The wider the channel, the
shallower the water will be at any given discharge. The slope of the water surface was
approximated for the channel post-2005 flood by taking the topographic elevation (304.5’) of the
Ventura River near the confluence with San Antonio Creek and comparing it with the bed
elevation at a point north of the Appel Property (341.4’) yielding a rise of 36.9.’ The post-2005
flowpath (thin purple line on Figure 3-14) or run was ~ 2,766.3.’ The slope (rise over run),
therefore, was approximately 36.9 ft/2,766.3 ft equals 0.013.
Inputting the values into the Manning Equation, the uniform depth of a channel needed to
transmit the Ventura River's MAF of 68.9 cfs for a channel with a widths ranging from 23’ to 50’
is approximately 9 to 14 inches. Since natural channels seldom are uniformly deep across their
entire widths and water seeks its own level, watermarks will appear higher on objects in the
deeper part of the channel than at the edges of it. These values comport well with observed
OHWMs in the Ventura River adjacent to the Appel Property (see for example, Figure 3-27).
Figure 3-27. OHWMs visible on boulders in Ventura River at -119.3089736, 34.38370032.
Vertical red lines run through red flags at OHWMs. Channel at this location was 23’ wide.
45
Thus, the positions that I documented as representing the OHWM are very consistent with
national guidance on determining the OHWM.
46
Section 4: Arid West
In the SPD2001, the terms “dryland,” ”arid” and “desert” were commonly used.
Unfortunately, it did not specify the geographic extent of lands where the SPD thought
that the SPD2001was applicable. The cover letter transmitting the guidance, dated July 5,
2001 and signed by BG Madsen, stated in paragraph 4 that:
The intended geographic scope of these guidelines and worksheets is the xeric
shrublands and deserts (arid regions) of SPD, including the Mojave, Sonoran,
and Chihuahuan Deserts, the Great Basin, and Colorado Plateau. The
guidelines may also be useful elsewhere, including the Snake/Columbia Shrub
Steppe and Wyoming Basin of Northwestern Division and Temperate
Grasslands of Southwestern Division.
Figure 4-1 depicts the locations of the Mojave, Sonoran and Chihuahuan Deserts and the
Great Basin (a) and the Colorado Plateau (b).
(a)
(b)
Figure 4-1. The generalized locations of the Mojave, Sonoran, Chihuahuan and Great basin
Deserts are depicted in (a). The generalized location of the Colorado Plateau is depicted in (b).
The Appel Property is not located in any of the desert regions depicted in Figure 4-1 nor
is it located in the Snake/Columbia Shrub Steppe or the Wyoming Basin of Northwestern
Division nor Temperate Grasslands of Southwestern Division. A review of the official
websites of the COE districts with authority over the later areas where BG Madsen
suggested that SPD2001 might have use gives no indication that these districts rely on the
document or any of the Technical Reports that directly followed on it.
47
The next contribution to the issue was a Technical Report (ERDC TR-04-1 (2004)). The
applicable geographical extent of that report was stated as:
The area broadly covered by this review includes all or portions of ten semiarid
western states: Arizona, California, Colorado, Idaho, Nevada, New Mexico,
Oregon, Texas, Utah, and Wyoming (Fig. 1). This region encompasses multiple
physiographic provinces and is characterized by spatially and seasonally
variable moisture sources that produce a highly variable rainfall pattern
markedly different from that in the eastern U.S. (Chapter 2). The region
generally falls within the Dry Domain and four Divisions—Tropical/Subtropical
Steppes, Tropical/Subtropical Deserts, Temperate Steppes, Temperate Deserts,
and their associated mountains—of the Ecoregions of the United States (Bailey
1995) and within the Western Range and Irrigated Region and California
Subtropical Fruit, Truck, and Specialty Crop Region of the USDA Land
Resource Regions (Soil Conservation Service 1981). [p. 5]
Perhaps more useful than the narrative was Figure 1 (reproduced here as Figure 4-2).
Quite clearly, the entire watershed of the Ventura River would be excluded from
application of the considerations of Technical Report ERDC TR-04-1.
Figure 4-2. Geographic
extent of ERDC TR-04-1
(2004) technical report
identified as “Figure 1. Area
covered by this review.”
Technical Report ERDC/CRREL TR-08-12 (2008) expanded the geographic extent of the
“arid west region” to be far more inclusive. While lacking a narrative description of the
arid west, Figure 1 of ERDC/CRREL TR-08-12 (2008) (reproduced here as Figure 4-3)
shows a much larger area considered arid. No explanation is given for why they modified
the geographic extent from the USACE 2006 Interim Regional Supplement for the arid
west (ERDC/EL TR-06-16), which is depicted here as Figure 4-4. Figure 4-4 was
ultimately adopted in the final Arid West Regional Supplement (ERDC/EL TR-08-28).
