Huntington-CS 920615' DEPARTMENT OF THE ARMY
~ FORT WORTH DISTRICT, CORPS OF ENGINEERS
`'_1 ~ P. O. BOX 17300
~~ FORT WORTH, TEXAS 76102-0300
REPLY TO
ATTENTION OF'
June 15, 1992
Operations Division
Regulatory Branch
SUBJECT: Project Number 199000164
Mr. William A. Anderson, P.E.
Dar_ M. Dowdy and Associates, Inc.
16250 Dallas Parkway, Suite 100
Dallas, Texas 75248
Dear Mr. Anderson:
Thank you for your letter of April 6, 1992, concerning your
request for a time extension on the original proposed 109.7
acre Parks of Coppell project invoi;%ing Denton and Cottonwood
Creeks in Dallas County, Texas. Please notice that the
original project number 8800361 has been reassigned .Project
Number 199000164; all future correspondence concerning the
project should include this number. Failure to reference the
project number on future correspondence may result in a delay.
We have reviewed this project in accordance with Section
40~ cf the Clear Water Act. Under Section 4C4, the L.S. Army
Corps of Engineers regulates the discharge of dredged and fill
material into waters of the United States, including wetlands.
3ased on your description of tre proposed work, and other
infcrmatian available to us, we rave determined that this
project will involve actiL:ities subject to the requirements of
Section 404. Therefore, it will require Department of the Army
authorisation.
We have determined that this project continues to meet the
scope of work authorized by nationwide permit 25 which allows
discharge of dredge or fill materials into non-tidal rivers,
streams, and their lakes and impoundments, including adjacent
wetlands provided the activity does not cause the Loss or
substantial adverse modification of ore cr more acres of waters
of the United States.
To use this permit, the person responsible for the project
must ensure that the work~is in compliance with the
specifications and conditions listed or. the enclosure. Failure
to comply with tr,ese specifications and conditions invalidates
thn authorization and may result in a violation of the Clean
Water Act.
Our verification for t'r~e construction of a activity under
this nationwide permit is valid for a period of no more than
two years from the date of this letter, or a lesser time upon!
exairaticn of the nationwide permit on a regional or national
basis. Continued confirmation that an activity complies with
the specifications and conditions and any changes to the
nationwide permit is the responsibility of the permittee.
This permit should not be considered as •~~~ approval of the
design features of any activity autrorized or an implication
that such c~nstructior~ is considered adequate for the purpose
i:tended. It does not authorize any damage to private
property, _~vasion of privates rights, or any infringement of
federa', state, or local laws or reguiatior~s.
Thank you for your interest in c~_~r nation's water
resources. If you have any questions concerning cur regulatory
program, please contact Mr. David uadd°n at the address above
cr telephone (817;334-462.
Sincerely,
~. _
Wayne A. Lea
Cr.ief , Regulatory 3rar~ch
Enclosure
Copy Furnished:
Mr. Rollin MacRae
Texas Parks and Wildlife Department
4200 Smitr. School Road
Austin, Texas 78444
NATIONWIDE PERMIT 26
HEADWATERS AND ISOLATED WATERS DISCHARGES
Discharges of dredged or fill material into headwaters and isolated waters provided:
a. The discharge does not cause the loss of more than 10 acres of waters of the United States;
b. The permittee notifies the district engineer if the discharge would cause the toss of waters
of the United States greater than one acre in accordance with the "Notification" general condition. For
discharges in special aquatic sites, including wetlands, the notification must also include a delineation of
affected special aquatic sites, including wetlands. (Also see 33 CFR 330.1(e)); and
c. The discharge, including all attendant features, both temporary and permanent, is part of a
single and complete project.
For the purposes of this nationwide permit, the acreage of loss of waters of the United States includes the
filled area plus waters of the United States that are adversely affected by flooding, excavation or
drainage as a result of the project. The ten-acre and one-acre limits of NWP 26 are absolute, and cannot be
increased by any mitigation plan offered by the applicant or required by the DE.
