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Stratford Manor-CS 981014 DEPARTMENT OF THE ARMY FORT WORTH DISTRICT. CORPS OF ENGINEERS P.O BOX 17300 FORT WORTH, TEXAS 76102-0300 October 14, 1998 Environmental Division Regulatory Branch SUBJECT: Project Number 199700423 Mr. William A. Anderson, P.E. Dowdey, A,~derson and Associates, Inc. 5225 Village Creek Drive, Suite 200 Piano, Texas 75093 Dear Mr. Anderson: Thank yot, for your letler of Jt, ly 17, 1997, and follow-up correspondence, concerning a proposal to construct lhe Stratford Manor residential development on a 15-acre tract of land located between DeForesl Road nnd Denton Creek in Coppeli, Dallas County, Texas. This project has been assigned Project Nnmber 199700423. Please inchlde lhis number in all filture correspondence concerning this project. Failure to reference the project number may rest,it in a delay. We have reviewed this project in accordance with Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. Under Section 404, the U. S. Army Corps of Engineers (USACE) regulates the discharge of dredged and fill material into waters of the United States, including wetlands. Our responsibility under Section 10 is to regulate any work in, or affecting, navigable waters of the United States. Based on your description of the proposed work, and other information available to us, we have determined that this project will not involve activities subject to the requirements of Section 10. However, this project will involve activities subject to the requirements of Section 404. Therefore, it will require Department of the Army authorization. We have reviewed this project under the notification procedures of Nationwide Permit General Condition 13 (Federal Register, Vol. 61, No. 241, Friday, Decelnber 13, 1996). After full consideration of resource agency co~nments, we have determined that this project is authorized by nationwide permit 26 for Headwaters and Isolated Waters Discharges. To use this permit, the person responsible for the project must ensure that the work is in compliance with the specifications aud conditions listed on the enclosnres and the special condition listed below. Thc special condition for this permit is as follows: 1. The pennittee shall develop, implement, and abide by a detailed mitigation plan to compensate for unavoidable adverse project impacts to waters of tile United States. The pennittee shall provide this mitigation plan to the Regulatory Branch, Fort Worth District, USACE for review, and receive USACE approval prior to commencing any ground distnd)ing activities within the permit area. The pennittee shall not proceed with implementation of the plan until it is approved by the USACE. The permittee shall implement the mitigation plan approved by tile USACE concurrently with the construction of the project and complete the initial construction and plantings associated with the mitigation work prior to the completion of construction of the project. Completion of all elements of the final mitigation plan is a requirement of this permit. The mitigation plan shall, at a minimum, include the following features: a. a detailed design, including cross section and plan view drawings, of the created and enhanced wetland mitigation areas; b. minimum plant survival criteria; c. a maintenance plan for the mitigation area, with an emphasis on minimal to no disturbance of created and enhanced wetland areas; d. a performance standard for all mitigation areas; e. a perpetual deed restriction for the mitigation area; and f. a monitoring and reporting plan. Failure to comply with these specifications and conditions invalidates the authorization and ,nay result in a violation of tile Clean Water Act. Our verification for this activity under nationwide permit 26 is valid until nationwide permit 26 expires on December 13, 1998. If you commence, or are under contract to commence, this activity before December 13, 1998, you will have twelve months from that date to complete the activity under the present terms and conditions of nationwide pennil 26. Continued confirmation that an activity complies with the specifications and conditions, and any changes to the nationwide permit, is the responsibility of the permittee. Our review of this project also addressed its effects on endangered species. Based on the information provided, we have determined that this project will not affect any species listed as 3 threatened or endangered by the U.S. Fish and Wildlife Service within our pemm area. However, please note that you are responsible fi,r meeting the requirements of general condition I i on endangered species. The pennittee must sign and submit to us ~he enclosed certificatiou that the work, including any required mitigation, was COulpletcd in compliance with the natiouwide permit. You should submit your certification within 30 days of the completion of work. This permit should not be considered as an approval