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Security Fire-CS050121KBA EnviroScience, Inc. 396 W. Main St, Suite 101 Lewisville, TX 75057 (972) 436-9669 FAX: (972) 436-9667 January 21, 2005 Mr. Ron Jessen Tren-Tech Company 828 Howell Drive Coppell, Texas 75019 Subject: Wetlands Delineation of Tract in Coppell, Dallas County, Texas Dear Ron: On January 13, 2005, Megan Claycamp of KBA EnviroScience, Inc (KBA) performed a wetlands delineation at the subject site to evaluate the potential presence or absence of wetlands or other waters of the United States, subject to U.S. Army Corps of Engineers (USACE) Section 404 jurisdiction. The tract is located at 196 State Road in Coppell, Dallas County, Texas. The project site contains several small buildings in the northwest corner of the tract and remains relatively undeveloped, but maintained for the remainder of the tract. The eastern half of the tract and along Cottonwood Branch is wooded with a clear understory. A sanitary sewer line runs parallel to Cottonwood Branch on-site along the southern site perimeter. The project area is bordered by residences to the north, a residential neighborhood to the east, Cottonwood Branch to the south, and State Road to the west. The site slopes to the south toward Cottonwood Branch and is characterized by distinct changes in topography adjacent to the creek. Soil surveys, topographic maps, U.S. Fish and Wildlife Service's (USFWS)National Wetland Inventory (NWl) maps, Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps, and recent aerial photographs were reviewed prior to the site visit. An unnamed tributary to Cottonwood Branch and Cottonwood Branch were indicated on the topographic map (Grapevine Quadrangle, 1959, Photorevised 1981) and the USFWS NWI map (Grapevine Quadrangle, 1992). Portions of the project area are located within the 100-year floodplain (along the unnamed ephemeral stream) and floodway (along Cottonwood Branch) as mapped on the FEMA map (Panel No. 48113C0135 J). The soil types mapped for the project area are Gowan loam, frequently flooded, and Silawa fine sandy loam, 3 to 8 percent slopes (USDA Soil Conservation Service for Dallas County, 1980). The Gowan soil is a deep, well drained, nearly level soil on floodplains. The soil is generally flooded one or more times each year; floodwaters are shallow, and the floods are of brief duration. Permeability is moderate, the available water capacity high, runoffis slow, and the hazard of erosion slight. The Silawa soil is a deep, well drained, gently sloping to sloping soil on ZCKBA Enviroscience\Projects\Projects 2005\05.005.1Tren- Fech CoppellVl'rentech Copp¢lltract Wetdelltr. Doc Mr. Ron Jessen Page 2 of 2 uplands. Permeability is moderate, available water capacity and runoff are medium, water erosion is a severe hazard, and wind erosion is a moderate hazard. An ephemeral stream was identified on the project site that originates oft-site, and flows from north to south to its confluence with Cottonwood Branch. The average distance between ordinary high water marks (OHWM) of the stream was four feet, and it traveled onsite for an approximate length of 440 feet. It was characterized by an earthen stream bottom, with herbaceous vegetation, and several areas of sandy sediment deposits. Two earthen road crossings with culverts transected the stream, the first, midway down its length on-site from the northern perimeter and the second immediately before its confluence with Cottonwood Branch. The ephemeral stream was observed to be hydrologically connected or contiguous with jurisdictional waterways (Cottonwood Branch) conveying water offsite, and is considered jurisdictional. Cottonwood Branch, a perennial stream, meanders on and off site along the southern perimeter of the site. The average distance between the OHWM's of Cottonwood Branch range from approximately 10 to 15 feet, and the banks of creek were steep at approximately 15 feet tall. Waters of the U.S., subject to USACE jurisdiction, identified on-site included the unnamed tributary to Cottonwood Branch (the ephemeral stream) and Cottonwood Branch, below the OHWM. Nationwide Permit (NWP) 39 authorizes fill into waters of the U.S. for the purpose of residential, commercial, and industrial developments and their associated facilities (Attachment). These facilities may include but are not limited to roads, parking lots, utilities, and storm water management, as well as recreation facilities, such as playgrounds and playing fields. NWP 39 restricts fill in waters of the U.S. to less than 0.50 acres and if the extent of impacts exceeds 0.10 acre, or if open waters are impacted, a pre-construction notification (PCN) must be submitted to the USACE prior to any work. If the proposed impacts are under 0.10 acres, a PCN would not be required and instead a report stating that activities were conducted in compliance with NWP 39 would be submitted to the USACE within 30 days of completion of the work. Please let me know if any additional information would be helpful. Sincerely yours, Megan A. ~la]c~}~'np, Project Scientist KBA Envith~gcience, Inc. C Keith Bradle~ KBA EnviroScience, Inc. Attachment Z:,~KBA Enviroscience\Projects\Proj¢cts 2005\05.005.1Tren-Tech Coppell\Trentech Coppe[Itract Wetdelltr. Doc NATIONWIDE PERMIT 39 RESIDENTIAL, COMMERCIAL, AND INSTITUTIONAL DEVELOPMENTS Effective Date: March 18, 2002 Discharges of dredged or fill material into non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of residential, commercial, and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structures. Attendant features may include, but are not limited to, roads, parking lots, garages, yards, utility lines, stormwater management facilities, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The construction of new ski areas or oil and gas wells is not authorized by this NWP. Residential developments include multiple and single unit developments. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers. Examples of institutional developments include schools, fire stations, government office buildings,judicial buildings, public works buildings, libraries, hospitals, and places of worship. The activities listed above are authorized, provided the activities meet all of thc tbllowiog criteria: a. The discharge does not cause the loss of greater than l/2-acre of non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters; b. The discharge does not cause the loss of greater than 300 linear-feet ora stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the District Engineer, as specified below, that the project compiles with all terms and conditions of this NWP and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively; c. The permittee must notify the District Engineer in accordance with General Condition 13, if any of the following criteria are met: (I) The discharge causes the loss of greater than I/10-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters; or (2) The discharge causes the loss of any open waters, including perennial or intermittent streams, below the ordinary high water mark (see Note~ below); or (3) The discharge causes the loss of greater than 300 linear feet of intermittent stream bed. In such case, to be authorized the District Engineer must determine 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 the limitation on stream impacts in writing before the permittee may proceed; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; e. The discharge is part of a single and complete project; f. The permiU, ee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset thc losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigatmn proposal for oft~etting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required for the District Engineer's consideration; g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss of waters of the US exceeding 1/1 O-acre requires that the permittee notify the District Engineer in accordance with General Condition 13; h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General Conditions 9 and 21); i. For discharges causing the loss of 1/10-acre or less of waters of the US, the pennittee must submit a report, within 30 days of completion of the work, to the District Engineer that contains the following information: (1) The name, address, and telephone number of thc pennittec; (2) The location of the work; (3) A description of the work; (4) The type and acreage of the loss of waters of thc US (e.g., 1/12-acre of emergent wetlands); and (5) The type and acreage of any compensatory mitigation used to offset the loss of waters of the US (e.g., 1/12-acre of emergent wetlands created on- site); j. If there are any open waters or streams within the project area, the permittec will establish and maintain, to thc maximum extent practicable, wetland or upland vegetated buffers next to those open waters or streams consistent with General Condition 19~ Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site. Only residential, commercial, and institutional activitie s with structures on the foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP. The compensatory mitigation proposal that is required in paragraph (f) of this NWP may be either conceptual or detailed. Thc wetland or upland vegetated buffer required in paragraph (j) of this NWP will be dctem~ined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the US to increase production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities. This is more than the acreage limit for NWP 39 m,pacts to waters of the US (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed l/2-acre, see General Condition 15). Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by NWP 39 can not exceed 1/2-acre. This includes any loss of waters associated with development of individual subdivision lots. (Sections 10 and 404) Note: Areas where wetland vegetation is not present should be determined by the presence or absence of an ordinary high water mark or bed and bank. Areas that are waters of the US based on this criterion would require a PCN although water is infrequently present in the stream channel (except for ephemeral waters~ which do not require PCNs under paragraph (c)(2), above; however, activities that result in the loss of greater than 1/10 acre of waters would require PCNs under paragraph (c)(]), above). NATION;VIDE PERMIT GENERAL CONDmONS The following General Conditions must he 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 maintenance to ensure public safety. 3 Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment 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 high tide line, must be pemmnently stabilized at the earliest practicable date. Permi~.ees am 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 of aquatic life indigenous to the watcrbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. Culverts placed in streams must be installed to maintain Iow flow conditions. 5 Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance. 6 Regional and Case-By-Case Conditions. The activity must comply with any regional conditions that 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 and Coastal Zone Management Act consistency detemunatmn. Note: Statewide Regional Conditions have been added for activities within Texas. 