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ST9905DR-SY031126Integrated Environmental Solutions, Inc. ~ 3100 independence Parkway I Suite311 #3201 Plane, Texas 75075 T972.562.7672] F 972.562,7673 26 November 2003 Mr. Craig Bond, P.E. TranSystems Corporation 3010 LBJ Freeway, STE 990 Dallas, Texas 75234 Waters of the United States Delineation and Section 404 Assessment Bethel Road Drainage Improvements, City of Coppefi, Texas Tributary to Grapevine Creek Between Freeport Parkway and Coppell Road N32°57.250' W97°00.543' Dear Mr. Bond, Integrated Environmental Solutions, Inc. (lES) performed a survey for potential jurisdictional waters of the United States on approximately 1,600 feet of a tributary to Grapevine Creek between Freeport Parkway and Coppell Road along Bethel Road in the City of Coppell, Dallas County, Texas (Attachment A, Figure 1). The delineation of waters of the United States along this corridor is provided in Attachment A, Figure 2. This delineation was conducted to ensure compliance with Section 404 of the Clean Water Act (CWA) for the proposed improvements to Bethel Road and associated drainage. INTRODUCTION Agencies that regulate impacts to the nation's water resources within Texas include the U.S. Army Corps of Engineers (USACE), the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the Texas Commission on Environmental Quality (TCEQ). Jurisdictional waters of the United States are protected under guidelines outlined in Sections 401 and 404 of the CWA, in Executive Order 11990 (Protection of Wetlands), and by the review process of the TCEQ. The USACE has the primary regulatory authority for enforcing Section 404 requirements for waters of the United States, including wetlands. The definition of waters of the United States, in 33 Code of Federal Regulations (CFR) 328.3, includes waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, wetlands, sloughs, wet meadows, or natural ponds and all impoundments of waters otherwise defined as waters of the United States. Also included are wetlands adjacent to waters (other than waters that are themselves wetlands). The term adjacent is defined as bordering, contiguous, or neighboring. Jurisdictional wetlands are a category of waters of the United States and have been defined by the USACE as areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. In January 2001, the U.S. Supreme Court in Solid Waste Agency of Northern Cook County (SWANCC) v. USACE, changed the direction of federal regulation of isolated wetlands under the CWA by disallowing jurisdiction through the "Migratory Bird Rule". Previously, the USACE assumed jurisdiction over isolated waters of the United States based on its 1986 preamble stating that migratory birds used these habitats. The "Migratory Bird Rule" provided the nexus to interstate commerce and thus protection under the CWA. Mr Craig Bond, P E Page 2 Bethel Road Improvements 26 November 2003 The USACE has established guidance for determining between isolated and adjacent wetlands. Wetlands that are bordering, contiguous, or neighboring another water of the United States (specifically one that flows into a navigable water) is considered adjacent. Additionally, wetlands that are within the 100-year floodplain of another water of the United States are also considered adjacent. All other wetlands would be considered isolated, and not jurisdictional under the CWA. METHODOLOGY Prior to conducting fieldwork, the Soil Survey of Dallas County, Texas, the U.S. Geological Survey (USGS) topographic map, and an aerial photograph of the proposed project corridor were studied to identify possible waters of the United States and areas prone to wetland development. All potential waters of the United States were delineated in the field by Rudi Reinecke oflES in accordance with the USACE guidelines on 20 November 2003. Wetland determinations were performed on location using the methodology outlined in the Corps of Engineers Wetland Delineation Manual (Environmental Laboratory 1987). The presence of jurisdictional wetlands is determined by the positive indication of three criteria (i.e., hydrophytic vegetation, hydrology, and hydric soils). Potential jurisdictional boundaries for non-wetland water resources were delineated in the field at the ordinary high water mark (OHWM). The 33 CFR 328.3(e) defines OHWM as the line on the shore/bank established by flowing and/or standing water, marked by characteristics such as a clear, natural line impressed on the bank, erosion shelving, changes in the character of soil, destruction of terrestrial vegetation, presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. The areas of all potential waters of the United States were measured and their locations were noted on a field map of the site (Attachment A, Figure 2). Photographs were also taken at representative points within the project corridor (Attachment B). RESULTS The existing literature, soil survey and the USGS topographic map, provide conflicting data on where the headwaters of the channel historically initiated. The soil survey illustrates the channel initiating nearly 1,500 feet east of Coppell Road, which is downstream of this project. However, the USGS topographic map illustrates a blue line for the tributaly originating at Bethel Road, which is within the corridor. Additionally, the USGS topographic map identified topographic relief throughout the corridor. This topographic relief identifies that there were drainage patterns within the historical context of the map. The soil survey, USGS topographic map, and recent aerial photographs do not illustrate any other waters of the United States within the corridor. Begin Soil Survey Map Mr Craig Bond, PE. Bethel Road Improvements 26 November 2003 USGS Topographic Map Page 3 Field investigations focused on an ephemeral drainage along Bethel Road between Freeport Parkway and Coppell Road. On-site surveys focused on identifying the beginning of the OHWM as defined by 33 CFR 328.3 (e). Historically, the creek may have originated within the 1,600 foot corridor; however, there is a OHWM present throughout the corridor. This may be a result of the land use changes from prairie or cross timber pristine communities to farmland to urban structures. Each of these shifts increase the runoff and potentially peak flows in streams, which also result in the development of an OHWM. There is no evidence of a channel or drainage feature west of Freeport Parkway. Currently there is an OHWM throughout the corridor, initiating at Freeport Parkway. It is lES' professional opinion that the USACE would have jurisdiction over this ephemeral drainage due to the drainage patterns illustrated on the USGS topographic map, the current OHWM, and the hydrologic connection to larger jurisdictional streams. The limits of the waters of the United States provided in Attachment A, Figure 2 are based