of the design features of any activity authorized or an implication that such construction is considered adeqnate for the purpose intended. It does not authorize any damage to private property, invasion of private rights, or any infringement of federal, state, or local laws or regulations. Thank you for your interest in our nation's water resources. If you have any questions concerning our regulatory program, please contact Ms. Mary Flores at the address above or telephone (817)978-7547. If you would like more information about our nationwide penuit program, please contact us and we will furnish you with a copy of the nationwide permit regulations. Sincerely, Lhief, Regulatory Brauch ~..llclosures 4 Copy Furnished: Mr. Robert Delsanter Brentwood Builders, Inc. P. O. Box 702468 Dallas, Texas 75270-5492 Mr. Mark Fisher 401 Coordinator Standards and Assessment Section (MC-150) Texas Natural Resource Conservation Commission P.O. Box 13087 Austin, Texas 7871 i-3087 Mr. Rollin MacRae Texas Parks and Wildlife Department 4200 Smith School Road Austin, Texas 78744 Mr. James E. Bmseth, Ph.D. Deputy State Historic Preservation Officer Division of Antiquities Protection Texas Historical Commission P. O. Box 12276 Austin, Texas 78711 Mr. Robert M. Short U.S. Fish and Wildlife Service Ecological Services Stadimn Centre Building 711 Stadium Drive East, Suite 252 Arlington, Texas 76011 Ms. Rebecca Weber Chief, Marine and Wetlands Section (6WQ-F_.~I) U.S. Environmental Protection Agency, Region 6 1445 Ross Avenue Dallas, Texas 75202 NATIONWIDE PERbIIT 26 Headwaters and Isolated Waters Discharges Effective Date: February I 1, 1997 Discharges of dredged or fill material into headwaters and isolated waters provided that the activity meets all of the following criteria: a. The discharge does not cause the loss of more than 3 acres of waters of the United States nor cause the loss of waters of the United States for a distance greater than 500 linear feet of the stream bed; b. For discharges causing the loss of greater than 1/3 acre of waters of the United States, the permittee notifies the District Engineer in accordance with the "Notification" general condition; c. For discharges causing a loss of 1/3 acm or less of waters of the United States the permit~ee must submit a report within 30 days of completion of the work, containing the information listed below; d. For discharges in special aquatic sites, including wetlands, the notification must also include a delineation of affected special aquatic sites, including wetlands (Also see 33 CFR 330.1 (e)); and e. The discharge, including all attendant features, both temporary and permanent, is part of a single and complete project. Note, this NWP will expire on December 13, 1998. For the purposes of this NWP, the acreage of loss of waters of the United States includes the filled area plus waters of the United States that are adversely affected by flooding, excavation or drainage as a result of the project. The 3 acre and I/3 acre limits of NWP 26 are absolute, and cannot be increased by any mitigation plan offered by the applicant or required by the District Engineer. Whenever any other NWP is used in conjunction with this NWP, the total acreage of impacts to waters of the United States of all NWPs combined, can not exceed 3 acres. Subdivisions: For any real estate subdivision created or subdivided after October 5, 1984, a notification pursuant to subsection (b) of this NWP is required for any discharge which would cause the aggregate total loss of waters of the United States for the entire subdivision to exceed 1/3 acre. Any discharge in any real estate subdivision which would cause the aggregate total loss of waters of the United States in the subdivision to exceed 3 acres is not authorized by this NWP; unless the District Engineer exempts a particular subdivision or parcel by making a written determination that: (1) the individual and cumulative adverse environmental effects would be minimal and the property owner had, after October 5, 1984, but prior to February 11, 1997, committed substantial resources in reliance on NWP 26 with regard to a subdivision, in circumstances where it would be inequitable to frustrate the property owner s investment-backed expectations, or (2) that the individual and cumulative adverse environmental effects would be minimal, high quality wetlands would not be adversely affected, and there would be an overall benefit to the aquatic environment. Once the exemption is established for a subdivision, subsequent lot development by individual property owners may proceed using NWP 26. For purposes of NWP 26, the term "real estate subdivision" shall be interpreted to include circumstances where a landowner or developer divides a tract of land into smaller parcels for the purpose of selling, conveying, transferring, leasing, or developing said parcels. This would include the entire area of a residential, commercial