ORDER NO. 30636 FLOOD PLAIN PERMIT TO MARTIN MARIETTA MATERIALS SOUTHWEST, INC. Came to be heard this the 26th day of November, 2007, with a motion made by Commissioner Baldwin, seconded by Commissioner Letz. The Court unanimously approved by vote of 2-0-1 to: Affirm or uphold the issuance of the haul road permit by the Floodplain Administrator to Martin Marietta Corporation. .~a b3~ I.~~ COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH QNE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVlEwED BY THE COURT. MADE BY: Commissioner Williams OFFICE: Precinct 2 MEETING DATE: November 26, 2007 TIME PREFERRED. 1:30 p.m. SUBJECT: (Please be specific). Hearing on Appeal of J. Nelson Happy to the issuance of a Flood Plain Permit to Martin Marietta Materials Southwest, Inc., far a "Haul Road" as specified in the Permit Application; and appropriate action as may be required. EXECUTIVE SESSION REQUESTED: NAME OF PERSON(S) ADDRESSING THE COURT: Commissioner Williams. ESTIMATED LENGTH OF PRESENTATION. 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 SS1 and SS2, 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. Backup Statement for Agenda Item - _ _ _ ~a~materials-fo,- *t..i _agenda ~t~''r'~e~ ----- .__ _ _ __ -- 1. Letter from J. Nelson Happy dated 11/14/2007, requesting a continuance of the matter. Provided to Court on 11/1412007. 2. Reply Brief from J. Nelson Happy in support of his "Appeal of the Granting of a Development Permit to Martin Marietta Materials Southwest, Inc.;'dated 11/14/2007. 3. Memorandum from County Attorney Rex Emerson dated 11/14/2007, reciting relevant issues to be heard by Court. 4. Correspondence from County Attorney Rex Emerson dated 1014/2007, accompanying documents from the file of Kerr County Road and Bridge Department on this matter. 5. Martin Marietta brief to be provided by their attorney. PUBLIC PARTICIPATION FORM FOR KERR COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for th~lerk to ~n ure that one is put into the record. Name: ~ (f~ C S Address: ~ U~ ~~~~~- ~~ Telephone: S D ~ ~ 1 ~ ~ 5~ ~ ~--- ,~.~- Place of Employment: ~'~ S ~ ~~lifv ~ i ~ ~~~ -, Employment Telephone: ~ -~ ~ "~ ~/ ~~ " ~ ~ ~ ~''" Do you represent any particular group or organization? Yes / No If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address In general, are you for or against such Agenda Item Signatu ~~~ ~ ~~~ Items) . Foyer Against NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. PUBLIC PARTICIPATION FORM' FOR KERB COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: Place of Employment: /T Employment Telephone: /~--- j~/~1~~/~~ Do you represent any particular group or organization? Yes No (~ If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address:~'~~~.~'i~ ~,~~~,~© ~ In eneral are ou for or a ainst such A enda Item or Items or A ainst 9 ~ Y 9 g ( ) 9 .~~~U S gnature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. Telephone: ~:~Z> --~~~°- ~~~~ PUB~~IC PARTICIPATION FORM' FOR KERR COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly.. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: cj t~h1-~ l~ r/ N ~ Address: ~l Telephone: ~v ~~ - a,5 `~ ~ Place of Employment: {~,p~~ r Employment Telephone: Do you represent any particular group or organization? Yes No ~ If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address t a` c In general, are you for or against such Agenda Item (or Items)? For Against Signature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. PUB~~IC PARTICIPATION FORMS FOR KERR COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: Address: ~~'~~ ~Gt ~~~ Telephone: Place of Employment: Employment Telephone: i Do you represent any particular group or organization? Yes No 1/ If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address ~. ~ ~~~ ~ ~ In general, are you for or against such Agenda Item (or Items)? For Against / ~~'.I~-~ Signature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. PUB`t~C PARTICIPATION FORM FOR KERR COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: ~) I ~~_ ~\ ~~`t~ ~ Address: Telephone: QED- Z 7?- Da-3-J Place of Employment: ~~--z~r~.. Employment Telephone: Do you represent any particular group or organization? Yes No If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address: ~11(~1,~-tv~ ~~~ ~-~ Yvc~ In general, are you for or against such Age a Item (or Ite )? For Against ~~ Signature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. PUB~~IC PARTICIPATION FORM' FOR KERR COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: ~- p ~N -~ ~- `/ ~.~ c, Address: ~~~, (n ~ f ~-~ %f ~c~ Telephone: (~ ~ ~ " ~ ~~ 6 Place of Employment: y ~~ ~ ~~ Employment Telephone: Do you represent any particular group or organization? Yes No ~/ If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address: ~e..i,t~~tem~~S ~~-I r~lw~~-,;L~ ~'~~,~~:~~,~d,~,,t In general, are you for or against such Agenda Item (or Items)? For Against _ x~ -~ Si ture NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. PUBLIC PARTICIPATION FORM FOR KERR COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: ~~~~ ~^yti'G~'~~ Address: ~ l f~`~ ~~~ Telephone: ~~~~ -~>> ~~ j~~ ~- Place of Employment: ~~1~"~ Employment Telephone: Do you represent any particular group or organization? Yes No ..° If you represent a group or organization, please state the name, address and telephone number of such group or organization: Which Agenda Item (or Items) do you wish to address: ~~'C'1~~~-~~~'~`,~ ~~ ~~ ~~ r~ti~ ~'~nur In general, are you for or against such Agenda Item (or Items)? For- Against ~ Signature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. PUB`tIC PARTICIPATION FORM FOR KERR COUNTY COMMISSIONERS' COURT INSTRUCTIONS: Fill out all appropriate blanks. Please print or write legibly. Present to the COUNTY CLERK prior to the time that the Agenda Item (or Items) you wish to address are discussed. If you are handing out any material or documents to the Court, please make sure you have one extra copy for the Clerk to ensure that one is put into the record. Name: 'k;, r-I ~ - Address: i ~ Z c-r~-t P~z ~; 5~~ i ~ ~ ~ ~ ~"'' WwTbn- < <~~C ~ o Z ~ 1 Telephone: ~; o ' S-s ti - s~ ~ ~ - Place of Employment: C~~ S3-~.~~h., .C~~~h~-s /~.<7 6~7~'es s tea N- /3-f' ,,~„g~lL~ Which Agenda Item (or Items) do you wish to address: N~~JL /2-a>~ In general, are you for or against such Agenda Ite r ems)? For- Against ~ ti Signature NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed. Once you reach the podium, please state your name and who/what you represent clearly for the court reporter to accurately record who you are. IN THE COMMISSIONER'S COURT OF KERR COUNTY TEXAS In Re: Appeal of Flood Plain Development Permit Issued to Martin Marietta Materials November 26, 2007 Southwest, Ltd., J. Nelson Happy, Appellant MOTION TO VACATE DEVELOPMENT PERMIT DUE TO APPARENT CONFLICT OF INTEREST OF THE FLOODPLAIN ADMINISTRATOR Appellant J. Nelson Happy hereby moves the Commissioner's Court for an order vacating the Floodplain Development Permit granted to Martin Marietta Materials Southwest, LLC ("MM") by the Kerr County Floodplain Administrator because he does business with MM and therefore has an apparent conflict of interest for the following reasons: 1. The Floodplain Administrator is also the Administrator of the Kerr County Road & Bridge Department and in that capacity does business with MM. MM has been a bidder on Road & Bridge materials bid solicitations since at least March 13, 2000. (Minutes of this Court are not readily available before year 2000.) According to the Administrator: "I hear some people bidding stuff they don't even have. I mean, you know, and I know the vendors, so I -- I know they don't have it." (Minutes of Commissioner's Court, March 13, 2000 where bids from MM are being considered. Emphasis added.) 