ERDC/CRREL TR-08-12 (2008) should have been consistent and used the same arid
region as was used in ERDC/EL TR-06-16 and ultimately in ERDC/EL TR-08-28 as it is
the only document that was submitted for public review and comment, albeit, perhaps not
in full conformance with the APA.
48
Figure 4-3. Extracted Figure 1. Geographic extent of the Arid West region. (Modified from
U.S. Army Corps of Engineers 2006) from Technical Report ERDC/CRREL TR-08-12
49
Figure 4-4. Extracted from U.S. Army Corps of Engineers 2006 (ERDC/EL TR-0616). Figure 1. Approximate boundaries of the Arid West Region and subregions (LRR
B, C, and D). This regional supplement is applicable throughout the highlighted areas,
including coastal areas, with the following exceptions: (1) the cross-hatched portions
of LRR D comprising the Sierra Nevada Mountains (MLRA 22A), the Southern
Cascade Mountains (MLRA 22B), and the Arizona and New Mexico Mountains
(MLRA 39) and (2) other embedded mountain ranges not indicated on the map that
support predominantly coniferous forests with interspersed meadows, shrublands, and
riparian woodlands above and including the ponderosa pine zone. See text and Table 2
for details. [p.4]
50
Also in 2008, EPA (Levick et al.) released Report EPA/600/R-08/134 ARS/2330461 on
streams in the arid and semiarid southwest. The report states:
The geographic scope of this report is the arid and semi-arid regions of the
conterminous U.S. as defined by the Bailey’s and EPA/Omernik ecoregion
classifications (see Figures 7 and 8), but focuses on the states of California,
Arizona, Nevada, New Mexico, Utah and Colorado. The application of this
report is for the EPA Region 9 states of Arizona, California and Nevada. [p. 2]
The report goes on to describe both Bailey’s and EPA/Omerinik ecoregion classification
system both by narrative and with two figures.
Bailey’s Ecoregion classification is based largely on forest and climatic factors.
This classification system designates four domains: polar, humid temperate,
humid tropical, and dry. The first three are based on humidity and thermal
characteristics; however, the fourth, the dry domain, is based solely on
moisture, and is defined as those locations where annual losses of water through
evaporation at the earth’s surface exceed annual water gains from precipitation.
Five of the six states considered in this report lie wholly within the dry domain:
Arizona, Nevada, Colorado, Utah, and New Mexico. The deserts of Southern
California are also within the dry domain, whereas the rest of the state is within
the humid temperate domain (Figure 7). The dry domain includes the arid desert
and the semi-arid steppe, and represents seven Divisions encompassing a wide
diversity in terrain, vegetation structure and composition, climatic regime,
hydrologic regime, and ecosystem function. However, the dominant
characteristics are variable rainfall and high evapotranspiration.
The EPA Ecological Regions Classification is based on Omernik, who was one
of the first to take a more holistic approach by including physical and biotic
characteristics (Commission for Environmental Cooperation, 1997). This
classification defines four levels of ecological regions that represent
increasingly detailed local characteristics. Level II, which is most similar to
Bailey’s Divisions, is illustrated in Figure 8. Most of the Southwestern states fall
into the warm or cold desert ecoregion, the southern semi-arid highlands, or
temperate sierras. These areas are described as having an arid to semi-arid
climate, with marked seasonal temperature extremes. This aridity is the result of
the rain shadows of the Sierra Nevada, Cascade Mountains and Sierra Madre
ranges as they intercept the wet winter air masses brought by the westerly and
easterly winds.
Both the Bailey’s and EPA Ecoregion classifications illustrate the extent of arid
and semi-arid regions in the Southwestern U.S. and provide a framework for
understanding the unique conditions found in this region where most watersheds
are dominated by ephemeral and intermittent streams. [p. 11]
EPA Figures 7 and 8 from Levick et al. (2008) are reproduced here as Figures 4-5 and 46.
1
http://www.epa.gov/esd/land-sci/pdf/EPHEMERAL_STREAMS_REPORT_Final_508-Kepner.pdf
51
Bailey’s classification (Figure XX) clearly excludes the Ventura River watershed from
the dry domain. The EPA Regional Classification system also excludes the Ventura River
watershed as it is not in the warm or cold desert or the southern semiarid highlands or
temperate sierras ecoregions. Thus, EPA in describing stream conditions in arid and
semiarid parts of the U.S. encompasses the lands east of the north-south California
“backbone” of mountains.
Figure 4-5. EPA Figure 7. Map of the conterminous U.S. showing Bailey’s Ecoregions
with the dry domain outlined in red. [p. 12]
52
Figure 4-6. EPA Figure 8. Map of the conterminous U.S. with EPA Level II Ecoregions
showing most of Nevada, Arizona, Utah, and New Mexico in the North American
Deserts classification. [p.12].