or other real estate subdivision, including all parcels and parts thereof. Report: For discharges causing the loss of 1/3 acre or less of waters of the United States the permittee must submit a report within 30 days of completion o.f the work, containing the following information: a. Name, address, and telephone number of the permittee; b. Location of the work; c. Description of the work; and, d. Type and acreage (or square feet) of the loss of waters of the United States (e.g., 1/10 acre of marsh and 50 Square feet of a stream.) (Section 404) NATIONWIDE PERMIT CONDITIONS GENERAL CONDITIONS: The following general conditions must be followed in order for any authorization by a NWP to be valid: 1. Navigation: No activity may cause more than a minimal adverse effect on navigation. 2. Proper Maintenance: Any structure or fill authorized shall be properly maintained, including maintenance to ensure public safety. 3. Erosion and Siltation Controls: Appropriate erosion and siltation controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or I~igh tide line, must be permanently stabilized at the earliest practicable date. 4. Aquatic Life Movements: No activity may substantially disrupt the movement of those species of aquatic life indigenous to the waterbody, including those species which normally migrate through the area, unless the activity s primary purpose is to impound water. ._ 5. Equinment: Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance. 6. Re~zional and Case-bv-Case Conditions: The activity must comply with any regional conditions which may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state or tribe in its section 401 water quality certification. 7. Wild and Scenic Rivers: No activity may occur in a component of the National Wild and Scenic River System; or in a river officially designated by Congress as a "study river" for possible inclusion in the system, while the river is in an official study status; unless the appropriate Federal agency, with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely effect the Wild and Scenic River designation, or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service.) 8. Tribal Rights: No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. 9. Water Oualitv Certification: In certain states, an individual Section 401 water quality certification must be obtained or waived (see 33 CFR 330.4(c)). 10. Coastal Zone Management: In certain states, an individual state coastal zone management consistency concurrence must be obtained or waived (see Section 330.4(d)). 11. Endaneered Species: A. No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act, or which is likely to destroy or adversely modify the critical habitat of such species. Non-federal permittees shall notify the District Engineer if any listed species or critical habitat might be affected or is in the vicinity of the project, and shall not begin work on the activity until notified by the District Engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized. B. Authorization of an activity by a nationwide permit does not authorize the take of a threatened or endangered species as defined under the Federal Endangered Species Act. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with incidental take provisions, etc.) from the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, both lethal and non-lethal takes of protected species are in violation of the Endangered Species Act. Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the U.S. Fish and Wildlife Service and National Marine Fisheries Service or their world wide web pages at http:llwww.fws.govl~r9endspplendspp.html and http://kingfish.spp.mnfs.gov/tmcintyr/prot_res.html#ES and Recovery, respectively. 12. Historic Properties: No activity which may affect historic properties listed, or eligible for listing, in the National Register of Historic Places is authorized, until the DE has complied with the provisions of 33 CFR Part 325, Appendix C. The prospective permittee must notify the District Engineer if the authorized activity may affect any historic properties listed, determined to be Fisheries Service by EPA under agreements among those agencies. Any agency receiving the PCN will be bound by the EPA timeframes for providing comments to the Corps. F. Wetlands Delineations: Wetland delineations must be prepared in accordance with the current method required by the Corps. For NWP 29 see paragraph (b)(6)(iii) for parcels less than 0.5 acres in size. The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the delineation. Furthermore, the 30-day period (45 days for NWP 26) will not start until the wetland delineation has been completed and submitted to the Corps. where appropriate. G. Mitigation: Factors that the District Engineer will consider when determining the acceptability of appropriate and practicable mitigation include, but are not limited to: 1. To be practicable, the mitigation must