2. On April 10, 2006, the Floodplain Administrator explained how he was attempting to promote aggregate suppliers to bid on county Road & Bridge solicitations. (Exhibit "A"). He stated: "The only bid we got for base material was from Lucky 3. Sent bid to 23 and even called for correct address 7=8 for base & got 1." (A list of potential bidders prepared by the Administrator is attached as Exhibit "B".) MM is in the business of selling base material. Lucky 3 has gone out of business. So it is no wonder that the Administrator of Road & Bridge would want to facilitate another bidder such as MM to participate in the bidding process. In fact, the Administrator recommended (and obtained) the Commissioner's Court's acceptance of MM's bid for "Cold Mix, Black Base". (MM had presented bids on the county's solicitation for Black Base, Cold Mix, and Trap Rock.) MM's bids were signed by Sandy Garcia, the same person who is applying for the Floodplain Development Permit on its behalf. (Exhibit "C" and Exhibit <Y '~ ~~ITon,,,~~S.y~•~ ` ~a~~ Derr County retains the rights to add transportation charges to the unit- price spawn above to determine the "Low Bid" for a particular j ob site. This may insult in mare than ane supplier being "I.ow $idder,' depending oa the locaizons of lob sites. Prices for each item bid as showaa above may be increased or decreased by the amount each increase or decrease is supplier's established price for such product oc~c~rrirtg after tt~e date of this bid apenin and up to the date of delivery. E$ch grime ~~ge shy he mad''e ~4~ by a letter addressed to the Read ~& Bridge Ad~istrator, 4410 Sa±a Antonio Hwy, I~en siiile, ~'X ?5428, stating the price change and effective date. If a pace incxe~ses from that shown above, the County niay elect to terminate this contract if the County is able to purchase, from another source on similar terms, Product of like grade and quality, and in like amount st a lower price than the increased. price and succes-~ bidder declines to meet s~.~ch lower price. i d e by rtifY that I have read the attached Special Instructions to Bidders and that ~ 'ce u rein axe to begin Apri3 10, 2005 and be ix1 effect until April 1, 2047. l_________ - - ~~ l~ ~ ___- Date Signature Firm 1la.rne: ~' . Address: ~~ Z, ;s ~~ev-5 i , l ~~ ~ ~-~~ . ,~ Seal in Corporation Telephone: ~ ~~~q ?1U :?d~3 ~z4~ Annual Bid Summary Corruga#sd. M~tai ~ip~ Wilson Culverts Waiter's Baildin Contech Coast. Culverts Size 15" Arch b.b7 7`.3'7 $.20 h i 8" Ar 7.94 8.81 9.75 c 95 12 h 24" Ar 10.48 i 1.66 . c 16.25 30" Arch 13.21 14.51 20 8 li 15" C 10.01. 11,06 . n ou 75 9 ~ $" C i 191 13,22 . o 1 12 95 " C 15.72 17.48 . o 24 25 15 30" Coupling 19.$2 21.77 . BASE MA'iTR~a~ The only base hid received vas from Lucky 3 Ivlaterials for Type A, Grade 2, FQB Plant $4.35 EM[UI.SI~DN ~II..S CRS 2 1.20 - 1+Io Bid AEP 1.50 No Bid ASPHALT Marlin Marietta Vulcan Paving Aggt'ega~ Vulcan. Marlin Marietta Product 2x.88 Tra Rock -Grade 3 26.60 '1'ra Rock -Grade 4 2b_b0 26.$8 Trap Ruck -Grade 5 26.50 26.88 Appeal of Floodplain Development Permit for Martin Marietta I. MMs application far a construction permit to build a "haul road" is actually seeking a Floodplain Development Permit to allow it to mine its leased property located in the floodplain. MSI-IA: Mine means "(A} an area of land from which minerals are extracted [and] (B} private ways and roads appurtenant to such area." ILArt. 4 Sec. B (4) of this Court's Order No.164b3 that all necessary permits "have been obtained from those Federal, State or local governmental agencies ... from which prior approval is required" before a permit can be granted. A. The Airport Hazard Zoning Ordinance that was adopted by this Court and the City of Kerrville in 1992 requires a permit before a use of property located in these zones can be changed. According to Bruce Motheral, the proposed site lies partially under two slope zones as well as the 1,000 foot Horizontal Surface of the airport. Hazards to aviation are prohibited. B. The US Army Corps of Engineers has not conducted a review of the impact of constructing a haul road on the H. M. Naylor Ranch. Nation Wide Permit No. 14, "Linear Transportation Projects." NWP 14 paz. 13 (b) provides: If district engineer believes that the potentially eligible historic property ... may be 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 effects that the ACHP and the SHPO must consider include "introduction of visible, audible or atmospheric elements that are out of character with the property or alter its setting." (Sec.15 (b) (4). 2. The Clean Water Act gives the USACE jurisdiction over wetlands. SWCA Environmental Consultants found a wetland at the project site. III.Food Prevention Order provides for consideration of: Section C (2) (d) "The compatibility of the proposed use with existing and anticipated development " C (2} (~} "The relationship of the proposed use to the comprehensive plan for that area." 1. City of Kerrville Comprehensive Plan and ETJ gateway to Kerrville. 2. Airport Industrial Park prohibits mines. 3. Growing single family uses, such as Shady Grove, new sewer. IN THE COMMISSIONERS' COURT OF KERR COUNTY KERRVILLE, TEXAS 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 Appellant P.O. BOX 464 CENTER POINT, TX 78010 830-285-2626 jnhapp@aol.com November 26, 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. It 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 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 to build a "haul road" is actually seeking a Floodplain Development Permit to all it to mine its leased property located in the floodplain. Building a haul road is part of mining operations. Companies operating quarries are required to comply with MSHA, the Federal Mine Safety & Health Act of 1977, Public Law 91-173, as amended by Public Law 95-164. In Definitions Sec. 3, the law states: "For the purpose of this Act, the term-`coal or other mine' means (A) an area of land from which minerals are extracted .... [and] (B) private ways and roads appurtenant to such area, ...." And the U.S. Department of the Interior in 43 CFR 3715.05 defines mining operations as: "...all functions, work, facilities, and activities reasonably incident to mining or processing of mineral deposits. It includes building roads ...." (Emphasis added). Although Martin Marietta prefers to refer to its permit application as one fora "haul road" in fact it is seeking a permit to begin mining operations on a new site. Martin Marietta applied for and obtained on January 30, 2006 Floodplain Development Permit No. F06-003, which expired on January 30, 2007. In a letter to Leonard Odom dated January 23, 2007 Martin Marietta stated: "Please note that we will not be requesting a renewal for Floodplain Development Permit No. F06-003 .... We do, however, plan to apply for a renewal as soon as flooding events replenish the mined area of gravel." On August 14, 2006 Mr. Sandy Garcia made the following comments to this Court: Our mining plan -- excuse me. We plan on starting our mining in the first -- at the first week of September, starting at the center and the east end of the property. And the travel path from -- and we'll show you that on our map. The travel path from the property to our current mining operation will be on the north end of the Drymala property, and across Sutherland Road. That's the area in red we're planning on mining. And the arrows --the blue arrows indicate where we will start center and east, and then move on to the west. And then the proposed travel path, which is the north end of the Drymala property and across Sutherland Road. In a letter dated December 21, 2006 Ryan K. DeBarros wrote to Mr. Odem: "Future mining activities are planned for areas described as 100-year floodplain the current FIRM map. Submittals to the National Flood Insurance Program (NFIP) are pending in order to correct the FIRM map representations." No FIRM map representations have been "corrected" to date, however. After a file review, FEMA stated that no "correction" request had been received. Also, 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 its 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" to the FAA 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 application is granted, Martin Marietta will use the haul road for its mining operations next to the H. M. Naylor Ranch, the Kerr County Municipal Airport, the Airport Industrial Park and the homes in the Shady Grove neighborhood. 