The most thorough discussion in COE/EPA documents that I have found for
distinguishing between the Arid West and the Western Mountain, Valley and Coast
(WMVC) regions first appeared in the COE Technical Report ERDC/EL TR-06-16 and
then essentially unchanged in Technical Report ERDC/EL TR-08-28, entitled Regional
Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region
(Version 2.0). A similar discussion is included in Technical Report ERDC/EL TR-10-3
(2010) for the WMVC.
Both Technical Reports ERDC/EL TR-08-28 and ERDC/EL TR-10-3, after draft external
peer review and interim testing and availability for public comment were adopted as the
regional supplements for delineation wetlands. The discussion in ERDC/EL TR-08-28
provides a technical basis for differentiating between Arid West and WMVC regions:
The approximate spatial extent of the Arid West Region is shown in Figure 1
[same portrayal as Figure 4-4] and is based mainly on a combination of Land
Resource Regions (LRR) B, C, and D recognized by the U.S. Department of
Agriculture (USDA Natural Resources Conservation Service 2006a). The region
also corresponds generally to the combined Level I Ecoregions 10, 11, 12, and
13 of the Commission for Environmental Cooperation (CEC 1997). The region
includes the associated coastal zone of southern California. The Arid West
Region is dominated mainly by grasslands, shrublands, hardwood savannas,
53
deciduous woodlands, and pinyon/juniper (e.g., Pinus monophylla or P. edulis /
Juniperus spp.) woodlands.
The Arid West Region is surrounded by and interspersed with portions of the
Western Mountains, Valleys, and Coast Region. The following areas are
excluded from the Arid West Region because environmental conditions are more
appropriate for application of the Western Mountains, Valleys, and Coast
Regional Supplement (U.S. Army Corps of Engineers 2008, or current version):
•
Sierra Nevada Mountains (Major Land Resource Area (MLRA) 22A)
•
Southern Cascade Mountains (MLRA 22B)
•
Arizona and New Mexico Mountains (MLRA 39)
•
Other mountain ranges scattered throughout the West that support mainly
coniferous forests on the lower slopes, alpine tundra at the highest
elevations (if present), and open coniferous woodlands, shrublands,
meadows, and hardwood riparian woodlands in the valleys, down to the
lower elevational limit of the ponderosa pine (Pinus ponderosa) zone or its
local equivalent.
The decision to use the Arid West Regional Supplement or the Western
Mountains, Valleys, and Coast Regional Supplement on a particular field site
should be based on landscape and site conditions, and not solely on map
location. Figure 1 [reproduced here as Figure 4-6] is highly generalized and
does not indicate many of the smaller mountain ranges where the Western
Mountains, Valleys, and Coast supplement would be applicable. Furthermore,
there are arid environments beyond the highlighted areas in Figure 1 where the
Arid West Regional Supplement would be appropriate. Both regions are highly
diverse and transitions between them can be gradual. Table 2 summarizes
general patterns in climate, vegetation, soils, and hydrology that help to
differentiate the two regions. In many areas of the West, the transition between
the two regions is indicated by the upper limit of pinyon/juniper and associated
shrub-dominated communities, and the lower limit of ponderosa pine or other
coniferous forests.
Region and subregion boundaries are depicted in Figure 1 [same portrayal as
Figure 4-4] as sharp lines. However, climatic conditions and the physical and
biological characteristics of landscapes do not change abruptly at the
boundaries. In reality, regions and subregions often grade into one another in
broad transition zones that may be tens or hundreds of miles wide. [p.4-6]
Table 3-1 is taken directly from Technical Reports ERDC/EL TR-08-28 and ERDC/EL
TR-10-3 (extracted from Table 2 in the Technical Reports) and along with the narrative
above, provide a basis for examining the characteristics of the Ventura River watershed.
54
Table 3.1. Comparison of general landscape characteristics between the Arid West and
the Western Mountains, Valleys, and Coast Regions.
Landscape
Arid West Regional
Characteristics Supplement
Western Mountains, Valleys,
and Coast Regional
Supplement
Climate
Generally hot and dry with a long
summer dry season. Average annual
precipitation mostly <15 in. (380
mm) except along the coast. Most
precipitation falls as rain.
Cooler and more humid, with a
shorter dry season. Average annual
precipitation mostly >20 in. (500
mm). Except near the coast, much
of the annual precipitation falls as
snow, particularly at higher
elevations.
Vegetation
Little or no forest cover at the same
elevation as the site and, if present,
usually dominated by pinyon pine
(e.g., P. monophylla or P. edulis),
junipers (Juniperus), cottonwoods
(e.g., Populus fremontii), willows
(Salix), or hardwoods (e.g.,
Quercus, Platanus). Landscape
mostly dominated by grasses and
shrubs (e.g., sagebrush (Artemisia),
rabbitbrush (Chrysothamnus),
bitterbrush (Purshia), and creosote
bush (Larrea)). Halophytes (e.g.,
Allenrolfea, Salicornia, Distichlis)
present in saline areas.