be available and capable of being done considering costs, existing technology, and logistics in light of the overall project purposes; 2. To the extent appropriate, permittees should consider mitigation banking and other forms of mitigation including contributions to wetland trust funds, in lieu fees to organizations such as The Nature Conservancy, state or county natural resource management agencies, where such fees contribute to the restoration, creation, replacement, enhancement, or preservation of wetlands. Furthermore, examples of mitigation that may be appropriate and practicable include but are not limited to: reducing the size of the project; 'establishing wetland or upland buffer zones to protect aquatic resource values; and replacing the loss of aquatic resource values by creating, restoring, and enhancing similar functions and values. In addition, mitigation must address wetland impacts, such as functions and values, and cannot be simply used to offset the acreage of wetland losses that would occur in order to meet the acreage limits of some of the NWPs (e.g., for NWP 26, 5 acres of wetlands cannot be created to change a 6-acre loss of wetlands to a 1 acre loss; however, 2 created acres can be used to reduce the impacts of a' 3-acre loss.). 14. Compliance Certification: Every permittee who has received a Nationwide permit verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded to the Corps with the authorization letter and will include: a.) A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions; b.) A statement that any required mitigation was completed in accordance with the permit conditions; c.) The signature of the permittee certifying the completion of the work and mitigation. 15. Multiple Use of Nationwide Permits: In any case where any NWP number 12 through 40 is combined with any other NWP number 12 through 40, as part of a single and complete project, the permittee must notify the District Engineer in accordance with paragraphs a, b, and c on the Notification General Condition number 13. Any NWP number I through 11 may be combined with any other NWP without notification to the Corps, unless notification is otherwise required by the terms of the NWPs. As provided at 33 CFR 330.6(e) two or more different NWPs can be combined to authorize a single and complete project. However, the same NWP cannot be used more than once for a single and complete project. SECTION 404 ONLY CONDITIONS: In addition to the General Conditions, the following conditions apply only to activities that involve the discharge of dredged or fill material into waters of the U.S., and must be followed in order for authorization by the NWPs to be valid: 1. Water Supply Intakes: No discharge of dredged or fill material may occur in the proximity of a public water supply intake except where the discharge is for repair of the public water supply intake structures or adjacent bank stabilization. 2. Shellfish Production: No discharge of dredged or fill material may occur in areas of concentrated shellfish production, unless the discharge is directly related to a shellfish harvesting activity authorized by NWP 4. 3. Suitable Material: No discharge of dredged or fill material may consist of unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.) and material discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act). -¢. Mitigation: Discharges of dredged or fill material into waters of the United States must be minimized or avoided to the maximum extent practicable at the project site (i.e., on-site), unless the District Engineer approves a compensation plan that the District Engineer determines is more beneficial to the environment than on-site minimization or avoidance measures. 5. Spawnine Areas: Discharges in spawning areas during spawning seasons must be avoided to the maximum extent practicable. 6. Obstruction of High Flows: To the maximum extent practicable, discharges must not permanently restrict or impede the passage of normal or expected high flows or cause the relocation of the water (unless the primary purpose of the fill is to impound waters). 7. Adverse Effects From Impoundments: If the discharge creates an impoundment of water, adverse effects on the aquatic system caused by the accelerated passage of water and/or the restriction of its flow shall be minimized to the maximum extent practicable. 8. Waterfowl Breeding Areas: Discharges into breeding areas for migratory waterfowl must be avoided to the maximum extent practicable. 9. Removal of Temporary Fills: Any temporary fills must be removed in their entirety and the affected areas returned to their preexisting elevation. NATIONWIDE PERMITS The following is a list of the nationwide permits that became effective on February 1 I, 1997: 1. Aids to Navigation 2. Structures in Artificial Canals 3. Maintenance 4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities 5. Scientific Measurement Devices 6. Survey Activities 7. Outfail Structures 8. Oil and Gas Structures 9. Structures in Fleeting and Anchorage Areas 10. Mooring Buoys 11. Temporary Recreational Structures 12. Utility Line Discharges 13. Bank Stabilization 14. 