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. ~~ This part of the Order states that the Floodplain Administrator must: Review permits for proposed development to assure that all necessary permits have been obtained from those Federal, State or local governmental agencies (including Section 404 of the Federal Water Pollution control Act Amendments of 1972, 33 U.S.C. 1334) from which prior approval is required." A. The City of Kerrville has not granted Martin Marietta a permit to change the use of the property from agriculture to mining in protected airport navigation zones pursuant to the Airport Hazard Zoning Ordinance. In its Brief, Martin Marietta concedes that its proposed mining activity is within the zones protected by the Ordinance. In a letter from Motheral Industries, Inc., to Martin Marietta dated August 14, 2007, R. Bruce Motherhal states: "The proposed site does lie partially under two (2) slope zones (50:1 Approach Slope, 7:1 Transition Slope) as well as the 10,000-foot Horizontal Surface." (A copy of the Ordinance is attached as "Exhibit 1 "). In its brief, Martin Marietta also concedes that "[g]enerally, no material change may be made in the use of land and no structure may be 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. However, the Ordinance provides that any change of use of land in these zones requires a permit from the City Manager of Kerrville. (If no change of use is planned, and the proposed structure is less than 75 feet high, then no permit is necessary. This exception does not apply here, as Martin Marietta intends to change the use of the property from agricultural to mining.) See Ordinance Sec. 7 A. It is incomprehensible 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 4 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:" "... [N]o use may be 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 ..." 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 Commissioner's 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 the aircraft flight paths. (These are the protected zones under the Ordinance.) 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 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. 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 happened to omit one 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, 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 ... may be 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 "effects" he must consider, that are not among those mentioned by Martin Marietta in its brief, include: "[i]ntroduction 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 6 provisions are attached as "Exhibit 5".) If every mining company like Martin Marietta were 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 Commissioners 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 sand and gravel mine so 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 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 has informed TCEQ that Martin Marietta is not entitled to this permit. The General Permit To Discharge Waste is for construction projects, not permanent sand and gravel mines. 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 revoked or not renewed. If it does not have a General Permit to Discharge Water, then Martin Marietta's mining plans may change. 7 E. The U.S. Army Corps of Engineers has not reviewed the potential impact on wetlands located on the proposed mining site. Martin Marietta implies that their proposed mining operation will not affect the wetlands adjoining the H. M. Naylor Ranch. They cite 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 letter does not say that there are no wetlands present, only that none have been "delineated" yet. Martin Marietta fails to mention in their Brief a letter it wrote to Leonard Odem dated October 2, 2006 from Lalit Bhatnagar, PE, Division Environmental & Natural Resources Manager of Martin Marietta that states: "SWCA Environmental Consultants conducted the pedestrian survey of the site area on September 4, 2002. Soil Survey Maps were also reviewed. A small wetland area occurs at the confluence of the Nolin Hollow drainage and the ditch." (Emphasis added.) They also fail to mention Mr. Garcia's comment to this Court on August 14, 2006: "Here we're just simply showing the creek that exists on the property. That's on the east -- on the east end of the property. There's two little tributaries there that feed that from 27." 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 Nolin Creek, named after one of Kerr County's most prominent Confederate heroes, Dr. James Christopher Nolin. Despite Martin Marietta's admission that wetlands are present on the property, the Floodplain Administrator has not made any effort to delineate 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. Because, based on Martin Marietta's own research, wetlands are present on the Max Duncan property, there are many federal protections for them under the Clean Water Act and other legislation and regulations too complex for inclusion here. However, Appellant sent a notification of the existence of the wetlands to the U. S. Army Corps of Engineers so that it can begin the process of delineation and protection of the wetlands. The proposed 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". 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 2007. 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 floodplain permit can be rg_anted 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 5th 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 "permiee" to the Corps is not diapositive 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. L ~n v. Payne, 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 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). 9 The effects of their mining operation may be 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 county's plan to provide sewer and water service to Center Point will cause more single family development in the neighborhood between Kerrville and Center Point. And 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 sand and gravel mine. In discussions with Martin Marietta about restoration of the land surface when mining operations are eventually complete, I was told that its plan is to simply push the soil that covers the sand and gravel back in the holes, leaving a 40 foot pit next to Highway 27 forever. So the blight on the landscape caused by Martin Marietta 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 ceased operation, and Wheatcraft Materials was vehemently opposed by the Center Point community. Wheatcraft 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 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 permitting process with the TCEQ 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 10 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. There are three plans near the proposed mine site. 1. Airport Industrial Park. Deed restrictions on the land in this park specifically prohibit mining. 2. City of Kerrville Comprehensive Plan. The proposed mining operation is located in the City of Kerrville's ETJ. The 2002 Kerrville comprehensive plan places a priority on "gateways" to the City. The proposed mine will be located at a Gateway to both the City and the airport. It is not a compatible use for a gateway. And as Kerrville grows, the City's ETJ will grow to three miles from its city limit, so the City will have even greater jurisdiction over the Martin Marietta mining operation. (Exhibit 8.) 3. Airport. No mining activities are permitted at the airport which is immediately across Highway 27 from the proposed mine site. A future precision approach to the airport may be interfered with by Martin Marietta's proposed mine expansion. 4. Airport Hazard Zoning Ordinance. No new uses are permitted in the airport hazard zone without the approval of the City of Kerrville. 5. 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. y submitted, J. N son Happy PO ox 464 enter Point, TX 78010 830 285 2626 11 -searing on Appeal of J. Nelson ~aPPY ~o ~e issuance or a riooa rr~ rGi~< <~ 1V1~ ~ ... ` "s" ~ "~ ` From: Joseph Luther kerr.tx.us kerr.tx.us; bbaldwin~co.kerr.tx.us; t~Ciams[~co.kerr.fac.us;1"~tz~co.kerrbc.us; boehier~co- To' ~~ aol.com>; Wiliam Rector ; Cc: jgrinstead~co.kerr.tx.us; Mary Matthews < ktc.