on field work conducted on 20 November 2003. The field surveys included marking the OHWM with flagging; however, the delineation was recorded on a 1-foot contour map. The tributary's OHWM ranged from 2 to 10 feet in width throughout the corridor. The tributary ranged in width depending upon the gradient of the channel. Locations where the tributary had a steeper gradient, the tributary was between 2 and 3 feet wide. Areas where the gradient was Iow, which appeared to be areas associated with plunge pools, were between 6 and 10 feet wide. The ephemeral stream was 1,723 feet long (0.222 acre below the OHWM) with the drainage flowing from west to east. No wetlands or other waters of the United States were identified within the corridor. The project corridor included a narrow riparian corridor that was no more than 25 feet on either side of the channel. The riparian corridor was dominated by trees including cottonwood (Populus dehoides), black willow (Salix nigra), hackberry (Celtis laevigata), cedar elm ( Ulmus crassifolia), eastern red cedar (Juniperus virginiana), pecan (Carya illinioensis), bitter pecan (Carya aquatica), boxelder (Acer negundo), and green ash (Fraxinus pennsylvanica). The riparian corridor understory was dominated by annual ragweed (Ambrosia trifida), Johnsongrass (Sorghum halepense), Chinese ligustrum (Ligustrum sinense), waxleaf ligustrum (Ligustrum quihoui), silktree (Albizia julibrissin), mustang grape (Vitis mustangensis), greenbriar (Smilax bona-nox), Japanese honeysuckle (Lonicera japonica), and poison ivy (Toxicodendron radicans). CONCLUSIONS The only potential water of the United States within the project site was a single unnamed ephemeral channel (tributary to Grapevine Creek), which was approximately 1,723 linear feet and averaged between 2 and 10 feet wide at the OHWM (0.222 acres total). Impacts to this channel would be subject to regulation by the USACE under Section 404 of the CWA. Impacts to the channel resulting from public road improvements may be authorized under Nationwide Permit (NWP) 14 Linear Transportation Projects. Use of this NWP would require compliance with all the conditions listed in Attachment C. Mr Craig Bond P E Bethel Road Improvements 26 November 2003 Page 4 Since the impacts would be greater than 0.1 acre to waters of the United States, the permittee must notify the USACE under General Condition 13 of NWP 14. The notification should also include a mitigation plan that includes how the project avoided, minimized, and compensated for impacts. Special consideration must be placed on condition E, which states, "The width of the fill is limited to the minimum necessary for the crossing." In the notification submittal, the permittee will have to demonstrate that the improvements to Bethel Road cannot be accomplished without impacting the natural channel beyond the footprint of the road improvements. It is also important to understand that the USACE does have the power to apply discretionary interest in a project and require the permittee to submit for an Individual Permit if they determine that the project does not have minimal impacts to jurisdictional waters functions or values. lES appreciates the opportunity to work with you, TranSystems Corporation, and the City of Coppell on this project, and hope we may be of assistance to you in the future. If you have any comments, questions, or concerns, please do not hesitate to contact me at 972/562-7672 (rreinecke~iesolutionsinc.com). Sincerely, Integrated Environmental Solutions, Inc. Rudi K. Reinecke Wetland Ecologist Attachments ATTACHMENT A Figures ATTACHMENT B Representative Photographs ATTACHMENT C Nationwide Permit 14 - Linear Tranxportation Projects NATIONWIDE PERMIT 14 Linear Transportation Projects Effective Date: March 18~ 2002 Activities required for the construction, expansion, modification, or improvement of linear transportation crossings (eg., highways, railways, trails, airport runways, and taxiways) in waters of the US, including wetlands, if the activity meets thc following criteria: a This NWP is subject to the following acreage limits: ( 1 ) For linear transportation projccts in non-tidal waters, provided the discharge docs not cause thc loss of greater than ]/2-acre of waters of the US; or (2) For linear transportation projects m tidal waters, provided the discharge does not causc the loss of greater than 1/3- acre of waters of the US b Thc permittee must notify thc Dis trict Engineer in accordance with General Condition 13 if any of thc following criteria are met: { I ) The discharge causes thc loss of greater than 1/10-acre of waters of the US: or (2) There is a discharge in a spcciaI aquatic site, including ~vctlands; c. Thc notification must include a compensatory mitigation proposal to offset permanent losses of waters of the US to ensure that those losses result only in minimal adverse effects to the aquattc environment and a statement describing how temporary losses will be mini~nizcd to lhe maximum extent practicable; d For discharges in special aquatic sites, including wetlands, and stream riffle and pool complexes, the notification ntust include a delineation of the affected special aquatic sites; e Thc width of the fill is limited to the minimum necessary for the crossing; f This permit docs not authorize stream channclization, and the authorized activities must not cause more than minimal changes to the hydraulic flow characteristics of thc stream, increase flooding, or cause more than minimal degradation of' waler quality of any stream (see General Conditions 9 and 21); g. This permit cannot bc used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars; and h The crossing is a single and complete project for crossing waters of the US. Where a road segment (i.e., the shortest segment ora road with independent utility that is part ora larger project) has multiple crossings of streams (several single and complete projects) thc Corps will consider whether it should use its discretionary authority to require an Individual Permit (Sections 10 and 404) Note: Some discharges for the construction of farm roads, forest roads, or temporary roads for moving mining equipment may be eligible for an exemption from the need for a Section 404 pemfit (see 33 CFR 323.4). NATI()N3,gql)E PERI~IIT GENEILa, L CONDITIONS The follox~ing General Conditions must be followed in order for any authorization by an NWP to be valid: I 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 maintcnance to ensure public safety 3. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be oscd and maintained in cffkctive operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittces are encouraged to perform work within waters of the United States during periods of Iow flow or no-flow. 4 Aquatic Life Movements. No activity may substantially disrupt the necessary life-cycle movements of those species ol' aquatic life indigenous to the xvatcrbody, including those species that normally migrate through thc area, unless the activity's primary purpose is to ~mpound water Culverts placed in streams must be installed to maintain low flow conditions 5 Equipment. tlcavy equipment working in xvctlands must be placed on mats, or other measures must be taken to minimize soil disturbance. 6 Regional and Case-B)~Case Conditions. The activtty must comply with any regional conditions that may have been added by thc Division Engineer (see 33 CFR 330 4(e)) and with any case specific conditions added by thc Corps or by the state or tribe in its Section 401 Water Quality Certification and Coastal Zone Management Act consistency determination. Note: State,aide Regional Conditions have been added for activities within Texas. 7. Wild and Scenic Rivers. No activity may occur tn 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 thc system, while thc river is in an ofticial study slatus; unless the appropriate Federal agency, with direct management responsibility for such river, has determined tn writing that the proposed activity w/il not adversely affect thc Wild and Scenic River designation, or study slams Information on Wild and Scenic Rivers may be obtained from the appropliate Federal land mauagement agency m the area (cg, National Park Service, U.S Forest Sen,ice, Bureau of Land Managemcnt, 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 Quality. (a) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or waived (Sec 33 CFR 330 4(c)). (b) For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44. where thc state or tribal 401 certification (either generically or individually) does not require or approve water quality managentent measures, the pcrmittee must provide water quality management measures that will ensure that the authorized work does not result in more than minimal degradation of v, ater quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than lninimal adverse effect on water quality). An important component of water quality management includes stormwater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for stonnwater management requirements). Another important component of water quality management is tim establishment and maintenance of vegetated buffers next to open waters, including streams (refer to General Condition 19 for vegetated buffer requirements for the NWPs). This condition is only applicable to projects that have the potential to affect water quality. While appropriate measures must bc taken, in most cases it is not necessary to conduct detailed studies to identil5, such measures or to require mondoring. 10. Coastal Zone Management. In certain states, an individual state coastal zone management consistency concurrence must bc obtained or waived (see 33 (FR 330.4(d)). 11. Endangered Species. (a) No activity is authorized under any NWP which is likely to jeopardize thc continued existence ora threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Spccies Act (ESA), or which will destroy or adversely modify the critical habitat of such species. Nou-fedcral pemuttccs shall notily tbc District Engineer if any listed species or designated critical habitat might be affected et is in thc vicinity of the project, or ts located in the designated critical habitat and shall not begin work on the activity until notified by the District Engineer that thc requirements of the ESA have been satisfied and that thc activity is autborizcd. For activities that may affect Fcdcrallyqisted endangered or threatened species or designated critical habitat, thc notification must include the name(s) of thc endangered or threatened species that may be affected by the proposed work or that utilize the designated critical habilat that may be affected by the proposed work. As a result of tbnnal or informal consultation with tbe FWS or NMFS the District Engineer may add species-specific regional endangered species conditions to the NWPs. (b) Authorization of an activity by a NWP does not authorize the "take" ora threatened or endangered species as defined under thc ESA. In the absence of separate authorization (cg., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from tbc USFWS or thc NMFS, both lethal and non-lethal "takes" of protected species are in violation of the ESA. In formation on the location of threatened and endangered species and thcir critical 2 habitat can be obtained directly from thc offices of the USFWS and NMFS or tbcir world widc xvcb pages at http://www ~\vs.gov/r9cndspp/endspp html and http://www nmfs.noaa.gov/prot.res/overvicw/es html respectively 12 Historic Properties. No activity which may affect historic properties listed, or eligible for listing, in the National Rcgistcr of Historic Places is authorized, until the District Engineer has complied with the provisions of 33 CFR part 325. Appendix C. Thc prospective pem~lttee must notify thc District Enginccr if the authorized activity may affect any historic p~opcrtics listed, determined to be eligible, or which tbe 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 thc National lfistoric Preservation Act have been satisfied and that thc activity is authorized. Int'ormation on the location and existence of historic resources can be obtained from the Statc Historic Preservation Office and the National Register of Historic Places (see 33 CER 330 4(g)). For activities that may affecl historic properties listed in, or eligible for listing in, the National Register of }listoric Places, thc notification must state which historic property may be affcctcd by the proposed work or include a vicinity map indicating thc location of thc historic propcrW. 13 Notification. (a) Timing; where required by lhe terms of the NWP, thc prospective pcrmiUee must notify the District Engineer with a preconst~naction notification (PCN) as early as possible. The District Engineer must determine if thc notification is complete within 30 days of the date oi'rcccipt and can request additional information necessary to make thc PCN colnpletc only once Itowever, if thc prospective pcrmittee does not provide all of thc requested information, then the District Engineer will notify the prospective pcrmittee that the notification is still incomplete and thc PCN review process will not commence until all of the requested information has been received by thc District Enginecr. The prospective permittcc shall not begin thc activit)': (1) Until notified in writing by thc District Engineer that the activity may proceed under the NWP with any special conditions imposed by thc District or Division Engineer; or (2) If notified in writing by thc District or Division Engineer that an Individual Permit is required; or (3) Unless 45 days have passed from the District Engineer's receipt of the complete notification and the prospective permittcc has