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 2 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 affect 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 Quali~y. (a) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or ,aaivcd (See 33 CFR 330.4(c)). (b) For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401 certification (either generically or individually) does not require or approve water quality management measures, the permittee must provide water quality management measures that will ensure that the authorized work does not result in more than minimal degradation of water quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than minimal adverse effect on water quality)~ An important component of water quality management includes stonnwater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for stormwatcr management requirements). Another important component of water quality management is thc 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 be taken, in most cases it is not necessary to conduct detailed studies to identify such measures or to require monitoring~ I0. Coastal Zone Management. In certain states, an individual state coastal zone management consistency concurrence must be obtained or waived (see 33 CFR 330.4(d)). I 1. Endangered 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 lbr such designation, as identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely modify the critical habitat of such species. Non-federal permittees shall notify the District Engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or is located in thc designated critical habitat and shall not begin work on the acttvity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that may affect Federally-listed endangered or threatened species or designated critical habitat, the notification must include the name(s) of the endangered or threatened species that may be affected by the proposed work or that utilize the designated critical habitat that may be affected by the proposed work. As a result of lbrmal or informal consultation with the 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 the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the USFWS or thc NMFS, both lethal and non-lethal ~'takes" of protected species arc in violation of the ESA. Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the USFWS and NMFS or their world wide web pages at http://www.f~vs.gov/r9endspp/endspp.html and http://www.nmfs.noaa.gov/prot_res/overview/es.html 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 District Engineer has complied with the provisions of 33 CFR part 325, Appendix C. The prospective permittee must notify thc District Engineer if the authorized activity may affect any historic properties listed, determined to be 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)). For activities that may affect historic properties 3 listed in, or eligible for listing in, the National Register of Historic Places, the notification must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. 13 Notification. (a) Timing; where required by the terms of the NWP, the prospective permittee must notify the District Engineer with a preconstmction notification (PCN) as early as possible. The District Engineer must determine if the notification is complete within 30 days of the date of receipt and can request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the District Engmeer will notify the prospective permittee that the notification is still incomplete and the PCN review process will not commence until all of the requested information has been received by the District Engineer. The prospective permit~cc shah not begin the activity: ( 1 ) Until notified in writing by thc 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 in writing by the 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 thc prospective pcrntirree has not received written notice from the District or Division Engineer. Subsequently, the permittee's right to proceed under the NWP may be ~nodified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(dX2). (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 thc 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. Sketches should be provided when necessary to show that the activity complies with the terms of the NWP (Sketches usually clari~y the project and when provided result in a quicker decision.); (4) For NWPs 7, 12~ 14, 18, 21, 34, 38, 39, 40, 41,42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g. submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13(f)); 15) For NWP 7 (Outfall Structures and Maintenance), the PCN must include information regarding the original design capacities and configurat~ons of those areas of the facility where maintenance dredging or excavation is proposed; (6) For NWP 14 (Linear Transportation Projects), the PCN must include a compensatory mitigation proposal to offset permanent losses of waters of the US and a statement describing how temporary losses of waters of the US will be mini~nized to thc maximum extent practicable; (7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office of Surface Mining (OSM) or state- approved mitigation plan, if applicable. To be authorized by this NWP, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are nfinimal both individually and cumulatively and must notify the project sponsor of this determination in writing; (8) For NWP 27 (Stream and Wetland Restoration Activities), the PCN must include documentation of the prior condition of the site that will be reverted by the permittee; (9) For NWP 29 (Single-Family Housing), the PCN must also include: (i) Any past use of this NWP by the Individual Permittee and/or thc permittec's spouse; (ii) A statement that the sfagle-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 I/4-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 l/4-acre in size, formal wetland delineation must be prepared in accordance with the current method required bv the Corps. (See paragraph 