~Arrt>; Mike Walter Schellhase ~ Julius Bowfin ;Lew Williams ; Lea Belt ; Jufia Wendel Stehfing ; Joe Luther ; Joe Burkett ; Jeanie Archer Webb ; Irecie Van Winkle ; Franoelle Collins ; Brenda Craig ; Ann Bethel . g~ F{~ring on Appeal of J. Nelson Happy to the issuance of a Flood Plain Pemtit to Martin Marietta Materials Southwest, Inc., Date: Sun, 25 Nov 2of}7 821 pm Honorable Members of the Commissioners Court Regarding your 1:3Q PM hearing on Item 1.19 -- "Hearing on Appea# of J. Nelson Happy to the issuance of a Flood Plain Permit to Martin Marietta Materials Southwest, Inc., fora "Haul Road" as specifed in the Permit Application; and appropriate action as may be required, (Comm. Williams, Pct. 2~". Please be advised that the H,M, Naylor Ranch site (J, Ne#son Happy has an application for a Recorded Texas Historic Landmarks (RTHL1 designation in~rocess with the Kerr County Historical Commission at this time. The Kerr County Historical Commission is providing this notification as a "Friend of the Court" (Amicus curiae) to the Kerr County Commissioners' Court. The Kerr County Historica# Commission. does wish to note that a Recorded Texas Historic Landmarks designation is a legal designation and comes with a measure of protection. It is important to note that the Texas Historical Commission has made a determination that the Naylor Ranch site is eligible for designation as a Registered National Historic Landmark, Given this determination of record, there is #ittle doubt that that a similar designation can and will be made at the state level. The Recorded Texas Historic Landmark (BYRE) designation is awarded to historic structures deemed worthy of preservation for their architectural integrity and historical associations. Authorized by the Texas Legislature under Texas Government Code, Chapter 442, RTHL is the highest honor the state can bestow on historic structures in httpJ/webmail.aoLcom/31361/aoUen-us/MaiUI'rintMessage.aspx 11/26/2U07 Hearing on Appeal of .f. Nelson happy to the i55uaucc vi a j~iu~u j jµ••i = ~=u--~ ~~ _ _r. _~ Texas. Properties so designated are afforded a mess f the states built protection and become part of the recorded history o environment. Please see .Chapter 442 for the. Texas Historical Commission. Nate: section 442.006 includes guidelines for the protection of RTHLs. Qr. Luther will be at the hearing tomorrow and will be pleased to answer any questions regarding the Kerr County Historical Comrr~ission's procedures for Recorded Texas Historic Landmark applications. Respectfully yours, Haskell Fine, Chairman Kerr County Historical Commission Telephone - 830- 895-4056 ~4UTUTEXTLIST ~s "E-mail Signature" 3oseph Luther, nice Chairman Derr County Historical Commission ~1t~ther cl stx.rr. om_ Telephone - 830-377-1305 25 November 2007 b //webmail.aol.com/31361/aoUen-us/MaiUPrintMessage.aspx 11/26/2007 ~P= ^~ ~ O C v ~ C ~ O ~ o rd v"~ ~ .~, ~ ~ ~ .-C .d 'S ~ ~ ~ ~ ~-J ai 'PJ O ~ E"i ,~ .C "7 ~ ,~ O ,b ~ ~ ~ O . a ~ O a ~ ~ ~ ~ ~ ,D rJ ~ ~ .b O ~ o ~ n0 C7 ,«. v 0 ~' ~ 'b '~ ~ -r .~ o o ~ $ p ~ ~ T ° ~ cU. ~ ~~ a ~ C'rJ' `,° ~ ~ 'n o pub o_0 c~ y ~b v 'C o 4. C ~ ~ ~ v ~ vroi 'L~ ? '3 .V ° ~ u, ,u ~ ' ~ _ F., ~ O , G ~ R, n ~ ~ ~ ~ X S N ~ ti ~ v ,D ~.^ `~ ~ ~ G ~v-! ~ C QOa N ~ 'O i ' a ~, c O -.-. N .~ ° p ' ~ a, ~ ,~ r1 ,.. C V ~ ~ iv .~ d ° ~ a~ . ;' ~ b aQ1i v°' Oo av 3 ~ ~ b ~ E a ~ ~ D . O O N ~ ~ o R. ~~y ~ °' °D / .ao o v ~ ~ ~ ~ n, v O ~ c~ji ~, .-..~ ~ ~ j 4" ~ ~ [ ~ .~ N NC ~ v ~ ~ A x ' ' ~ ~ A . O, w pa,~~ ~.' ~ ~ O ~ ' U . O .! 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Page 1 of 2 From: Joseph Luther To: cojudge@co.kerr.tx.us; bbaldwin@co.kerr.tx.us; bwitliams@co.kerr.tx.us; jtetz@co.kerr.tx.us; bcehlerraico.kerr.tx.us Cc: jgrinstead@co.kerr.tx.us; Mary Matthews ; William Rector ; Walter Schellhase ; Paul Parks ; Mike Bowlin ; Lew Williams ; Lea Befl ; Julius Neunhoffer <9hoffer@maverickbbs.com>; Julia Wendel Stehling ; Joe Luther ; Joe Burkett ; Jeanie Archfer Webb ; Irene Van Winkle ; Francelle Colons ; Brenda Craig ; Ann Bethel Subject: Hearing on Appeal of J. Nelson Happy to the issuance of a Flood Plain Permit to Martin Marietta Materials Southwest, tnc., Date: Sun, 25 Nov 2007 8:21 pm Honorable Members of the Commissioners Court Regarding your 1:30 PM hearing on Item 1.19 -- "Hearing on Appeal of J. Nelson Happy to the issuance of a Flood Plain Permit to Martin Marietta Materials Southwest, Inc., fora "Haul Road" as specified in the Permit Application; and appropriate action as may be required. (Comm, Williams, Pct. 2)". Please be advised that the H,M, Naylor Ranch site (J. !Nelson Happy) has an application for a Recorded Texas Historic Landmarks (RTHL) designation in process with the Kerr County Historical Commission at this time. The Kerr County Historical Commission is providing this notification as a ~~Friend of the Court" (Amicus curiae) to the Kerr County Commissioners' Court. The Kerr County Historical Commission does wish to note that a Recorded Texas Historic Landmarks designation is a legal designation and comes with a measure of protection. It is important to note that the Texas Historical Commission has made a determination that the Naylor Ranch site is eligible for designation as a Registered National Historic Landmark. Given this determination of record, there is little doubt that that a similar designation can and will be made at the state level. The Recorded Texas Historic Landmark (RTHL designation is awarded to historic structures deemed worthy of preservation for their architectural integrity and historical associations. Authorized by the Texas Legislature under Texas Government Code, Chapter 442, RTHL is the highest honor the state can bestow on historic structures in http://webxnail.aol.com/31361/aollen-us/MaiUPrintMessage.aspx 11/26/2007 Hearing on Appeal of J. Nelson Happy to the issuance of a Flood Plain Permit 1:o Martin ... Page 2 of 2 Texas. Properties so designated are afforded a measure of legal protection and become part of the recorded history of the state's built environment. Please see Chapter 442 for the Texas Historical Commission. Note: section 442.006 includes guidelines for the protection of RTHLs. Qr. Luther will be at the hearing tomorrow and will be pleased to answer any questions regarding the Kerr County Historical Commission's procedures for Recorded Texas Historic Landmark applications. Respectfully yours, Haskell Fine, Chairman Kerr County Historical Commission Telephone - 830- 895-4056 AUTOTEXTLIST ~s "E-mail Signature" .loseph Luther, 'Vice Chairman Kerr County Historical Commission ilu_ther stx.rr.com Telephone - 830-377-1305 25 November 2007 http://webmail.aol.com/31361 /aoUen-usJMaiUPrintMessage.aspx 11 /26/2007 v ~ ° .5 °~'.. o u v o ~.~ v v 3 ~ ¢y ,~ ny ' ~ b ~ ~ ~ ~ b C1 N ur ° o ' -~ v ro ~" ro m .V v av + ); CL LY E a .~ ~ - -~ ~ v° G ~~ G m Cum u ~ 7 O O ~ ~ ~ 666111 o v 3 v v v~ O Dly .fl ° E ~ ;fir. . ~ .c N ° ~ io ~ ~ ~ ro = r~ . .,.., a., c ~ a> ~ s.. ~ b0 a• w o A ,~ C ro ~ °ro' ?~° a" o ~'~ "~ nom' °v' E ~ 3~ v ~ ~ ~ ~• r`4 ~ °J ~ T- J '~ aJ ° 0 7 ' G ~ CU a~ ro o ~ o ~ `° . o a .y r, Y ° ' ~ a ° ~ o " ~ ~ ' ~ '~ '° ' ? 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'~ -1 i ~ .,,, ~ o n ~ ~ n t ~ m/t N 1~ r a-nrnp1Y' ~- -- . ~nr` ~ 1 b © IC.vna~ S E - -:~ / :Z ~ ~ o iii - 0 ~I'~ -P.c.<.~ c~y lamed "~ vn r~.cd. s ~ -nru~ s '~ ~-e ~ Sht. d-w-v,~ir~ -f l~ c~ -.v- ~d-eNs ~ 3l Z 1.n ~ o~ ~ Irv ~s ~c1 -`ti'1 N1 n ~~ vv~ ; ~e c~ ~-ea :3~ ~ i ~ b ~.. P~'~~ ~ corn' na dram /~'~ r pb ~ ~ ~~ 3i ~ d `~ ~ ~~ ~ ~'~~I~s ~~ ~c~ ~~ ~i s ~ ~ ~ °o ~N ~ ~ ~o ?S s n ~ s~ ~~ ~~ s '} ~~ ~ ~..~ b N ,~ 1..~ ~ ~, ~ ~~ o ,.} ~, ~ ~ ~ ~~ ~ ~,- -~ --~ a cb ~ ~ O .. ~~~~ a- d ~~ ~ t/1 0~~~ OF N KERR COUNTY ATTORNEY V ~ ~~ REX EMERSON COUNTY COURTHOUSE, SUITE BA-lO3 7OO MAIN STREET KERRVILLE, TEXAS 78028 October 4, 2007 Bill Williams Commissioner Precinct 2 RE:1VIartin Marietta Flood Plain Permit for a haul road Dear Bi1I: On May 14, 2007 the Commissioners Court suspended Martin Marietta's flood plain permit relative to tlYe propased 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 botll parties that Finod Plain Kermit No. F07-002 originally issued on February 15, 2007 should be reinstated for the limited purpose to which it was granted. Any additinnai deveinpment in the Flood Plain will require additional perlnrts. Rex Emerson cc: J. Nelson Happy Rodrigo J. Figueroa o c r o 4 200 MAIN NUMBER (830) 792-2220 HoT CHECKS (830) 792-2221 FAx (830) 792-2228 Website: http://www.co.kerr.tx.us/attorney ORDER N0.30261 APPEAL BY J. NELSON HAPPY TO PERMIT FOR MARTIN MARRIETTA MATERIALS SOI:ITHWEST, LTD. Came to be heard this the 14th day of May, 2007, with a motion made by Commissioner Williams, seconded by Commissioner Letz. The Court unanimously approved by vote of 4-0-0 to: Move that the Kerr County Floodplain Development Permit #F07-002 to Martin Marietta. Materials Southwest, Limited, as referenced in Mr. Happy's appeal, be suspended until the County Attorney has had an opportunity to review everything and all other agencies who have any overview have submitted their findings, in writing, back to this Court, to meet all requirements of our Court Order that was passed in 2000. Complete Apply Date 2/15/07 Application # F07-002 Yes/No Amount Paid $400.00 check # 758095 Tracking Receipt # 348315 Purposes Cash Only Paid By S.P. Zelnak Received By Barbara Guthrie Permit