not received written notice from the District or Division Engineer. Subsequently, the pcrmittce's right to proceed under the NWP may be modified, suspended, or revoked only in accordancc with the proccdure set forth in 33 C}:R 330.5{d)(2). (b) Contents of Notification: The notification must be in writing and include the fbllowing information: (I) Name, address and telephone numbers of thc prospective permJttce; (2) I.ocation of thc proposed project; (3) Brief description of the p:oposcd project; the project's purpose; direct and indirect adverse environmental effects the proJeCt x~,'ould cause; any other N'vVP(s), Regional General Permit(s), or Individual Peri,nit(s) used or intended to be used to authorize any part of the proposed project or any related activity. Sketches should be provided when necessary to show that the activity complies with thc terms of the NWP (Sketches usually clarify thc project and when provided result in a quicker decision.); (4) For NWPs 7, 12, 14, 18, 2 l, 34, 38, 39, 40, 4 I. 42, and 43, thc PC-N must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (eg, submerged aquatic vegetation, seagrass beds), and riftle and pool complexes (sec paragraph 13(1)); (5) For NWP 7 (Outfall Structures and Maintenance), the PCN must include information regarding thc original design capacities and configurations of those areas of the facility where maintenance dredging or excavation is proposed; (6) For NWP 14 (Linear Transpoi~tation Projects), the PCN must include a compcnsato~ mitigation proposal to olivet permanent losses of waters of thc US and a statement describing how tcmporary losses of waters of the US will be minimized to the maximum extent practicable; (7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office of SuH~ce Mining (OSM) or state- approved tnitigation plan, if applicablc. To be authorized by this NWP, tbc District Engineer must determine that the activity complies with the terms and conditions of thc NWP and that the adverse environmental effects arc minimal both individually and cumulatively and must notify tbe project sponsor of this determination in writing; (8) For NWP 27 (Strca~n and Wetland Restoration Activities), thc PCN must include documentation of the prior condition of thc site that will be reverted by the permlttcc; (9) For NWP 29 (Single-Family Housing), thc PCN must also include: 3 ti) Any past use of this NWP by the Individual Permittee and/or the permittee's spouse; (ii) A statement that the single-t:amily housing activity is for a personal residence of the pcrmittec; (ii/) A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land measuring l/4-acrc or less will not require a foru~al on-site delineation. Itowcver, 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 l/4-acre in size, formal wetland delineation must be prepared in accordance with the current method required by thc CoIJ)s (Sec paragraph 13(t)); (iv) A written description of all land (including, if available, legal descriptions) owned by the prospective pem~ittcc and/or thc prospective pennittee's spouse, within a one mile radius of the parcel, in any tk~rm 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; (10) For NWP 31 (Maintenance of Existing Flood Control Facilities), thc prospective permittcc must either not/fy the District Engineer with a PCN prior to each maintenance activity or submit a five year (or less) maintenance plan. In addition, thc PCN must include all of Ibc following: ti) Sufficient baseline information identifying thc approved channel depths and configurations and existing facilities Minor deviations arc authorized, provided the approved flood control protection or drainage is not increased; (ii) A delineation of any aflkctcd special aquatic sites, including wetlands; and, (iii) Location of thc dredged material disposal site; (11) For NWP 33 (Temporary' Construction, Access, and Dcwatering), the PCN must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources; (12) For NWPs 39, 43 and 44, thc PCN must also include a written statement to the District Engineer explaining how avoidance and minimization for losses of waters of the US were achieved on the project site; (13) For NWP 39 and NWP 42, thc PCN must include a compensatory mitigation proposal to offset losses of waters of the US or justification explaining why compensatory mitigation should not be required For discharges that cause the Ioss of greater titan 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies ,Mth the othcr terms and conditions of the NWP, determine adversc environmental cffects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the pcrmittee may proceed; (14) For NWP 40 (Agricultural Activities), the PCN ntust include a compensalory mitigation proposal to offset losses of waters of the US. This NWP does not authorize the relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed in non tidal streams unless, for drainage ditches constructed in intermittent non-tidal streams, thc District Enginecr waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWP, and that any adverse impacts of the project on the aquatic enviromnent are minimal, both individually and cumulatively; { I5) For NWP 43 (Stormwater Managcment Facilities), the PCN must include, for the construction of new stormwatcr management faci!ifies, a maintenance plan (in accordance with state and local requirements, if applicable) and a compensatory imt~gatmn proposal to ofl;set losses of waters of thc US. For discharges that cause the loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must dctermine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive thc lnnitation on stream impacts in writing before the permittee may proceed; (16) For NWP 44 (Mining Activities), thc PCN must include a description of all waters of the US adversely affected by thc project, a description of measures taken to minimize adverse effects to waters of the US, a description of measures taken to comply with the criteria of the NWP, and a reclamation plan (for all aggregate mining activities in isolated waters and non-tidal wetlands adjacent to headwaters and any hard rock/mincral mining activities); (17) For activities that may advcrsely affcc~ Federally listed endangered or threatcned species, the PCN must include the name(s) of those endangered or threatened species that may be affected by thc proposed work or utilize the designated critical habitat that may be afi¥ctcd by the proposed work; and (I 8/For activities that may affect historic properties listed in, or eligible for listing in, the National Rcgister ofllistoric Places, thc PCN must state which historic properly may be affected by the proposed work or include a vicinity map indicating the location of the historic property. (c) Form of Notification: Thc 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)-(18) of 4 General Condition 13. A letter containing