Subdivisions: For any real estate subdivision created or subdivided after October 5, 1984, a notification
pursuant to subsection (b) of this nationwide permit is required for any discharge which would cause the
aggregate total loss of waters of the United States for the entire subdivision to exceed one (1) acre. Any
discharge in any real estate subdivision which would cause the aggregate total loss of waters of the United
States in the subdivision to exceed ten (10) acres is not authorized by this nationwide permit; unless the
DE exempts a particular subdivision or parcel by making a written determination that: (1) the individual and
cumulative adverse environmental effects would be minimal and the property owner had, after October 5, 1984,
but prior to January 21, 1992, committed substantial resources in reliance on NWP 26 with regard to a
subdivision, in circumstances where it would be inequitable to frustrate his investment backed expectations,
or (2) that the individual and cumulative adverse environmental effects would be minimal, high quality
wetlands would not be adversely affected, and there would bean overall benefit to the aquatic environment.
Once the exemption is established for a subdivision, subsequent lot development by individual property
owners may proceed using NWP 26. For purposes of NWP 26, the term "real estate subdivision" shall be
interpreted to include circumstances where a landowner or developer divides a tract of land into smaller
parcels for the purpose of selling, conveying, transferring, leasing, or developing said parcels. This
would include the entire area of a residential, commercial or other real estate subdivision, including all
parcels and parts thereof. (Section 404)
NATIONWIDE PERMIT CONDITIONS
GENERAL CONDITIONS: The following general conditions must be followed in order for any authorization by a
nationwide permit to be valid:
1. Navigation. No activity may cause more than a minimal adverse effect on navigation.
2. Proper maintenance. Any structure or fill authorized shalt be properly maintained, including
maintenance to ensure public safety.
3. erosion and siltation controls. Appropriate erosion and siltation controls must be used and
maintained in effective operating condition during construction, and all exposed soil and other fills must
be permanently stabilized at the earliest practicable date.
4. Aquatic life movements. No activity may substantially disrupt the movement of those species of
aquatic life indigenous to the waterbody, including those species which normally migrate through the area,
unless the activity's primary purpose is to impound eater.
5. Equipment. Heavy equipment working in wetlands must be placed on mats or other measures must be
taken to minimize soil disturbance.
6. Reoional and case-bv-case conditions. The activity must comply with any regional conditions which
may have been added by the division engineer (see 33 CFR 330.4(e)) and any case specific conditions added by
the Corps.
7. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and Scenic River
System; or in a river officially designated by Congress as a "study river" for possible inclusion in the
system, while the river is in an official study status. Information on Wild and Scenic Rivers may be
obtained from the National Park Service and the U.S. Forest 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 certification. In certain states, an individual state water quality certification
must be obtained or waived (see 33 CFR 330.4(c)).
10. Coastal zone management. In certain states, an individual state coastal zone management
consistency concurrance must be obtained or waived. (see 33 CFR 330.4(d)).
11. Endangered Species. No activity is authorized under any NWP which is likely to jeopardize the
continued existence of a threatened or endangered species or a species proposed for such designation, as
identified under the Federal Endangered Species Act, or which is likely to destroy or adversely modify the
critical habitat of such species. Non-federal permittees shall notify the district engineer if any listed
species or critical habitat might be affected or is in the vicinity of the project and shall not begin work
on the activity until notified by the district engineer that the requirements of the Endangered Species Act
have been satisfied and that the activity is authorized. Information on the location of threatened-and
endangered species and their critical habitat can be obtained from the U.S. Fish and Wildlife Service and
National Marine Fisheries Service. (see 33 CFR 330.4(f))
12. Historic properties. No activity which may affect Historic properties listed, or eligible for
listing, in the National Register of Historic Places is authorized, until the DE has complied with the
provisions of 33 CFR 325, Appendix C. The prospective permittee must notify the 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(8)).
13. Notification. (a) Where required by the terms of the NWP, the prospective permittee must notify
the District Engineer as early as possible and shall not begin the activity:
(1) Until notified by the District Engineer that the activity may proceed under the NWP with any
special conditions imposed by the district or division engineer; or
(2) If notified by the District or Division engineer that an individual permit is required; or
(3) Unless 30 days have passed from the District Engineer's receipt of the notification and the
prospective permittee has not received notice from the District or Division Engineer. Subsequently, the
permittee's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with
the procedure set forth in 33 CFR 330.5(d)(2).