Type Commercial Permit owner Martin Marietta Materials Agent or Buyers c;tySan Antonio State TX Zip 78240 Mailing address 5710 W Hausman, Ste 121 Phone 210-208-4573 Cell Phone Fax 210-208-4316 Realtor for Seller Realtor for Buyer Realtor for Seller Phone Realtor for Buyer Phone Physical Address 5529 Hwy 27 Appraisal ID #: R 60261 Subdivision Name Acres 104 Block # Lot # Volume Page Name of Stream Guadalupe River Distance from Site (ft) Elevation Above Stream (ft) Directions to site Hwy 27 to Sutherland, West side of Sutherland Existing Septic Septic License # Type of Dwelling Non-Residence Structure Water Supply Sq. Ft. Sq ft non resid Flood Hazard ZoneAE FIRM # 48265C0275E FIRM Date 7/19/00 BFE County Signature Leonard Odom Signature Date 2/15/07 comments: Building access road across Zone A to mine in Zone X. FEMA Elevation Certificate Required FEMA Elevation Certificate Completed by: Date of FEMA Elevation Certificate " 1 v ~. i;.: Leonard Odom, Jr. C.F.M. Floodplain Administrator 4010 San Antonio Hwy. Kerrville, TX 78028 Telephone 830-357-2993 FAX 830-896-8481 Email: kcroads~n,ktc.com KERB COUNTY FLOODPLAIN DEVELOPMENT PERMIT (Valid for One (1) year) NAME OF PERNIITEE: MARTIN MARIETTA MATERIALS SOUTHWEST, LTD. PERMIT NO. F07-002 The above named permittee applied for a floodplain development permit on February 15, 2007. The Kerr County Floodplain Administrator has reviewed the application, and it is his determination that the proposed development is located within an identified floodplain of Kerr County. The Floodplain Administrator has reviewed plans and specifications of the proposed development for conformance with the development standards required by Kerr County Floodplain Management regulations. You are hereby authorized to proceed with the following described work: Build an access road at ground level across Zone A to Sutherland Lane on the property: Parcel # R 60261 running between CP River Road and Hwy 27, West of Sutherland Lane. To maintain compliance with the development standards of Kerr County Floodplain Management regulations and to eliminate or minimize flood damage potential to the proposed development, you are hereby directed to construct your proposed development in accordance with the following special provisions: ( )For residential structures, the lowest floor (including basement) must be elevated to feet mean sea level. ( )For non-residential structures, the lowest floor (including basement) must be elevated or flood proofed to feet mean sea level. ( ) Permittee must submit a certification from a registered professional engineer, architect, or land surveyor that the finished floor level of the residential structure has been constructed at the specified elevation. ( )For non-residential flood proofing, a registered professional engineer or architect must certify that the flood proofing methods are adequate to withstand the flood pressures, velocities, impact and uplift forces and other factors associated with base flood. ( )The foundation of the structure must, at a minimum, comply with the specifications attached. OThe materials used in the structure must be from the list attached. ()The water supply inlet and sanitary outlet must have an automatic back water or back flow device installed. (X) Provide a certified copy of all final plans or as-built drawings of the access road crossing of the A Zone to the Floodplain Administrator. ( )~ Other provisions (see attached list) 1) Place permanent markers in the ground along the AE & A Zones of the floodplain in such a way they are visible for the employees working in the area; 21 mark on the ground where the access road crosses over A Zone; 3) no mining is to be done in the Zones A or AE under this permit; 4) no materials will be stockpiled in Zones A or AE. 1 /A-d ,7 Date Date n c 0 c --a N d f'l fTl '0 D Z d f'l ''l ---i r r H n d 3 D C7 --i fTl d D d tU D N f'l Ll /~ D d -~„~. MII~ February 14, 2007 MOTHERAL INDUSTRIES INCORPORATED 812-a Sidney baker • kerrville, texas 78028 (830) 257-6360 • fax (830) 257-6361 Mr. Len Odom Kerr County Flood Plain Administrator 4010 San Antonio Highway Kerrville, TX 78028 Re: Flood Plain "No-Rise" Certificate Martin Marietta Materials -Bedrock Project Kerr County, TX Dear Mr. Odom: This letter is to describe a proposed haul road for the Bedrock project expansion immediately west of the Drymala pit. Said haul road will cross a Zone "A" segment of FEMA's Map No. 4826500275 E, dated July 19, 2000. The enclosed cross section illustrates how the company plans to construct the haul road. As you can see there will be no change in current elevations along the proposed road, therefore there should be "no rise" created by the proposed road in the Zone "A" during a base flood. Yours truly, R. Bruce Motheral, P 06-6115 ENGINEERING CONSTRUCTION & MANAGEMENT cc: Martin Marietta Materials i ~ U I ~ b U q ~ O ~ U o. 1n d `v^l` V \~ ~ \ ~, ~ U A ~ b YI~J! p~ a O ~~ ~ ° O "~ 0. ~ ;b ~ cv v ~ a O ~ O ~~ K ~ ~F"o p ;u ~ ~~~w~ M ~ o ~~ ~+ ~ h ~ N w~~~ ~ ~. 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DESC 11 /01 /06 448232542221 10106 400.00 bedrock flood plain pe ~- a w U w 7ATE r~ ~ i"'..~ ~l 1, ~#~ 1 \O^ r i - ~ - _ ~,' RECEIVED FROM E~`r, ;~~~r~ ~c F~ ~ I f,~f ~ ~ ~i -~ - DATE: CHECK NO. _ 11/03/06 758095 DISCOUNT NET AM0t1NT 400.00 - ~~~~ ~ if ,. ~, ~ ' DOLLARS QFOR RENT t i~ ,+i FOR ACCOUNT ''<. 1; ~ ~y ~# , PAYMENT t, 3 ?; '~ BAL. DUE d;t -- CAS N FROM TO HECK ~ , : ~ MONEY ~ i~~ ~ ~~ a ~ ~ J ~- .J 7_ ~ ~ /% ,`.G z ~ L'] Z ~ U " .^, V, w z O ~~ '~ ~ -~ ' E-~ M ~ `j ~ U ~ L-' r _ Y. K `~ ~ a ~ AD v = = .~ _ S r'J a '~ ~ ~ r~ ~,~ o ~P rrr~tt~;';\ ~ N 2 f, "{ bD j C J j} City of errville O ~ ~ . ~. "<: City Limit _ ~` J L (~ " ill = J ~ ~ ~ ~a ~ o e ~ s ~~ ^ a , C N N rtin Marietta aterials 104 Acre Tract h R d A ° ~ d „ a A N -900' 0' 900' 1.400' 2.700' ~ ~ ; ~ Scale: 1" = 1,400' ~~QQa ~ ~i h ~- z x ti ~' u 7 u ,~ r" u z • • '' s ;~ z z ~ ~; CO , z0 '~~ ~~ ^•, ~ h c ,, 7 `x J S iJ G ~ C v ~ r.l _ 1 - 1 1 - 1 ~ -_~_~~ Fie Ecfit View Fn iies Td~ Hd ~ ~~ _. 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Q -~ J y Y . ~ ~ s"'j ''~ Ci of errvi le w u ~= ~ ; City Limit x =_' ~,. • Ci of Kerrvi _ r ~ N ~ ;_ $ C ~ a~e Ex raterritoria Jurisdi on ~ ? rfii ~• (E J) Limits © ~ ~ x o 4 ~ ~ .._ ~_ p N f ~~ r P ~ f qq ~ m N YI •n Marietta a erials ,~ 1 cre Tract E z d S 1 ~ q r R N -~oo~ o' you i,xoo~ ~.~oo~ ~ i Scale: 1" =1,600' G~JOG34C~ r m ' N nr ~ y ~ Y o o` v .r"j '± E s i. ^O ~ ~ ~ ~ ~ e s ~ ~ ~ e ~ ~ 9 ~ a ~ ~ 5 E ~a8 !.~ ~ g gg b ed s a '° a o ~ "' ~ gg E ~ a g ° ' a ° ~' ~ 5 ~' ~ ~ qq e L fr S' 4~ P m 3 9~~ g~ a ~~ o E ,~ g b ~ ~ g 6 S g r"H '~ k ~ ~ & m .Si a ~ ~ ~ ~ z ~ a ~ ~ S $ ~ a o` `JS ~t~ \J„ >8 S d y E'o~a O _, __... _.. ~ ;. 1 _.... r ffff` :.. l ~'~ •.,,,.. . ~l E a __. ~` ~~~ ~,. r ~~) Engineering Division City of Kerrville 800 Junction Highway • Kerrville, Texas 78028-x069 crn~oFL.ERA.~'iLLE Ph 830-792-8312 • Fax 830-896-8793 October 27, 20(15 Ryan DeBatros Environmenta I :Engineer Martin tilarietta. Materials 5710 Nest Hausman, Suite 121 San Antonio, T;~ 78249 Re: City of Kertville's F(oodplain Jurisdiction Dear DeBarro~~: In response to the issue of the City's regulatory authority over floodplains in the City of Kezrville's Extra Jurisdictional Tetzitoty (ETJ), please note the follovaing excerpt from ARTICLE 7, CHAPTER V "FLOOD DAMAGE PREVENTION" of the City's Code of Ordinances: Art. 7-IJ 3. GENERAL PROVISIONS (a.) Lands to tT'hiclt tJtis ChaPterA„p~~lres: 'this Chapter applies to all areas of special flood hazard within the irlcozporated limits of the City of Kerrville, Texas. (liven the wording of this ordinance, the City would not have jurisdictional control over floodplains in the ETJ unless it was dedicated to the City via easement or special agreement. However, please note that the City's Floodplain Ordinance was adopted from the National flood Insurance Program (I~TFIP) regulations which are outlined in 44 CFR 60.3. These requirements are considered the minimum requirements for local Floodplain iVlanagement. Therefore, the County's floodplain regulations are most likely similar ifnot identical to the City of Kerrville's regulations. In this case, the County will most likely require the follo~n~ir~g at a mirirrturn: 1. Require the Permittee to prepare a master plan of the work to be conducted for the purpose of: a. Ensuring that the construction excavation activity does not alter or change the floodplain, stream channels, and natural protective barriers, Lvhich are involved in t:h~~ accommodation of floodwaters. b. F:c;gulating and preventing the construction of flood barriers which would unnaturally divert flood waters or which ma~T increase flood hazards to other lands. 