ORDER NO.30598
MARTIN-MARIETTA FLOOD PLAIN PERMIT
Came to be heard this the 13th day of November, 2007, with a motion made by
Commissioner Williams, seconded by Commissioner Letz. The Court
unanimously approved by vote of 2-1-0 to:
Move for a continuance on the Martin Marietta Floodplain Permit to November 26,
2007 at 1:30 p.m.
3os98'
(,'~
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST
AND DOCUMENTS TO BE REVIEWED BY THE COURT.
MADE BY: Commissioner Williams OFFICE: Precinct 2
MEETING DATE: November 13, 2007 TIME PREFERRED:
SUBJECT: (Please be specific). Consider, discuss and take appropriate action on Martin-
Marietta Flood Plain Permit.
EXECUTIVE SESSION REQUESTED:
NAME OF PERSON{S) ADDRESSING THE COURT: Commissioner Williams, Mr.
Emerson, Mr. Odom, and individuals representing Martin-Marietta and Nelson and Mary
Happy.
ESTIMATED LENGTH OF PRESENTATION. IS minutes.
IF PERSONNEL MATTER-NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
meetings. Your cooperation is appreciated and contributes toward your request being addressed
at the earliest opportunity. See Agenda Request Rule adopted by Commissioners Court.

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KERR COUNTY ATTORNEY
COUNTY COURTHOUSE, SUITE BA-1 O3
REX EMERSON
7OO MAIN STREET KERRVILLE, TEXAS 78028
October 4, 2007
Bill Williams
Commissioner Precinct 2
RE: Martin Marietta Flood Plain Permit for a haul road
Dear Bill:
On May 14, 2007 the Commissioners Court suspended Martin Marietta's flood plain
permit relative to the proposed haul road. The Court requested that I review the issues and
provide guidance for further action by the Court. I requested that both parties supply their briefs
supporting their respective positions. I received the final brief several weeks ago and have
reviewed both party's submissions.
Each of the issues has been addressed by the parties. It is my opinion after having
considered the arguments and supporting documents of both parties that Flood Plain Permit No.
F07-002 originally issued on February 15, 2007 should be reinstated for the limited purpose to
which it was granted. Any additional development in the Flood Plain will require additional
permits.
Rex Emerson
cc: J. Nelson Happy
Rodrigo J. Figueroa

MAIN NUMBER (830) 792-2220 HOT CHECKS (830) 792-2221 Fax (830) 792-2228
Website: http://www.co.kerr.tx.us/attorney
~1. I~IELSOI~I HAPPY
PO Box 464
CENTER POINT, TEXAS 780'[ O
830 285 2626
November 14, 2007
Hon. Pat Tinley, Judge
Kerr County Commissioner's Court
700 E. Main Street
Kerrville, Texas 78028
Re: Appeal of Martin Marietta Floodplain Construction Permit
Dear Judge Tinley:
The Commissioner's Court's consideration of my appeal of the Kerr County Floodplain
Administrator's grant of a floodplain construction permit is on the Court's agenda for today,
November 14, 2007. I hereby respectfully request a continuance of this hearing. The reasons for
my request are:
1. On May 14, 2007 the Court requested Martin Marietta. and me to prepare briefs in
support of our positions. I promptly responded, on the assumption that Martin Marietta
would do the same. However, Martin Marietta took four months to reply, and did not
provide me with a copy of their brief. I was given a copy of the brief recently, and due to
family illness have not had an opportunity to obtain rebuttal evidence for the Court's
consideration. I believe that fairness requires that I be given comparable time to gather
evidence and respond to Martin Marietta's brief as they took to obtain their evidence.
2. The Court's agenda for today is very crowded and my presentation will require at least an
hour of the Court's time, plus time for Martin Marietta to respond. Such long
presentations would be prejudicial to the Court's proper consideration of the other
matters on the agenda today.
I am, however, attaching to this letter a preliminary response to Martin Marietta's brief which
summarizes the evidence and legal issues that I intend to present to the Court in support of my
appeal. Of course, I will appear at the Court's session today to personally request this
continuance.
ery truly yours,
J/Nelson Happy


IN THE KERR COUNTY COMMISSIONERS' COURT
KERRVILLE, TEXAS
PRELIMINARY REPLY BRIEF
IN SUPPORT OF AN APPEAL OF THE GRANTING
OF A DEVELOPMENT PERMIT TO
MARTIN MARIETTA MATERIALS SOUTHWEST, INC.
BY THE KERR COUNTY FLOODPLAIN ADMINISTRATOR
J. NELSON HAPPY
P.O. BOX 464
CENTER POINT, TX 78010
830-285-2626
@app@aol.com
November 14, 2007

BACKGROUND
On December 21, 2006 Martin Marietta applied to build a "haul road" in the FEMA
designated 100-year floodplain adjoining the H. M. Naylor Ranch (Martin-Marietta had
previously applied for, and been granted, a permit to mine in the floodplain. They withdrew this
permit before applying for the ostensible "haul road" permit.) The Floodplain Administrator,
ignoring the provisions of the Kerr County Flood Damage Prevention Order No. 26463, not
providing for any public notice, and without any courtesy notification to adjacent property
owners (including Mr. Happy,) granted the permit on February 15, 2007
The H.M. Naylor Ranch is pending listing on the National Register of Historic Places.
The Texas Historical Commission has determined that the ranch is of great historical and
architectural significance, on a national level, as well as on a local, Kerr County level. While
the H.M. Naylor Ranch is the home of Mr. Happy and his family, the Happys wish to share this
important resource with their community. Mr. Happy has invested hundreds of thousands of
dollars in the restoration and preservation of this important historic site, to insure its survival for
future generations of Kerr County residents. The future of the H.M. Naylor Ranch-its viability
as a residence and its economic survival-is greatly compromised by Martin Marietta's proposal
to mine the land adjacent to the ranch's northeast corner. The proposed mine would be sited so
that prevailing SW winds, sweeping off the Guadalupe River valley, would inundate the 1947
Charles Dilbeck-designed house with dirt, dust, and unbearable noise (construction noise from
Martin Marietta's present mining operation, several miles due NE from the house, can already be
~t.r easily heard from the house's bedrooms and lawns.)
When Martin Marietta began excavating the haul road, Mr. Happy appealed the granting
of the permit to this Court. A hearing was held on May 14, 2007 wherein Mr. Happy presented
evidence of the facts, which established that the permit was granted in error by the Floodplain
Administrator. Neither Martin Marietta nor the Floodplain Administrator submitted evidence
supporting the issuance of the permit. At the hearing, the Court directed the County Attorney to
consider the issues, and requested the parties to provide briefs if they so desired.
The Kerr County Flood Damage Prevention Order, Order No. 26463, Sec. D (2)
provides: "The Kerr County Commissioner's Court shall hear and render judgment on an
appeal only when it is alleged there is an error in any requirement, decision, or determination
made by the Floodplain Administrator in the enforcement of administration of this order." Mr.
Happy has made such an allegation, and now this Court has the exclusive jurisdiction to hear and
render judgment on the appeal.
2

DISCUSSION
I. Martin Marietta's application for a construction permit is actually a pretextual
attempt to obtain a permit to mine the leased property.
As previously mentioned, Martin Marietta had already applied for, and withdrawn, a
permit to mine in the floodplain. The Floodplain Administrator's file is replete with
information about Martin Marietta's mining plans. In addition, Martin Marietta filed a
notice with the Federal Aviation Administration (FAA) on June 26 2007, titled "Notice of
Proposed Construction or Alteration," in which Martin Marietta described their plans to
begin permanent new construction on the site as of August 1, 2007. In this notice,
Martin Marietta gave the "Complete Description of Proposal" as "[e]xcavation of Sand
and Gravel on Martin Marietta property."
In reviewing Martin Marietta's application, this Court must consider that if the haul road
permit is granted, Martin Marietta will use it for mining operations next to the H. M.
Naylor Ranch, the Kerr County Municipal Airport, and the Airport Industrial Park.
There is no need fora "haul road" if there is nothing to haul and Martin Marietta has
stated its intent to use a 36-foot-high excavator on the "haul road." Excavators are used
for mining.
II. The Floodplain Administrator has not properly reviewed Martin Marietta's permit
application to determine whether all necessary permits have been obtained from those
Federal, State or local governmental agencies from which prior approval is required
pursuant to Art. 4, Sec. B (4) of this Court's Order No. 26463.
A. The City of Kerrville has not granted Martin Marietta a permit to change
the use of the property from agriculture to mining in the protected airport hazard zone as
required by the Airport Hazard Zoning Ordinance.
In its Brief, Martin Marietta concedes that its proposed mining activity is
within the zones protected by the Ordinance. (A copy of the ordinance is
attached as "Exhibit 1"). It also concedes that "[g]enerally, no material
change maybe made in the use of land and no structure maybe erected in any
zone created by the Ordinance without firms obtaining a permit from the City
Manager." Martin Marietta also admits that it has not obtained such a permit,
arguing that none is required.
The Ordinance excepts trees and structures less than 75 feet of vertical height
from the permitting requirements. However, the Ordinance in provides in
Sec. 7: "...no material change shall be made in the use of land ... unless
a hermit therefore shall have been applied for and granted." (Emphasis
added.)
.r
,,, It is surprising that Martin Marietta does not interpret their proposed change
of the land's use-from what was once Kerr County's most fertile Guadalupe
River valley row crops, and only recently cattle grazing, to a 40' deep mining
pit-as a "material change." In their own documents they describe their
activity as permanent new construction for "[e]xcavation of Sand and Gravel
on Martin Marietta property."
The Ordinance also provides in Sec. 5, "Use Restrictions:" "... no use maybe
made of land or water within any zone ... in such a manner as to create ... [or]
in any way endanger or interfere with the landing ,taking off, or maneuvering
of aircraft intending to use the airport." And Sec. 7 (b) states that: "No
permit shall be granted that would allow the establishment or creation of any
airport hazard ..."
Surely Mr. Happy is not be alone in his concern that the construction of a 40'
deep mining pit in the airport flight path creates a serious hazard to aircraft
taking off and landing at the airport, especially at night. Immense mining
excavators, 36' high, would also pose a new hazard to aircraft on a low
approach to the runway, either taking off or landing. Martin Marietta does
not disclose what other equipment it will use in its mining operation, but all
mining equipment has the potential to interfere with flight operations.
Timely to this decision by the Court, the Joint Airport Board is considering
the addition of a precision approach to the airport that would drastically
change the tolerance for obstructions in aircraft flight paths. (These are the
protected zones under the Ordinance.) If a precision approach is approved,
the new FAA regulations concerning adjoining property uses will have a
direct impact on Martin Marietta's request to expand their mining activities in
Kerr County, specifically within the Kerr County Municipal Airport's airport
hazard zone. Any future aviation accident caused by Martin Marietta's
mining pit, with its attendant plumes of dust and dirt, or by its mining
equipment obstructing the flight path, could easily result in legal liability for
both the City of Kerrville and Kerr County.
Furthermore, pursuant to Secs. 10 and 11 of this Ordinance, Mr. Happy is
entitled to appeal any permit granted to Martin Marietta by the City Manager:
first, to the Airport Board of Adjustment, and then to judicial review.
Therefore, no Floodplain Construction Permit should be considered by this
Court until a final judicial decision has been made on the status of the City of
Kerrville zoning permit for Martin Marietta's mining use.
4
B. The FAA has not performed its required review pursuant to Sec. 106
~,,. of the National Historic Preservation Act.
The Floodplain Administrator did not obtain FAA approval prior to granting
the Martin Marietta permit. Apparently agreeing that FAA permission is
necessary prior to obtaining the permit from this Court, Martin Marietta itself
hired a consultant to provide notice to the FAA of its plan to mine sand and
gravel. (A copy of the notice is attached as "Exhibit 2.") Based on the
information provided to them by Martin Marietta's consultant, on August 23,
2007 the FAA made a "Determination of No Hazard to Air Navigation." In
providing the information to the FAA however, Martin Marietta omitted a
very important fact: that the proposed mining operation is adjacent to a
property determined to be eligible for listing on the National Register of
Historic Places, the H.M. Naylor Ranch. At the time of their notice to the
FAA, Martin Marietta was well aware that their proposed mine would be
jeopardizing a National Register property; their incomplete statement of the
facts was patently misleading to the FAA.
Since Martin Marietta was not complete in the information contained in its
notice to the FAA, the FAA did not conduct a review of the project as
required by Sec. 106 of the National Historic Preservation Act (NHPA),
thereby making the "Determination" from the FAA null and void. The
Floodplain Administrator is required to advise the FAA of the existence of the
National Register Property, and to obtain a proper Sec. 106 review before
issuing a Floodplain Development Permit to Martin Marietta.
Included with this brief as "Exhibit 3" is a review of the requirements of
Section 106 of NHPA which was prepared by the U.S. Army Corps of
Engineers. It points out that a Federal agency (such as the FAA), having
"direct or indirect jurisdiction" over a proposed Federal undertaking shall,
prior to approval of the undertaking, must consider the effect of the
undertaking on any historic property "in or eligible for inclusion in the
National Register." A "Federal Undertaking" means those requiring a
Federal permit, license, or approval. FAA approval is necessary before a
permit to Martin Marietta can be granted; therefore it is an "undertaking," and
subject to Sec. 106 review.
In summary: Until the FAA has completed its Sec. 106 review, prior
approval of the project by the FAA has not been obtained, and Martin
Marietta cannot legally be issued a Floodplain Construction Permit by this
Court.

C. The U.S. Army Corps of Engineers has not conducted a review of the
impact of constructing a haul road on the H.M. Naylor Ranch pursuant to Nation Wide
Permit No. 14 and applicable regulations.
Martin Marietta acknowledges that its project MAY be governed by the
provisions of the USCE's Nation Wide Permit No. 14, (NWP 14) "Linear
Transportation Projects" for the construction of a haul road. (Martin
Marietta's Brief, p. 6.) Contrary to the opinion of Martin Marietta, in Mr.
Happy's opinion the permit REQUIRES Martin Marietta to comply with the
provisions of NWP 14. Furthermore, Martin Marietta's analysis of the
requirements of the Corps of Engineer's Appendix C, "Procedures for the
Protection of Historic Properties", is remarkably inaccurate. (A copy of
Appendix C is attached for the Court's reference as "Exhibit 4").
For example, Martin Marietta argues: "Accordingly, in full compliance with
the Corps regulations, Martin Marietta correctly determined that the
construction of the haul-road will in no conceivable manner alter the
characteristics of the ranch which qualify it for inclusion in the National
Register and therefore construction of the haul-road does not require notice to
the Corps' District Engineer." (Emphasis added.)
In fact, paragraph 13 (b) of the Nationwide General Permit provides: "If the
district engineer is notified of a potentially eligible historic property ... he will
immediately notify the SHPO. If the district engineer believes that the
potentially eligible historic property ... maybe affected by the proposed
undertaking then he may suspend authorization of the nationwide permit until
he provides the ACHP and the SHPO the opportunity to comment...."
The "affects" he must consider, that are not among those mentioned by Martin
Marietta in its brief, include: "filntroduction of visual, audible, or
atmospheric elements that are out of character with the property or alter
its setting." (Sec. 15 (b) (4)). (Copies of the applicable provisions are
attached as "Exhibit 5".)
If every giant corporation like Martin Marietta was given the right to decide
for themselves whether or not they had complied with federal, state, and local
laws, the enactment of environmental regulations would be relegated to farce.
Martin Marietta does not make the determination of whether or not the H.M.
Naylor Ranch is adversely affected by their mine; that decision is made by the
Army Corps of Engineers, the Advisory Council on Historic Preservation and
the Texas State Historic Preservation Officer.
The Court must consider the value of this property to future generations of
Kerr County. The development of a mine adjacent to the ranch threatens the
very existence of this important National Register property. A gravel mine so
~w.•
close, and so prominently located within the prevailing winds, would render
the H.M. Naylor Ranch uninhabitable. In addition, it would greatly reduce
the economic value of the property; after the Happy's stewardship, the site's
continuing survival depends upon finding another private party to continue its
preservation. No one will accept this stewardship if the present living
conditions are so drastically altered by the Martin Marietta mine.
Currently, the H.M. Naylor Ranch is the only surviving land parcel in the
entire area that retains its somewhat original pioneer landscape: post-oak
forest, abundant wildlife, diverse Texas Hill Country flora and fauna, two very
active alluvial plains, several springs, at least three Native American
archaeological sites adjacent to the Guadalupe River. The affects on the H.
M. Naylor Ranch that must be considered include not only the visual
intrusions of heavy mining equipment, but also the audible impact of back-up
horns, mining operations and diesel engines, and the dispersion of dust, diesel
exhaust and particulates into the atmosphere. In addition, there is no question
that the creation of a huge 40' deep pit in a gravel re-charge area, next door to
the Ranch, would adversely affect the Ranch's groundwater, both from the
standpoint of availability and quality. The site is also very close to an
established ancient spring and a 450-year old live oak.
The Ranch's setting, perched high on a plateau overlooking the Guadalupe
River valley, and would be fatally altered, forever. It is not an exaggeration
to say that if the Martin Marietta mine is permitted its installation is in effect a
death warrant for the H.M. Naylor Ranch.
D. The Texas Commission on Environmental Quality has not renewed
Martin Marietta's storm water general permit which expires in less than 4 months.
Martin Marietta currently holds a storm water general permit from TCEQ.
This permit expires on March 5, 2008. Mr. Happy is in the process of
advising TCEQ about the need for environmental protection to the H.M.
Naylor Ranch, and he is preparing an objection to the renewal of the storm
water general permit.
As Martin Marietta intends a "permanent" mining operation, this Court should
not grant the floodplain permit until after the TCEQ has made a determination
of whether or not the storm water general permit will be renewed. If it is not,
then Martin Marietta's mining plans may change.