(b) The notification must be in writing and include the following information and any required fees:
(1) Name, address and telephone number of the prospective permittee;
(2) Location of the proposed project;
(3> Brief description of the proposed project; the project's purpose; direct and indirect adverse
environmental effects the project would cause; any other NWP(s), regional general permit(s) or individual
permit(s) used or intended to be used to authorize any part of the proposed project or any related activity;
(4) Where required by the terms of the NWP, a delineation of affected special aquatic sites, including
wetlands; and
(5) A statement that the prospective permittee has contacted: (i) The USFWS/NMFS regarding the presence
of any Federally listed (or proposed for Listing) endangered or threatened species or critical habitat in
the permit area that may be affected by the proposed project; and any available information provided by
those agencies. (The prospective permittee may contact Corps District Offices for USFWS/NMFS agency
contacts and lists of critical habitat.)
(ii) The SHPO regarding the presence of any historic properties in the permit area that may be
affected by the proposed project; arxi the available information, if any, provided by that agency.
(c) The standard individual permit application form (Form ENG 4345) may by used as the notification but
must clearly indicate that it is a PDN and must include all of the information required in (b)(1)-(5) of
General Condition 13.
(d> In reviewing an activity under the notification procedure, the District Engineer will first determine
whether the activity will result in more than minimal individual or cumulative adverse environmental effects
or will be contrary to the public interest. The prospective permittee may, at his option, submit a proposed
mitigation plan with the predischarge notification to expedite the process and the District Engineer will
consider any optional mitigation the applicant has included in the proposal in determining whether the net
adverse environmental effects of the proposed work are minimal. 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 nationwide permits and the need for mitigation to reduce the project's adverse
environmental effects to a minimal level. The district engineer will upon receipt of a notification provide
immediately (e.g. facsimile transmission, overnight mail or other expeditious manner) a copy to the
appropriate offices of the Fish and Wildlife Service, State natural resource or water quality agency, EPA,
and, if appropriate, the National Marine Fisheries Service. With the exception of NWP 37, these agencies
will then have 5 calendar days from the date the material is transmitted to telephone the District Engineer
if they intend to provide substantive, site specific comments. if so contacted by an agency, the District
Engineer Will wait an additional 10 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 the resource agency. The District Engineer wilt indicate in the administrative
record associated with each notification that the resource agencies' concerns were considered. Applicants
are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. If
the District Engineer determines that the activity complies with the terms and conditions of the NwP and
that the adverse effects are minimal, he wilt notify the permittee and include any conditions he deems
necessary. If the District Engineer determines that the adverse effects of the proposed work are more than
minimal, then he will notify the applicant either: (1) that the project does not qualify for authorization
under the NUP and instruct the applicant on the procedures to seek authorization under an individual permit;
or (2) that the project is authorized under the nationwide permit subject to the applicant's submitting a
mitigation proposal that would reduce the adverse effects to the minimal level. This mitigation proposal
must be approved by the District Engineer prior to commencing work. If the prospective permittee elects to
submit a mitigation plan, the DE will expeditiously review the proposed mitigation plan, but will not
commence a second 30-day notification procedure. If the net adverse effects of the project (with the
mitigation proposal) are determined by the District Engineer to be minimal, the District Engineer will
provide a timely written response to the applicant informing him that the project can proceed under the
terms and conditions of the nationwide permit.
(e) wetlands Delineations: wetland delineations must be prepared in accordance with the current method
required by the Corps. The permittee may ask the Corps to delineate the special aquatic site. There may be
some delay if the Corps does the delineation. Furthermore, the 30-day period will not start until the
wetland delineation has been completed.
(f) Mitigaton: Factors that the District Engineer will consider when determining the acceptability of
appropriate and practicable mitigation include, but are not limited to:
(1) To be practicable the mitigation must be available and capable of being done considering costs,
existing technology, and logistics in light of overall project purposes;
(2) To the extent appropriate, permittees should consider mitigation banking and other forms of
mitigation including contributions to wetland trust funds, which contribute to the restoration, creation,
replacement, enhancement, or preservation of wetlands.
Furthermore, examples of mitigation that may be appropriate and practicable include but are not limited to:
reducing the size of the project; establishing buffer zones to protect aquatic resource values; and
replacing the loss of aquatic resource values by creating, restoring, and enhancing similar functions and
values. In addition, mitigation must address impacts and cannot be used to offset the acreage of wetland
tosses that would occur in order to meet the acreage Limits of some of the nationwide permits (e.g. 5 acres
of wetlands cannot be created to change a 6 acre loss of wetlands to a 1 acre loss; however, the 5 created
acres can be used to reduce the impacts of the 6 acre loss).