2. All equipment and construction debris (trash, stools piled trained material, etc.) be removed from within the floodplain at the end of each working da~J for the purpose of reducing; the chances of downstream flood damage. 3. Limit the floodplain permit for a specified time period (typically valid for 1-year). I':1PROJECT~\;PW06 Projects1PW06-0069 Martin Marietta QuartylFloodplain Jurisdictional Letter.doc 4. Assure that all necessary permits have been received from those gove~~runental agencies from ~~vhich approval is required by Federal or State law, including Section 404 of the rederai~ Water Pollution Control Act Amendments of 1972, 33 I1.S.C. 1334, Should you have any further questions regarding this or any other matter, please feel free to contact me by phone or e-mail. Sincerely, CitS~ of Kerrville ~f,C ~~ ~~ ichael Wellborn. P.L. City Engineer Phone: 830-792-8310 E-mail: mike~w~(cr~,kertville.org Cc: Kerr County Road and Bridge Attention: Leonard Odom 4010 San Antonio Highway Kerrville., TX 78028 P:IPROJECTSII?~V06 Projects1PW06-0069 Martin Marietta QuarrylFloodplain Jurisdictional Letter. doc ':T` THE CITY OF KERRVILLE, TEXAS zJ October 26, 2006 Mr. Leonard Odem, Administrator Kerr County Road and Bridge Department 4010 San Antonio Highway Kerrville, Texas 78028 Re: Martin Marietta Materials Southwest, Ltd. Bedrock Sand and Gravel Plant, Kerr County, Texas Dear Mr. Odem, This letter is to confirm that the 104 acre sand and gravel operation shown on the attached exhibits is located within the extraterritorial jurisdiction (ETJ) of the City of Kerrville. As you know, the City's jurisdiction in the ETJ is limited to subdivision and sign review, the City's Zoning Ordinance and Building Codes will not be applicable at this location. It is my understanding that the current sand and gravel operation has been active for approximately 10 years and was in operation prior to being in the City's ETJ. While the tract is outside the city limits, the ETJ was "land planned" as part of the 2002 Kerrville Comprehensive Plan, this tract was identified as an area suitable for industrial development in the future. I hope this information is useful if you have any questions, please feel free to contact me at any. time. ~. ~~. ~ Sincerely Gordon Browning Senior Planner City of Kerrville, T cc. Ryan DeBarros, Martin Marietta Materials Southwest, Ltd. Charlie Hastings, P.E., Public Works Director 800 JUNCTION HIGHWAY •KERRVILLE, TEXAS 78028-5069 • 830/257-8000 USDA i United States Department of Agriculture Natural Resources Conservation Service 420 Water Street, Suite 101 Kerrville, Texas 78028 (830) 896-4911 Ext. 3 1/9/07 Sandy Garcia Martin Marietta Materials RE: Wetlands on Max Duncan Property Mr. Garcia, You called me about the occurrence of wetlands on property located between the Kerrville Airport off Highway 27 and River road that is owned by Max Duncan. This property does not contain any wetlands delineated by a soil scientist according to Kerr County Soil Survey. If you have any questions or need additional information, give me a call at 830.896.4911 X3. Regards, ~'-~,~ Joe Franklin District Conservationist Kerrville Field Office S~~~E °~~, '~j'EXAS ~ ~ j-iISTORICAL COMMISSION The State Agency for Historic Preservation 24 January 2007 Truby Hardin and Leonard Odom, Jr. Kerr County Floodplain Administration 4010 San Antonio Highway Kerrville, Texas 78028 RICK PERRY, GOVERNOR JOHN L. NAU, III, CHAIRMAN F. LAWERENCE OAKS, EXECUTIVE DIRECTOR Re: Review Process for Kerr County Floodplain Permits as related to Section 106 Dear Ms. Hardin and Mr. Odom, Thank you for allowing Texas Historical Commission staff the opportunity to review your process and gather information about how it relates to the Section 106 process. After speaking with representatives from Texas Commission on Environmental Quality, the Fort Worth District of the U.S. Army Corps of Engineers (USAGE), and the Advisory Council on Historic Preservation, we understand that these permits do not trigger Section 106 reviews. Based on court decisions and rule changes in recent years, Section 106 of the National Historic Preservation Act of 1966 does not apply to "undertakings that are merely subject to State of local regulation administered pursuant to a delegation or approval by a Federal agency" (Federal Register: July 6, 2004 [Volume 69, Number 128]). In addition, Skipper Scott of the USAGE confirmed that their authority would come into play when the property owner, in this case Martin Marietta Materials, sought a permit, and in fact, they did so in the past 18 months, and the project was reviewed by his office at that time. Please let me know if you have any questions about this particular project or any in the future. Sinc •ely, Linda Henderson for F. Lawerence Oaks, Texas State Historic Preservation Officer Cc: Jeff Durbin, Advisory Council on Historic Preservation Skipper Scott, Fort Worth District, U.S. Army Corps of Engineers Mike Howard, Texas Commission on Environmental Quality Dale Hoff, Federal Emergency Management Agency Region VI J. Nelson Happy, H.M. Naylor Ranch P. O. BOX 12276 AUSTIN, TX 78711-2276 512/463-6100 FAX 512/475-4872 TDD 1-800/735-2989 www.thc.state.ta.us Y C+~ ~~ Kerr County Floodplain Administration Leonard Odom, Jr., CFM 4010 San Antonio Hwy Floodplain Administrator Kerrville, Texas 78028 Truby Hardin, CFM Assistant Administrator January 3, 2007 Linda Henderson Texas Historical Commission P O Box 12276 Austin, TX 78711-2276 RE: Review Process for Kerr County Floodplain Permits Telephone: 830-257-2993 FAX: 830-896-8481 Email: kcroads cr,ktc.com On November 7, 2006, we talked with Linda Garza. of the Texas Historical Commission about Floodplain Permitting in Kerr County and how it related to the THC. She asked that we FAX the attached correspondence concerning the property: 1 }Letter from THC to Mr. Nelson Happy and 2) Mr. Happy's letter to Kerr County. After receiving the information, it was her opinion that all applications for Kerr County Floodplain permits must be reviewed by THC before they were issued by Kerr County. At that time she gave us your name as the person who would review the permits. Since this was a procedure that was not taught during any training we received to obtain or keep our Certified Floodplain Manager (CFM), and no other County or City we talked with had ever heard of this being done on privately owned property, we asked the following representatives for State and Federal levels what we should do. 1) Dale Hoff, FEMA Region VI who is the training specialist with the Nation Flood Insurance Program 2} Mike Howard, Water Supply Division, Texas Commission on Environmental Quality (TCEQ) It is our understanding that both parties have contacted you. Kerr County issues approximately 25 permits each year, and those of a commercial nature are renewed annually. Mast of them are due in January, so it is of the utmost importance that we have an answer in writing from THC as to how you want us to proceed with this matter and what guidelines we need to follow. Th THC permits y~~~E ~~',~, TExAs ~ ~ ~jISTORICAL COMMISSION The State agency for Historic Preservation 24 January 2007 Truby Hardin and Leonard Odom, Jr. Kerr County Floodplain Administration 4010 San Antonio Highway Kerrville, Texas 78028 RICK PERRY, GOVERNOR JOHN L. NAU, III, CI3AIRMAN F. LAWERENCE OAKS, EXECUTIVE DIRECTOR Re: Review Process for Kerr County )+'loodpiain Permits as related to Section 106 Dear Ms. Hardin and Mr. Odom, Thank you for allowing Texas Historical Commission staff the opportunity to review your process and gather information about how it relates to the Section 106 process. After speaking with representatives from Texas Commission on Environmental Quality, the Fort Worth District of the U.S. Army Corps of Engineers (USAGE), and the Advisory Council on Historic Preservation, we understand that these permits do not trigger Section 106 reviews. Based on court decisions and rule changes in recent years, Section 106 of the National Historic Preservation Act of 1966 does not apply to "undertakings that are merely subject to State of local regulation administered pursuant to a delegation or approval by a Federal agency" .