'Road Crossings 15. U.S. Coast Guard Approved Bridges 16. Return Water from Upland Contained Disposal Areas 17. Hydropower Projects 18. Minor Discharges 19. Minor Dredging 20. Oil Spill Cleanup 21. Surface Coal Mining Activities 22. Removal of Vessels 23. Approved Categorical Exclusions 24. State Administered Section 404 Programs 25. Structural Discharges 26. Headwaters and Isolated Waters Discharges 27. Wetland and Riparian Restoration and Creation Activities 28. Modifications of Existing Marinas 29. Single-Family Housing 30. Moist Soil Management for Wildlife 3 i. Maintenance of Existing Flood Control Projects 32. Completed Enforcement Actions 33. Temporary Construction, Access and Dewatering 34. Cranberry Production Activities 35. Maintenance Dredging of Existing Basins 36. Boat Ramps 37. Emergency Watershed Protection and Rehabilitation 38. Cleanup of Hazardous and Toxic Waste 39. Reserved 40. Farm Buildings eligible, or which the prospective permittee has reason to believe may be eligible for listing on the National Register of Historic Places, and shall not begin the activity until notified by the District Engineer that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. Information on the location and existence of historic resources can be obtained from the State Historic Preservation Office and the National Register of Historic Places (see 33 CFR 330.4(g)). 13. Notification: A. Timing: Where required by the terms of the NWP, the prospective permittee must notify the District Engineer with a Pre-Construction Notification (PCN) as early as possible and shall not begin the activity: 1. Until notified by the District Engineer that the activity may proceed under the NWP with any special conditions imposed by the District or Division Engineer; or 2. If notified by the District or Division Engineer that an individual permit is required; or 3. Unless 30 days (or 45 days for NWP 26 only) have passed from the District Engineer's receipt of the notification and the prospective permittee has not received notice from the District or Division Engineer. Subsequently, the permittee's fight to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2). B. Contents of Notification: The notification must be in writing and include the following information: 1. Name, address and telephone numbers of the prospective permittee; 2. Location of the proposed project; 3. Brief description of the proposed project; the project's purpose; direct and indirect adverse environmental effects the project would cause; any other NWP(s), regional general permit(s) or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity; and 4. For NWPs 14, 18, 21, 26, 29, 34, and 38, the PCN must also include a delineation of affected special aquatic sites, including wetlands (see paragraph 13(f)); 5. For NWP 21 - Surface Coal Mining Activities, the PCN must include an OSM or state approved mitigation plan. 6. For NWP 29-Single-Family Housing, the PCN must also include: i. Any past use of this NWP by the individual permittee and/or the permittee's spouse; ii. A statement that the single-family housing activity is for a personal residence of the permittee; iii. A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land. measuring 0.5 acre or less will not require a formal on-site delineation. However, the applicant shall provide an indication of where the wetlands are and the amount of wetlands that exists on the property. For parcels greater than 0.5 acre in size, a formal wetland delineation must be prepared in accordance with the current method required by the Corps. (See paragraph 13(0); iv. A written description of all land (including, if available, legal descriptions) owned by the prospective permittee and/or the prospective permittee s spouse, within a one mile radius of the parcel, in any form of ownership (including any land owned as a partner, corporation, joint tenant, co-tenant, or as a tenant-by-the- entirety) and any land on which a purchase and sale agreement or other contract for sale or purchase has been executed; '7. For NWP 31 - Maintenance of Existing Flood Control Projects, the prospective permittee must either notify the District Engineer with a Pre-Construction Notification (PEN) prior to each maintenance activity or submit a five year (or less) maintenance plan. In addition, the PCN must include all of the following: i. Sufficient baseline information so as to identify the approved channel depths and configurations and existing facilities. Minor deviations are authorized, provided that the approved flood control protection or drainage is not increased; ii. A delineation of any affected special aquatic sites, including wetlands; and, iii. Location of the dredged material disposal site. 