E. The United States Environmental Protection Agency and the U.S. Army Corps of
Engineers have not reviewed the potential impact on wetlands located on the proposed
mining site.
Martin Marietta contends that their proposed mining operation will not affect
the wetlands adjoining the H. M. Naylor Ranch because, they argue, there are
no wetlands on the "Max Duncan" property they intend to mine. The only
evidence they cite is a letter from Joe Franklin at the USDA stating: "This
property does not contain any wetlands delineated by a soil scientist according
to Kerr County Soil Survey." This statement does not say that there are no
wetlands present.
The United States Government has over 50 definitions of "wetlands." It is
difficult to determine, at this time, what the now-outdated Kerr County Soil
Survey's definition of "wetlands" was. However, as a neighbor to this
property, and as a witness to its flooding, I can testify that for a large portion
of this year it has been regularly inundated with water. Martin Marietta
admits that the proposed mine would completely destroy Knowlin Creek,
named after one of Kerr County's most prominent Confederate heroes, Dr.
James Christopher Knowlin. The Floodlain Administrator has not made any
effort to identify the wetlands on the Max Duncan property or to assess the
consequences of their destruction. Surely it is the responsibility of the Kerr
County Floodplain Administrator not just to rubber stamp any and all requests
for floodplain construction brought before him, but to analyze, using approved
engineering and scientific methods, the impact that such development would
have on the land, and thus on private property and life.
If wetlands are in fact present on the Max Duncan property, then there are
many federal protections for them under the Clean Water Act and other
legislation and regulations too complex for inclusion here. The mine would
be located in one of the worst areas of groundwater depletion in all of Kerr
County; indeed, this area was singled out for the number of wells that failed in
the drought of 2005-2006. Until a professional analysis of the hydrology,
drainage, and soil of the proposed site is completed, Mr. Happy respectfully
requests that no permit be granted to Martin Marietta.
An explanation of how the Army Corps of Engineers delineates wetlands is
included with this Brief as "Exhibit 6". It is a usefiil guide on the
methodology used by soil scientist to determine the existence of wetlands.
8
~„r F. The Texas State Historic Preservation Officer (SHPO) has not given cultural and
historical resource approval to the proposed permit.
In its Brief, Martin Marietta refers to a letter from the SHPO dated 30 May.
In that letter, F. Lawrence Oaks states that his office is without authority to
review the flood plain permitting under Section 106 of NHPA. However, he
does not say that the SHPO will not review the matter in the future. Rather, he
states: "The Advisory Council on Historic Preservation (ACHP) is assessing
the matter, because it represents an ongoing disagreement between the ACHP
and federal agencies .... As stated in our previous letter, we will remain in
contact with the ACHP and will support their efforts in finding a resolution."
Thus no permit can be granted to Martin Marietta until these federal issues
are resolved.
Furthermore, Section 106 review by the SHPO and ACHP is mandated by
Martin Marietta's application for a NWP. Although Martin Marietta relies on
the decision of the U. S. Court of Appeals for the Sty' Circuit to support its
legal position that no review is necessary, Vieux Carre et al. v. Brown, 875
F.2d 453, 465 (5th Cir. 1989) the Court's opinion requires Sec. 106 review
under the facts presented here. The Court defined "inconsequential"
activities which do not require review as such things as repainting and
reroofing existing structures. Construction of a haul road which will be used
to allow mining operations and the transportation of heavy equipment is
hardly the same as "repainting or reroofing an existing structure." The Court
went on to rule:
We now turn to whether section 330.5(a) (3) authorizes
such inconsequential activities, for we find that the
regulation's failure to require notification by the
"permittee" to the Corps is not dispositive of the issue. This
nationwide permit has not previously been interpreted by a
federal court in a published opinion..... The reviewing
court must determine whether the Corps' interpretation of
its own regulation is reasonable and consistent with the
regulations themselves. Lynn- v Pavne 476 U.S. 926, 106
S Ct 2333 90 L.Ed.2d 921 (1986). Because the district
court did not address this issue, we remand for an
interpretation of the scope of section 330.5(a) (3); a
determination of whether the Corps' finding that the
riverfront park is covered by this nationwide permit (as the
district court defines it) was arbitrary or capricious; and if
the park is covered by section 330.5(a) (3), a ruling on
whether the project is so inconsequential that it escapes
~ 9
section 470E s historic impact review requirements.

Finally, if the district court finds that the riverfront park
does fall under section 330.5(a)(3) and is inconsequential, it
must also address the Vieux Carre's argument that this
nationwide permit is invalid because the Corps did not
evaluate the park's impact on historic properties as is
required by the Corps' own regulation-section 330.5(b)(9).
The effects of their mining operation maybe viewed as
"inconsequential" to Martin Marietta because it intends to profit from
them; however, to adjoining property owners these operations are not
"inconsequential" but are disastrous. Therefore, no permit should be
issued to Martin Marietta until a full Sec. 106 review has been
completed.
III. The Floodplain Administrator has failed to properly consider the factors set out in
Sec. C of the Flood Damage Prevention Order, particularly Sec. C (2) (d) "The
compatibility of the proposed use with existing and anticipated development;" and (j),
"The relationship of the proposed use to the comprehensive plan for that area."
A. The proposed use as a mine is not consistent with the existing and
anticipated development in and near the proposed mine site.
The proposed mine site is across from the airport, near to the Airport Industrial Park, and
close to single family homes in Shady Grove and elsewhere in the County. The corridor
between Kerrville and Center Point is rapidly developing, with single-family homes and light
industrial uses which are inconsistent with mining operations. The City of Kerrville and the
Kerr County Municipal Airport should have a more attractive "gateway" to traffic from Highway
27, than the horrible desolation wrought upon the landscape by a gravel mine.
In discussions with Martin Marietta about restoration of the land surface when mining
operations are eventually complete, Mr. Happy was told that its plan is to simply push the topsoil
that covers the sand and gravel back into the holes leaving a 40 foot pit next to Highway 27
forever. So the blight on the landscape caused by Martin Marietta's mine will be a permanent
reminder to the citizens of Kerr County of the any decision to allow Martin Marietta to expand
their mining operations.
In fact, other nearby quarries have faced intensive local opposition: Lucky 3 Materials
has already ceased operation, and Wheatcraft Materials application for a permit from the TCEQ
was vehemently opposed by the Center Point community. Wheatcraft Materials may have
temporarily won the battle but opposition continues and the quarries may end up losing the war.
TCEQ has recently proposed to eliminate the Permit by Rule loophole that has allowed
Wheatcraft to operate without a New Source Review permit. Public hearings have
~ 10
demonstrated the lack of compatibility of mining with the present and future uses of the property
on the outskirts of Kerrville. In addition, the wholesale unsightly destruction that these mines
inflict upon the once-beautiful Hill Country Landscape and their complete ruination of the rivers
(in this case, the Guadalupe River), are no longer acceptable to the public at large. TCEQ is
considering whether a permanent permit should be granted to Wheatcraft Materials. Wheatcraft
Materials will be forced to cease operation if a new permit is not granted.
The Wheatcraft Materials permit application process has proven that the public is
opposed to the establishment of gravel mines in close proximity to established residential
communities. If Kerr County allows Martin Marietta to expand its mining operation on the
community's very doorstep, it will create a blighted area that will never recover. In other states,
companies pursuing the very profitable mining of gravel are required to reclaim the land
afterwards. Not so in Texas: developers simply walk away, leaving a devastating scar upon
the landscape. Mining is sure to become more and more incompatible with property uses
between Kerrville and Center Point. Therefore, giving due consideration to this factor alone, the
permit application should be rejected by the Court.
B. There is no relationship between the proposed use of the Max Duncan
property as a mine and the comprehensive plan for the area.
Although there is no "comprehensive plan" for Kerr County as such, this Court must give
effect to the intent of its Order. Section F of the Order provides: "In the interpretation and
application of this order, all provisions shall be; (1) considered as minimum requirements; (2)
liberally construed in favor of the governing body; ..." There are three plans near the proposed
mine site which restrict mining operations:
1. Airport Industrial Park. Deed restrictions on the land in this
park specifically prohibit mining.
2. Airport. No mining activities are permitted at the airport
which is immediately across Highway 27 from the proposed mine
site.
3. Airport Hazard Zoning Ordinance. No new uses are
permitted in the airport hazard zone without the approval of the City
of Kerrville.
4. City of Kerrville zoning ordinance requires extensive disclosures and city
approval for any proposed mining operation. (Exhibit 7).
Taken together, these plans are not compatible to new mining operations. The Court
should reject the proposed permit after giving due weight to this important factor.
~ 11
'~iirr'
CONCLUSION
For the reasons set out above, Martin Marietta's application for a Floodplain
Construction Permit should be denied by this Court.
Respectfully submitted,
,~-
J.`~Telson Happy
PO Box 464
Center Point, TX 78010
830 285 2626
r
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ats£o~~m~t9 c~~t3~xl.~hia9
imgas~.sx.g Penalta~s.
~hi9~ prdiuance is adage=ad gu~~nt to the a,~ati~axZt X41 0 l Fa
t$e wort ~~~'~ a°tt 2'e~i, Zooa7. 6av'''~. Carle 3~sn- ~
tV~aoa. ~,~$e} . vt~n'~icil. ~e5
At is ~iereby ~aund t ar± abSt-~cticn hr~a the p
the lives earl g>:ciper~.y °~ useze n~ I{ar~~.13.e i~ldsi~.oip?~'-
apg~ger~.ng Fi8'~d aad prnpartg yr ~tccugants of aae a ~u'tuxa
I,oui.a~ dr~hxeixzax a~~ ect exf.~t3.z~.g
+xi~31~.'~'i th,~.t a2f ohstxuct3.nn ~' Lau,is .°,claxeas~
in~,tz-taxnant c,8praarsh miuiz~tum~ o~ R~a+-ctil.3.e ~luz~f.CiP~."
tigl.dr ash- that au ab5'~x3.icirian s~-Y radu.Ce the ay~g a~ ara~.s
take-v~~ s;s,d y~nmtavez'itsg n~ ~-i.tc~~.it, tht~
avxi.~n'~~.~c ~e~'1 ad oiQ ~, the utilit'y' v~ ~Cex'a:V'~.IZa t'~~~~~-.,
teadi.Ag to dastr ~' and the gukrl-ia x a'~s't~nt
~,acs~-s schrpit a.s doc~3.arc~d `mat:
,~,aaoxding~•Y
1:. Xessv'il,~.e MU~.Gip~1,-r~cauis Schx~ita~e~ F.iel.d ful.~z].i,~ an
$s~sent3.?~1. atitY Priscj eztd
2. the Gxpatioa7, rir ~at~-+.~-~-s~a't 4~ zsn ab~ uzs~th,e~ian
pat~mt:z.esl, of baia~' a uaieaT'ice ~Ad ~~
ae:,'+Fsd b+~ 3Carrbi].~.a ~„y-axp~.~,"~icsu~.s Sch't~~.a~ ~'ieZdi and
,i,p, tlxe 1Iltazes-i-, n~ ptilh~~.c hea].'tf1, prib~.ia
~. yt is ,z~ecngRa~'r_nera3. we3.~axe that 'the ~~atzaa ox
sa~et~r an~3. ~
estnb i9hmet>.t- vf~bi.tas,3~ ends met are a hnxra.rd t~ gs.z
natrigat,i.an lie Pr
,~. tb~a preven'~iaa n~ th~sr_ alzatzuct3.o~5 ahauld he
2.ecom~tl~sh'ed., tc the esstant ~,gga3.13~ pessSbla by
eacexasss o>: ~2sg po~~~ power ari~:h.r~ut campensesta.Qn.
ori~ the s~, ; xcianr
~t is hurt ~ ~ ec hazardsk to ~c,ix' P na4 ~~.~ Q~ }~~ cxeet~.nn. oar
a~tab].~.smas at,icA ~ hazaxds ~a air aava~.ga~.i.~, a>-
removal.. aiteaat~.oas ar ziv.tQ nb~truc,~ioas axo ~rubLfo pv~pasas fax
t3ze 7~~9 a~ 1.ightiac3 wise gad ealg~ public ~vnc7,~ axial
wtr.3.ch a po73.t~.oal aubdivs.sicxt ~F
eacuare ~d or ~.~ttgres~.s .ia Z,a~ncl.
r
_ onf.ug
tlZe ~exr~a.llra-3~erx C-atlS~',~ ~c~.zit Ai.s',pgX'E. '~
Se ~.'~ Qrda~aa3 ~' b~ 'gersv3l7.b. ~bSas 8xsci ~e Co~ai.s&~.eners ~auxt
Bos,td o~ the ~R$~Rarrr ~GXa93
o~ rho Car:n~Eg corn, a~sa ~Y be
gegtiQa ~.. ShO~ ~ztJ,~: -~ Rth7.5 ~~nana~a shaZ~. ~ ~ ort &$zarcl
c3,ted as "Kr:rr'v'.i.]..3.g 3alusia.aipaZ ~au.'~,s sahr~:~ n$r 5?~r_7.d ~-rp
gory%a,g r3~flinaac$"
.Mani; - xs Ftsrsr~ ~n this t7xd,xuancet uala~a the
Sev~3.esn. 2. D~~~
aonnexo a~ich~az~-se r~~s,irss:
- means ~b~rvxlie Mun3.cs~.pa1-•~v.is gchcea~.Pr
.A. A~-'ci'ox~'~
~'xti d.
R. ~-rPar~ F1eVat%oa - mates the estah7.~.~h~ea ~~ ~~ d ~.~n
tha ~j.,ighect pa3,at Qn. t~h~ ueab~.c lnadis9 ,
~ee'F fry. mc~,n seg. ls~e~.-
C, ~.l~Ci1~ ~3zartl II1b~ns diz$ ~~1CtLl~ vr' ~~`~' bd f4x~t A
~.a~d zr7hich ol~s'Cri~ts tha ~.T" xnrsce zequ~
g7.igh~s of airora~ or ~ohS.ch oksat~,~.ta~arrgiz~*~'~,x. n s~p. the
the ~vatxol ar t:,sck~ug' andfr~ ar at ~Y
laridti.zig r tal~ir~Q O~Ff ray f~.~.9~ at an ~irj?O~ r ~ $:z-~c~5
nstal.~.etlon ar ~eaa.7.~'~,Y =elatiztc~ '~a ~~-is~ht,
and/cr d~.~a acc~.Sttzon a~ t'he ~1~.ght Cxa~t9
h~zarc~rnaf' ~~I.i, h oohaircraft ar h i hazardaus~~o
taking a_f o~ ~3 t~ak~q aid/IIr daua act,{t2~,9it~.t~A
ar ixi.'te~:~~~es ~.th
~S~:s~a3.n~.uJ tc ~lzght~ and i'l~ght 'Y~hti.c~.esy
~'' ~. As,sgc~ ge,~azc3 Asap - ~nraaas auj a.~ea o~ .and caz' wtatea~
. upon 4rh~.ch ~r~ ai~~= hazard xn9.~Sht be e~tab3-fished ~ z~b'~
prE~rrtnt~cd as pxOVidar'i ~n t3at~,s Q~a~e
~ _ A,~xpat~ p~~~raaae pcsa~ - ttta~.xt.s '~hc poiaz estab3..ishs~d as
the egpro~Ei~ta gangraphi.a ~~ntel of ttl'se axxpo~ I,and~.rig
2zea aztd. sa d~~:i.g:st~.ted'
~`. gpp~ech 5t1s~aCo -~ a ~ysfac~ I.aagitudiizall~ csnt,sxad 4ri
tha ax~:cnded rty,n~y cax~t~z3.i~c r ~xteud.~.nq autwazd a*~d
from the ez>a. of the prim~zY' a~s~f Bce s1"tt~ at the
upw~d scorch epne height Zi~.tatian ~I.opa
same sln~sra as sa ~t3.oxt d of th3 S drdi.ae~sae. Iii plelx the
het ~~& 3.u.
pesss.~
~_ ~Prc~4ch~ ~rans~.ticaa~~ Hvx`3,~atttax, 3sit~ cassira~. ~cAC~ -
~hesa zoa~s ~e set; earth ~.a Sec~Lxaa 3 cf this gsdiaance.
$, ~exd of ~~nstS~,t -' ?t aaar~' ac~a~i~t3.ot eta ~~~y { a~
~LUbers ~t~po~.~ctted 3~Y' the C~..~_y Caaaci~.
psrizaec-ttn of t~ ~ap~ oath zonur£acs ca3.ncidas w~.th ~
_~_
~irr