SECTION 404 ONLY CONDITIONS: !n addition to the General Conditions, the following conditions apply only to
activities that involve the discharge of dredged or fill material and must be followed in order for
authorization by the nationwide permits to be valid:
1. Water Supply intakes. No discharge of dredged or fill material may occur in the proximity of a
public water supply intake except where the discharge is for repair of the public water supply intake
structures or adjacent bank stabilization.
2. Shellfish production. No discharge of dredged or fill material may occur in areas of concentrated
shellfish production, unless the discharge is directly related to a shellfish harvesting activity authorized
by nationwide permit 4.
3. Suitable material. No discharge of dredged or fill material may consist of unsuitable material
(e.g., trash, debris, car bodies, etc.) and material discharged must be free from toxic pollutants in toxic
amounts (see section 307 of the Clean water Act).
4. Mitigation. Discharges of dredged or fill material into waters Of the United States must be
minimized or avoided to the maximum extent practicable at the project site (i.e. on-site), unless the DE has
approved a compensation mitigation plan for the specific regulated activity.
5. Spawning areas. Discharges in spawning areas during spawning seasons must be avoided to the
maximum extent practicable.
6. Obstruction of high flows. To the maximum extent practicable, discharges must not permanently
restrict or impede the passage of normal or expected high flows or cause the relocation of the water (unless
the primary purpose of the till is to impound waters).
7. Adverse impacts from impoundments. If the discharge creates an impoundment of water, adverse
impacts on the aquatic system caused by the accelerated passage of water and/or the restriction of its flow
shall be minimized to the maximum extent practicable.
8. waterfowl breeding areas. Discharges into breeding areas for migratory waterfowl must be avoided
to the maximum extent practicable.
9. Removal of temporary fills. Any temporary fills must be removed in their entirety and the affected
areas returned to their preexisting elevation.
NA710NUIDE PERMITS
The following is a listing of the Nationwide Permits currently in effect.
1. AIDS TO NAVIGATION
2. STRUCTURES IN ARTIFICIAL CANALS
3. MAINTENANCE
4. FISH AND UILDLIFE HARVESTING, ENHANCEMENT, AND ATTRACTION DEVICES AND ACTIVITIES
* 5. SCIENTIFIC MEASUREMENT DEVICES
6. SURVEY ACTIVITIES
* 7. OUTFACE STRUCTURES
8. OIL AND GAS STRUCTURES
9. STRUCTURES 1N FLEETING AND ANCHORAGE AREAS
10. MOORING BUOYS
11. TEMPORARY RECREATIONAL STRUCTURES
12. UTILITY LINE BACKFlLL AND BEDDING
*13. BANK STABILIZATION
*14. ROAD CROSSING
15. U.S. COAST GUARD APPROVED BRIDGES
16. RETURN HATER FROM UPLAND CONTAINED DISPOSAL AREAS
*17. HYDROPOLIER PROJECTS
*18. MINOR DISCHARGES
19. 25 CUBIC YARD DREDGING
20. OIL SPILL CLEANUP
*21. SURFACE MINING ACTIVITIES
22. REMOVAL OF VESSELS
23. APPROVED CATEGORICAL EXCLUSIONS
24. STATE ADMINISTERED SECTION 404 PROGRAMS
25. STRUCTURAL DISCHARGE
*26. NEADUATERS ANO ISOLATED WATERS DISCHARGES
27. NETLAND RESTORATION ACTIVITIES
28. MODIFICATIONS OF EXISTING MARINAS
29. RESERVED
30. RESERVED
31. RESERVED
32. COMPLETED ENFORCEMENT ACTIONS
*33. TEMPORARY CONSTRUCTION AND ACCESS
*34. CRANBERRY PRODUCTION ACTIVITIES
35. MAINTENANCE DREDGING OF EXISTING BASINS
3b. BOAT RAMPS
*3T. EMERGENCY WATERSHED PROTECTION
*38. CLEANUP OF HAZARDOUS AND TOXIC HASTE
39. RESERVED
40. FARM BUILDINGS
* These Nationwide permits may require that notification be provided to the U S Army Corps of Engineers.
41230 Federal Register /Vol. 57, No. 17S / E~`edr.esday, Septr;r;ber 9. 1992 /Notices
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