Forests at comparable elevations
in the local area dominated by
conifers (e.g., spruce (Picea), fir
(Abies), hemlock (Tsuga),
Douglas-fir (Pseudotsuga), coast
redwood (Sequoia), or pine
(Pinus) except pinyon) or aspen
(Populus tremuloides). In the
Willamette Valley, Oregon ash
(Fraxinus latifolia) and bigleaf
maple (Acer macrophyllum)
often dominate. Open areas
generally dominated by grasses,
sedges, shrubs (e.g., willows or
alders (Alnus)), or alpine tundra.
Soils
Mostly dry, poorly developed, low in
organic matter content, and high in
carbonates. Soils sometimes highly
alkaline. Surface salt crusts and
efflorescences common in low areas.
Generally better developed, higher
in organic matter content, and low
in carbonates. Surface salt features
are less common except in
geothermal areas.
Hydrology
Drainage basins often lacking
outlets. Temporary ponds (often
saline), salt lakes, and ephemeral
streams predominate. Water tables
often perched. Major streams and
rivers flow through but have
headwaters outside the Arid West.
Streams and rivers often perennial.
Open drainages with many natural,
freshwater lakes. Water tables
often continuous with deeper
groundwater. Region serves as the
headwaters of the major streams
and rivers of the western United
States.
55
Characteristics of the Ventura River Watershed.
Climate
Butterwick (2010) describes the general climate of the Ventura River watershed as:
The area has a Mediterranean climate with mild moist winters and moderately
warm generally dry summers. The spatial variation in average annual rainfall
ranges between 15.5 inches near the river mouth to 40 inches at the higher
elevation areas in the watershed CRWQCBLA 2002. [p. 3]
This description does not convey the generally hot and dry with a long summer dry
season image described in Table 4-1 for the Arid West but is more in line with the
depiction of climate in the WMVC region.
The Ventura River watershed and in particular the vicinity of the Appel Property has an
abundance of weather stations. The locations of the stations are depicted in Figure 4-7.
Table 4-2 lists those in proximity to the Appel Property along with the basic metadata for
each of the stations. Average monthly and annual precipitation for each of the seven
stations during its period of record are presented in Table 4-3. Review of data for all of
the weather station (Table 4-3) indicates that at and surrounding the Appel Property, the
average annual total precipitation over the long term exceeds 20 inches per year.
Weather stations in the mountains north of the Appel property are not nearly as abundant
as in proximity to the Property. Many of those that do exist do not record snowfall. The
locations of three mountain stations that in their period of record have recorded snowfall
are depicted in Figure 4-8. Despite the proximity to the coast, winter snows do occur as
indicated in Figures 4-9(a), (b) and (c).
In summary, the climate in and around the Appel Property and the Ojai Valley through
which the Ventura River passes is equatable (Holmes and Mesmer 1901) with mild
winters, reasonably short dry seasons and average annual rainfall in excess of those of the
arid portions of the southwest. Precipitation amounts and distribution is similar to other
areas in the WMVC. It is not arid and fits within the concept of the smaller mountain
ranges and their valleys where the Western Mountains, Valleys, and Coast region is
applicable.
56
Figure 4-7. Locations of weather stations in the vicinity of the Appel Property.
Figure 4-8. Locations of weather stations with snowfall data.
57
Table 4-2. Location and operation data for climate stations in the vicinity of the Appel Property, Ventura County, Ca
Station
LATITUDE LONGITUDE
ELEV
PUBLISHED DATA
PRELIMINARY DATA
Meiners Oaks-County Fire Station
34:26:40.5N
119:17:03.3 W
730
09/30/1964
09/30/2011
09/30/2011
03/06/2013
Ojai-Bower Tree Farm
34:26:29.0N
119:13:19.0 W
780
09/30/1976
09/30/2011
09/30/2011
09/30/2012
Oak View-County Fire Station
34:23:42.4N
119:18:03.7 W
520
09/30/1949
09/30/2011
09/30/2011
03/06/2013
Matilija Dam
34:29:01.6N
119:18:17.2 W
1060
09/30/1977
09/30/2011
09/30/2011
01/31/2013
Ojai-Thacher School
34:27:55.0N
119:10:48.0 W
1440
09/30/1915
09/30/2011
09/30/2011
02/27/2013
Ojai-County Fire Station
34:26:52.9N
119:13:49.1 W
760
09/30/1979
09/30/2011
09/30/2011
03/06/2013
Casitas Dam
34:22:04.8N
119:19:48.4 W
400
09/30/1956
09/30/2011
09/30/2011
02/12/2013
Table 4-3. Monthly precipitation data for climate stations in the vicinity of the Appel Property, Ventura County, Ca
Station
OCT NOV DEC JAN
FEB
MAR
APR MAY JUN
JUL AUG SEP
YEAR
Meiners Oaks-County Fire Station
0.51
2.69
3.08
4.40
5.34
3.85
1.50
0.22
0.04
0.02
0.06
0.44
22.14
Ojai-Bower Tree Farm
0.45
2.42
2.83
4.07
4.96
3.64
1.51
0.23
0.02
0.03
0.07
0.41
20.63
Oak View-County Fire Station
0.50
2.66
3.05
4.41
5.22
3.84
1.54
0.17
0.03
0.02
0.05
0.44
21.94
Matilija Dam
0.57
3.49
4.03
5.57
6.85
4.72
2.03
0.26
0.04
0.03
0.07
0.57
28.23
Ojai-Thacher School
0.48
2.50
2.90
3.85
5.19
3.97
1.70
0.27
0.05
0.07
0.12
0.43
21.53
Ojai-County Fire Station
0.48
2.53
2.93
4.22
5.02
3.79
1.51
0.25
0.04
0.03
0.07
0.45
21.32
Casitas Dam
0.53
2.92
3.31
4.57
5.34
4.20
1.67
0.18
0.04
0.03
0.05
0.46
23.31
58
(a)
(b)
(c)
Figure 4-9. Snowfall data from three gaging stations in the mountain range north of
the Appel Property.