Kgrzvil},e, fiexa V xna~r 98B}d by Tex. ~nca~. C~rtrF~ CCd~
,~., g24~..03?.
~. Caas.ca7. Sux~ar_e -- A suxfs.cC exteud~.z3g out'Waxd and tpwarc~.
~rrnn the gex~.phes:Y o~ t~za ha~izantal st~fzce ar_ a sXa~
o~ twentX' (Zp) to otzp (, 9.j ~Ar a .l~.or~.~aat~,1. d~.stanaa at
,~. ga,~a~d. to A,i,r 1$t3,'u$g'~.tzast - ~ fl3~stx~c-b~.ort datezztti.tletl to
e~~ic3eut ut&a.ii3~ vz~ o~s~7'te navigab~.e a~.x pacga~c a`nd
gM Ha$c~'ht.-- ~~ar ah~ pu~nsa of de'cerani.a~g t:te h~ic~ht J.,in-it~r
ice. X11. ma esthe datum shal.l~~ Cmt~r~,n~ ~. ~a1 e~.cv ~ian.~
~. gczriznrx~n]. ~tsrfa~a - A hari~anta3. plane nst~:-h~~rtd~ced-Fifty
( ~,g0 j feet a33a4'~: +~e esttsb7..7_shed asr'ac~ a.1BV-~.t~.4n, tha
pezzme~~ of whi,oh iss plan ~ciue~,des urith the p~r~metes
Est r,.#se txoxi~nuta~. 7rsnc.
M. ~v3nt AirPorb ~on~.ug Ev~Srd -- moans a ba~:d ra~ott~#.st~,zsg_v~
five (5 j~.esitbex3= two ('~ } memb~ass appaixtte~ }~ the City
CoL'tFcyl a~ t9xa C,9.ty o~ Kerrvi7.~,~s f ~e~.~ a$d t~ta (2 )
m~mbars appoi~ss:~ed by tYsa caauniss3.oTters Cr~urt a~ gs~xr
CotxA'~ ~ '~ax~-s • ~*hs f oczr (Q) memb~.r:~ ~a ~s~p~oiated ~h2~11.
e~.aaz a fi~~:h (S~h) mr,.mber who s~e.~,1 s3exve as thaixl~flAt7 of
szsi.d ~cs~.31'~ ~ii~pa~'~ Zau~.ng 8aard,
N. .L~i~9 Ax~va _ ~a~s the stl~ace area c~ •th® Ri..~,"gaa't rseed
fcr tea Xanci~.ng, eke-ofd ox te~i.zug v~ aircra.ft•
C3. 2iaast~~crm~.ng tTs+a - A~.~7' pr$lS~3.A4 struc~.-art„ ab~s:Gt o~
nat~ra.7. t~row~:h, az u.ac cf 1.asLtt wlxiah 3.s incorssz.stsnt w~,zh
~kk~c grav~>_e~.vra.s of his O~d~.n3zica nr as atrieudmea~t theceata.
~. obestz~uct~.cu - ,~sy a~ruetu~e, gxowrts~ ar other ob~eatf
yaclad3~g a mabi~.e ah j ect ~ whs,Ch exce:;d;$ tt 13mititsg
h~:~~hb set ~cr~h its Seat~.asz ~ cf this c3xd~.aastea.
~. E~~sscxx - mesas in indiv~.dua1~ ~i~m, par-CU+~r~~.p*
cQrQoxat~.ass,~ oampaay, ~ aasac~.ati.s~, jcxrzt suck
a,ssszacia~ti..on, nr body gola.'~ic, aad. iacludas a t~,steA,
receiver, aa~igno~at admix-ZStr2t'cart exaa~taz~ gc~arc~iait. or
rsthaS rQpres~uta'S'-i.vr.
R. g~Ssnary surface - A syxr~a.cr 1.cngz~.ud-~-rcalI~g ces~'~ered en a
r-un~+ag. ~ifMea the ruz~tisay hays a Q~eai.al.i~* pxepara$ hard
snrfaca r the pxiluasy sgrfrtcP rsxtr'.md~ twa-hundred (~DQ }
~s~t ~rsyextd eech at~d a~ that z}s~g; but when the rua~rag
Its ao 6pec.~alZp prc+pased 8ar3 sarface ar pl~z~rc_d h~sd.
-~~
err
- snxf~.ar. f t11e p~'.~xY su=~ac~ e~tds 3'~ each erd of ~
zuatira~t - +~he saidt.h gf the pri.l~57 gct~faee o~ a ~~~',1'
wzS.1 h~ ~ha'~ w~.d~. Pragcx~ed ixi. part ~7 0~ Abe ~*cdsFa3.
frsr the ~a~ gzeaoise sP~o7`he
p,Pia~~•on ~s~,au3,ons {E'A~}- -tYxa~t zn~~1''•
axi.stxng nr p~,~,n-ne;d fox e~,t~.ar end o~ ~~,r$acs i.s the setae
s~~~tioa, c~ enF paint on, the Pr~r7t' •_
s5 fifs6c elr~at..ian of the nsar~~,,a,,t,,.,.~rp suz~z.op ~~ g z~~Y
c~ater~.~.~xe . The ~,r1,~ ~o~ ~ Px~-~ s 'ravizlg'
~#,~ ?r3vP hssndxed (5003 ~ge~c Paz ~,tiZity ~xivr,sy
non-pzaa.~s~.an in~~Pr~ anpxoaches.
{2 } Paz othez than ntS,l.aty ~n~y~ the ~~dhh 3-~ one
1 4pR ~ feet Paz a z~aiz-p~ecis3ar+.
fi}~ousats8. t a nam"pzec:~.Ti nn ~,t~.s-Er'ulReni~
~,ns~SU~p'~ ~s1Wa~ ha'vu;~' _ _
gp~xoach srritls '~-sz}aa_J.~.t"~' -n~,I,e~ and a Paz L'r~ ~~-an
~purths a~ a gta'tuto
~,s~s-~stungnt apgz~ch xs~.ncq~'~
- .A deli-nom a:f'r~a att an. a,~,rpex~ gr~paxed dot
S . ~'~3T' craft ~.~.aaq ifis 2.canc~'Ch~•
Zaz~ding cad ~~~ke-ate o~ air
Stxum~knze ~. ol~jaaL, inalud~-n~3 a anob~.Y~ abject„
~ ~ iuC:1.u~..i.~.q, but ziat
coastxuctcd oz a~sta~-lgd ~'I~ ms'nr smoke~~aok~r a~th
~ ; z,~.~ed -~o r bu~,d.ings r to~e~a, czanc~ ~
~" *~'~t9.tanS ~ ar~-d o'vorhead ~r~,sm3-s ~~on 1i~s -
~ ~ '~s~u~itiaaal ~r~~acos S.~s~otB ,~~ ~ TnEtvQa~ en ezl.~.ae ~'
.. rt~,ltety Z50~ de4xae ang
,,, the zuntva~ cer~fisr~iYts+ ex~-Riled ~`~ a alo~sa ®~ raven
~e.~~: hoxs.so:~-Ge~..ly ~oz earsh ach s ~n,ce~s y'~a ~~t.exe g'rha~
a~ the pri~zy atxd _apk~r cozt~..ca7. sus~esaes.
iute~nQC't.. the haziaunta3. cad
~'xanCiti-ona~. sur~acss far these ~o~zrn~ h aid hpez~~ dsth~
2,ppra2.ch i~iixza,aed r N'hi,ch gzo~ect ~hxC,n.g ~
extend tt d~statta~ o~ ~3.va
l~.xusts of the Cc~aioa7- sttrf2~e~,
t~~„~~and (5 r 0 a0~ ~ee'E aaasixsed ho=i~arxt ~ ~ ~' d ~ eeh~ ~ s
of ~a~ aPp~aath suzt~aa and at. aine~:y' ( }
to the ax`Cezaded zszr~cva~ crz7tesl%n~.
Cb ism ^f n,•~.•~;li'~R« 3r~~'h'
q. free - ~~ ~•
~. U~3Ii.~E*t Ru~~' - a zun~y ~th~~ ~•~ C4nsbzuated foz and
3~,~s3'id.ed •~a j~Fx used ~' prnpe3.iar-dr nods ~~-'ri n'u~a ngxoes
thcu~saad dive ~iundrsd (12 ~ 50 0 } p
~si,c~h~ 2.7S.d ].BB~•
A rusiwa,~ $gv~.ng eu
°. I~du-groc.~.sscsa s~sfzu~~~s~k Run~Y nceduz~ z~t~.~.z~3n~ sir
c:x~,~tzz~5 ~-~'~~teat apgzoach px d~ca, ar
navi.gat~.aa fa~iiita.c~s ~i~h~~ y ~oz ra:~~'h, a~,~x~i,ght-xrs
• axea ~~ aa'~~-gatiars eqn' p r
-+~-

uan.--p~ec.zeian ins-er~t ap~xcaah pzflC®dctxe Ysas been
~,~~rovad ar p~iad-
~'. P,KBC'S.t+~.0~. $i~Sti`t11A~7I'~'' :tt3riW ~y~L7.L'C ~'~ , I.1~~~4 ~~12 I23~IR~
T~f;'t~'L111PR~'; R~TL7AC~t p s•t~[t ~,sj ax
~az~d~~ $yete2ri (I~." ~ 1 ~+ ~,~„czoYa~,'ta•a ~t'd.Tldj3i~` 5?2 {
a gxge~.si on A,pgroach Rar~~c ~ ~~ch J ~ scorn is p,Lanagd ~n.d z~
~a~ *,wich o, p~ac~-sion s.Pp-•a ~
6a ~.nd3,cated on an apPresved a~,rpo~ layflu•~. p~.au nr r~n~'
atltsr p:~.~nning' dQCCtiuent.
Seat3.dzr, 3_ ~anEs~ ~' ~n rrrc]~:Y to CBS out ~.he gravisiass~ o~ this
Ordinance ~ thsrc zee hexing csaa'sed a~sd. ath the A~spxoa~nzf~c~es
which iSsalud~ a11, a~ fi~se ~-:tc,;r~ 7-~C~9' k'
'brans tt~ Yazxv3.3,~-e ~unic3.paT.~~. u~.szschx~:naz ~~t:~ ~SL~:f~a nr~~ $
shown ~ •~he 8catiin~7 dap considta~9' o~ aue {1j sheatr pre~arad by
dated octo~z~r
the ~e~~-s F~mpar~za9lxt o~ Avia•~iaQ,. .'6ustaut ~ayCaS and
~,{ .1.9901 rah~.ch a.s at-~aclxed to ~s t3rdi~an~e end z~de s paxt
YY ^^~r T area 1~s.gatetZ ~ mQSe tf~an aaa ct the re~trc•~ive~h~-~5~ht fi , ..
aonsxdexec3. ~ pie r~t~.y `tn -~{+.~-' zan.c ~vit~Z ~ ia~ ,._
~~.pitat~.an,. ~~ vax2oua Bones ~m ~.a~cab~,-' ost,abl~.~hQd and _ defined
$,S L6.L.t,OWS~=
I~,. jS,~pzanch ZQTi43 ..
{yJ Ru~r~~ $0 Appz~Ch zcrt8 ~,s establj..Shad. b~~ vII
approach sU,T=ace at •~he aszd a~ Fiunee•~y id ~nz
fi~sv311a Mursic3.pa:l,Y~a'~-s 5cz~rra~.u$.~'
~Srecis5.an ;,n,s~rtYment iaa'td~-ngs ~rtc~ tike-ci~~s _ die
r+ ;~ricz cdge o~ the ,appzaacb. ~oaa shsl~. have a ~+tidt3a
o~ aua thr~usaud (~, o o ~ j fez wh~.cb~ ~a~.IICides w7 th
fire width o~ the pr3:m~.zy' Stf±'~acs ~,t a d~,st~,noe o~
~0 1s~.ndr$d (~ L1 Q J ~~et b~ynn3 the szsd o~ the
z~m~rr~y~ ~ci.d_s~in~' thrrca~tcs u~~.fazztt?g to $ w~.dth o~
si~tteea thrnz~axsd (15~OD~) feat at a hcri.zcr,~a1.
c3i,9'taace of fifty t3zausa~nd ~~©,4D0) tec'~ heyoad the
erd, o~ the p:~.ma.•~y sux~aGa r 5.ts caA,fierla~e berg'
the aoA=3.nuatsan a~ the re~'1~~'r'~--~'nR n~F f:ha r+2nW~y•
~ Z) RtxzYW~~ ~~ ,~,pPraaeh zaaa ,is estab~.ished beneath t~
a~,ra~.ch suF~escc e~ thG cnd of ~uwag 12 au
1~exrvi~ie M,~n~.ca~aJ.-LQa.a.s gchrg~.es F~.ald far nose-~
p=ac3,Sion i~s~•~an~nf ~.a:nrLi.'n.gss and t,ake~-a~~s 'a~~.~
vi~~.bi~tY mz.a~~ $6 sow as •~aB-~o/irtha o~ a.
s*~atate uti.le. 'she 3Anfer edge a~ ~h~ ~pPra~.e:~s ~nnt~
shr~1~. haven a width a~ one thausaad ' {1r00+3J teat
.,~.:,ch aa~.naSdeS with thr; ~ridth o~ the pxiu~-uy
sus~ece at a diet~sace n~ ye w~denia ~~s~= ~ - --
~Seyond the and of ~ehe rut-,wa , 13
~T~i•Frr+~1.y to a. sRS,dth of £ssu= t7iougazzd (~,4o0J feet
.~~_


„w-
9:
G.
~t a hOxazotstaZ distan.ae a~ ~Ca31 thn~sa~-nd (1~1,~0~3}
~ee~ beyond the end of the pz~Y sux~~sae, its .
centex7.~-'~e b~is~g '~h.e c~an-~ixiuatiori af. tha caz~t~x~.ine
o~ tEzs x~`•~ay
(3} B,u,stWay 2{~d ~~pxOaCh ~pna is establ%~h~S3. bcZOacR
tha agp].xcach ~~zrf~sce Ott tha ends o~ Rtlrt~ray 21
P=e is.ian 3.z~s suet ~ ding xe~d ~~Y.e/afQaT ~2~e
i„ngY edge o~ the a~sproavh zaAe sfzs9.l have a tc~.c~th
o~ t~.rtra I~uitdsed (500) ~uriac 1a a zdistanaa cad tWo
tirl.dtYs of ~:h~ nriursrg
h-7.TZdrat~. (2UU} ~ae't bazjas~, ea~Yr. end a~ ~;~r, r~1s:~aa~>
~3,deu~.-ng therp~s~t~r un,r.~rssE~IY '~o a. ~c,Fidtii C~ '~•t0
thousand (2r~Q0} ~asn at z hc+si2on~al da.stancR n~
~3vs tYsa'~ss atld (5 , A Q D j ~~sPi ~ kzeycz~d et~.ch ~ slzd o~ tie
primary 3ttx~accr its a®Atar~,.iae ber~9' t~.e
ccntiziu~,tion a~ ~ha centerline ~f yha runa~Ay.
T~~g~,tiosz zones ~,~'~' hexes
~~caas$tiar. ~oass
es-tab7.~shed beneath the , ~ansiti.on aux~aae ad~acen~ to
each xun~ay aid eppra~.ch suz-~aaa as 3Z3~- wily ~.oca ed
ZAniscg scz~p - , 7.'ran~~:~~on Stiz~acCd r ~~~
an, eithGZ s~.rTt a~ zvuWe.~-s, ~sava ~j,ab].a widthz a.~ skczwzt
ors the xat~i.ng' map. ~san,si$~,ana.~. ~vr~ac=g aXtcnd outsaa.sd
aad upward at xsght angles to r.Ysa ~t~wag centes3,~e and
a v~ s~v'en (7l to
the ~un~7a csazt-es~na extended at a s~.apsv~'i~3Ge ~d ~xaiA
o~te (Z } ~znuc' the s~.des a~ ~,e 'pz~~' ,
the s3,dee ~~~ 3I?px'aaah ~~rfac2s, ~'r'e7t~~.t~.ona7. sur~escea ,
fox t,hasg post3.ons °~ artd be nr3. athe g lirit~-i-S ~~~a~
~ztr3.cb. pxR j ect ' thrat7,g1~ ~'
ce~ai~a1 3~x~aceasus'adeho.:,izax~ta~-~C~xcm ~,vedg~ o~~the
f ,~, ~ g p 0 ~ f ec$ ~ ri angles to the xnn~sy
apgzoaah sus~ace 2IId at gh~
ee~ter]..7.~n~.
Hoxi~oata3. ~cona~ 154 } e fQ sa abcsv~ the establ,j.skte:clla rpaxt
hundred fifty (
sletiatiau, '~.e ~jpr fmat~' a£ whivh is ~o2't.6txtic'cad by
-~gz~g near pf ta*t thous~.ttd (I.O,Q00 aura ~ ~oa~un~y .
t~se cQp.ta~ c~ each end ~~ 'rlxs Sri mart
12130 ~~u3 eottnect~,ng tb.e adjacent arcs by 1ine~ tanq®nt
tv tho6e arcs.
_ cn:t's,s:r~1_ aizx~~a~e
T}. Cc~aiaa]' ~ outuc+.rdhaRd, up~ro.~d f om the ~~'~-P~~' of the
eX-tand~.t~g ~,0 to one ~
~ r1a ho #.zon a7. d;.Ki:~ztcc a~ ~o1YZ' t~ ses:3 (g, 04f1 } .temt~
6e~stio~ ~ . 5~+~.ght. xgm~,ta C~a~use ~` el~ala'Je.~ ~a s e Qc d se a3.tra~ d~d ez
this Ozdiu~tnce, t~,O a~stl
-5-