(Federal Register: July 6, 2004 [Volume 69, Number 128]). In addition, Skipper Scott of the USAGE confirmed that their authority would come into play when the property owner, in this case Martin Marietta Materials, sought a permit, and in fact, they did so in the past 18 months, and the project was reviewed by his office at that time. Please let me know if you have any questions about this particular project or any in the future. Sinc ely, Linda Henderson for F. Lawerence Oaks, Texas State Historic Preservation Officer Cc: Jeff Durbin, Advisory Council on Historic Preservation Skipper Scott, Fort Worth District, U.S. Army Corps of Engineers Mike Howard; Texas Commission on Environmental Quality Dale Hoff, Federal Emergency Management Agency Region VI J. Nelson Happy, H.M. Naylor Ranch P-O. BOX 12276 AUSTIN, TX 78711-2276 512/463-6100 FAX 512/475-4872 TDD 1-800/735-2989 www.thc.state.tx.us 06/04/'1"00? 13.2 8307922228 g~~~ a~ ~~ ~QMI4IISSION The St~ate,lgcncy fm° ,Fltstorf~ Preseraatto~ 301V[ay 2007 Rex Emersoll Kerr County Attorney 700 Main Street, Suite B,A,1.03 Kerrville, Texas 78028 KERR COUNTY ATTORhdEY FAGE 02 xrrrt p~Flrty, covEarroR JOHN J., NAU, III, CIdAIRMl~~" F. IAWF.AENCB <7AKS, F,XFGIri'IVE DlRFCTOit Re: k1.M. Naylor Ranch, Kerr County, ?exas and floodplain perrrlitting for adjacent MaI°tin Marietta Materials development Dear Ivlr. Emerson: We received a letter last week from Mr. J'. Nelsan Happy asking that we clarify our position on issues related to developn:lent adjacent to the H.M. Nayiar Ratlcb. He asked that we write directly to the county, with a cv,py also mailed to him. Mr. Happy indicated that our letters regarding the matter, one dated January 24, 2007, and Qne dated May l , 2007, seerrled contrary to on.e another. Out` position has not changed, and the Letters are consistent, At this time, we have na authority to rep°icw the flood plain permitting for the adjacent Hartle! Marietta lviaterials sitar under St;ction. l Ob of the National Historic Preservation Act. The Advisory Council on Historic Presez~°ati.on (ACI3P) is assessing the matter, because it represents an ongoing disagreement between the ACHP and federal agencies, in~. this case the US Army Corps o£ lan.gineers and the Federal Emergency Iulanagernent Agency, The issue remains at the federal l.evr,l. As stated in aw previous letter', we will remain in contact with the ACE3l? and will support tl~.eir efforts in filld'ulg a resolution. Sincerely, F. Lawercnce Oaks, State Historic Preservation, Qi'ficer FLO/lch Cc: 1,4iartha Catlin, Advisory Council on Historic Prreservation r. Nelson Happy ~,'EXAS HISTORICAL P.O. kiC~X i.Z27G • AUSTIPt, T?C 7A71 L-22'G 512/463-~1IQ0 • FAX 512/~i'S-4872 • '1"DD 1.80Uf735-2985 a-ovw.thc.statc.tx.u~s ~-~~~~® ~ ~~~sE °~~, ~'EXAS ~ ~ ~-jISTORICAL COMMISSION The State Agency for Historic Preservation 1 May 2007 Mary Matthews and J. Nelson Happy PO Box 464 Center Point, Texas 78010 Re: H.M. Naylor Ranch, ILerr County, Texas. Dear Ms. Matthews Happy and Mr. Happy: RICK PERRY, GOVERNOR JOHN L. NAU, III, CHAIRMAN F. LAWERENCE OAKS, EXECUTIVE DIRECTOR Thank you for your ongoing efforts to preserve the historic resources on your property, the H.M. Naylor Ranch. We reviewed your most recent correspondence regarding your concerns about the impact of Martin Marietta Materials' operations on your property. We contacted Martha Catlin at the Advisory Council on Historic Preservation (ACHP) and concur with ACHP that the issues you face reflect long-standing, federal-level concerns between their organization and various federal agencies, in this case the US Army Corps of Engineers (USAGE} and the Federal Emergency Management Agency (FEMA}. The Texas Historical Commission, as the State Historic Preservation Office, is a consulting party in the Section 106 process. Whether or not the floodplain permit issued to Martin Marietta Materials required FEMA to comply with Section 106 is still being reviewed at the federal level by ACHP, FEMA, and others, so we currently have no authority to comment in this situation. While we cannot offer any direct resolution for you, we will remain in contact with the ACHP and hope that they can find a way to eliminate or reduce the impact of the mining operations on the H.M. Naylor Ranch. incer F. Law ence Oaks, State Historic Preservation Officer FLO/lch Cc: Martha Catlin, Advisory Council on Historic Preservation P. O. BOX 12276 AUSTIN, TX 78711-2276 512/463-6100 -FAX 512/475-4872 TDD 1-800/735-2989 www.thc.state.tx.us Martin Marietta Materials San Antonio District 5710 W. Hausman Rd., Suite 121 San Antonio, Texas 78249 Telephone (210) 208-4400 Watts (800} 683-2500 December 21, 2006 Mr. Leonard Odem Kerr County Road and Bridge 4010 San Antonio Hwy Kerrville, Texas 78028 Subject: BEDROCK 104 ACRE TRACT -HAUL ROAD DEVELOPMENT PERMIT Martin Marietta Materials Southwest, Ltd. -Bedrock Quarry Kerr County Appraisal District Identification Number: R 60261 Near 5529 Highway 27, Center Point, Kerr County, Texas 78010 Dear Mr. Odem: On behalf of Martin Marietta Materials Southwest, Ltd., (M1VIM} I am submitting the attached floodplain development permit for a commercial project. 'The $400 application fee is also included in this submittal. This cover letter serves to describe the proposed project. MMM proposes to construct a haul road across Zone A (no base flood elevations determined) of the 100-year flood plain at the above referenced property. The Flood Insurance Rate Map (FIRM) referenced is Map Number 4826500275 E, effective date July 19, 2000. The haul road will be constructed as shown on the attached figure. The proposed haul road will cross a drainage ditch located on the eastern fence line of the property. United States Army Corps of Engineers (USAGE) Nation Wide Permits allow this crossing without notification based on the minimal amount of impact (less than 1/10 of an acre) to the drainage ditch. Therefore, no pre-construction correspondence with the USAGE is required. The banks of the ditch in the area of the haul road will be graded to a safe slope for the mobile equipment. This proposed project specifically excludes mining and placement of fill (other than for the haul road) in the 100-year flood plain. Future mining activities are planned for areas described as 100-year floodplain in the current FIRM map. Submittals to the National Flood Insurance Program (NFIP) are pending in order to correct the FIRM map representations. Mr. Leonard Odem Kerr County Road and Bridge Page 2 of 2 December 21, 2006 The permit requested by this submittal is for the haul road only. No other construction or changes to Zones A or AE are requested. If you or your staff have any questions, please feel free to call me at 210-208-4573 or Mr. Sandy Garcia at 210-208-4315. Respectfully submitted, '~ ~!~~ rm Ryan K. DeBarros Environmental Engineer Distribution: Addressee Mr. Sandy Garcia, Martin Marietta Materials Southwest, Ltd. J. Nelson Happy PO Box 464 Center Point, Texas 78010 830-257-7675 Ce11830-285-2626 November 3, 2006 Commissioner Bill Williams Ken County Court -House 700 E. Main St. Kerrville, Texas 78028 Re: Proposed Martin Marietta Floodplain Permit Dear Bill: On November 28, 2405 the Kerr County Floodplain Administrator issued a "Kerr County Floodplain Development Permit" No. FOS-022 to Martin Marietta Materials SW Ltd. for a period of one (1) year. By its terms, it will expire on November 27, 2006. On March 3, 2006 Martin Marietta Materials Southwest Ltd. (Martin Marietta) sought an amendment of this permit, seeking permission to allow for exploration of a portion of property it is leasing north of River Road. My wife, Mary Matthews Happy, and I own the 100-acre H. M. Naylor Ranch. Our ranch adjoins the property that Martin Marietta seeks to first explore and then mine. (Maps, Attachments 1(a) and (b).) In addition to sharing the property line at our ranch's northeast corner, the proposed mine would be located in a northeasterly direction very close to our home. For most of the year, strong prevailing winds from the northeast sweep up to our property, thus worsening the effects on the ranch house from noise and dust which would be generated by the mining activity. According to Martin Marietta's application, "[i] t is anticipated that Martin Marietta Materials may move is mining operations north of River Road in approximately 5 to 10 years" thus placing the entire sand and gravel processing activity very near our ranch house. My review of the file at the office of the Kerr County Floodplain Administrator Leads me to believe that Martin Marietta's request for a permit