the rcqmsite infonnafion may also be used. (d) District Engineer's Decision: In reviewing the PCN for thc proposed activity, thc District Engineer will determine whether thc activity authorized by thc NWP will result in more than minimal individual or cumulative adverse environmental et%ets or may be contraLw to the public interest. The prospective pen~fittec may submit a proposed mitigation plan with the PCN to expedite thc process. The District Engineer will consider any proposed compensatory m~tigation the applicant has included in thc proposal in determining whether the net adverse environmental effects to the aquatic environment 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 eH'ects on the aquatic environment are minimal, after considering mitigation, the District Engineer will notil~ the permittee and include any conditions the District Engineer deems necessaD,. The District Engineer must approve any compcnsato~-y mitigation proposal bcf~rc the permittee commences work. Il' the prospective permittee is required to submit a compcnsato~ mitigation proposal with the PCN, the proposal may be either conceptual or detailed If the prospecnve permittce elects to submit a compensatory mitigation plan with the PCN, the District Engineer will expeditiously review thc proposed compensator}, mitigation plan. Thc District Engineer must review the plan within 45 days of receiving a complete PCN and determine whether the conceptual or specific proposed mitigatiun would ensure no more than minimal adverse effects on the aquatic environment. If the net adverse effects of the project on the aquatic environment (after consideration of the compensatory nfitigatlon proposal) are determined by the District Engineer to be minimah the District Engineer will provide a timely written response to the applicant The response v, ill state that the project can proceed under the terms and conditions of thc NWP. II'the District Engineer determines that the adverse effects of the proposed work are more than ~ninimal, then thc District Engineer will notitS' the applicant either: (1) That the project does not qualify for authorization under thc NWP and instruct the applicant on the procedures to seek authorization under an Individual Permit; (2) that the project is authorized under the NWP st~bject to the applicant's submission ora mitigation proposal that would reduce the adverse effects on thc aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions Where the District Engineer determines that mitiganon is required to ensure no more than minimal adverse eft'eels occur to the aquatic enwronment, thc activity wilt be authorized v, ithin the 45-day PCN period The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation proposal that would reduce thc adverse effects on the aquatic envlromnent to the minimal level When conceptual mitigation is incfilded, or a mitiganon plan is required under item (2) above, no work in waters of the US ',:,,ill occur until the District Engineer has approx ed a specific mitigation plan (e) Agency 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. For activities requiring notification to thc District Engineer that result in the loss of greater than 1/2-acre of waters of thc US, thc District Engineer will provide immediately (c.g., via :Facsi~nile transmission, overnight mail, or other expeditious manner) a copy to thc appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State llistoric Prcseo,,ation Ott'icer (SHPO), and, if appropriate, the NMFS) With the exception of NWP 37, these agencies will then have 10 calendar days fi'om the date the material is transmitted to telephone or fax thc District Engineer notice that they intend to provide substantive, site-specific comments If so contacted by an agency, thc District Engineer ,.;'ill wait an additional 15 calendar days 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 thc resource agency, except as provided bclow. Thc District Engineer will indicate in the administratwc record associated v,,ith each notification that thc resource agencies' concerns were considered. As required by section 305(b)(4)(B) of the Magnuson-Stcvens I:ishery Conservation and Management Act, the District Engineer ,,',,ill provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. (t) WctIand Delineations: Wetland delineations must be prepared m accordance v:ith thc current raethod required by the Coq~s (For NWP 29 see paragraph (b}(9)(iii) for parcels less than ( 1/4-acre in size). The pcrmdtee may ask the Corps to dclmeate the special aquatic site. There may bc some delay if thc Corps does the delineation. Furthermore, thc 45-day period ,,;ill not start until the wetland delineation has been completed and submitted to thc Corps, v/here appropriate. 14 Compliance Certification Ever} permittcc ,.,,,'ho has received NWP verification from thc Corps will subtnit a signed S ccrtification regarding thc completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization tctter and will include: (a) A statement that thc 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; and (c) Thc signature of thc pcrmittee certifying the completion of thc work and mitigation. 15 Use of Multiple Nation'~,ide Permits Thc usc of more than one NWP for a single and complete project ts prohibited, except when the acreage loss of waters of thc US authorized by the NWPs docs not exceed the acreage limit of the NWP ;~qth thc highest specified acreage limit (e.g. ifa road crossing over tidal waters is constructed under NWP I4, with associated bank stabilization authorized by NWP 13, thc maximum acreage loss o['waters of the US for the total project cannot exceed l/3-acre). 16 Water Supply Intakes No activity, including structures and work in navigable waters of thc US or discharges of dredged or fill material, may occur in the proxinfity ora public water supply intake except where the activity is for repair of tbc public water supply intake structures or adjacent bank stabilization 17. Shellfish Beds No activity, including structures and v, ork in navigable waters of the US or discharges of dredged or .fill material, may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWP 4. t8. Suitable Material, No activity, including structures and work in navigable waters of the US or discharges of dredged or fill matcfiak may consist ofunsudable material (e.g, trash, debris, car bodies, asphalt, etc.) and material used for construction or discharged must be free from toxic pollutants in toxic amounts (sec section 307 of the CWA). 