SQaiA~37.n~3d~ aad na ttee :~}t~ll be h~ ~ ~~g~s o ~ ~ a~a~s7~zartbl,ts
exa3tad by +,h~..s 0=ditta~ca to a h~~-g
• height ~-is~.'~ he-rain ast~syi.shed f~~r 9uch aqua. Such a~~7.ica3~la
height l+~,tatic~u5 ~.*~ hereby ests.bJ.~.shad fc~r each o£ the arari,as in
gu,ast3,on as f a7.~.as,7e t
~. ,gpprat~sc~t. ~ane~ -
~tuzc~ay 30 fine (1) foot 3.n hs~.ght Paz e~ah -EistY
{ 1. } t the
• {5tl} EaBt ~ tithe al.avat3ous o~th0 P~~~ surfar_a
end of &nd ~'~ ^irti; fi:~n. fh©u3esnd { 1D, ~ tl 0) feet
and extand~.ztg •ta a g than x~s~g
~rDm the and of t}2e gx,~ary surface,
• one ~ 1) fact ix. I~~aa-ght gar ear. h ~or~l:g (4~) feet is
hariz~ta~. distd~nae fax esti add~.tzona3. f~Y
thcusa~.d {~U,U00} feeu ~z~ tha ercd n~ the prz~rsry
~uxfaar~ < .
{ 2 ~ Aua~~ 1~ 0l~e { 1 } fo or. iu hesgftt fas each ~sxrtq-
faux {34) feat ~.n har~.soata]. ci~.sta~aaa peg#,naa.ug at
. -~ the ead of and at the e~,c~t~.r~ri ~ fta a hausn ~.
strxface artd extcr~d~-ng 'fie a ~saisa
{30,00©} faeb srcan ~.Yte end o'f 'the ~zimar~r ~u=faca.
RuzrwaY 2!~ ti One { 1 } fao~ in height fox each ~Ewess~ty
{~} in hoxizoutal. c3i~t~ACe begi.nn~.~g at the
~ ~0 } f$Q~ sQ,rf~.ae
~:nd of and et the eieYati.aIS of the P~ DO) feet
a~,d axtQa~g to a pp~t f$.v surfaa~d ~ r
fscam +;h~ ~d of the Pry
"err ~. Tx~siti4u ~aa~ - SJ_opes saYaR (7~ feet outward far each
~fc,a'c u~v~d bEgsnn3-uq ,a'~ ~~` snrfaae oeR~ tha eggr'°
e1.8'cxar~-ca as the gr_zm~,r~t'
suzf~rPr a~ extending to a 3~a3-g'ht ax aa~ hctndred Z~-x~:y
( ].SO } fsgt abo~za 'thB ~-~'t"g" 67~,.6Y$~e~t ~o~ds SAe..-~ sea
Thousand stx~hundred s~.x~..en {l~ } .thex.o ese
].evG3.. Iu acT,~-ti.aa to 'the frsrege.Y.s-gr
ostaIal3.shad ht~i~ht l,~ta elcoing ea4aa { 7 ~ feet ont~sa~d
for' ca.oh faat ug~ard bagianing a-t the ess~s c,~ t~=a,$ at ~~
aama elev7„C3an ae ~:he= ep~,xoach ~~ecse, ai:d extending
~h,~erc thep in'~ez~ect the Goxx~.oa1 ~tlxtaca. V7her~; then
precision ~,ustru~teut rtty egproaclz, zosxa ~xfl7 ec'~s beyond
the crm7.c:rx.~ zonesr there aze estab~.isxz$d height limits
el~~~g gavga (7) ,feat cntraazd ttse lama ~I,avati.c~~
beg ~q a~; fha sx.de~ of mad at a hnT~.7an~k di,stracc
'the agpxoach sarfacer and a~gstdsn-3
cf ~iV~ ~toasaa3Cl t5, 44tl) fCet ~~a~ ~~er7.n•~aty (~Q)
degre° augl.es to the ex't~ad tun y
C . haritaa~l Sons - Fet,~,~hed at cna huszdred ti~'ty (~~~}
feet above the aizg°rt e? ev~t•i,~a, os a hmisht of ane
-7-


'~rw
a ~~
land.
~atW~.tb-sta~d~g any offer grrssr,.s~.ans
~,~ticsa 5. Gas Res~krzati-fln~ "
no use m3v be ztiade c~ 1+~~zd vx ~ate~ ~ txea
o£ th~,s ax~diRander nah...a. Lu~_
2An~ established by ~.~ a~ina_ nee .~+~ s _ . Q s or, rads.~
. $Xence i na~lga~oz~a2 ~ . - .
e1c~~c~"~ ~- a'ss$ar~ a~ a5,~ra~~~. n,a.3ee . ~,~ .A~-~~`- ,
Cammu~~ _~~- •--.. _ , -~, g~S~ort "1~g3z~s . nxsc~~-nth~xs,
~cr gs`~a~6 , ~.~ ,.~~.thgiT~.s~ 'b~tTa't~~~o~~__.c~~a. fiC:~e ~_~-af 73npa3.~
resv'Lt. 3.tz, glass, iB . ~3ze . 5 ~~ ~~ -cue aLSaart, ~~.~te ~ssd spike
vr.si4~z.~.i't7 3,iti 'tia~ ~ se in an'y' ~Y endangex a~ ~~e~seze ~it3x the
ha.aards r or QthB~ euvax3.ug a~ aircra~L ixitertdxn4 tc u~c
land}.r~,g,. '~ok~.~ o~~r oX inaa
the ~-~-~~.
t~tousarid saQe~. h7Tndx-d si~tt~'-s3x 01,766) fast above mean
asrn, lea'c3--
a. C~s~.ra,7, Anne - S~.OPeB ~.~sr~'C;~ {ZQJ feat au'Gwa~d far each
~aot upFTard b~gissn~-ng at thw pPr,.~hP7-y' c,~f f~he hvr~.zou'~a1
done and a~: nn~; hundred si~.~y i x~u y ~raet above r,.he
asrpr~tt a7-eva'~7.c~n. an3 +~xzen~3.ng to a a~~alova iec
~tuhdxed• ~`~-qty ~ 35 tl ~ Het ab4'~t-e the ais~
~xcragtad 8~3.~bt s.imi.~:~t~.aszc Ngtb.issg ias this Qrdi.sr~~+
8. .- rah~b~-'rixsg =ha 4~
sha7.l bs ccrostrtled, a~ ~
cauatrtsa~tioa or ana~.ut2.aana~ a~ a~nY tree os atructnL'e to
hey. ~.t up tv ~i~tY {5a) feet aboc~ the a~a..~-facr~ cf the
Sca~E~,aa ~. ~aAeonrot't~n9' L~Se$ :- esc~-~cd
p,, Ragulst~.au~ pct Rat~aaet3.va ~ ThE: regu3,ata.a~,s ~ ~~ Che
b~. •Chia b~din~tnap s~.a~.1. net be ag~s ~ a~.t ~a .~ o~ ~
r~:M~va1r ~,~ezingr a~' athex, Chang' anions as v~
stz-c1c'Cittra ar tree nr~t r.~~o~A`,~ ~°` the regs3•
cr prhert~-se
the r~E~ectigG date o~ triss ~zd5.nannonca~~crmiit~ ~he
in~ex~~z~a with Late Ca7s'tini'Cr~nr:rs of aaYe azsy ah,ang$
Nat~g hPraa~ltt coz~'raiued sham zeC~= ~ v~h3.ch way
alt~a~iaa ax~ in~:~~u3~d use c~ sny
cons~ctxour ~castznsota.4a ©r a1•tax'a,ta.nn oy
~t~ncture, hR ve dates o~ tb.s gTd:in~,nCe, artd
X7~'Jua ~szr~~. a Zn1tL'%~LS~
~,s dil~q ~' P .
h~.ixtg , " Notvr~.~bstasidircg '~$ gteceding
g. ~Tkix~~ aad Li.g csi~ax~c~?.~g
~,.rcrca.s Qn of this Ssct~-ozsr th ~awa~r ~ ed ~a Persn~-'~ the
s~cattsre ar tx'ee is hP~h z~qs~-r
in,sta7.].~tt~-en ~ tapesrct3on, avid waisi'~enaarae thazaca a~ szsch
~arkex~~ es in f the City' to '~ex~wi ~e ~ ~ axes 'to ~-ndic~ ~
i~ g 3.a the vi.~=zrc,~.ty o~ the
tc the aperataXS~ee ~ aircra,~ o~ hazc'3sd6 • such
g,5.~pa~, the prP- nce of ~ G ~stailadr rsneratect, xr~r}.
~rksze sad 1.3.ghts sha1~
-8-

~ ~,~,n~tain~ad at •ths expsa~sa of the C~,~~ a~ ICe~~'vil:l.er
'I'e~caH! and thg cauxxty df RPrr, xas'sCr~s.
S~ctiCtxi 7. ~e~atz'~s -
A, gutuTP t3sea - ~xCa~~ aQ 6pgaj-f~-sally ~rovic3ad .uz ! 3.} . { x1
nud (~ } haz'gunaax~ no mzi`~~r{~s~, ahazs~e s~xa~ _be mesa ~
Clag ~...a~= ,~.,3ric1. r,o sr..rsia£inra ohs i 1 ~?~~ 9 lan'~e ~ :i:zs
a~iT,E..`,ir~s-~"ECS'+;:a~-.L7.CYLa`d, 2nd Ai3 '~x~`t'.. ._~L~._ _- ~_.
an.~ 2ona ~~ze~y %rc~,tecf•t}zt:l.ese ~- p~~.t thexefox$ sng~,3
~.iayra bee^ apgl.i~ad fox sad ~aut'e~: ~3~t rcrgl.i oa~~.vn~ €-nz
~, pa~ct~` s~iaZx in.~cn~~ ~~e gu~ose fcsr W~iioh flee perm~~
i9 des,i~edr W1.'C~1 euftio~.6izt ~d2Cj.C11}._aZ'~.L~T to vezm:it_x~ 'CO
be ds~,~~-•~e~,~ whether ~h~ ressn]-t~.rs5t v:sc, structurer ar
free- Wos~.td -~vx~~m 'ta ~~~ ragu3~e.~~n~ haXal~7z ~Y~sc~~,k~~d,.
3`~ a ~l...~~•tr~~ ~'~~~'tS'Ve'r '~t: rJ2~243.'t
Z~ @tiC~l. "~~G•r1I1 Cr3tt7.'~ t0~ ~1 LIa~ ~,~G0315~.8'~gTS.~ Y^13-'~
. the psav~~-any of thS.s 4rr3~,aanam ~h~11 h¢ gr».nt~d u~.7.css
a vast-anc~ h~.s been a~gxoved i.n aacatidauce swath 5ect~.cn
7, pas. D-
• ` ~; ~n ~h~ , a~e~ lyizig wizx3.n ~e lets of ~~.~
hQ~i~ontgl: zoae anr~ c~tsrrsaa~_ zone ziv p~?~,t. Snai1,
. Ise zagix,~ec! dos any tree ox s~~rztc~a •5.~ss rha.~s
seventy-~sva (~~) ~~et of,. vpr~~ca3. he3,g~st abav 3.arir~
. ~ grp~ldr ~X,r~uz ~~eAr ~jcCguse of ta=xa3rt,
cc~a'~aurr az tapographi.c aIzcvo~t3zg height ri f~aia~
stxu~u=e taoa7.d extcssd
presczibed for such zan~s- .
` ~{ ~, } ~~, a:rr_4s lying wit]7.~. the l,irs~..ts at tf~~ apgzaar_h
' $anaQ~ but a'c a hflr3.znnta7. d#.staucc t~f rot ].ese
than fri~s~'~ ~nnaazld '~.wa h~dazz~t{shall}be ~equ~7sed
each at~d of „~s ruriwayr np p $it~'e
~a~ azcg tsp¢ ox at~,et~e Lass than sevsu•~resundr
{~~} feet of itert~as2 k$a-9'ht $bdcre the 5=
except when ~:,~-.h tae a scr3.b+zd ~ = s ch ap~xaacb
• ~bov~ the hey-gh'~ ~.imit ~
aonds.
{ 3 } Ia the a~aas 1'~'in~ ~i.~:k; n t# +as3.~tsetas of ~e
zransi~,zc~~ zcxne~ heyoltd~ the g
DSO=i.zos~.•~a.! zoae, as ge~u.t shams hey requ,~,xed pox
any 2zee ar si:rtssturs less ~,an eeYanty--~zv ~tr~~
'£e6'~ O~ VEZtS08Z ~~,l~tT~ 3t10CT2 L~3,S gzcritx~1~, ~
. *„rk~aix ~uach tree ar, s~~~~zcture, l~eceuge o~ tewsa.~,
3..~nd coata+,~r, or tapagragbic f;Ea~ur~4Zr yaptild e~LezSd
af~av2 the h~i.~ht 1.,.t~ut presas~.bed far ~uah
~anst~:~ea zaaes.
_g-

of the ~oxegc~ing exc¢gtio Q~.t 11.an~r
i~ot~-rid aot~tained :in ~ g r~r itttendi~9 ~a p
annstrn.PCI as pew' o£ ~y st~Frszura, ar ~ra~h a~ may
tioia, ar al~erntaori }t} J_i.~u#.'~s establ3,shsd b;j Lhis
cartstxstc o~ ~ha he.3..c~ Pax. ~.
lea iL~ excess a~ an,Y izi ges~tzon ~,
pz~anaa exaagt as se'E ~fo~h
~rma.t sha~.l ba grant'ed th3't ~watlld
t ox cr~atian ref ,~t~y a~.zroaxt ha2azd
~ . r~xistiz~~ urte~ ~a p -
~.,a~r ~.e e~t~lsa~~ , usa, stxn.atrxzgr or' tr6t~ to ba
4r pa~.'~t a noaoonf4~-n~ E~'~P,T hazard ~ his
mat3a ar k~ecasue hi.ghe~': ax became a gr
navy ga~C~.aa. than ~..-t was on th,e e~f~atl.Ye de,'~e is Khen
t7rd~a?~ae az anp a~rcenclAtien$6 th®zety cr ~h~ t
~CIxa an~s3.~.ctsi_.i~on ~nr a isezmi-~ ;_s shade, nMCapt as
i~nda.catedi a3.3~ appZia~.~:~.ons far sash gaaani.-~ slz~.J.~. be
canted.
~Ivucan~arm1.zl$ Uses. c"~be~tsdon~d az 33eatr~-raci ~~a eu~~~es
_ ~ ~. - ` ~• city ~a,gex a~ the C3.ty a~~ RprrvzJ.le, Tax
th~.'~ a ~.oz~can~bxID.i.ziB strtlC•~u~te Qr tx~a rise }amen ~ ~ca11.~7
o~C mode them ei+~htX ~~~~ gctrperct'. ~.ar-s dews, k~ y
t ~ha3k b~ t~artE:rd that
.~ deteriorated r a~ ieoa ~adCture r trees to exceed '~
r,,ipuld al].aw such .~ i1:U.t ar othe~~-sg detr~-atie f=~'m ~'he
aop~ia~tb].ra hef4ht
V3~3aitces '- Arid' Per~a]i de9~']-a~ to erec~c or ? zlcre a~ :3isa
~ heighh a~ asL~` stzv.a~tuza, ar gannet the c~raw~t ~T
in via'3»e,~ozt n~ t$e
brae, o~ ti~a , hi.~ gxoF~Yr
xa~3.ai:a.c~as g~ssc~ed -3.n tk+is ~r_c3_irscSicer maY a~'J~y to
~d us~tuterit fox' a. var;.aisce grom such
the. Poasd of ~ a ~.ars~.icat~.vrs fcsr ~~]„anCk~
v~„r ra~itlationF ~.n, quagt~.Oiz- Mks edex~tJ-
:sb,a31 be aacosmpan•I.ad 3~y ~ detar~aAt~-oa sous the ~`
.~z as to the effect a~ the pxopceal,
gvia~ion ~ini~t~. as S~.ch
.. an ~.he r~pesatxan o~ air Aavzgzst~.azt. ~acil.x~,iss sxic~ t A
eager e~ticisnf use of n,av~.gabSe a,3,rspaae,
varaanr_es slsa~.i be a~.lo~ed vr31e~: a,'~ is du3.y foL"rtd that a
~catz.an ~ czs~azves~snt o~ •che r8~7,ations
~.i~era~. ape ~aaess haxdshi.P z~.d, t]~e re~„zef
~J. Xesnl~ asp
~rsstt~d ~taul.d scat be cantrasY to tea aubl~.a i~rer2g~ ~ ku
da aubstanti~l• ~ust3.ce, and be iA a.caordaxsc~ with the
px~~nanas, Acld3.i:ian~cllYr nc yg~,~,f~a~Liolz
~pirk'~ [i~ '~h3~ 'i:~~ FeQll~efiaR•~C C~ t11j„s Oxd.7_Il~=ICe 41~ ~c
for •~•arianCe the ~oas$ ns F~,jtzgtntea'G unJ,asa a espy og
' ccnsi_d~sred by ~, s b~u f~ssru.z.shed to the Ra gc'~axd
the acp2iaati~ h - orb ~,d~ryaarY
Municip~."~,c~uis Sciz~+iuer ~'~-eld Ai.'~p e~~e~s ax the
for aa~.oe as t~.o ~.1te al.C=ono,V,t7.ca.7.
~aziance- S.f the, Kezs'v33.T,a iai.I"'~-I~oti.i~ Schsaia6z'
F~e3.d Air~+orz Ad4s-easy 8aard dose ~ ~ ters~ca p,~, the
apP~.,i.natica ~rsth3~ ~'~a~at(aa1 z~ F~ tc 5r~nt ar d~F
Baard Q~ iaati~neRt mad
said aEP
-1a-