8. For NWP 33 - Temporary Construction, Access, and Dewatering, the PCN must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources. C. Form of Notification: The standard individual permit application form (Form ENG 4345) may be used as the notification but must clearly indicate that it is a PCN and must include all of the information required in (b) (1)-(7) of General Condition 13. A letter may also be used. D. District Engineer's Decision: In reviewing the pre-construction notification for the proposed activity, the District Engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative. adverse environmental effects or may be contrary to the public interest. The prospective permittee may, optionally, submit a proposed mitigation plan with the pre-construction notification to expedite the process and the District Engineer will consider any optional mitigation the applicant has included in the proposal in determining whether the net adverse environmental effects of the proposed work are minimal. If the District Engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse effects are minimal, the District Engineer will notify the permittee and include any conditions the DE deems necessary. Any mitigation proposal must be approved by the District Engineer prior to commencing work. If the prospective permittee elects to submit a mitigation plan, the District Engineer will expeditiously review the proposed mitigation plan, but will not commence a second 30-day (or 45-day for NWP 26) notification procedure. If the net adverse effects of the project (with the mitigation proposal) are determined by the District Engineer to be minimal, the District Engineer will provide a timely written response to the applicant stating that the project can proceed under the terms and conditions of the nationwide permit. If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then he will notify the applicant either: (1) that the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (2) that the project is authorized under the NWP subject to the applicant's submitting a mitigation proposal that would reduce the adverse effects to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. E. A~ency Coordination: The District Engineer will consider any comments from Federal and State agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level. 1. For NWP 14, 21,26 (between I and 3 acres of impact), 29, 33, 37, and 38. The District Engineer will, upon receipt of a notification, provide immediately, e.g., facsimile transmission, overnight mail or other expeditious manner, a copy to the appropriate offices of the Fish and Wildlife Service, State natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the National Marine Fisheries Service. With the exception of NWP 37, these agencies will then have 5 calendar days from the date the material is transmitted to telephone or fax the District Engineer notice that they intend to provide substantive, site-specific comments. If so contacted by an agency, the District Engineer will wait an additional 10 calendar days (16 calendar days for NWP 26 PCNs) before making a decision on the notification. The District Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the resource agency. The District Engineer will indicate in the administrative record associated with each notification that the resource agencies' concerns were considered. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. 2. Optional Agency Coordination. For N'WPs 5, 7, 12, 13, 17, 18, 27, 31, and 34, where a Regional Administrator of EPA, a Regional Director of USFWS, or a Regional Director of NMFS has formally requested general notification from the District Engineer for the activities covered by any of these NWPs, the Corps will provide the requesting agency with notification on the particular NWPs. However, where the agencies have a record of not generally submitting substantive comments on activities covered by any of these NWPs, the Corps district may discontinue providing notification to those regional agency offices. The District Engineer will coordinate with the resources agencies to identify which activities involving a PCN that the agencies will provide substantive comments to the Corps. The District Engineer may also request comments from the agencies on a case by case basis when the District Engineer determines that such comments would assist the Corps in reaching a decision whether effects are more than minimal either individually or cumulatively. 3. Optional Agency Coordination. 401 Denial. For NWP 26 only, where the state has denied its 401 water quality certification for activities with less than 1 acre of wetland impact, the EPA regional administrator may request agency coordination of PCNs between 1/3 and I acre. The request may only include acreage limitations within the !