13(1)); ' (iv) A written description of all land (including, if available, legal descriptions) owned by the prospective permi~ee and/or the prospective permittce'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; 4 (10) For NWP 31 (Maintenance of Existing Flood Control Facilities), the prospective permiVtee must either notify the District Engineer with a PCN 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 identifying the approved channel depths and configurations and existing facilities. Minor deviations are authorized, provided 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; ( 11 ) 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; (12) For NWPs 39, 43 and 44, the PCN must also include a written statement to thc 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, the 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 loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must determine 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 the limitation on stream impacts in writing before the permittee may proceed; (14) For NWP 40 (Agricultural Activities), the PCN must include a compensatory 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, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of thls NWP, and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively; ( 15 ) For NWP 43 (Stormwater Management Facilities), the PCN must include, for the construction of new stormwater management facilities, a maintenance plan (in accordance with state and local requirements, if applicable) and a compensatory mitigation proposal to offset losses of waters of the 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 determine 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 the limitation on stream impacts in writing before the permit, tee may proceed; (16) For NWP 44 (Mining Activities), the PCN must include a description of ail waters of the US adversely affected by the 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/mineral mining activities); (17) For activities that may adversely affect Federally-listed endangered or threatened species, the PCN must include the name(s) of those endangered or threatened species that may be affected by the proposed work or utilize the designated critical habitat that may be affected by the proposed work; and (18) For activities that may affect historic properties listed in, or eligible for listing in, the National Register of Historic Places, the PCN must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. (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 int'onnation required in (b) (1)-(18) of General Condition 13. A letter containing the requisite inlbrmation may alsobe used. (d) District Engineer's Decision: In reviewing the PCN for the proposed activity, the District Engineer will detetmine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse enwronmental effects or may be contrary to the public interest. The prospective permittee may submit a proposed mitigation plan with the PCN to expedite the process. The District Engineer will consider any proposed compensatory mitigation thc applicant has included in the 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 effects on the aquatic environment are minimal, after considering mitigation, the District Engineer will notify the permittce and include any conditions the District Engineer deems necessary. The District Engineer must approve any compensatory mitigatmn proposal before the permittee commences work. If thc prospective permittee is required to submit a compensatory mitigation proposal with the PCN, S thc proposal may be either conceptual or detailed. If thc prospective permittee elects to submit a compensatory mitigation plan with the PCN, the District Engineer will expeditiously review the proposed compensatory 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 mitigation 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 mitigation proposal) are determined by the District Engineer to be minimal, the District Engineer will provide a timely written response to the applicant. The response will state that the project can proceed under the terms and conditions of the NWP. If thc District Engineer determines that the adverse effects of the proposed work arc more than minimal, then the District Engineer 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 submission ora mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that thc project is authorized under the NWP with specific modifications or conditions. Where the District Engineer detem~ines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity ,,viii be authorized within the 45-day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a m~tigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, or a mitiganon plan is required under item (2) above, no work in waters of the US will occur until the District Engineer has approved a specific mitigation plan. (e) Agency Coordination: The District Engineer will consider any comments from Federal and state agencies concermng the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce thc project's adverse environmental effects to a minimal level. For activittes requiring notification to the District Engineer that result in the loss of greater than l/2-acre of waters of the US, the District Engineer will provide immediately (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the NMFS). With the exception of N~hrP 37, these agencies will then have 10 calendar days from the date the material is transmitted to telephone or fax the District l';ngineer notice that they intend to provide substantive, site-specific comments. If so contacted by an agency, the District Engineer will wait an additional 15 calendar days before making a decision on the