59
Vegetation
The streams that feed the Ventura River have their mountain origins in the Los Padres
National Forest (LPNF). The LPNF begins virtually at the edge of the Ojai Valley and
ascends northward to higher elevations. The Appel Property is located approximately 6
miles south of the stream canyon at the southern end of the LPNF.
Table 4-4 provides a list of some of the common woody species that are found in the
Ventura River watershed. As with most every area of the WMVC, the vegetation changes
with elevation. The higher elevations being dominated with tall pines and firs, the lower
valley elevations by cottonwoods, sycamores and willows and the lower adjoining
elevations by chaparral species.
Noticeably lacking or having only minor community contribution are the classic arid
region species such as sagebrush (Artemisia), rabbitbrush (Chrysothamnus), bitterbrush
(Purshia), and creosote bush (Larrea). A. californica is not a desert species. Overall, the
plant community composition is the functional equivalent of the nonarid western U.S.
Thus, the vegetation of the Ventura River Watershed most closely fits into the WMVC
region, not the Arid West.
Table 4-4. Common woody species of the Los Padres National Forest and Ventura River
Valley that proceeds from it.
Common Name
Scientific Name
Source Comment
Cottonwood
Populus balsimifera
Toyon
Heteromeles arbutifolia
2
Evergreen, coastal Calif.
Chamise
Adenostoma fasciculatum
2
Evergreen
California Sage
Artemisia californica
2
Not desert species
Wild Rose
Rosa californica
2
Jeffrey Pine
Pinus jeffreyi
2
Confused w/ P. ponderosa
Sugar Pine
Pinus lambertiana
2
Largest pine in U.S.
White Fir
Abies concolor
2
Manzanita
Arctostaphylus sp.
2
Scrub oak
Quercus dumosa
2
1, 2
Evergreen, coastal Calif.
California Sycamore Plantanus racemosa
1
Mulefat
Baccharis salisifolia
1
Willow
Salix sp.
1
Eucalyptus
Eucalyptus sp.
1
Introduced
2
Cone size > Douglas Fir
Bigcone Douglas Fir Pseudotsuga macrocarpa
Sources: 1. Butterwick (2010); 2. http://www.fs.usda.gov/lpnf
60
Soils
The following discussion is derived from Soil Taxonomy (Soil Survey Staff 1999) and
from internet sources as identified. There are 12 orders of soils: one organic and 11
mineral. If the Appel Property was located in the Arid Region we would expect that the
majority of the soil series would be classified as Aridisols – soils with an aridic moisture
regime. An aridic moisture regime is defined as:
one that in normal years has no water available for plants for more than half the
cumulative time that the soil temperature at 50 cm below the surface is >5° C.
and has no period as long as 90 consecutive days when there is water available
for plants while the soil temperature at 50 cm is continuously >8° C.2
Moisture regimes of the United States are depicted in Figure 4-10.
Figure 4-10. Moisture regimes in the contiguous United States. Source:
http://www.nrcs.usda.gov/wps/portal/nrcs/detail/soils/use/maps/?cid=nrcs142p2_053997
The distribution of Aridisols in the U.S is shown in Figure 4-11.2
Appendix D provides detailed information on the soils in the vicinity of the Appel
Property. Figure 4-12 depicts an area of interest3 (AOI) surrounding the Appel Property.
There are 20 identified soil map units representing 16 soil series and four miscellaneous
areas within the area of interest (Table 4-5). Of the 16 named soil series, eight are
Mollisols, two are Vertisols, one is an Alfisols, one is an Inceptisols and 4 are Entisols.