19. Mitigation. The District Engineer will consider thc factors discussed below when determining the acceptability of appropriate and practicable mitigation necessary to otl'set adverse effects on the aquatic environment that are more than minimal (a) The project must be designed and constructed to avoid and minimize adverse effects to waters of the US to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or compensating) will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal. (c) Compensatory mitigafion at a minimunt one-for-one ratio will be required for all wetland impacts requiring a PCN, unless thc District Engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project-specific waiver of this requirement. Consistent with National policy, the District Engineer wiII establish a preference for restoration of wetlands as compensatory mitigation, with preservation used only in exceptional circumstances. (d) Compensatory mitigation (i.e., replacement or substitution of aquafic resources for those impacted) will not be used to increase the acreage losses allowed by the acreage limits of some of the NWPs. For example, l/4-acre of wetlands cannot be created to change a 3/4-acre loss of wetlands to a 1/2-acre loss associated with NWP 39 verification. However, l/2-acrc of created wetlands can be used to reduce thc impacts ofa l/2~acre loss of wetlands to the minimum impacl level in order to meet the minimal impact requirement associated with NWPs (e) To be practicable, the mitigation must be available and capable of being done considering costs, existing technology, and logistics in light of thc overall project purposes. Examples of mitigation that may be appropriate and practicable include, but are not Idnitcd to: reducing the size of the project; establishing and maintaining wetland or upland vegetated buffers to protect open waters such as streams; and replacing losses of aquatic resource functions and values by creating, restoring, enhancing, or preserving similar functions and values, preferably in the same watershed. (l) Compensator2/mitigation plans for projects in or near streams or other open waters will nonnatly include a requirement for the establishment, maintenance, aod legal protection (e.g., easements, dccd restrictions) of vegetated buffers to open waters. In many cases, vegetated buffers will be the only compensatory mitigation required. Vegetated bu ft'ers should consist of native species. Thc width of the vegetated buffers required will address documented water quality or aquatic habitat loss concerns. Normally, thc vegetated buffer will be 25 to 50 feet wide on each side of the 6 stream, but thc District Engineers may require slightly wider vegetated buffers to address documented water quality or habitat loss concerns. Where both wetlands and open waters exist on the project site, the Corps will determine thc appropriate compensatory mitigation (e.g., stream buffers or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where vegetated buffers are determined to be thc most appropriate form of compensatory mitigation, thc District Engineer may waive or reduce thc requirement to provide wetland compensatory mitigation for wetland impacts (g) Compensatory mitigation proposals submitted with thc "notification" may bc either conceptual or detailed If conceptual phms are approved under the verification, then the Corps will condition thc ,,eri fication to require detailed plans be submitted and approved by thc Corps prior to construction of the authorized activity in waters of the US (h) Pcrmittccs may propose the use of mitigation banks, in-lieu fcc arrangements or separate activity-specific compensatory mitigation. In all cases that require compensator5' m~tigation, thc mifigation provisions will specify the patly responsible for accomplishing and/or complying with the mitigation plan. 20 Spawning Areas Activities, including structures aod work in navigable waters of the US or discharges of dredged or fill material, in spawning areas during spawning seasons must be avoided to thc maximum cxtent practicable. Activities that result in the physical destpaction (eg., excavate, fill, or smother downstream by substantial turbidity) of an important spawning area are not authorized. 21 Management of Water Flows. To the maximum extent p~acticable, the activity must bc designed to maintain prcconstruction downstream flow conditions (eg., location, capacity, and flow rates). Eurthcrmorc, thc activity must not permanently restrict or nnpcdc thc passage of normal or expected high flows (unlcss thc primary purpose of thc fill is to impound waters) and the structure or discharge of dredged or fill material must withstand expected high flows. Thc activity must, to the maximum extent placticable, provide fier retaining excess flows from the site, provide tbr maintaining surf:ace flow rates from the site similar to preconstruction conditions, and provide for not increasing water flows from the project site, relocating water, or redirecting water flow beyond preconstruction conditions. Stream channelizing will be reduced to the minimal amount necessary, and thc activity must, to tile maxi~l~um extent practicable, reduce adverse effects such as flooding or erosion downstream and upstream of the project site, unlcss the activity is part ora larger system designed to manage watcr flows. In most cases, it will not be a requirement to conduct detailed studies and monitoring of water flow. This condition is only applicable to projccts that have thc potential to affect watcrflows. While appropriate measures must be taken, it is not necessary to conduct detailed studies to identify such measures or require monitoring to ensure their effectiveness. Normally, thc Corps will defer to state and local authorities regarding management of waler flow. 22. Adverse Effects From Impoundments. If thc activity creates an impoundment of water, adverse effects to the aquatic system duc to thc accclcration of thc passage of water, and/or the restricting its flow shall be minimized to the maximum extent praclicable. This includes structures and xvork in navigable waters of thc US, or discharges of dredged or fill matcriah 23 Waterfowl Breeding Areas. Activities, including structures and work in navigable waters of the US or discharges of dredged or fill material, into breeding areas fi)t migratory watel fi)wi must be avoided to the maximum extent practicable. 