~,g ~~,~htsn.g - Azzy pg~u oz vasiano~
~ ~ {}bmtruc~aa idarking
graute~d mom'. if shah aaa~an. 3.s dr~emed axes or Liza ~Qasd
~f.321~ 8x C~ '~~?~ C3.'~~' ci'E I{er,~TZ,1.la, '~
Of ,~7,~ZZst~ertt ~.a affeCty,~t~ Zh,e Q'~TPCSe o~ i-h, s t]rdi.ti~2c
artd be reasatsabtie ~ she airr,~s'Ft~.~n.Ces~. ba sa conditio~d
as tv xequ~.re the ~-~ of the s~rua ~ussthe ~ ~y ~
~e~tiasi to a],Zo~++' the ~t~ ~' ~~ a~ maintai~tr a-b
~exz~ r axa~ ~o s.n~t$~-3-~ o~ t
~),ZB ~ 0 4~,Z~' Q~ ~CAZ"~'i7'1.1.~~r ~~'zR4 t'Sl1d '~~41~
~~ exF,sensc ai th sand li~izhs as mad bs
Ca~~' of I4exx, Texas sack mr~rk`~rig
p,eces~azy
~~araems~S1.'~ - ~t ahg~,3. be the duty of C~.~y Manager of
Seat3~ 8 , a,ti~,n~.stex and, e~~e the
tlz+3 c~.ty u:E ICerr+t'3.3:.~e ~ texas to for ~a~~o s~~ b°-
~~rpZ3-cat2.onJ
xegalati.ona pxBSUxzhed iyn~e~..l* , ~~ of ~xrvit.l.er ~~sx~S u~ari a
mad9. ~- t~-e-..~-~~ ,ages of -the Y ~~oatior~~" reciv,~~d b~' phis
~nrm ~ub~lLShed fob. ~~: pnspOtie< " the ~~-'~Y of
Orc~-z-nar~os to ~e .~tcd t"5 the ~itg i~anagar e~ rexlted ar
Ker=-a'i~.7.~. ~'cxae sha1.1. b$ gzc~nt~,g cen.sidcxad a1Sd
denied. ~ 7.iaati.on.s dos ~ a1a'D3.i~ioltafa ~va~C3.~ae vzith~'~'!se
Ad~ustsn~b~iY fa.~~'b f~.limq ~ ~' ~e~s,s, ritia sh~~,~. ~aruhw3.~t'h.
~i'~ pSa,aagex of the i cati n ~ t~xthe r 3oard o~ Ad~ustmetst for
t~ansm~~ sa.~CC~ a~i~
d-t~x~.~at~,as~~
S&ctiaa 9. BCesc~ o~ A$~u~ft~'t "
~. ~i''ex~y a tie f~~awing p ~erss of Ad3ustnaz~.t to hQ~'e a~sd
exa:.
t i j ua hear and dea3.de aP~ea~.s from aag brrlex,
T~guisemeut r dso3s s.flzs r 4r datermina~=ia ~~ae ~ the
City i~anagmx ^f they Czty of :terrv'i~7.ei
enfo~r.~,~s.''~b of t~.s (~rdy,aa73,oa-
~~j ~o hear aAd, deci.dG spec~.a~. sxa+~~tza~s to th.e terms
of this 4~~~g upcsn a7hy.c:,h suchbn~ra d ad
z~r7.~us~nt under such xega].etsoRa ~y ~~
to parse i
~ ~~ to hp~ and decide s~a~.fia ~riazsces .
S. 2`he F,3aa'tr~, of ~.jts,s~eri'~ ~$a.T.], annsiSt o~ ~.ve (5j members
a~,~ai~tad bp' ~a City' ecanai7, a~ ~.}xp City' t~ro~ozsvi~~r
Texas atld each ~.ha~7. acz~re for a term. of 4 ? y
cad be removable to oatisia by eke agF,v~t~eTtt sut~sori'tY
open ~fLteu eF~~e-ter ~,ftet a pttb~.~.a hearing.
~~ The Beard of 3tdjnsnt ~hftv- ~1,agt rtizles for ~.~s
c~GVerriance ar~x1 praoe~.tti:e in ha=mbny with ~e »resci.siona
of thza pr3inanc~a, Maet3.ngs ~rf the ward of ~~ugt-,ant
-ll-~