/3 to I acre range for which the state has denied water quality certification. In cases where the EPA has requested coordination of projects as described here, the Corps will forward the PCN to EPA only. The PCN will then be forwarded to the Fish and Wildlife Service and the National Marine TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Nationwide Permit Water Quality Certification Conditions February ll, 1997 Page 1 Standard Provisions: These following provisions attach to any permit issued by the Corps of Engineers and shall be followed by the permittee or any employee, agent, contractor or subcontractor of the permittee during an.,,' phase of work authorized by a Corps permit. 1. The water quality, of' wetlands shall be maintained in accordance with all applicable provisions of the Texas Surface Water Quality. Standards including the General, Narrative and Numerical Criteria. 2. The applicant shall not engage in any activity which ~vill cause surface waters to be to,dc to man, aquatic life or to terrestrial life. 3. Permittee shall employ measures to control spills of fuels, lubricants, or any other materials to prevent them from entering a watercourse. All spills shall be promptly reported to the TNRCC, Emergency Spill Response, at (512) 463-7727. Before using tire for fill material, the applicant must obtain the'necessary authorization from the Water Tire Recycling Program, MC223, TNRCC, P.O. Box 13087, Austin, TX, 78711-3087. Phone number (512) 239-6001. 4. Sanitary. wastes shall Se retained for disposal in some legal manner. Marinas and similar operations which harbgr boats equipped with marine sanitation devices shall provide state/federal permitted treatment facilities or pump out facilities for ultimate transfer to a permitted fi'eatm~nt facility. Additionally, marinas shall display signs in appropriate locations advising boat owners that the discharge of sewage from a marine sanitation device to waters in the state is a violation of state and federal law. 5. Materials resulting from the destruction 0f existing structures shall be removed from the water or areas adjacent to the water and disposed of in some legal manner. 6. A discharge shall not cause substantial and persistent changes from ambient conditions of turbidi .ty or color. The use of silt screens or other appropriate methods is encouraged to confine suspended particulates. 7. The placement of any material in a watercourse or wetlands shall be avoided and placed there only with the approval of the Corps when no other reasonable alternative is available. If work within a wetland is unavoidable, gouging or rutting of the substrate is prohibited. Heavy equipment shall placed-on mats to protect the substrate from gouging and rutting if necessary. Prior to the construction of an impoundment, the applicant must obtain the necessary authorization from the Water Rights Permitting Section, MC'148, TNRCC, P.O. Box 13087, Austin, TX, 78711-3087. Phone number . (512) 239-5901.. 8. Dredge Material Placement: Dredged sediments shall be placed in such ~ manner as to prevent any sediment runoffonto any adjacent property, not owned by the applicant. Liquid runofffrom the disposal area shall be retained on-site or shall be filtered and returned to the watercourse from which the dredged materials were removed. Except for material placement authorized by this permit, '" TEXAS NATURAL RESOURCE CONSERVATION COMblISSION Nationwide Permit Water Quality Certification Conditions February 11, 1997 Page 2 sediments from the project shall be placed in such a manner as to prevent any sediment runoff into waters in the state, including wetlands. 9. If contaminated spoil that was not anticipated or provided for in the permit application is encountered during dredging, dred=~ng operations shall be immediately terminated and the TNRCC, Emergency' Spill Response, shall be contacted at (512) 463-7727. Dred~ng activities shall not be resumed until authorized by the Commission. 10. Contaminated water, soil oi' any other mater/al shall not be allowed to enter a watercourse. Noncontaminated stormwater from impervious surfaces shall be controlled to prevent the washing of debris into the waterway. 11.' Stormwater runoff from construction activities (US EPA Catego~' X) are govemed by the requirements of the US Environmental Protection Agency.. Applications to apply for a general permit are to be obtained from Region 6, US EPA at (214) 665-7185. 12. Upon completion of earthwork operations all temporary fills shall be removed from the watercourse/wetland [nd areas disturbed during construction shall be seeded, riprapped, or given some other type of protection to minimize subsequent soil erosion. Any fill material shall be clean and of such composition that it will not adversely affect the biological, chemical or physical properties of the receiving waters. 