24 Removal of TemporaD' Fills. Any temporary fills must bc removed in their cntircty and the affected areas returned to their preexisting elevation 25 Designated Critical Resource Waters. Critical resource waters include, NOAA-designated marine sanctuaries, National Esmarinc Research Reserves, National Wild and Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs, state natural heritage s~tcs, and outstanding national resource waters or other waters officially designated by a state as haxing particular environmental or ecological significance and identified by the District Engineer after notice and t>pportunity for public comment. Thc District Engineer may also designate additional critical resource waters after notice and opportunity tBr comment (a) Except as noted beloxv, discharges of dredged or fill material into waters of thc US arc not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 3 I, 35, 39, 40, 42, 43, and 44 for any activity within, or directly affecting, critical resource waters, 7 including wetlands adjacent to such u, aters. Discharges of dredged or fill materials into waters of the US may be authorized by the above NWPs in National Wild and Scenic Rivers if the activity complies with General Condition 7. Further, such discharges may be authorized in designated critical habitat for Federally listed threatened or endangered species if the activity complies with General Condition 11 and thc USFWS or the NMFS has concurred in a determination of cornpliance with this condition. (b) For NWPs 3, 8, 10, 13~ 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with Gencral Condition 13, for any activity proposed in the designated critical rcsourcc waters including wetlands adjacent to those waters. The District Engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal 26 Fills Within 100-Year Floodplains For purposes of this Gcncral Condition, 100-ycar floodplains will be identified through thc existing Fedcral Emergency Management Agency's (FEMA) Flood Insurance Rate Maps or FEMA- approved local floodplain maps. (a) Discharges in Floodplain; Below Headwaters Discharges of dredged or fill material into waters of the US within thc mapped 100-year floodplain, below headwaters (i.e. five cC), resulting in permanent above-grade fills, are not authorized by NX3Ts 39, 40, 42, 43, and 44. (b) Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material intu waters of the US within the FEMA or locally mapped floodway, resulting in permanent above-grade fills, are not attthorized by NWPs 39, 40, 42, and 44. (c) Thc permittee must comply with any applicable FEMA-approved state or local floodplain management requirements. 27. Construction Period. For activities that have not been verified by the Corps and the project was commenced or undcr contract to commence by thc expiration date of the NWP (or modification or revocation date), the work must be completed within 12-months after such date (including any modification that affects the project). For activities that have been verified and the project was commenced or under contract to commence within thc verification period, the work must be completed by the date determined by thc Corps. For projects that have been verified by the Corps, an extension of a Corps approved completion date maybe requested. This request must be submitted at lcast one month before the previously approved completion date. FURTHER INFORMATION I District Engineers have authority to determine if an activity complies with thc tenms and conditions of an NWP 2. NWPs do not obviatc thc need to obtain other Federal, state, or local permits, approvals, or authorizations required by law. 3. NWPs do not grant any property rights or exclusive privileges 4. NWPs do not authorize any injury to the property or rights of others. 5. NWPs do not authorize interference with any existing or proposed Federal project. DEFINTIqONS Best Management Practices (BMPs): BMPs are policies, practiccs, procedures, or structures implemented to mifigatc the advcrse environmental effects on surface water quality rcsutting fi'om development. BMPs are categorizcd as structural or non-structurah A BMP policy may affect thc limits on a development. Compensatory Mitigation: For purposes of Section 10/404, compensatorv mitigation is the restoration, creation enhancement, or in exceptional circumstances, preservation of wetlands and/or other aquatic resources for the purpose of conrpensating for unavoidable adverse impacts which remain aller ali appropriate and practicable avoidance and m~nimization has been achieved Creation: Thc establishment cfa ,aetland or other aquatic resource where one did not formerly exist. Enhancement: Activities conducted in existing wetlands or other aquatic resources that increase one or more aquatic functions. Ephemeral Stream: An ephemeral stream has flowing water onIy during and for a short duration after, precipitation @ events in a typical year Ephemeral stream beds arc located above the ~,ater table yea~round Groundwater is not a source of water for the stream Runoff from rainfall is the primary source of water tbr stream flow. Farm Tract A nnit of contiguous land under one ownership that is operated as a farm or part ora farm. Flood Fringe: That portion of thc t00-year floodplain outside of the flood~vay (often referred to as "floodway fringe"). Fh~lway: The area regulated by Federal, state, or local requirements to provide lbr the discharge of the base flood so the cumulative increase in water surf acc elevation is no more than a designated amount (not to exceed one foot as scl by thc National Flood Insurance Program) within the 100-year floodplain. Independent Utility: A test to determine what constitutes a single and complete project in the Corps regulatory program. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area Portions ora multi-phase project that depend upon other phases of thc project do not have independent utility Phases of a project that would bc constructed even if thc other phases were not built can be considered as separate single and complete projects with independent utility. Intermittent Stream: An intcnnittent stream has flowing water during certain tdnes of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water Runoffl¥om rainfall is a supplemental source of water tbr stream flow. Loss of Waters of iht US: Waters of the US that include the filled area and other waters that are permanently adversely affected by flooding, excavation, or drainage because of the regulated activity. Pcmqanent adverse effects include pennanent above-grade, at-grade, or below-grade fills that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a waterbody. The acreage of loss of waters of the US is the threshold measurement of the impact to existing waters for detemfining whether a project may qualify for an NWP; it is not a net threshold that is calculated after considering compensatory mitigation that may be used to offset losses of aquatic functions and values The loss of stream bed includes thc linear feet of stream bed that is filled or excavated. Impacts to ephemeral streams are not included in the linear foot measurement of loss of stream bcd for the purpose of dctcnnining compliance with thc ldtear foot limits of NWPs 39, 40, 42, and 43. Watcrs of thc US temporarily filled, flooded, excavated, or drained, but restored to preconstructton contours and elevations after construction, are not included in the measurement of loss of waters of the US. ,h'on-tidal Wetland: A non tidal wetland is a wetland (i.e., a water of thc US) that is not subject to the ebb anti flow of tidal waters. The definition ora wctland can bc found at 33 CFR 328 3(b) Non-tidal