'~rrr-	
~c2so.~1 be held at tha ca1Z cf the Cbaixm~a~c axze t 9The
axd ^f p~jju,s-~GUt mt~y
Er
	s
t$.mes as ttt~a
Chaixsn~.ssr ox ~.n h~i9 e~l~eenoe tha aat~.n,g ehai~man, ~Y
tteztdal3CL^ of W7$t~esaQS.
~
1
	za n
:
~t~m1,~1..5tGx oa'6~tS ~T~d co3upe~
s
f tha 8a~ a
f
e c
~
'
	p,1~, hea~iags o
its
~ ¢:p
f
m.ii2utes
shal
.~.
Tha ~nrsrd a~ gd~t,stment
ach Ynambaz wait each
f
'
	e
~G o
grviceedzngs shawin~7 ~-ht vo
~t gh9BA'~ Ox ~3~3.~-~' C,~ ~O YC~~:Pr .';.L1d.]-CLtf".~II.~
	C~.k~lGt,j.OII, err
keenre
d ~ha17
-
'
'
	.
~
o r a~
ao
sLich, ~
o~ srh~.ch sha7-1 i~madtrtx].y be
athex ag~i^i~ ~ctinns, a..1.~
e Czty a~
	is3 t
be a gnb ~.c x~aaara..
rcd sha]
~~
Ka=~
	.
.
Texas
1
D.	~+he . Svex~d c~ ~.d~u5tzt~exci; s~1 rime wxitte~ ~~-nd3~agg ~'f
or statiszg the far.~:~ ugan tv7zich
t 7
	.a
t~a~ and oonclu9iaz~9 9
s ~~ag~i ecne~.uei.vts~ ia. xewa=sag,
it
i
	,
rtc~
i'~ .relied when mak
td~yiAq' ~~ azdg~t raqu~.x'smeazt, ~r~cisio~.r
~
`
.,	m
~~~3.Yf,~r a
_ a3.
r detczmz.~~tion wliic~x e-~zness he~oz~ it wade : the
	o
~,ro~tisisucs a~ thin t3rdizxez~ce.
~	the ocacvrsiAg vats ai ~e~ (4 ~ members of tre ~a,~.rd ^f
ar
a~dax,
'
.	veXSe
~Y
~id.3uStuzan'~ shazl. na necee~sar~ to ras
n~ det,esminat3.on o~ the Ci.~j'
aecis~
^n
	~equ~,~nti,
,
,
~talzagsx t~f tke C~.tY n= Y~sz"~vzl.~.e r Texas nr t,~ decide is
'L is
wl2ich ~
	.
~E~'YOZ o~ '~hg a'p~Zican'~ qt7 Iliot~eX upoxi
s~ u=cd~ the Ord~.aan~e r o~ to e~~~at ~
~
a
d 'C
3
2
	p
.
.
se~.
xa
.
8 tho Tex. =,oca
d9.riau d as~~ ~d9
ol1 in this ~
vr
rl
e~
	~
t
.
,
~
Gvv'rt Cod.~e ~. ~~ 1. Q3~ ( l i
~n~tXOn	~,~l. gppo~,Is
~.	r"3ily ~Seraaaa. aggxl.~ved, o7r' any tom-pagtx' affectedr by say'
r ts~ IfestvaZl:,
a C.iL'~
a~ t'~
	,
.
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action fnr ~.u~urYCti~'e relief 3s ~~idesi 1DX the ~rPoxt ~onzng t
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s~rsa,gent l~.mita~.aa ox rec~3.xe~'~ ~h7si.1, govern and are~ai.l. as
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nr ap~,~„icati~u o~ tha fl~yr.auce whi.ctt to thi.Q ezid ~:h°
the l,~,val$d . ~ra~3.a~-on r~r ~~~].xaati4x~, sad,
lsxavis~-gns a~ th~-~ ordigaz~ae are dec3.arr~d to he ~ to ger~ki~czt a~
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please Type or Print on This Form
Failure To Provide Alt Requested fnformatian May Delay Processing of Your Notice
Notice of Proposed Construction or Alteration
U.S. Departrnent of Transportation
•-.t_at..w d,iminlstratiOn
tBOera~ i+..aa.............----- - -
1;nsor (person, company, etc. proposing this action)
Attn. of. Rodri o Fi ueroa Attorne at Law
Name: Martin Marietta Materials
Address: 112 E. Pecan Suite 18D0
City: San Antonio State: Texas Zip:
Telephone: 210-554-5581 Fax:
2. Sponsor's Representative (Mother than #1)
Attn. of: R. Bruce Motheral P.E.
Name: Motherellndustries Inc.
Address: 812 A Sidney Baker
City: Kerrville State: Texas Zip:
Telephone: 830-257-6360 Fax. 830-257-6361
New Construction ^ Alteration ^ Existing
3. Notice of:
4. Duration: ®Pernlanent ^ Temporary ( months, days)
5. Work Schedule: Beginning 8-1.07 End __-
6. Type: [] Antenn9 Tower ^ Crane ^ Building ^ Power Line
Q Landfill ^ Water Tank ^ Other Excavator
7. MarkingiPainting andlor Lighting Preferred:
r' qed Lights and Paint ^ Dual -Red and Medium Intensity White
,,;Vhite -Medium Intensity ^ Dual -Red and High Intensity White
^ White -High Intensity ^ Other
8. FCC Antenna Structure Registration Number (if applicable):
21. Complete Description of Proposal:
Excavation of Sand and Gravel on Martln Marietta property.
Frequency/Power (kW)
152.97 mh 40 w
Notice is required by 14 Gode b eaedo a civ'11 pena'Ity of $1000 per daytunti~the noticess re'ceived,lpursuant to 49 U S C ,ISecytion 46301 ` )violate the notice
requirements of part 77 are su )
~rnereby certify that all of the an acco dance with established mark ng and pghtin9 Standards as necessaryf my ~~iedge. In addition, I agree to
mark andior tight the structure i
Typed or Printed name and Title of Person Filing Notice Signatur
Date
6-26-07 R. Bruce Motheral, P.E. NSN: 0052-00-012-0008
RAA Furrrl 7460-1 (2-99) Supersedes Previous Edttlon
~B No. 2120-0001
FAA USE,ONLY
44"
9. Latitude: 29° 57 26.
10. Longitude: 99° 04' 21' 89"
11. Datum: ^ NAD 83 ^ NAD 27 ^ OtherNGV-29
12. Nearest: City: Kerrville `°` -
13. Nearest Public-use (not private-use) or Military Airport or Heliport:
14. Distance from #13. to Structure:
15. Direction from #13. to Structure:
16. Site Elevation (AMSL): 1533 ft-
36 ~•
17. Total Structure Height (AGL):
1569 ft•
18.Overall height (#16. + #17.) (AMSL):
19. Previous FAA Aeronautical Study Number (if applicable):
-OE
20. Description of Location: (Attach a tJSGS 7.5 minute
Quadrangle Map with the precise site marked and any certified survey.)
Latitude and Longitude are approximately center of property shown on
thA section of USGS Quadrangle Map attached.
tEGtO;s/r eoj
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.. CuadaIi~t~~ '~ - %'"~ USGS -Center Poem Texas
,~; 626 _ '_ `~ u : .•c ~ ; Photorevised 1982
' `.'. ~ :.. ~~:,~., ~ ~~,~- , f-' - ~`!` ', , ~ MarEin N[areet~Ea Materials
111 w16fb ~' ~ _ ~.` ~~\ .~ ProperEy Location
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~"'' ° ° ° ° ° ° U.S. Army Carps of Engineers
°°°0° °°°°° Re ulator Pro ram
~ ~
Tribal Consultation & Coordination
~1rrr
contents: The US Army Corps of Engineers (USAGE) Works in Every State
OSACE , USAGE offers a wide range of services to its intergovernmental, mili-
tary,and civilian partners through its eight divisions- lakes and
Regulatory Overview i Rivers (LRD), Mississippi Valley (MVO), North Atlantic (NAD), North-
western (NWD), Pacific Ocean (POD), South Atlantic (SAD), South
Regulatory Program ~ Pacific (SPD) and Southwestern (SWD). Division headquarters are
located in Cincinnati OH, Vicksburg MS, New York NY, Portland OR,
Regulatory Key Paints s Honolulu HI, Atlanta GA, San Francisco CA, 6 Fort Worth TX.
Jurisdiction
NHPA S Appendix C
s Government-to-government coordination and consultation with fed-
erallyrecognized Tribes is critical to Corps success in execution of
a our Civil Works, Military, and Regulatory programs that have the potential to affect Tribal rights,
people, or resources. Often, the undertaking of Corps missions fulfill of our Trust responsibility.
Appendix C, continued 5
Points of Contact
Regulatory Program Overview
The Corps has regulated activities by others in navigable water-
waysthrough the granting of permits since passage of the Rivers
H Harbors Act of 1899 (RHA). The passage of the Clean Water Act
in 1972 (CWA) greatly broadened this role by giving the Carps
authority over dredging and filling activities affecting "waters of
the United States," including many wetlands.
MOST COMMONLY USED LEGAL AUTHORITIES
¢¢ ,k
~ e -.. ` y . t. ~,k ~.
Sauvie Islantl, Oregon
Regulatory Program, Portland District
• Section ID of the Rivers and Harbors Act of 1899 involves work and/or the placement of struc-
tures inwaters ofthe United States that may affect navigation or navigable water bodies.
• Section 404 of the Clean Water Act, the most common authority, involves the discharge of
dredged or fill material into waters of the United States, including some wetlands.

U.S. Army Corps of Engineers

Civil Works Planning projects.
33 CFR 325 specifies timelines for completing permit evaluations and making permit decisions. The
Office of Management 6 Budget has established performance measures for the Regulatory Program in
this regard, the Carps makes every effort to comply fully with all environmental laws, regulations and
policies. The Carps relies on a prcfessional staff of various academic and field backgrounds and has
been successful in forging cooperative relationships to ease information sharing, impact assessments
and implementation of mitigation activities.
General Permits F Nationwide Permits
Congress authorized the development and use of general permits (GPs) for categories of activities
that are similar in nature and have no more than minimal impacts an the natural and cultural environ-
ment. GPs authorize about 8D% of the 1DD,DDO annual authorizations issued by the Carps. Nationwide per-
mits (NWPs) are the most common and least complex form of GP authorization, This program allows eco-
nomic development to move forward, while meeting environmental protection requirements-conditions
must be met concerning historic properties E Tribal issues before a GP can be issued.
Key Paints about the Regulatory Program
• The 1DD,DOD+ authorizations granted annually occur on private land or land controlled by other
government agencies, providing unique environmental protection challenges since the Corps
does not control the land or its resources. Projects are wholly funded by the applicant.
• Regulators strive to complete permit reviews within 45 and IZD days.
• Relationships are important-Corps regulators spend up to 9D% of their time interfacing with
Tribal governments, stakeholders, and the general public.
• Regulatory staff can answer questions about the Program, how it interfaces with environmental
statutes, and haw resource protection can be achieved. less than I% of all permits are ele-
voted beyond the District level due to controversy over historic properties.
• All Corps Districts have designated Tribal Liaisons, or PDCs, to assist Tribal Nations. They are
supported 6y the six USACE Tribal policy principles-sovereignty, government-to-government
relationships, Trust responsibility, pre-decisional consultation, promotion of economic capacity
development and protection of Trust resources whenever possible.
• We require compensatory mitigation for loss of wetlands and waters, only after we have deter-
minedthat aproject has avoided and minimized impacts to the maximum extent practicable.
The Regulatory Program
Individual Permits
Page 2
The Individual Permit process is designed to evaluate larger projects that have the potential to impact a
greater number or variety of resources. The Individual Permit process may also be used when there
is known controversy surrounding a proposed activity. They take the mast time, require public in-
volvement, and are the most similar to pure National Environmental Policy Act (NEPA) actions used in
U.S. Army Carps of Engineers Page 3
Regulatory Jurisdiction

W
SECTION 10 ?
Fixed Structures!
Artificial Istandsl
Other Devrees ~
O
Ws
eua aH~ ~,,,„, o»„ sr»M~„~. ,
Material
HIGH TIDE LINE
MEAN HIGH WATER
Hlgh Marsh i Low Marsh
(FRESH OR BRACKISH i TIDAL TERRITORIAL
UPLAND WETLAND TIDAL WETLAND FLAT SEAS
Corps of Engineers Regulatory Jurisdiction in TIDAL WATERS

SECTION 404 SECTION 404
Discharge o[ Discharge of Dredged or Fa Alaterial
Dr or fill
AfaWrial
SECTION 10
^~'° All Slructore5 and Work
t it n Nevgabte Wa18r o1 U.S.
High
Matches
Wel Meadows
Swoops
Marshes
RIVERS ~
ISOLATED STREAMS g
FRESH WATER FRESH WATER LAKES
UPLANO WETLAND UPIAND WETLANDS PDNDS ~
Corps of Engineers Regulatory Jurisdiction in NON•TIDAL WATERS


~rr+
Federal undertaking
"Undertaking" means a project, activity, permits, or program funded in whole or in part under the di-
rect or indirect jurisdiction of a Federal Agency, including...
• Those carried out by or on behalf of an agency.
• Those carried out with Federal financial assistance.
• Those requiring a Federal permit, license or approval.
• Those subject to State or local regulations administered pursuant to a delegation or approval by a
Federal agency.
Appendix C (Historic Properties), 33 C.F.R. 325 - Background
The Corps originally implemented Appendix C in 1981 and revised it in 1990 through rulemaking, and
uses it today to guide evaluations of projects requiring Department of the Army permits.
The Corps is solely responsible for defining the extent of an undertaking, or "Permit Area", based upon RHA
and CWA regulatory scope of jurisdiction and the scope for NEPA review outlined in Appendix B (NEPA Regu-
lations) of 33 CFR 325. At times, historic preservation specialists find themselves in situations where the
applicant and the Carps define "Permit Area" in a way that differs from the "Area of Potential Effect (APE)"
defined in 36 CFR 800.
A copy of Appendix C can be found at the fallowing website:
http://www.usace.army.mil/cw/cecwnlreg/33cfr325.htm#appendixC
U.S. Army Corps of Engineers Page 4
	National Historic Preservation Act (NHPA)
The NHPA states in part:	Implementing Regulations - 36 C.F.R. 80u
"The historical li	This regulation, promulgated August 5, ZD04, establishes the procedures for identifying historic properties and
cultural foundations of	
determining their significance, assessing impacts as a result of Federal activities, and explains NEPA coordina-
the Nation should be
preserved as aliving	tion and tribal consultation requirements. Subpart (b) contains the Section ID6 requirements for consultation on
part of our community	Federal actions or'undertakings.'
life li development in	
5eetion tuff
order to give a sense of	
orientation to the	A Federal agency "having direct ar indirect jurisdiction" over a proposed Federal undertaking shall, prior to
American people"	
approval of the undertaking, take into account the effect of the undertaking on any historic property "in or eligi-
	blefor inclusion in the National Register."
~wrr++
U.S. Army Carps of Engineers Page 5

+tir•'

Key Tribal Interests-Appendix C and 36 C.F.R 800
• The "area of potential effect" as defined in 36 CFR 800 and "permit area" as defined under the RHA
and the CWA can be applied in ways that define different geographical areas.
• Appendix C does not have the same emphasis an consultation as 36 CFR 800. How-
ever,the Corps' Interim Guidance, dated April 25, 2005, has a section an Tribal con-
sultationbased on 36 CFR 800 to draw attention to this very important part of the 106
process.
• Traditional Cultural Properties are indirectly addressed in Appendix C,
• Appendix C does not contain all of the current definitions found in 36 CFR 800.
• Appendix C does not address repatriation of human remains and associated objects
that may be encountered in Regulatory actions on private property.
• Appendix C does not address how to conduct consultation onnon-reporting permits
(NWPs, GPs)
Whatever replaces Appendix C will:	
• Comply with the National Historic Preservation Act;	
• Integrate Section 106 review and tribal issues into Regulatory actions; and,	
• Enable efficient and timely reviews far over 100,000 permit applications, annually.	
The Appendix C Revision Process	Comments can
I. AdvanceNaticeafPrapvsed//u/emakingissued inthe federal Register September 27, 2004,with copies	be submitted
mailed to all Indian Tribes and Alaska Native Corporations	by individuals,
2. Informal coordination with ACHP began in 2005 and is ongoing	organizations,
3. Facilitated stakeholder meetings in November 2005 with Water Utility Users Group, National Association of	agencies, or
Homebuilders, National Mining Association, Cultural Resource Groups (e.g. ACHP, NASHPO, NATHPO, National	Tribes at
Trust for Historic Preservation etc.)	anytime
4. Invitation for continued Tribal involvement, Nov 2006- Present	throughout
5. Coordination 6 consultation meetings with Tribes, Summer-early Fall 2007	this process.
6. Coordination 6 consultation with the ACHP and OMB-Winter
2007
7. Conduct follow-up Tribal consultation meetings, upon request
8. Publish Final Rule -Summer 2008
33 CFR Part 325 -Processing of Department of the Army Permits
Page 32 of 43
17. Expedited Filing. 40 CFR 1506.10 provides information on allowable time reductions and time
extensions associated with the EIS process. The district engineer will provide the necessary
"arr information and facts to HQUSACE (CECW-RE) WASH DC 20314-1000 (with copy to CECW-
OR) for consultation with EPA for a reduction in the prescribed review periods.
18. Record of Decision. In those cases involving an EIS, the statement of findings will be called the
record of decision and shall incorporate the requirements of 40 CFR 1505.2. The record of
decision is not to be included when filing a final EIS and may not be signed unti130 days after the
notice of availability of the final EIS is published in the Federal Register. To avoid duplication,
the record of decision may reference the EIS.
19. Predecision Referrals by Other Agencies. See 40 CFR part 1504. The decisionmaker should
notify any potential referring Federal position of a potential referring agency. (This pertains to a
NEPA referral, not a 404(q) referral under the Clean Water Act. The procedures fora 404(q)
referral are outlined in the 404(q) Memoranda of Agreement. The potential referring agency will
then have 25 calendar days to refer the case to CEQ under 40 CFR part 1504. Referrals will be
transmitted through division to CECW-RE for further guidance with an information copy to
CECW-OR.
20. Review of Other Agencies' EISs. District engineers should provide comments directly to the
requesting agency specifically related to the Corps jurisdiction by law or special expertise as
defined in 40 CFR 1508.15 and 1508.26 and identified in Appendix II of CEQ regulations (49 FR
49750, December 21, 1984). If the district engineer determines that another agency's draft EIS
which involves a Corps permit action is inadequate with respect to the Corps permit action, the
district engineer should attempt to resolve the differences concerning the Corps permit action
prior to the filing of the final EIS by the other agency. If the district engineer finds that the final
EIS is inadequate with respect to the Corps permit action, the district engineer should incorporate
the other agency's final EIS or a portion thereof and prepare an appropriate and adequate NEPA
document to address the Corps involvement with the proposed action. See 33 CFR 230.21 for
guidance. The agency which prepared information to that contained in the EIS in order for the
Corps to have all relevant information available for a sound decision on the permit.
21. Monitoring. Monitoring compliance with permit requirements should be carried out in
accordance with 33 CFR 230.15 and with 33 CFR part 325.
Appendix C -Procedures for the Protection of Historic Properties
AUTHORITY: 33 U.S.C. 401 et seq., 33 U.S.C. 1344, 33 U.S.C. 1413
1.	Definitions
2.	General Policy
3.	Initial Review
4.	Public Notice
5.	Investi atg ions
6.	Eligibility Determinations
7.	Assessing Effects
8.	Consultation
9.	ACHP Review and Cormnent
10.	District Engineer Decision
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33 CFR Part 325 -Processing of Department of the Army Permits Page 33 of 43
11. Historic Properties Discovered During Construction
12. General Permits
13. Nationwide Permits
~~'"` 14. Emergency Permits
15. Criteria of Effect and Adverse Effect
1. Definitions.
a. "Designated historic property" is a historic property listed in the National Register of
Historic Places (National Register) or which has been determined eligible for listing in the
National Register pursuant to 36 CFR Part 63. A historic property that, in both the opinion
of the SHPO and the district engineer, appears to meet the criteria for inclusion in the
National Register will be treated as a "designated historic property."
b. "Historic property" is a property which has historical importance to any person or group.
This term includes the types of districts, sites, buildings, structures or objects eligible for
inclusion, but not necessarily listed, on the National Register.
c. "Certified local government" is a local government certified in accordance with Section
101(c)(1) of the NHPA (See 36 CFR Part 61).
d. The term "criteria for inclusion in the National Register" refers to the criteria published
by the Department of Interior at 36 CFR 60.4.
e. An "effect" on a "designated historic property" occurs when the undertaking may alter the
characteristics of the property that qualified the property for inclusion in the National
Register. Consideration of effects on "designated historic properties" includes indirect
effects of the undertaking. The criteria for effect and adverse effect are described in
Paragraph 15 of this Appendix.
f. The term "undertaking" as used in this Appendix means the work, structure or discharge
that requires a Department of the Army permit pursuant to the Corps regulations at 33 CFR
320-334.
g. Permit area.
1. The term "permit area" as used in this appendix means those areas comprising the
waters of the United States that will be directly affected by the proposed work or
structures and uplands directly affected as a result of authorizing the work or
structures. The following three tests must all be satisfied for an activity undertaken
outside the waters of the United States to be included within the "permit area":
i. Such activity would not occur but for the authorization of the work or
structures within the waters of the United States;
ii. Such activity must be integrally related to the work or structures to be
authorized within waters of the United States. Or, conversely, the work or
structures to be authorized must be essential to the completeness of the overall
project or program; and
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33 CFR Part 325 -Processing of Department of the Army Permits Page 34 of 43
iii. Such activity must be directly associated (first order impact) with the work or
structures to be authorized.
~wr° 2. For example, consider an application for a permit to construct a pier and dredge an
access channel so that an industry may be established and operated on an upland area.
i. Assume that the industry requires the access channel and the pier and that
without such channel and pier the project would not be feasible. Clearly then,
the industrial site, even though upland, would be within the "permit area." It
would not be established "but for" the access channel and pier; it also is
integrally related to the work and structure to be authorized; and finally it is
directly associated with the work and structure to be authorized. Similarly, all
three tests are satisfied for the dredged material disposal site and it too is in the
"permit area" even if located on uplands.
ii. Consider further that the industry, if established, would cause local agencies to
extend water and sewer lines to service the area of the industrial site. Assume
that the extension would not itself involve the waters of the United States and is
not solely the result of the industrial facility. The extensions would not be
within the "permit area" because they would not be directly associated with the
work or structure to be authorized.
iii. Now consider that the industry, if established, would require increased housing
for its employees, but that a private developer would develop the housing.
Again, even if the housing would not be developed but for the authorized work
and structure, the housing would not be within the permit area because it would
not be directly associated with or integrally related to the work or structure to
be authorized.
3. Consider a different example. This time an industry will be established that requires
no access to the navigable waters for its operation. The plans for the facility,
however, call for a recreational pier with an access channel. The pier and channel will
be used for the company-owned yacht and employee recreation. In the example, the
industrial site is not included within the permit area. Only areas of dredging, dredged
material disposal, and pier construction would be within the permit area.
4. Lastly, consider a linear crossing of the waters of the United States; for example, by a
transmission line, pipeline, or highway.
i. Such projects almost always can be undertaken without Corps authorization, if
they are designed to avoid affecting the waters of the United States. Corps
authorization is sought because it is less expensive or more convenient for the
applicant to do so than to avoid affecting the waters of the United States. Thus
the "but for" test is not met by the entire project right-of--way. The "same
undertaking" and "integral relationship" tests are met, but this is not sufficient
to make the whole right-of--way part of the permit area. Typically, however,
some portion of the right-of--way, approaching the crossing, would not occur in
its given configuration "but for" the authorized activity. This portion of the
right-of--way, whose location is determined by the location of the crossing,
meets all three tests and hence is part of the permit area.
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ii. Accordingly, in the case of the linear crossing, the permit area shall extend in
either direction from the crossing to that point at which alternative alignments
leading to reasonable alternative locations for the crossing can be considered
"'~""' and evaluated. Such a point may often coincide with the physical feature of the
waterbody to be crossed, for example, a bluff, the limit of the flood plain, a
vegetational change, etc., or with a jurisdictional feature associated with the
waterbody, for example, a zoning change, easement limit, etc., although such
features should not be controlling in selecting the limits of the permit area.
2. General Policy.
This Appendix establishes the procedures to be followed by the U.S. Army Corps of Engineers
(Corps) to fulfill the requirements set forth in the National Historic Preservation Act (NHPA),
other applicable historic preservation laws, and Presidential directives as they relate to the
regulatory program of the Corps of Engineers (33 CFR Parts 320-334).
a. The district engineer will take into account the effects, if any, of proposed undertakings on
historic properties both within and beyond the waters of the U.S. Pursuant to Section 110(f)
of the NHPA, the district engineer, where the undertaking that is the subject of a permit
action may directly and adversely affect any National Historic Landmark, shall, to the
maximum extent possible, condition any issued permit as may be necessary to minimize
harm to such landmark.
b. In addition to the requirements of the NHPA, all historic properties are subject to
consideration under the National Environmental Policy Act, (33 CFR Part 325, Appendix
,, B), and the Corps' public interest review requirements contained in 33 CFR 320.4.
Therefore, historic properties will be included as a factor in the district engineer's decision
on a permit application.
c. In processing a permit application, the district engineer will generally accept for Federal or
Federally assisted projects the Federal agency's or Federal lead agency's compliance with
the requirements of the NHPA.
d. If a permit application requires the preparation of an Environmental Impact Statement (EIS)
pursuant to the National Environmental Policy Act, the draft EIS will contain the
information required by paragraph 9.a. below. Furthermore, the SHPO and the ACHP will
be given the opportunity to participate in the scoping process and to comment on the Draft
and Final EIS.
e. During pre-application consultations with a prospective applicant the district engineer will
encourage the consideration of historic properties at the earliest practical time in the
planning process.
f. This Appendix is organized to follow the Corps standard permit process and to indicate how
historic property considerations are to be addressed during the processing and evaluating of
permit applications. The procedures of this Appendix are not intended to diminish the full
consideration of historic properties in the Corps regulatory program. Rather, this Appendix
is intended to provide for the maximum consideration of historic properties within the time