2
http://www.nrcs.usda.gov/wps/portal/nrcs/detail/soils/survey/class/maps/?cid=nrcs142p2_053594
3
http://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx
61
Figure 4-11. Distribution of Aridisols in the contiguous United States. Source:
http://www.nrcs.usda.gov/wps/portal/nrcs/detail/soils/survey/class/maps/?cid=nrcs142p2
_053594
Mollisols typically have well-developed horizonation and a mollic epipedon, which is a
relatively thick, dark-colored, humus-rich (i.e., high organic content) surface layer that
typically has a pH higher than 7.0. The one Alfisols in the AOI is a mollic intergrade
meaning that has a dark surface horizon higher in organic matter than typical of other
soils in its taxonomic classification. Over 53 percent of the AOI is underlain by
Mollisols. There are no Aridsols identified. Entisols by definition are recently formed and
wherever they occur in the Nation have little soil horizon development.
In summary, the soils in and around the Appel Property and the Ventura River watershed
as a whole do not have an aridic moisture regime and for the most part have welldeveloped soil horizonation and relatively high levels of organic matter in the surface
layer. These soils are much more characteristic of the WMVC than of the Arid Region.
62
Figure 4-12. Mapping of soils in vicinity of the Appel Property based upon taxonomic classifications.
63
Table 4-5. Soil map unit symbols and names and associated taxonomic
classifications for soils in the vicinity of the Appel Property corresponding to the
locations depicted in Figure 4-12.
Map
Acres
Percent
Unit
Map Unit Name
Taxonomic Rating
in
of AOI
Symbol
AOI
AnC
Anacapa gravelly sandy loam, 2 to 9
percent slopes
Coarse-loamy, mixed, thermic Calcic
Pachic Haploxerolls
BdG
Badland
CfD2
Castaic-Balcom complex, 9 to 15 percent
slopes, eroded
Fine-silty, mixed, thermic Calcixerollic
Xerochrepts
CrC
Cortina stony sandy loam, 2 to 9 percent
slopes
CyC
29.1
3.5%
7.4
0.9%
1.5
0.2%
Loamy-skeletal, mixed, nonacid, thermic
Typic Xerofluvents
22.6
2.8%
Cropley clay, 2 to 9 percent slopes
Fine, montmorillonitic, thermic Chromic
Pelloxererts
0.1
0.0%
DbE
Diablo clay, 15 to 30 percent slopes
Fine, montmorillonitic, thermic Chromic
Pelloxererts
42.9
5.2%
DbF
Diablo clay, 30 to 50 percent slopes
Fine, montmorillonitic, thermic Chromic
Pelloxererts
29.7
3.6%
GbC
Garretson gravelly loam, 2 to 9 percent
slopes
Fine-loamy, mixed, nonacid, thermic
Typic Xerorthents
94.3
11.5%
GsF
Gazos silty clay loam, 30 to 50 % slopes
Fine-loamy, mixed, thermic Pachic
Haploxerolls
51.3
6.3%
GsG
Gazos silty clay loam, 50 to 75 percent
slopes
Fine-loamy, mixed, thermic Pachic
Haploxerolls
46.1
5.6%
LeF2
Linne silty clay loam, 30 to 50 percent
slopes, eroded
Fine-loamy, mixed, thermic Calcic
Pachic Haploxerolls
9.1
1.1%
LoD2
Los Osos clay loam, 9 to 15 percent
slopes, eroded
Fine, montmorillonitic, thermic Typic
Argixerolls
1.8
0.2%
MoA
Mocho loam, 0 to 2 percent slopes
Fine-loamy, mixed, thermic Fluventic
Haploxerolls
16.9
2.1%
NaF
Nacimiento silty clay loam, 30 to 50
percent slopes
Fine-loamy, mixed, thermic Calcic
Haploxerolls
241.8
29.5%
OsD2
Ojai stony fine sandy loam, 2 to 15 percent
slopes, ero ded
Fine-loamy, mixed, thermic Mollic
Haploxeralfs
30.6
3.7%
Rw
Riverwash
102.0
12.4%
3.0
0.4%
Sd
Sandy alluvial land
Sandy, mixed, thermic Typic
Xerofluvents
SsE2
Soper loam, 15 to 30 percent slopes,
eroded
Fine-loamy, mixed, thermic Typic
Argixerolls
42.0
5.1%
SwA
Sorrento loam, 0 to 2 percent slopes
Fine-loamy, mixed, thermic Calcic
Haploxerolls
4.0
0.5%
TeF
Terrace escarpments
Xerorthents
43.5
5.3%
819.6
100.0%
Totals for Area of Interest
64
Hydrology
Figure 4-13 depicts the larger drainage features in the vicinity of the Appel Property. In
general, the drainage features are not closed but connect to higher order streams and drain
into the Pacific Ocean. While some of the minor, lower order streams may be ephemeral,
they do not occur appreciably more than in other parts of the WMVC region. The major
portions of the Ventura River and San Antonio Creek, which border the Appel Property,
are perennial with intermittent sections where the alluvial bed is deep and connected to
the water table.