notification. The District Engineer will t~lly consider agency comments received within the specified time tYame, but will provide no response to the resource agency, except as provided below. The District Engineer will indicate in the administrative record associated with each notification that the resource agencies' concerns were considered. As required by section 305(b)(4)(B) of the Magnuson-Stcvens Fishery Conservation and Management Act, the District Engineer will 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 ofnotificatlons to expedite agency notification. (f) Wetland Delineations: Wetland delineations must be prepared in accordance with the current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than (l/4-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the delineatiom Furthermore, the 45-day period will not start until the wetland delineation has been completed and submitted to the Corps, where appropriate. 14 Compliance Cerfification. Every permittee who has received NWP verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by 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; and (c) The signature of the permittee certifying the completion of the work and mitigation. 15 Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the US authorized by the NWPs does not exceed the acreage limit of the NWP with thc highest specified acreage limit (e.g. ifa road crossing over tidal waters is constructed under NWl> 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the US for the total project 6 cannot exceed l/3-acre). 16 Water Supply Intakes. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for repair of the public water supply intake structures or adjacent bank stabilization. 17 Shellfish Beds. No activity, including structures and work 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. 18 Suitable Material. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may consist of unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.) and material used for constractmn or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the CWA). 19 Mitigation. The District Engineer will consider the factors discussed below when determining the acceptability of appropriate and practicable mitigation necessary to offset adverse effects on the aquatic environment that are more than mrmmal. (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 fom~s (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 mitigation at a nfinlmum one-for-one ratio will be required for all wetland impacts requiring a PCN, unless the 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 will establish a preference for restoration of wetlands as compensatory mitigation, with preservation used only tn exceptlonal circumstances. (d) Compensatory mitigation (i.e., replacement or substitution of aquatic 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, 1/4-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-acre of created wetlands can be used to reduce the impacts ora l/2-acre loss of wetlands to the minimum impact 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 the overall project purposes. Examples of mitigation that may be appropriate and practicable include, but are not limited 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 aquafic resource functions and values by creating, restoring, enhancing, or preserving similar functions and values, preferably in the same watershed. (t') Compensatory nritigation plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection (e.g., easements, deed restrictions) of vegetated buffers to open waters in many cases, vegetated buffers will be the only compensatory mitigation required. Vegetated buffers should consist of native species. The width of the vegetated buffers required ,,viii address documented water quality or aquatic habitat loss concerns. Normally, the vegetated buffer wdl be 25 to 50 feet wide on each side of the stream, but the 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 stte, the Corps will determine the approprtate 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 the most appropriate fom~ of compensatory mitigation, the District Engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland impacts. (g) Compensatory mitigation proposals submitted with the "notification" may be either conceptual or detailed. If conceptual plans are approved under the verification, then the Corps will condition the verification to require detailed plans be submitted and approved by the Corps prior to construction of the authorized activity in waters of the US. (h) Permittees may propose the use of mitigation banks, in-lieu fee arrangements or separate activity-specific compensatory mitigation. In all cases that require compensatory mitigation, the mitigation provisions will specify the 7 party responsible for accomplishing and/or complying with the mitigation plan. 20 Spawning Areas. Activities, including structures and work in navigable waters of the US or discharges of dredged or fill material, in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., excavate, fill, or smother downstream by substantial turbidity) of an important spawming area are not authorized. 21 Management of Water Flows. To the maximum extent practicable, the activity must be designed to maintain preconstruction downstream flow conditions (e.g., location, capacity, and flow rates). Furthermore, the activity must not permanently restrict or impede the passage of normal or expected high flows (unless the primary purpose of the fill is to ~mpound waters) and the structure or discharge of dredged or fill material must withstand expected high flows. The activity must, to the maximum extent practicable, provide for retaining excess flows from the site, provide for maintaining surface 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 the activity must, to the maximum extent practicable, reduce adverse effects such as flooding or erosion downstream and upstream of the project site, unless the activity is part ora larger system designed to manage water flows. In most cases, it will not be a requirement to conduct detailed studies and monitonng of water flow. This condition is only applicable to projects that have the potential to affect waterflows. 