and jurisdictional constraints of the Corps regulatory program. The Corps will make every
effort to provide information on historic properties and the effects of proposed undertakings
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33 CFR Part 325 -Processing of Department of the Army Permits Page 36 of 43
on them to the public by the public notice within the time constraints required by the Clean
Water Act. Within the time constraints of applicable laws, executive orders, and regulations,
the Corps will provide the maximum coordination and comment opportunities to interested
parties especially the SHPO and ACHP. The Corps will discuss with and encourage the
applicant to avoid or minimize effects on historic properties. In reaching its decisions on
permits, the Corps will adhere to the goals of the NHPA and other applicable laws dealing
with historic properties.
3. Initial Review.
a. Upon receipt of a completed permit application, the district engineer will consult district
files and records, the latest published version(s) of the National Register, lists of properties
determined eligible, and other appropriate sources of information to determine if there are
any designated historic properties which maybe affected by the proposed undertaking. The
district engineer will also consult with other appropriate sources of information for
knowledge of undesignated historic properties which maybe affected by the proposed
undertaking. The district engineer will establish procedures (e.g., telephone calls) to obtain
supplemental information from the SHPO and other appropriate sources. Such procedures
shall be accomplished within the time limits specified in this Appendix and 33 CFR Part
325.
b. In certain instances, the nature, scope, and magnitude of the work, and/or structures to be
permitted maybe such that there is little likelihood that a historic property exists or maybe
affected. Where the district engineer determines that such a situation exists, he will include
a statement to this effect in the public notice. Three such situations are:
.+
1. Areas that have been extensively modified by previous work. In such areas, historic
properties that may have at one time existed within the permit area may be presumed
to have been lost unless specific information indicates the presence of such a property
(e.g., a shipwreck).
2. Areas which have been created in modern times. Some recently created areas, such as
dredged material disposal islands, have had no human habitation. In such cases, it
may be presumed that there is no potential for the existence of historic properties
unless specific information indicates the presence of such a property.
3. Certain types of work or structures that are of such limited nature and scope that there
is little likelihood of impinging upon a historic property even if such properties were
to be present within the affected area.
c. If, when using the pre-application procedures of 33 CFR 325.1(b), the district engineer
believes that a designated historic property may be affected, he will inform the prospective
applicant for consideration during project planning of the potential applicability of the
Secretary of the Interior's Standards and Guidelines for Archeology and Historic
Preservation (48 FR 44716). The district engineer will also inform the prospective applicant
that the Corps will consider any effects on historic properties in accordance with this
Appendix.
~r,,. d. At the earliest practical time the district engineer will discuss with the applicant measures or
alternatives to avoid or minimize effects on historic properties.
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33 CFR Part 325 -Processing of Department of the Army Permits Page 37 of 43
4. Public Notice.
a. a. Except as specified in subparagraph 4.c., the district engineer's current knowledge of the
presence or absence of historic properties and the effects of the undertaking upon these
properties will be included in the public notice. The public notice will be sent to the SHPO,
the regional office of the National Park Service (NPS), certified local governments (see
paragraph l .c.) and Indian tribes, and interested citizens. If there are designated historic
properties which reasonably may be affected by the undertaking or if there are undesignated
historic properties within the affected area which the district engineer reasonably expects to
be affected by the undertaking and which he believes meet the criteria for inclusion in the
National Register, the public notice will also be sent to the ACHP.
b. During permit evaluation for newly designated historic properties or undesignated historic
properties which reasonably maybe affected by the undertaking and which have been
newly identified through the public interest review process, the district engineer will
immediately inform the applicant, the SHPO, the appropriate certified local government and
the ACHP of the district engineer's current knowledge of the effects of the undertaking
upon these properties. Commencing from the date of the district engineer's letter, these
entities will be given 30 days to submit their comments.
c. Locational and sensitive information related to archeological sites is excluded from the
Freedom of Information Act (Section 304 of the NHPA and Section 9 of ARPA). If the
district engineer or the Secretary of the Interior determine that the disclosure of information
to the public relating to the location or character of sensitive historic resources may create a
substantial risk of harm, theft, or destruction to such resources or to the area or place where
,,, such resources are located, then the district engineer will not include such information in the
public notice nor otherwise make it available to the public. Therefore, the district engineer
will furnish such information to the ACHP and the SHPO by separate notice.
5. Investigations.
a. When initial review, additional submissions by the applicant, or response to the public
notice indicates the existence of a potentially eligible property, the district engineer shall
examine the pertinent evidence to determine the need for further investigation. The
evidence must set forth specific reasons for the need to further investigate within the permit
area and may consist of:
1. Specific information concerning properties which maybe eligible for inclusion in the
National Register and which are known to exist in the vicinity of the project; and
2. Specific information concerning known sensitive areas which are likely to yield
resources eligible for inclusion in the National Register, particularly where such
sensitive area determinations are based upon data collected from other, similar areas
within the general vicinity.
b. Where the scope and type of work proposed by the applicant or the evidence presented
leads the district engineer to conclude that the chance of disturbance by the undertaking to
any potentially eligible historic property is too remote to justify further investigation, he
shall so advise the reporting party and the SHPO.
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33 CFR Part 325 -Processing of Department of the Army Permits Page 38 of 43
c. If the district engineer's review indicates that an investigation for the presence of potentially
eligible historic properties on the upland locations of the permit area (see paragraph l .g.) is
justified, the district engineer will conduct or cause to be conducted such an investigation.
Additionally, if the notification indicates that a potentially eligible historic property may
exist within waters of the U. S., the district engineer will conduct or cause to be conducted
an investigation to determine whether this property maybe eligible for inclusion in the
National Register. Comments or information of a general nature will not be considered as
sufficient evidence to warrant an investigation.
d. In addition to any investigations conducted in accordance with paragraph 6.a. above, the
district engineer may conduct or cause to be conducted additional investigations which the
district engineer determines are essential to reach the public interest decision. As part of any
site visit, Corps personnel will examine the permit area for the presence of potentially
eligible historic properties. The Corps will notify the SHPO, if any evidence is found which
indicates the presence of potentially eligible historic properties.
e. As determined by the district engineer, investigations may consist of any of the following:
further consultations with the SHPO, the State Archeologist, local governments, Indian
tribes, local historical and archeological societies, university archeologists, and others with
knowledge and expertise in the identification of historical, archeological, cultural and
scientific resources; field examinations; and archeological testing. In most cases, the district
engineer will require, in accordance with 33 CFR 325.1(e), that the applicant conduct the
investigation at his expense and usually by third party contract.
f. The Corps of Engineers' responsibilities to seek eligibility determinations for potentially
,,, eligible historic properties is limited to resources located within waters of the U. S. that are
directly affected by the undertaking. The Corps responsibilities to identify potentially
eligible historic properties is limited to resources located within the permit area that are
directly affected by related upland activities. The Corps is not responsible for identifying or
assessing potentially eligible historic properties outside the permit area, but will consider
the effects of undertakings on any known historic properties that may occur outside the
permit area.
6. Eligibility determinations.
a. For a historic property within waters of the U. S. that will be directly affected by the
undertaking the district engineer will, for the purposes of this Appendix and compliance
with the NHPA:
1. treat the historic property as a "designated historic property," if both the SHPO and
the district engineer agree that it is eligible for inclusion in the National Register; or
2. treat the historic property as not eligible, if both the SHPO and the district engineer
agree that it is not eligible for inclusion in the National Register; or
3. request a determination of eligibility from the Keeper of the National Register in
accordance with applicable National Park Service regulations and notify the
applicant, if the SHPO and the district engineer disagree or the ACHP or the
~..- Secretary of the Interior so request. If the Keeper of the National Register determines
that the resources are not eligible for listing in the National Register or fails to
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33 CFR Part 325 -Processing of Department of the Army Permits Page 39 of 43
respond within 45 days of receipt of the request, the district engineer may proceed to
conclude his action on the permit application.
~.
b. For a historic property outside of waters of the U. S. that will be directly affected by the
undertaking the district engineer will, for the purposes of this Appendix and compliance
with the NHPA:
1. treat the historic property as a "designated historic property," if both the SHPO and
the district engineer agree that it is eligible for inclusion in the National Register; or
2. treat the historic property as not eligible, if both the SHPO and the district engineer
agree that it is not eligible for inclusion in the National Register; or
3. treat the historic property as not eligible unless the Keeper of the National Register
determines it is eligible for or lists it on the National Register. (See paragraph 6.c.
below.)
c. If the district engineer and the SHPO do not agree pursuant to paragraph 6.b.(1) and the
SHPO notifies the district engineer that it is nominating a potentially eligible historic
property for the National Register that maybe affected by the undertaking, the district
engineer will wait a reasonable period of time for that determination to be made before
concluding his action on the permit. Such a reasonable period of time would normally be 30
days for the SHPO to nominate the historic property plus 45 days for the Keeper of the
National Register to make such determination. The district engineer will encourage the
applicant to cooperate with the SHPO in obtaining the information necessary to nominate
ti.r the historic property.
7. Assessing Effects.
a. Applying the Criteria of Effect and Adverse Effect. During the public notice comment
period or within 30 days after the determination or discovery of a designated history
property the district engineer will coordinate with the SHPO and determine if there is an
effect and if so, assess the effect. (See Paragraph 15.)
b. No Effect. If the SHPO concurs with the district engineer's determination of no effect or
fails to respond within 15 days of the district engineer's notice to the SHPO of a no effect
determination, then the district engineer may proceed with the final decision.
c. No Adverse Effect. If the district engineer, based on his coordination with the SHPO (see
paragraph 7.a.), determines that an effect is not adverse, the district engineer will notify the
ACHP and request the comments of the ACHP. The district engineer's notice will include a
description of both the project and the designated historic property; both the district
engineer's and the SHPO's views, as well as any views of affected local governments,
Indian tribes, Federal agencies, and the public, on the no adverse effect determination; and a
description of the efforts to identify historic properties and solicit the views of those above.
The district engineer may conclude the permit decision if the ACHP does not object to the
district engineer's determination or if the district engineer accepts any conditions requested
by the ACHP for a no adverse effect determination, or the ACHP fails to respond within 30
"'~'' days of the district engineer's notice to the ACHP. If the ACHP objects or the district
engineer does not accept the conditions proposed by the ACHP, then the effect shall be
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33 CFR Part 325 -Processing of Department of the Army Permits Page 40 of 43
considered as adverse.
d. Adverse Effect. If an adverse effect on designated historic properties is found, the district
engineer will notify the ACHP and coordinate with the SHPO to seek ways to avoid or
reduce effects on designated historic properties. Either the district engineer or the SHPO
may request the ACHP to participate. At its discretion, the ACHP may participate without
such a request. The district engineer, the SHPO or the ACHP may state that further
coordination will not be productive. The district engineer shall then request the ACHP's
comments in accordance with paragraph 9.
8. Consultation. At any time during permit processing, the district engineer may consult with the
involved parties to discuss and consider possible alternatives or measures to avoid or minimize the
adverse effects of a proposed activity. The district engineer will terminate any consultation
immediately upon determining that further consultation is not productive and will immediately
notify the consulting parties. If the consultation results in a mutual agreement among the SHPO,
ACHP, applicant and the district engineer regarding the treatment of designated historic
properties, then the district engineer may formalize that agreement either through permit
conditioning or by signing a Memorandum of Agreement (MOA) with these parties. Such MOA
will constitute the comments of the ACHP and the SHPO, and the district engineer may proceed
with the permit decision. Consultation shall not continue beyond the comment period provided in
paragraph 9.b.
9. ACHP Review and Comment.
a. If:
,,, i. the district engineer determines that coordination with the SHPO is unproductive; or
ii. the ACHP, within the appropriate comment period, requests additional information in
order to provide its comments; or
iii. the ACHP objects to any agreed resolution of impacts on designated historic
properties;
the district engineer, normally within 30 days, shall provide the ACHP with:
1. a project description, including, as appropriate, photographs, maps, drawings, and
specifications (such as, dimensions of structures, fills, or excavations; types of
materials and quantity of material);
2. a listing and description of the designated historic properties that will be affected,
including the reports from any surveys or investigations;
3. a description of the anticipated adverse effects of the undertaking on the designated
historic properties and of the proposed mitigation measures and alternatives
considered, if any; and
4. the views of any commenting parties regarding designated historic properties.
In developing this information, the district engineer may coordinate with the applicant, the
SHPO, and any appropriate Indian tribe or certified local government. Copies of the above
information also should be forwarded to the applicant, the SHPO, and any appropriate
Indian tribe or certified local government. The district engineer will not delay his decision
but will consider any comments these parties may wish to provide.
~,,.,, b. b. The district engineer will provide the ACHP 60 days from the date of the district
engineer's letter forwarding the information in paragraph 9.a., to provide its comments. If
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33 CFR Part 325 -Processing of Department of the Army Permits Page 41 of 43
the ACHP does not comment by the end of this comment period, the district engineer will
complete processing of the permit application. When the permit decision is otherwise
delayed as provided in 33 CFR 325.2(d)(3) & (4), the district engineer will provide
additional time for the ACHP to comment consistent with, but not extending beyond that
delay.
10. District Engineer Decision.
a. In making the public interest decision on a permit application, in accordance with 33 CFR
320.4, the district engineer shall weigh all factors, including the effects of the undertaking
on historic properties and any comments of the ACHP and the SHPO, and any views of
other interested parties. The district engineer will add permit conditions to avoid or reduce
effects on historic properties which he determines are necessary in accordance with 33 CFR
325.4. In reaching his determination, the district engineer will consider the Secretary of the
Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR
44716).
b. If the district engineer concludes that permitting the activity would result in the irrevocable
loss of important scientific, prehistoric, historical, or archeological data, the district
engineer, in accordance with the Archeological and Historic Preservation Act of 1974, will
advise the Secretary of the Interior (by notifying the National Park Service (NPS)) of the
extent to which the data maybe lost if the undertaking is permitted, any plans to mitigate
such loss that will be implemented, and the permit conditions that will be included to ensure
that any required mitigation occurs.
~, 11. Historic Properties Discovered During Construction. After the permit has been issued, if the
district engineer fmds or is notified that the permit area contains a previously unknown potentially
eligible historic property which he reasonably expects will be affected by the undertaking, he shall
immediately inform the Department of the Interior Departmental Consulting Archeologist and the
regional office of the NPS of the current knowledge of the potentially eligible historic property
and the expected effects, if any, of the undertaking on that property. The district engineer will
seek voluntary avoidance of construction activities that could affect the historic property pending
a recommendation from the National Park Service pursuant to the Archeological and Historic
Preservation Act of 1974. Based on the circumstances of the discovery, equity to all parties, and
considerations of the public interest, the district engineer may modify, suspend or revoke a permit
in accordance with 33 CFR 325.7.
12. Regional General Permits. Potential impacts on historic properties will be considered in
development and evaluation of general permits. However, many of the specific procedures
contained in this appendix are not normally applicable to general permits. In developing general
permits, the district engineer will seek the views of the SHPO and, the ACHP and other
organizations and/or individuals with expertise or interest in historic properties. Where designated
historic properties are reasonably likely to be affected, general permits shall be conditioned to
protect such properties or to limit the applicability of the permit coverage.
13. Nationwide General Permit.
a. The criteria at paragraph 15 of this Appendix will be used for determining compliance with
~,,,,,,,, the nationwide permit condition at 33 CFR 330.5(b)(9) regarding the effect on designated
historic properties. When making this determination the district engineer may consult with
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33 CFR Part 325 -Processing of Department of the Army Permits Page 42 of 43
the SHPO, the ACHP or other interest parties.
b. If the district engineer is notified of a potentially eligible historic property in accordance
~"" with nationwide permit regulations and conditions, he will immediately notify the SHPO. If
the district engineer believes that the potentially eligible historic property meets the criteria
for inclusion in the National Register and that it maybe affected by the proposed
undertaking then he may suspend authorization of the nationwide permit until he provides
the ACHP and the SHPO the opportunity to comment in accordance with the provisions of
this Appendix. Once these provisions have been satisfied, the district engineer may notify
the general permittee that the activity is authorized including any special activity specific
conditions identified or that an individual permit is required.
14. Emergency Procedures. The procedures for processing permits in emergency situations are
described at 33 CFR 325.2(e)(4). In an emergency situation the district engineer will make every
reasonable effort to receive comments from the SHPO and the ACHP, when the proposed
undertaking can reasonably be expected to affect a potentially eligible or designated historic
property and will comply with the provisions of this Appendix to the extent time and the
emergency situation allows.
15. Criteria of Effect and Adverse Effect.
a. An undertaking has an effect on a designated historic property when the undertaking may
alter characteristics of the property that qualified the property for inclusion in the National
Register. For the purpose of determining effect, alteration to features of a property's
location, setting, or use may be relevant, and depending on a property's important
characteristics, should be considered.
b. An undertaking is considered to have an adverse effect when the effect on a designated
historic property may diminish the integrity of the property's location, design, setting,
materials, workmanship, feeling, or association. Adverse effects on designated historic
properties include, but are not limited to:
1. Physical destruction, damage, or alteration of all or part of the property;
2. Isolation of the property from or alteration of the character of the property's setting
when that character contributes to the property's qualification for the National
Register;
3. Introduction of visual, audible, or atmospheric elements that are out of character with
the property or alter its setting;
4. Neglect of a property resulting in its deterioration or destruction; and
5. Transfer, lease, or sale of the property.
c. Effects of an undertaking that would otherwise be found to be adverse may be considered as
being not adverse for the purpose of this appendix:
1. When the designated historic property is of value only for its potential contribution to
archeological, historical, or architectural research, and when such value can be
substantially preserved through the conduct of appropriate research, and such
research is conducted in accordance with applicable professional standards and
,,. guidelines;
2. When the undertaking is limited to the rehabilitation of buildings and structures and is
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33 CFR Part 325 -Processing of Department of the Army Permits Page 43 of 43
conducted in a manner that preserves the historical and architectural value of affected
designated historic properties through conformance with the Secretary's "Standards
for Rehabilitation and Guidelines for Rehabilitating Historic Buildings", or
3. When the undertaking is limited to the transfer, lease, or sale of a designated historic
property, and adequate restrictions or conditions are included to ensure preservation
of the property's important historic features.
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Wetlands US Army Corps of Engineers_Wetlands Delineation Manual Page 1 of 5
US Army Corps of Engineers
Wetlands Delineation Manual
PART I: INTRODUCTION
Background
1. Recognizing the potential for continued or accelerated degradation of the Nation's waters, the US
Congress enacted the Clean Water Act (hereafter referred to as the Act), formerly known as the Federal
Water Pollution Control Act (33 U.S.C. 1344). The objective of the Act is to maintain and restore the
chemical, physical, and biological integrity of the waters of the United States. Section 404 of the Act
authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits for the
discharge of dredged or fill material into the waters of the United States, including wetlands.
Purpose and Objectives
Purpose
2. The purpose of this manual is to provide users with guidelines and methods to determine whether an
~""' area is a wetland for purposes of Section 404 of the Act.
Objectives
3. Specific objectives of the manual are to:
a. Present technical guidelines for identifying wetlands and distinguishing them from aquatic habitats
and other nonwetlands. [Definitions of terms used in this manual are presented in the Glossary
Appendix A. J
b. Provide methods for applying the technical guidelines.
c. Provide supporting information useful in applying the technical guidelines.
Scope
4. This manual is limited in scope to wetlands that are a subset of "waters of the United States" and thus
subject to Section 404. The term "waters of the United States" has broad meaning and incorporates both
deep-water aquatic habitats and special aquatic sites, including wetlands (Federal Register 1982), as
follows:
a. The territorial seas with respect to the discharge of fill material.
b. Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States,
including their adjacent wetlands.
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c. Tributaries to navigable waters of the United States, including adjacent wetlands.
d. Interstate waters and their tributaries, including adjacent wetlands.
e. All others waters of the United States not identified above, such as isolated wetlands and lakes,
'~""` intermittent streams, prairie potholes, and other waters that are not a part of a tributary system to
interstate waters or navigable waters of the United States, the degradation or destruction of which could
affect interstate commerce.
Determination that a water body or wetland is subject to interstate commerce and therefore is a "water of