Figure 4-13. Original drainage features in the vicinity of the Appel Property. Source:
http://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx.
Hedman and Osterkamp (1982) examined channel geometry and streamflow
characteristics at 151 stream gaging stations in the western half of the U.S. in an effort to
develop tools for determining flow characteristics based upon channel geometry. Figure
4-14 is extracted from their report and depicts areas of similar hydrology and channel
geometry. They classified the Pacific Mountain region, including the Ventura River
watershed, through to Southern California and recognized that its flow characteristics and
channel geometry was aligned with the Rocky Mountains and the Gila Mountain range
and not with intermountain or desert region.
65
Figure 4-14. Areas of similar hydrology and channel geometry. Source: Figure 9 from
Hedman and Osterkamp 1982.
None of the hydrologic characteristics attributed to the Arid Region in Table 4-1 apply to
the Ventura River watershed or the Appel Property. ENTRIX, INC. (2003) examined the
Ventura River watershed. That report found that:
Some reaches of the main-stem Ventura River tend to go dry on a yearly basis.
This typically includes the Ventura River reach in the area of Santa Ana Road
upstream to approximately the Robles Diversion. The upper Ventura River
reach from the confluence of Matilija and North Fork Matilija creeks
downstream to the alluvial aquifer (Figure 3-3) and, in wetter years, to the
Robles Diversion can maintain perennial flow as can the “live reach” beginning
about ½ mile upstream from the confluence with San Antonio Creek and running
downstream to Foster Park; although the extent of these reaches is determined
by rainfall and antecedent groundwater conditions. The extent to which the live
reach historically existed, prior to the construction of the sub-surface dam is
66
unknown. Finally, the Ventura River downstream from the Ojai Valley Sanitary
District treatment plant to the estuary typically retains flow year round due to
releases from the treatment plant. In addition, migration flow conditions can be
affected in the mainstem Ventura River by surface diversions of up to 500 cfs by
operations at the Robles Diversion Dam. [p. 3-4]
More recently, Beller et al. (2011) discussed the historical ecology4 of the Ventura River
and summarized:
1. The historical Ventura River valley supported a diverse array of natural
habitats, including valley freshwater marsh, grassland, coastal sage scrub,
oaks, and sycamores (page 124). While we were unable to map the valley floor
in detail, our data indicate a broad transition from grassland in the lower valley
(Avenue area) to predominantly oaks, sycamores, and scrub above Foster Park
to Matilija Dam. As in the Santa Clara River valley, valley oaks were not
documented anywhere in the valley. Only one wetland feature was documented
on the valley floor within the study area (not including Mirror Lake).
2. Most substantial freshwater wetland complexes occurred within the Ventura
River corridor. Aquatic habitats such as ponds, sloughs, and freshwater
marshes were likely found in many perennial reaches (page 138), and a suite of
saline and brackish aquatic habitats was associated with the estuary at the river
mouth.
3. The Ventura River supported a broad range of riparian species, including
trees such as sycamore, live oak, willow, cottonwood, box elder, alder, and
walnut; understory species such as wild grape, wild rose, and wild blackberry;
and mulefat and alluvial scrub species (page 138).
4. Unlike on the Santa Clara River, live oaks and sycamores were common
within the river corridor of the Ventura River (page 138). While on the Santa
Clara River live oaks and sycamores were almost exclusively found bordering
the river’s high (outer) bank, both trees were common on benches, bars, and
islands in the Ventura River channel, particularly in the intermittent Oak View
reach.
5. The Ventura River mouth has shifted location numerous times over the past
several hundred years, from the hills west of the river mouth to Figueroa Street
in Ventura. Many of these former river mouth areas are still susceptible to
flooding (page 130). A brackish lagoon, formerly at the site of what is now the
Derby Club across from Seaside Park, marked the route of one of these former
river mouths.
6. The Ventura River was generally perennial for much of its length (page
135). The uppermost reach (below the present-day location of Matilija Dam)
consistently supported year-round surface water, as did the lower half of the
4
ftp://ftp.sccwrp.org/pub/download/DOCUMENTS/TechnicalReports/662_VenturaCo_HistoricalEcology.p
df
67
river (below the San Antonio Creek confluence). In contrast, the middle reach,
through the western Ojai Valley and downstream of Oak View, was typically dry
during the summer. The precise extent and location of summer water fluctuated
in response to annual variations in rainfall and runoff.