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, the Corps will defer to state and local authorities regarding management of water flow. 22 Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to the acceleration of the passage of water, and/or the restricting its flow shall be minimized to the maximum extent practicable. This includes structures and work in navigable waters of the US, or discharges of dredged or fill matehal. 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 for migratory waterfowl must be avoided to the maximum extent practicable. 24 Removal of Temporary Fills. Any temporary fills must be removed in their entirety and the affected areas returned to their preexisting elevation. 25 Designated Critical Resource Waters. Critical resource waters include, NOAA-designated marine sanctuaries, National Estuarine Research Reserves, National Wild and Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs, state natural heritage sites, and outstanding national resource waters or other waters officially designated by a state as having particular environmental or ecological significance and identified by the District Engineer aflcr notice and opportunity for public comment. The District Engineer may also designate additional critical resource waters after notice and opportunity for comment. (a) Except as noted below, discharges of dredged or fill material into waters of the US are not authorized by NWPs 7, 12, 14, 16, 17, 2 I, 29, 3 }, 35, 39, 40, 42, 43, and 44 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. 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 co[nplies 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 the USFWS or thc NMFS has concurred in a determination of compliance 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 General Condition 13, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The District Engineer may authorize activities under these NWPs only after it is determined that thc impacts to the critical resource waters will be no more than minimal. 26 Fills Within 100-Year Floodplains. For purposes of this General Condition, 100-year floodplains will be identified 8 through the existing Federal 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 the mapped 100-year floodplain, below headwaters (i.e. five cfs), resulting in permanent above-grade rills, are not authorized by NWPs 39, 40, 42, 43, and 44. (b) Discharges in Floodway; Above Headwaters. Discharges of dredged or rill material into waters of the US within the FEMA or locally mapped floodway, resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, and 44 (c) The perraittee must comply with any applicable FEMA-approved state or local floodplain management requirements. 27 Construction Perio6 For activities that have not been verified by the Corps and the project was commenced or under contract to commence by the 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 the verification period, the work must be completed by the date determined by the Corps. For projects that have been verified by the Corps, an extension ora Corps approved completion date maybe requested. This request must be submitted at least one month before the previously approved completion date. FURIIIER INFORMATION I District Engineers have authority to determine if an activity complies with the terms and conditions of an N'C/P. 2 NWPs do not obviate the 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. DEFINITIONS Best Management Practices (BMPs): BMPs are policies, practices, procedures, or structures implemented to mitigate the adverse environmental effects on surface water quality resulting from development. BMPs are categorized as structural or non-structural. A BMP policy may affect the limits on a development. Compensatory Mitigation: For purposes of Section 10/404, compensatory mitigation is the restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands and/or other aquatic resources for the purpose of compensating for unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved. Creation: The establishment of a wetland 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 only during and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow. Farm Tract A unit of contiguous land under one ownership that is operated as a farm or part of a farm. Flood Fringe: That portion of the 100-year floodplain outside of the floodway (often referred to as "floodway fringe"). Floodway: The area regulated by Federal, state, or local requirements to provide for the discharge of the base flood so the cumulative increase in water surface elevation is no more than a designated amount (not to exceed one foot as set by the 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 the project do not have independent utility. Phases ora project that would be constructed even if the other phases were not built can be 9 considered as separate single and complete projects with independent utility. Intermittent Stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow. Loss of Waters of the 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. Permanent adverse effects include permanent above-grade, at-grade, or below-grade fills that change an aquatic area to dry land, increase the bottom elevation ora waterbody, or change the use ora