the United States" shall be made independently of procedures described in this manual.
Special aquatic sites
5. The Environmental Protection Agency (EPA) identifies six categories of special aquatic sites in their
Section 404 b.(I) guidelines (Federal Register 1980), including:
a. Sanctuaries and refuges.
b. Wetlands.
c. Mudflats.
d. Vegetated shallows.
e. Coral reefs.
f. Riffle and pool complexes.
Although all of these special aquatic sites are subject to provisions of the Clean Water Act, this manual
considers only wetlands. By definition (see paragraph 26a), wetlands are vegetated. Thus, unvegetated
special aquatic sites (e.g. mudflats lacking macrophytic vegetation) are not covered in this manual.
Relationship to wetland classification systems
6. The technical guideline for wetlands does not constitute a classification system. It only provides a
basis for determining whether a given area is a wetland for purposes of Section 404, without attempting
to classify it by wetland type.
7. Consideration should be given to the relationship between the technical guideline for wetlands and the
classification system developed for the Fish and Wildlife Service (FWS), US Department of the Interior,
by Cowardin et al. (1979). The FWS classification system was developed as a basis for identifying,
classifying, and mapping wetlands, other special aquatic sites, and deepwater aquatic habitats. Using this
classification system, the National Wetland Inventory (NWI) is mapping the wetlands, other special
aquatic sites, and deepwater aquatic habitats of the United States, and is also developing both a list of
plant species that occur in wetlands and an associated plant database. These products should contribute
significantly to application of the technical guideline for wetlands. The technical guideline for wetlands
as presented in the manual includes most, but not all, wetlands identified in the FWS system. The
difference is due to two principal factors:
a. The FWS system includes all categories of special aquatic sites identified in the EPA Section 404 b.(I)
guidelines. All other special aquatic sites are clearly within the purview of Section 404; thus, special
methods for their delineation are unnecessary.
b. The FWS system requires that a positive indicator of wetlands be present for any one of the three
parameters, while the technical guideline for wetlands requires that a positive wetland indicator be
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Wetlands_US Army Corps of Engineers_Wetlands Delineation Manual Page 3 of 5
present for each parameter (vegetation, soils, and hydrology), except in limited instances identified in
the manual.

Organization
8. This manual consists of four parts and four appendices. PART I presents the background, purpose and
objectives, scope, organization, and use of the manual.
9. PART II focuses on the technical guideline for wetlands, and stresses the need for considering all
three parameters (vegetation, soils, and hydrology) when making wetland determinations. Since
wetlands occur in an intermediate position along the hydrologic gradient, comparative technical
guidelines are also presented for deepwater aquatic sites and nonwetlands.
10. PART III contains general information on hydrophytic vegetation, hydric soils, and wetland
hydrology. Positive wetland indicators of each parameter are included.
11. PART IV, which presents methods for applying the technical guideline for wetlands, is arranged in a
format that leads to a logical determination of whether a given area is a wetlands Section A contains
general information related to application of methods. Section B outlines preliminary data-gathering
efforts. Section C discusses two approaches (routine and comprehensive) for making wetland
determinations and presents criteria for deciding the correct approach to use. Sections D and E describe
detailed procedures for making routine and comprehensive determinations, respectively. The basic
procedures are described in a series of steps that lead to a wetland determination.
~,,, 12. The manual also describes (PART IV, Section F) methods for delineating wetlands in which the
vegetation, soils, and/or hydrology have been altered by recent human activities or natural events, as
discussed below:
a. The definition of wetlands (paragraph 26a) contains the phrase plunder normal circumstances, which
was included because there are instances in which the vegetation in a wetland has been inadvertently or
purposely removed or altered as a result of recent natural events or human activities. Other examples of
human alterations that may affect wetlands are draining, ditching, levees, deposition of fill, irrigation,
and impoundments. When such activities occur, an area may fail to meet the diagnostic criteria for a
wetlands Likewise, positive hydric soil indicators maybe absent in some recently created wetlands. In
such cases, an alternative method must be employed in making wetland determinations.
b. Natural events may also result in sufficient modification of an area that indicators of one or more
wetland parameters are absent. For example, changes in river course may significantly alter hydrology,
or beaver dams may create new wetland areas that lack hydric soil conditions. Catastrophic events (e.g.
fires, avalanches, mudslides, and volcanic activities) may also alter or destroy wetland indicators on a
site.
Such atypical situations occur throughout the United States, and all of these cannot be identified in this
manual.
13. Certain wetland types, under the extremes of normal circumstances, may not always meet all the
wetland criteria defined in the manual. Examples include prairie potholes during drought years and
seasonal wetlands that may lack hydrophytic vegetation during the dry season. Such areas are discussed
'`mow in PART IV, Section G, and guidance is provided for making wetland determinations in these areas.
However, such wetland areas may warrant additional research to refine methods for their delineation.
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Wetlands US Army Corps of Engineers Wetlands Delineation Manual Page 4 of 5
14. Appendix A is a glossary of technical terms used in the manual. Definitions of some terms were
taken from other technical sources, but most terms are defined according to the manner in which they
are used in the manual.
`~r-
15. Data forms for methods presented in PART IV are included in Appendix B. Examples of completed
data forms are also provided.
16. Supporting information is presented in Appendices C and D. Appendix C contains lists of plant
species that occur in wetlands. Section 1 consists of regional lists developed by a Federal interagency
panel. Section 2 consists of shorter lists of plant species that commonly occur in wetlands of each
region. Section 3 describes morphological, physiological, and reproductive adaptations associated with
hydrophytic species, as well as a list of some species exhibiting such adaptations. Appendix D discusses
procedures for examining soils for hydric soil indicators, and also contains a list of hydric soils of the
United States.
Use
17. Although this manual was prepared primarily for use by Corps of Engineers (CE) field inspectors, it
should be useful to anyone who makes wetland determinations for purposes of Section 404 of the Clean
Water Act. The user is directed through a series of steps that involve gathering of information and
decisionmaking, ultimately leading to a wetland determination. A general flow diagram of activities
leading to a determination is presented in Figure 1. However, not all activities identified in Figure 1 will
be required for each wetland determination. For example, if a decision is made to use a routine
determination procedure, comprehensive determination procedures will not be employed.

Premise for use of the manual
18. Three key provisions of the CE/EPA definition of wetlands (see paragraph 26a) include:
a. Inundated or saturated soil conditions resulting from permanent or periodic inundation by ground
water or surface water.
b. A prevalence of vegetation typically adapted for life in saturated soil conditions (hydrophytic
vegetation).
c. The presence of "normal circumstances."
19. Explicit in the definition is the consideration of three environmental parameters: hydrology, soil, and
vegetation. Positive wetland indicators of all three parameters are normally present in wetlands.
Although vegetation is often the most readily observed parameter, sole reliance on vegetation or either
of the other parameters as the determinant of wetlands can sometimes be misleading. Many plant species
can grow successfully in both wetlands and nonwetlands, and hydrophytic vegetation and hydric soils
may persist for decades following alteration of hydrology that will render an area a nonwetland. The
presence of hydric soils and wetland hydrology indicators in addition to vegetation indicators will
provide a logical, easily defensible, and technical basis for the presence of wetlands. The combined use
of indicators for all three parameters will enhance the technical accuracy, consistency, and credibility of
wetland determinations. Therefore, all three parameters were used in developing the technical guideline
for wetlands and all approaches for applying the technical guideline embody the multiparameter
,, concept.
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Wetlands US Army Corps of Engineers_Wetlands Delineation Manual Page 5 of 5
Approaches
~ 20. The approach used for wetland delineations will vary, based primarily on t;he complexity of the area
in question. Two basic approaches described in the manual are (a) routine and (b) comprehensive.
21. Routine approach. The routine approach normally will be used in the vast majority of
determinations. The routine approach requires minimal level of effort, using primarily qualitative
procedures. This approach can be further subdivided into three levels of required effort, depending on
the complexity of the area and the amount and quality of preliminary data available. The following
levels of effort maybe used for routine determinations:
a. Level 1 - Onsite inspection unnecessary. (PART IV, Section D, Subsection 1).
b. Level 2 - Onsite inspection necessary. (PART IV, Section D, Subsection 2).
c. Leve13 -Combination of Levels 1 and 2. (PART IV, Section D, Subsection 3).
22. Comprehensive approach. The comprehensive approach requires application of quantitative
procedures for making wetland determinations. It should seldom be necessary, and its use should be
restricted to situations in which the wetland is very complex and/or is the subject of likely or pending
litigation. Application of the comprehensive approach (PART IV, Section E) requires a greater level of
expertise than application of the routine approach, and only experienced field personnel with sufficient
training should use this approach.
Flexibility
23. Procedures described for both routine and comprehensive wetland determinations have been tested
and found to be reliable. However, site-specific conditions may require modification of field procedures.
For example, slope configuration in a complex area may necessitate modification of the baseline and
transect positions. Since specific characteristics (e.g. plant density) of a given plant community may
necessitate the use of alternate methods for determining the dominant species, the user has the flexibility
to employ sampling procedures other than those described. However, the basic approach for making
wetland determinations should not be altered (i.e. the determination should be based on the dominant
plant species, soil characteristics, and hydrologic characteristics of the area in question). The user should
document reasons for using a different characterization procedure than described in the manual.
CAUTION.• Application of methods described in the manual or the modified sampling procedures
requires that the user be familiar with wetlands of the area and use his training, experience, and good
judgment in making wetland determinations.
Environmental Technical Services Co., 834 Castle Ridge Rd., Austin, TX 78746-5152
Revised November 16, 1995. URL = http://www.wetlands.com/coe/87manpla.htm
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Art. 11-I-14 SPECIFIC USE DISTRICTS
(a) When Required: The creation of a Specific Use District shall be required prior to the
development of any property within the City which is to be used for the following
purposes:
(1) Businesses primarily engaged in the housing, stabling, or keeping of livestock
where the intent is to sell the livestock or livestock product, such as the following:
(i) Feed lots (SIC #021)
(ii) Dairy farms (SIC #024)
(iii) Poultry hatcheries (SIC #025)
(iv) Horse farms, farms for raising fur bearing animals, breeding kennels, and
other similar establishments not otherwise classified above (SIC #027)
(2) Businesses primarily engaged in the slaughter, eviscerating, and dressing or
processing of livestock, livestock products, or wild animals such as the following:
(i) Meat packing plants (SIC#2011)
(ii) Poultry dressing plants (SIC#2016)
(iii) Taxidermy businesses that conduct on-site evisceration and processing of
,,,. animal carcasses
(3) Businesses primarily engaged in milling or preserving of lumber, pulp, and paper,
such as the following:
(i) Lumber products, mills, and processing (SIC #'s 241, 242, 249)
(ii) Pulp and paper mills (SIC #'s 261, 262, 263, 266)
(4) Businesses primarily engaged in grain milling operations, such as the following
flour or meal from grain and corn milling (SIC #'s 2041, 2044, 2046)
(5) Businesses engaged in the manufacture of pet foods, such as the following:
(i) Dog, cat food (SIC #2047)
(ii) Prepared feeds and ingredients (SIC #2048)
(6) Businesses primarily engaged in manufacturing and rendering of vegetable and
grease, tallow, lard, etc., as listed in SIC #'s 2074, 2075, 2076, and 2077.
(7) Except where the manufacturing process for the basic chemicals is complete, and
the business is engaged in only mixing or forming the basic materials into a
product for sale; businesses primarily engaged in producing basic chemicals and
~''` the manufacture of products by predominantly chemical processes, such as the
following:
(ii) the incidental storage of cleaning materials;
(iii) the underground storage of bulk fuel;
(iv) the above-ground storage of bulk fuel in quantities of 550 gallons or less.
(16) Businesses engaged in mining activities, such as for oil and gas, sand and gravel,
and other ores, coal, clays, etc. as included in SIC major group #'s 10, 11, 12, 13,
and 14.
(17) Business defined in part or in its entirety by the Code of Ordinances as a
junkyard, automobile graveyard, or open air market.
(b) Custom Manufacturing Businesses Exempted: Any use described in Section (a.),
above, which can be defined as a custom manufacturing business shall be deemed not to
be within the regulations of this Article, but are otherwise permitted or conditional uses
as set forth elsewhere in this Chapter.
(c) Procedures for Establishing a Specific Use District: The following procedures shall
govern the application, consideration, content, and creation of a Specific Use District:
(1) Application: An owner and/or developer who desires to use property located in
the City in a manner which requires the creation of a Specific Use District must
file an application with the Planning Division for a zone change on forms
approved by the Planning Division, which application must contain at least the
following information:

(i) the name, address, and business phone number of the applicant;
(ii) if different than the applicant, the name, address, and business phone
number of the record owner of the property according to the Deed Records
of Kerr County, Texas;
(iii) if the applicant and/or owner are not individuals, the name, address, and
business phone number of the person or people authorized to act on behalf
of the applicant and/or owner in all matters relating to the application;
(iv) the full legal description of the property for which the application is made
and, if available, the street address of the property. If the property is
platted, the description need only include the complete lot and block
description. If the property is not platted, a metes and bounds description
certified by a registered public surveyor is required;
(v) if the applicant is not the owner of the property described in the
application, a sworn statement from the owner or legal representative of
the owner of the property that the applicant has been authorized by the
owner to make the application for the zone change;
(vi) a detailed description of the proposed use(s) of the property;
(vii) the availability and location ofoff-street parking;
(vii) the projected amount of additional traffic generated in and around the
property, the types of vehicles which are anticipated will visit the
;,, property, the likely changes in traffic patterns of the area around the
property resulting from the proposed use, and the possible impact such
changes in traffic will have on properties within 500 feet of the subject
property;
rww
(viii) the proposed number of occupants, employees, and/or users of the
property and the proposed hours of occupancy or use, including peak use
periods with estimated census during such peak periods;
(ix) if the use proposed will require deliveries of goods to the property,
provide the proposed location of loading/unloading areas;
(x) a statement as to whether or not the proposed use requires any type of state
or federal license or permit to operate, the type of license or permit which
is required, and the issuing agency of such license or permit, including,
but not limited to, any license required for the production, storage, use, or
disposal of hazardous materials or hazardous wastes;
(xii) the distance of the property from the Guadalupe River, any of its
tributaries, and/or any channel that drains to the Guadalupe River;
(xiii) the number and location of properties within one-half mile of the
applicant's property that have the same or similar use(s) as that proposed
by the applicant;
(xiv) the use of the properties within five hundred feet (500') of the perimeter of
the property described in the application;
(xv) one or more site plans, building elevations, improvement plans, and other
such drawings or pictures, graphically prepared in a manner that
reasonably illustrates the following:
a the location and dimensions of existing boundary lines, easements,
and required yards and setbacks;
b the location, height, bulk, general appearance, and intended use of
existing and proposed buildings on the site, indicating distances
from property lines and between buildings;
c the approximate location of existing buildings on the properties
adjacent to the proposed Specific Use District;
d the location of existing and proposed site improvements including
parking and loading areas, on-site pedestrian and vehicular access
and circulation, landscaped areas, utility or service areas, fencing
and screening, signs and lighting;
e the location of existing and proposed watercourses and drainage
features;
f for property with an average slope greater than 15 percent, a plan
showing proposed grading, drainage and erosion control measures,
or plans that are necessary according to other city ordinances
regulating storm runoff control;
g the relationship of the property and the proposed use to
surrounding uses, including pedestrian and vehicular access and
circulation between the property and adjacent properties, and any
proposed off-site improvements to be made;
(xvi) The non-refundable application fee established by the City Council by
resolution for zone change applications.
(2) Complete Application Required: No application for creation of a Specific Use
District shall be deemed to be complete until all information and items set forth in
Subsection (1), above, have been delivered to the Planning Division and the
required application fee paid.
(3) Preliminary Conference: Prior to submitting an application for creation of a
Specific Use District, an applicant or the applicant's authorized representative
must meet with the Director of Planning or designated Planning Division staff to
receive information regarding application procedures and requirements.
(4) Report of the Planning Division: Upon receipt of a completed application for
creation of a Specific Use District, the Planning Division will review and prepare
a report and recommendation regarding the application which shall be forwarded
.r to the Commission for consideration, which report shall contain:
(i) a review of the application;
(ii) a summary of any public comment received;
(iii) proposed conditions and development regulations to be applied if the
Specific Use District is to be granted;
(iv) and the recommendation of the Planning Director regarding the
application, or, if the Planning Director has no recommendation, a
statement to that effect.
(5) Public Hearing before the Commission: After notice has been published in the
same manner as required of a zoning amendment, but in no case earlier than
fifteen (15) days after receipt of the completed application, the Commission shall
hold a public hearing on the application for creation of a Specific Use District. At
the public hearing, the Commission shall review the application and receive from
the applicant, Planning Division staff, and others who have an interest in the
matter, facts and opinions concerning the proposed use and the proposed
conditions and development regulations to which such district would be subject.

(6) Recommendation of the Commission: After the close of the public hearing
described in Subsection (5), above, the Commission shall forward to the City
Council a recommendation regarding the adoption of an ordinance creating a
Specific Use District subject to the conditions recommended by staff with or
without addition or modification. In the event the Commission determines that
the application as presented is acceptable, but only if amended, the Commission
may recommend to the City Council approval of an ordinance creating the
Specific Use District subject to the incorporation of the changes recommended by
the Commission.
(7) Public Hearing before the City Council: After the action of the Commission
and notice has been published in the same manner as required of a zoning
amendment, the City Council shall hold a public hearing on the proposed
ordinance creating a Specific Use District. At the public hearing, the City Council
shall review the application and the recommendation of the Commission and
receive from the applicant, Planning Division staff, and others who have an
interest in the matter, facts and opinions concerning the proposed district and the
proposed development regulations to which such district would be subject.
(8) Action of the Citv Council: After the close of the public hearing described in
Subsection (7), above, the City Council shall consider the adoption of an
ordinance creating the requested Specific Use District subject to development
regulations and conditions establishing requirements and standards of operation,
location, arrangement, occupancy limits, and construction for the use for which
the district is created. In the ordinance creating a Specific Use District, the City
Council may impose such development standards and safeguards as the conditions
v~„ , and location indicate important to the health, safety, welfare and protection of
adjacent property and its occupants from excessive noise, vibration, dust, dirt,
smoke, fumes, gas, odor, traffic, explosion, glare, surface water drainage,
offensive view or other undesirable or hazardous conditions and the preservation
of existing trees, natural terrain features, and navigable streams and their
tributaries. Furthermore, the City Council may restrict the permitted uses in the
district to only those that are described in the application or may allow other
permitted uses that would otherwise have been permitted in the district had the
ordinance not been approved. The development regulations set forth in the
ordinance creating the Specific Use District may include, but not be limited to:
(i) building appearance and location standards;
(ii) requirements for special yards, open spaces, buffers, fences, walls and
screening;
(iii) requirements for installation and maintenance of landscaping and erosion
control measures;
(iv) requirements for street improvements and dedications regulating vehicular
ingress and egress, and traffic circulation;
(v) sign regulations more restrictive than those previously adopted;
''"~"" (vi) regulation of hours or other characteristics of operation;
(vii) establishment of development schedules or time limits for completing the
requirements set forth in the ordinance;
viii time limits after which the ordinance may be reviewed and/or terminate;
( ~)
(ix) prohibit uses that would otherwise be permitted in the zoning district in
which the property is located;
(x) such other conditions as the City Council may deem necessary to ensure
compatibility with surrounding uses and to preserve the public health,
safety and welfare.
(d) Effect of Adoption of Specific Use District Ordinance: The adoption of an ordinance
creating a Specific Use District does not repeal the existing zoning regulations governing
the property prior to the adoption of the Specific Use District ordinance; provided,
however, to the extent of conflict between the two ordinances, the regulations set forth in
the Specific Use District ordinance shall control.
(e) Repeal for Non-Use of Specific Use District Purpose: Upon a finding by the City
Manager that property located within a Specific Use District has not been used for a
period of two years for the purpose(s) set forth in the ordinance creating the Specific Use
District and which are described in Section (a.), above, for reasons other than non-use
resulting from fire, windstorm, flood, or other casualty, the Planning Director shall
forward a notice to the owner of the property with a demand to show cause why the
ordinance creating the Specific Use District should not be repealed. If no response is
received from the property owner, or if upon receipt of the owner's response the Planning
Director determines that the Specific Use District ordinance should be repealed, the
Planning Director shall forward such recommendation to the Commission for its
consideration. The repeal of the ordinance shall proceed in the same manner as described
in Section (d.), above.
(f) Zoning Regulations Upon Repeal of Specific Use District Ordinance: The repeal of an
ordinance creating a Specific Use District must specify the zoning district regulations
which shall govern the property upon enactment.
(g) Use Not Non-Conforming Use: A use which is permitted on property solely as the result
of passage of an ordinance creating a Specific Use District does not become a non-
conforming use upon repeal of that ordinance and must cease immediately upon the
effective date of the repeal of the ordinance.
(h) Certificate of Occupancy: An owner must obtain a certificate of occupancy prior to
using property for the purposes set forth in a Specific Use District ordinance. Unless
otherwise set forth in the Specific Use District ordinance, no certificate of occupancy
shall be granted until all items and/or structures required to be constructed, including, but
not limited to, all buffering elements and traffic control devices required by the
ordinance, have been completed and accepted by the City.