Butterwick (2010) has documented the interconnection between ground and surface water
in the Ventura River:
…Under summer low flow conditions surface flows are controlled by a complex
interaction of precipitation input, discharge from springs, groundwater levels,
the effects of water diversions, water storage, water supply releases, treated
wastewater discharge and groundwater extraction. [p.3-4]
D. Ground and Surface Water Connections Ground and surface waters are
integrally linked in the Ventura River Watershed. The important groundwater
basins in the Ventura River Watershed are in alluvial or stream deposited
materials below and immediately adjacent to the surface water bodies. Tthe
most extensive basin is associated with the main stem of the Ventura River. Due
to the porous nature of the alluvium, the dominant source of recharge to the
aquifer is direct infiltration of precipitation and percolation from local
streambeds (CRWQCBLA 2002). A study by Casitas Municipal Water District
and the City of San Buenaventura (1990) demonstrated the interconnection
between the Ventura River and the Upper Ventura River Ground Water Basin.
After each rainstorm in 1985 and 1986 stream gages recorded immediate
increases in stream flow. Ground water levels also increased with each new
storm but not as quickly. Ground water in the basin varies seasonally with levels
generally being higher during the wet winter months.
Ground water production in the watershed is extensive enough to reduce surface
water flows in the Ventura River. The cumulative effects of these water
withdrawals are particularly evident during the drier months when there is little
if any ground water recharge from rainfall. [p.4-5]
The Property is immediately upstream from the confluence of the Ventura River
with San Antonio Creek. Even during the driest time of year in fall the lower 1.5
mile reach of San Antonio Creek has a groundwater table above the channel bed
supporting low flows in the creek (Entrix Inc 2001b). A confining clay layer may
result in a perched ground water table in the lower reach of San Antonio Creek
and possibly affects water levels at the Property. According to the watershed
hydrology model Tetra Tech 2009a, the Property is within a groundwater
upwelling area of the Upper Ventura Groundwater Basin. During the December
2 and 3, 2009 site visit prior to the onset of winter rains in this area, surface
water was observed in low flow channels of the Ventura River at the Property
Photo 13 [photo not reproduced from Butterwick 2010]. [p.6-7]
In summary, the Ventura River and most of the streams that feed into it are perennial,
possibly with intermittent reaches. They are not mostly ephemeral. Virtually all of the
drainages are open and at least prior to European settlement and water extraction and
diversion had freshwater ponds and wetlands present. The surface waters are often
connected with the groundwater. Thus, the hydrologic characteristics in the Ventura
68
River watershed do not fall within the description for the arid west in Table 4-1. Rather,
they satisfy the characteristic of the western mountain, valley and coast region of the
United States and form a continuation with the Sierra Nevada Mountain Range of the
WMVC depicted in Figure 4-4.
Section 4 Conclusions
Factual data demonstrate that precipitation levels, soil characteristics and the surface and
ground water hydrology of the Appel Property and vicinity fit within the context of the
WMVC region and not the arid west region. While species of vegetation present differ to
some degree with the generalized species listed in Table 4-1, they act as functional
equivalents and are simply characteristic of the fact that species assemblages vary from
one part of the Nation to another. In overall landscape appearance, the Ventura River
watershed resembles many landscapes in Montana much more than those in Arizona.
Classifying this area as “arid west” is technically indefensible.
69
Section 5: Conclusions
I can state with reasonable scientific certainty that:
1. Absent the activities of Ventura County under the regulatory oversight of the U.S.
Army Corps of Engineers, the flow path of the Ventura River would have had
only minimal intrusion onto the Appel Property;
2. Absent the activities of Ventura County under the regulatory oversight of the U.S.
Army Corps of Engineers, the River would have been much more greatly
entrenched and, thus a greater elevation below the elevation of the Appel
Property;
3. The proximity of the River to the Areas of Concern identified by Butterwick
(2010) is primarily the result of discharges of dredged and fill material by Ventura
County;
4. That once the COE authorized the Ventura County discharges, then any
realignment of the Ventura River and the East Channel that resulted from flood
flows changed the geographical limits of Section 404 authority consistent with the
provisions of 33 CFR Part 328.5;
5. Ordinary High Water and Ordinary High Water Marks have no relationship to
flooding events of any recurrence interval but are based upon the common and
ordinary high flow of the waterbody that occurs predictably every year (except
during drought) and are located below the bankfull stage which has an
approximate recurrence frequency of 1.5 years;
6.
Designation of the “Arid West” region in ERDC/CRREL TR-08-12 (2008) is
inconsistent with the factual distinctions established in the Regional Delineation
Supplements for the Arid West (AW) and the Western Mountain, Valley and
Coast (WMVC) which, unlike ERDC/CRREL TR-08-12 (2008), have undergone
public review and comment; and
7. Ecologically, the Ventura River watershed does not fit within the characteristics
of the AW, but fits squarely within the ecological characteristics of the WMVC.
70
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