wetlands contiguous to tidal waters are located landward of the high tide line tic, spring high tide linc). Open Water: An area that, during a year with normal patterns of precipitation, has standing or flowing water sufficient duration to establish an ordinary high water mark Aquatic vegetation within the area of standing or flowing water is either non-emergent, sparse, or absent. Vegctated shallows are considered to bc open waters The term "open water" includes rivers, streams, lakes, and ponds. [:or the purposes of the NWPs, this term does not include ephcmeral Perennial Stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year Groundwater is the primary source of water for stream flow Runoff from rainPall is a supplemental source of v, atcr for stream flow Permanent Above-grade Fill: A discharge of dredged or fill material into waters of the US, including wetlands, that results in a substantial increase in ground elevation and permanently converts part or all of the waterbody to dry land. Structural fills authorized by NWPs 3, 25, 36, etc. are not included Preservation: The protection of ecologically important wetlands or other aquatic resources in perpetuity through the implemcntafion of appropriate legal and physical mechanisms Preservation may include protection of upland areas adjacent to wetlands as necessary to ensure protection and/or enhancement of the overall aquatic ecosystem. Restoration: Re-establishment of wetland and/or other aquafic resource characteristics and function(s) at a silt where they have ceased to exist, or exist in a substantially degraded state. Riffle aod Pool Complex: Ri fflc and pool complexes are special aquatic sites under thc 404(b)(1 ) Guidelines. Rifflc and pool complexes snmctdncs characterize steep gradient sections of streams Such stream sections are recognizablc by their hydraulic characteristics Thc rapid movement of water over a course substratt: in riffles results in a tough flow, a turbulent surface, and high dissolved oxygen levels in thc x~atcr. Pools are deeper areas associated wdh rfffles A slower stream velocity, a streaming flow, a smooth surf acc, and a finer subst~ate characterize poo}s. Single and Complete Project: Thc term "single and complete projcct" is defined at 33 CFR 330.2(i) as thc total project proposed or accomplished by one owner/developer or partnership or other association of or, nets/developers (sec 9 definition of independent utility). For linear projects, the "single and complete project" (lc. a single and complete crossing) will apply to each crossing ora separate water of the US (i.e, a single watcrbody) at that location. An exceptton ~s for linear projects crossing a single waterbody several times at separate and distant locations: each crossing is considered a single and complete project. However, individual channels in a braided stream or river, or individual arms of a large, irregularly shaped ~,'etland or lake. etc., are not separate waterbodies. Stornawater Management: Stormwater management is thc mechanism for controlling stonnwater runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding and mitigating the adverse effects of changes in land use on the aquatic environment. Stormwater Management Facilities: Stormwater management facilities arc those facilities, including but not limited to. stormwatcr retention and detention ponds and BMPs. which retain water for a period of time to control runoff and/or improve thc quality (i,c., by reducing the concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater runofl'. Stream Bed: Thc substratc of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorgamc particles that range in size from clay to boulders. Wetlands contiguous to the stream bcd, but outside of the ordinary high water marks, are not considered part of the stream bcd. Stream Channelization: The manipulation of a stream channel to increase the rate of water flow through thc stream channel. Manipulation may include deepening, widening, straightening, armoring, or other activities that change the stream cross-section or other aspects of stream channel geometry to increase the rate of water flow through the stream channeh A channclizcd stream remains a watcr of the US, despite the modifications to increase the rate of water flow Tidal ~,'etland: A tidal wetland is a ~vetland (ie., water of the US) that is inundated by tidal waters The dcfinitions ora wetland and tidal waters can be tbund at 33 CFR 328 3(b) and 33 CFR 328.3(t), respectively Tidal waters rise and fall in a predictable and measurable rhythm or cycle duc to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by other waters, wind, or other effects. Tidal wetlands are located chanuclward of the high tide line (i.e., spring high tide line) and are inundated by tidal waters two trines per lunar month, during spring high tides. Vegetated Buffer: A vegetated upland or v, ctland area next to rivers, streams, lakes, or other open waters which separates the open water from developed areas, including agricultural land. Vegetated buffers provide a variety of aquatm habitat functions and values (c.g., aquatic habitat for fish and other aquatic organisms, moderation of water temperature changes, and detritus for aquatic lk*od webs) and help improve or maintain local water quality A vegetated buffer can be established by maintaining an existing vegetated area or planting native trees, shrubs, and herbaceous plants on land next to open-waters. Mowed lawns arc not considered vegetated buffers because they provide little or nc) aquatic habitat functions and values. Thc establishment and maintenance of vegetated buffers is a method of compensatory mitigation that can bc used in conjunction with the restoration, creation, enhancement, or preservation of aqtmtic habitats to ensure that activities authorized by NWPs result in minimal adverse cf feets to Ibc aquatic environment (See General Condition 19.) Vegetated Shallows: Vegetated shallows are special aquatic sites under the 404(b)(1 ) Guidelines. They are areas that a~c permanently inundated and under normal circumstances have rooted aqtlatic vegetation, such as seagrasscs in marine and cstuarine systems and a variety of vascular rooted plants in freshwater systems. Waterbody: A waterbody is any area that in a normal year has water flowing or standing above ground to thc extent that evidence of an ordinary high water mark is established Wetlands contiguous to the waterbody are considered part of the waterbody. ADDITIONAL INFORMATION Information about the U.S. Army Coq~s of Engineers regulatory program, including nationwide permits, may also hc accessed on our lntcrnct page: http://www.nsace.army.mil/inct/functions/cw/cccwo/reg This nationwide permit is ef~'cctive March 18, 2002, and expires on March 19, 2007, unless sooner modified, suspended, or revoked. Summary Version: March 18, 2002