waterbody. The acreage of loss of waters of the US is the threshold measurement of the impact to existing waters for determining 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 the 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 bed for the purpose of determining compliance with thc linear foot limits of NWPs 39, 40, 42, and 43. Waters of the US temporarily filled, flooded, excavated, or drained, but restored to preconstruction contours and elevations after construction, are not included in the measurement of loss of waters of the US. Non-tidal Wetland: A non-tidal wetland is a wetland (i.e., a water of the US) that is not subject to the ebb and flow of tidal watcrs~ The definition ora wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands contiguous to tidal waters are located landward of the high tide line (i.e., spring high tide line). Open Water: An area that, during a year with normal patterns of precipitation, has standing or flowing water for 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. Vegetated shallows are considered to be open waters. The term "open water" includes rivers, streams, lakes, and ponds. For the purposes of thc NWPs, this term does not include ephemeral waters. 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 thc primary source of water for stream flow. Runoff from rainfall is a supplemental source of water 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. Preservafion: The protection of ecologically important wetlands or other aquatic resources in perpetuity through the ~mplcmentation 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 aquatic resource characteristics and function(s) at a site where they have ceased to exist, or exist in a substantially degraded state. Riffle and Pool Complex: Riffle and pool complexes are special aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a course substrate in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize pools. Single and Complete Project: The term "single and complete project" is defined at 33 CFR 330.20) as the total project proposed or accomplished by one owncr/devcioper or partnership or other association of owners/developers (see definition of independent utility). For linear projects, the "single and complete project" (i.e., a single and complete crossing) will apply to each crossing of a separate water of the US (i.e., a single waterbody) at that location. An exception is for linear projects crossing a single waterbody several times at separate and distant locations: each crossing ~s considered a single and complete project. However, individual channels in a braided strealn or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies. Stormwater Management: Stormwater management is the mechanism for controlling stormwater runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding and mitigating the adverse effects of changes in land use on thc aquatic environment. Stormwater Management Facilities: Stormwater management facilities are 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 ~mprovc the quality (i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other 3_0 pollutants) of stormwater runoff. Stream Bed: The substrate of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorganic particles that range in size from clay to boulders. Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not considered part of the stream bed. Stream Channelization: The manipulation of a stream channel to increase the rate of water flow through the stream channeh 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 channel. A channelized stream remains a water of thc US, despite the modifications to increase the rate of water flow. lidal Wetland: A tidal wetland is a wetland (i.e., water of the US) that is inundated by tidal waters. The definitions ora wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 328.3(f), respectively. Tidal waters risc and fall in a predictable and measurable rhythm or cycle duc to thc 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 duc to masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the high tide line (i.e., spring high tide line) and are inundated by tidal waters two times per lunar month, during spring high tides. Vegetated Buffer: A vegetated upland or wetland 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 aquattc habitat functions and values (e.g., aquatic habitat for fish and other aquatic organisms, moderation of water temperature changes, and detritus for aquatic tbod 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 are not considered vegetated buffers because they provide little or no aquatic habitat functions and values. The establishment and maintenance of vegetated buffers is a method of compensatory mitigation that can be used in conjunction with the restoration, creation, enhancement, or preservation of aquatic habitats to ensure that activities authorized by NWPs result in minimal adverse effects to the aquatic enwronment. (Sec General Condition 19.) Vegetated Shallows: Vegetated shallows are special aquatic sites under the 404(b)( l ) Guidelines. They are areas that are permanently inundated and under nonnat circumstances have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of vascular rooted plants in freshwater systems. Waterbody: A watcrbody is any area that in a normal year has water flowing or standing above ground to the 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 Corps of Engineers regulatory program, including nationwide permits, may also be accessed on our lnternet page: http://www.usace.army.mil/inet/functions/cw/cecwo/reg This nationwide permit is effective March 18, 2002, and expires on March 19, 2007, unless sooner modified, suspended, or revoked Summary Version: March 18, 2002 3_1