13. Disturbance to vegetation will be limited to only what is absolutely necessary. After construction, all disturbed areas will be revegetated to approximate the pre-disturbance native plant assemblage. Ii. Where the control of weeds, insects and other undesirable species is deemed necessary by the permit'tee, control methods which are nontoxic to aquatic life or human health shall be employed when the activity is located in or in close proximity to water, including wetlands. 15. Concentrations of taste and odor producing substances shall not interfere with the production of potable water by reasonable water treatment methods, impart unpalatable flavor to food fish including shellfish, result in offensive odors arising from the water, or otherwise interfere with reasonable useqof the water in the state. 16. Surface water shall be essentially free of floating debris and suspended solids that are conducive to producing adverse responses in aquatic organisms or putrescible sludge deposits or sediment layers which adversely affect benthic biota or any lawful uses. 17. 'Surface waters shall be essentially free ofsettleable solids conducive to changes in flow characteristics of stream channels or the untimely filling of reservoirs, lakes and bays. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Nationwide Permit Water Quality. Certification Conditions February 11, 1997 Page 3 18. The work of the applicant sh~ll be conducted such that surface waters are maintained in an aesthetically'attractive condition, foaming or frothing of a persistent nature is avoided and surface waters shall be maintained so that oil, grease, or related residue will not produce a visible film ofoil or globules of grease on the surface or coat the banks or bottoms of the watercourse. 19. This certification shall not be deemed as fulfilling the applicant's/permittee's responsibility to ' obtain additional authorization/approval from other local, state or federal regulatory, agencies having special/specific authority, to preserve md/or protect resources with/n the area where the work will occur. Additional Conditions of Section 401 Certification for Specific Nationwide Permits: Nationwide Permit 13 (Bank Stabilization) Before using tires for bank stabilization, the applicant must obtain the necessary authorization from the Waste Tire Recycling Program, MC 223, TNRCC, P.O. Box 13087, Austin, TX, 78711-3087. Phone number (512) 239-6001. Nationwide Permit 16 (Return Water From Upland Disposal Areas) Effluent from an upland contained dredged mater/al disposal area shall not exceed a Total Suspended Solids (TSS) concentration of 300 mg/I unless an individual certification has been issued with site- specific TSS limits. There may be times during the term of this Nationwide Permit when the TNRCC identifies areas with contaminated sediment. After the TNRCC identifies these areas in writing to the Corps, persons filing a predischarge notice for work in one of these areas will be re. quired to obtain an individual Section 401 certification or waiver from the state. Because of potential mercury comamination of the sediments in Cox Bay and Lavaca Bay, any return' flow from activities occurring there will require an individual Section 401 certification or waiver. Nationwide Permit 19 (Minor Dredging) The~'e may be times during the term of this Nationwide Permit when the TNKCC identifies areas with contaminated sediment. After TNRCC identifies these areas in writing to the. Corps, persons filing a predischarge notice for work in one of these areas will be required to obtain an individual Section 401 certification or waiver from the state. Because of potential mercury contamination of the sediments in Cox Bay and Lavaca Bay, any dredging activities occurring there will require an individual Section 401 certification or waiver. TEXAS NATUIL4, L RESOURCE CONSERVATION COMMISSION Nationwide Permit Water Quality. Certification Conditions February 11, 1997 Page 4 Nationwide Permit 26 (Headwaters and Isolated Waters Discharges) The TNRCC reserves the right to modify, certification oft his permit if additional information identifies specific areas where significant impacts, including cumulative or secondary, impacts, are occurring and the use of this Nationwide Permit would be inappropriate. Nationwide Permit 31 (2~Iaintenance of Existing Flood Control Projects) This certification is limited to those, projects which have received a U.S. Army Corps of Engineers authorization for construction or maintenance after 1977. Nationwide Permit 35 (Maintenance Dredging of Existing Basins) There may be times during the term of this Nationwide Permit when the TNRCC identifies areas with contaminated sediment. After TNRCC identifies these areas in writing to the Corps, persons filing a predischarge notice for work in one of these areas will be required to obtain an individual Section 401 certification or waiver from the state. Because of potential mercury contamination of the sediments in Cox Bay and Lavaca Bay, any dredging activities occurring there will require an individual Section 401 certification or waiver.