amendment has not been acted upon. However, on August 14, 2006 representatives of Martin Marietta made a presentation at the Kerr County Commissioners Court. During that presentation, the presenters testified that Martin Marietta intends to mine this leased property in such a way that it will obliterate "a creek that exists on the property." (Minutes of August 14, 2006 Session, pg. 31, lines 19-22, Attachment 2.) According to Attachment 2 to their permit amendment request, this creek is identified as "Nowlin Creek." (Attachment 3). Nowlin Creek is a major source of water for our ranch and has been running through the land since time immemorial. The wetland on our property is fed by Nowlin Creek and has been known as Nowlin Hollow since the settlement of Kerr County. Nowlin Creek and Nowlin Hollow are named for Dr. James Crispin Nowlin who came to Kerr County in 1856, the year of its organization. He had an extensive medical practice in this frontier community, and in 1870 he was appointed surgeon to a company of Texas Rangers commanded by Capt. John W. Samson and stationed at Camp Verde. In 1872 and 1873 Dr. Nowlin commanded a company of minutemen. His house was moved to Kerrville in the 20th century, but was probably originally located on the proposed mine's site. Prior to his death in Center Point in 1898, he donated the land on with the Center Point public schools are located and also the Land on which the Christian church stands. The entire 100 acres of the H. M. Naylor Ranch has been determined to be eligible for inclusion in the National Register of Historic Places by the Texas State Historic Preservation Officer. (Letter, Attachment 4). Therefore, as FEMA's designee to grant floodplain development permits, pursuant to Public Law 89-665, National Historic Preservation Act of 1966 (16 USC 470, et seq.} Sec. 106, Kerr County must obtain Cultural and Historical Resource Approval from the Texas State Historical Preservation Officer prior to granting a Floodplain Development Permit to Martin Marietta for the property adjoining the H. M. Naylor Ranch. Furthermore, on June 26, 2000 the Kerr County Commissioner's Court approved a Flood Damage Prevention Order, Order No. 26463. In the Order, the Kerr County Judge or his/her assign is appointed the Floodplain Administrator to implement the provisions of the order "and other appropriate sections of 44 CFR (National Flood Insurance Program Regulations) pertaining to floodplain management." (Order, Art. 4, Sec. A (2).} Section B (4) of the Order requires the Floodplain Administrator to: "Review permits for proposed development to assure that all necessary permits have been obtained from those Federal, State or local governmental agencies ... from which prior approval is required." Section C (2) of the Order provides: "Approval or denial of a Development Permit by the Floodplain Administrator shall be based on all of the provisions of this order and the following relevant factors:.._ (d} The compatibility of the proposed use with existing and anticipated development; ... (j) The relationship of the proposed use to the comprehensive plan for that area." Based on these provisions of the Order, instead of granting any new Floodplain Development Permit to Martin Marietta concerning their leased property adjoining the H. M. Naylor Ranch, the County must: 1. Obtain Cultural and Historical Resource Approval from the State of Texas. 2. Comply with Federal Executive Order 11990, Protection of Wetlands, because Martin Marietta plans to obliterate portions of Nowlin Creek. 2 3. Deny the permit, as mining is incompatible with "existing and anticipated development" including development of Louis Schriever Field and the Airport Commerce Park (Attachments 5 and 6}, and Kerr County's need for land to build a road through the proposed mine as mentioned at the August 14, 2006 session. (Minutes, pgs. 39-40.) 4. Deny the permit because the proposed mining activity is incompatible with the City of Kerrville's Comprehensive Plan, as the proposed mine is located in the City's Extra Territorial Jurisdiction. Section D (2} of the Order states: "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 or administration of this order." Because the Order does not specifically provide for public notice of the granting of a Floodplain Development Permit, and because I might not be notified of such an action, if the Floodplain Administrator should grant such a permit to Martin Marietta, I hereby appeal such action pursuant to Sec. D (2} of the Order because the issuance of a permit will be in error in fact and law for the reasons set out herein. I also request that this appeal be placed on the agenda of the Kerr County Commissioner's Court at the earliest practicable time if the Floodplain Administrator grants the proposed permit. Very truly yours, Nelson Happy Attachments cc: Paul Hoffmann, City Manager, City of Kerrville Rex Emerson, Esq. Kerr County Attorney Leonard Odom, Kerr County Floodplain Administrator U.S. Army Corps of Engineers Enforcement Section; Ft. Worth Patrick L. 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G Ac,eFs i./ /N KERR CC u,v T Y SvRVEY afro. ~~ SURI/Ey gyp, ~3 .S'rlFTE OF TEX./~'9, O• V Xa.D/NSO.t/ /oN.v ~4Tt'//ErT SCfiL.E ' ~ :.ZOO FEET A6s T ,~,d, ,z A2 i98s r, No, z6' 3 ~ ,Dd~'C E/--lBEX /8~ /9G ~ //¢ - ------ ~~~TE °~~, `j'EXAS ~ ~ HISTORICAL 4+ CQ~1,+ISSI~.i1~ Tfie State Agency for Historic P'reserr~ation October 16, 2006 )Mary Matthews PO Box 464 Center Point, TX 78010 RE: Determination of Eligibility, Howard M RICK PERRY, GOVERNOR JOHN L. NAU, [II, CHAIRMAN F- LAWERENCE OAKS, EXECUTIVE DIRECTOR Naylor Ranch, Kemiile, Kerr County, TX Dear Ms. Matthews: Thank you for your inquiry regarding the National Register of Historic Places. Staff leas examined the information you submitted, and has determined that the Naylor F.anch is eligifle for listing in the National Register of Historic Places under criterion C, in the Area of Architecture, and possibly criterion B For its association with Naylor. You have already collected a large amount of information about the ranch. The next step will be to assemble your research into a National Register nomination. Enclosed are materials to assist you in preparing a nomination. The CD contains a blank National Register form (this is a slightly different format than the one you submitted) and a nomination for architect designed house in Dallas. Use the sample nomination to organize your narrative sections and construct your arguments for significance and integrity. Because you submitted a partially completed National Register form, I am also including some initial comments to help guide your efforts: National Register criteria requires that a property, or its significant associations, be at least fifty years old or exceptionally significant. Resources on the ranch that are less than fifty years old should not be considered contributing, while buildings which are more than ftfly years old may be considered contributing even if they are in poor condition (such as sheds) If the ranch is nominated for architecture only the period of significance can be a single year, the date of construction. If it is nominated far association with Naylor, the period of significance should be cut off at the fifty year mark. Include some information on the Rowsey's but keep the focus of the nomination on the Naylor's because the Rowse}~s occupation of the ranch post dates the period of significance. If the ranch is going to be nominated for association with Naylor, it should be nominated under criterion B (person) rather than criterion A (events). In order to establish the significance of Naylor, the nomination will need to discuss the context of the petroleum industry and his individual contributions. We can discuss this fiuther and decide together weather or not to pursue criterion B. To coordinate the archeological documentation you, or your archeologist, can contact Dan Potter, regional archeologist at 512-463-8884 or dan.potter cr the state tx us. ['-O. 13(7\ 123-6 - AUti1'[N, TX 78711-2276 512/463-6100 PAX 112/475.4872 TDD 1-SU0/735.2989 cvc~rcv rhr crarP rv ..~ i All nominations are reviewed by the State Board of Review, which meets three times each year. To aid in meeting the final draft deadline far any given SBR meeting, it is recommended that first draft nomination forms be submitted to me for a courtesy review as soon as it is ready. In order for your nomination to be placed on the agenda, we must receive a FINAL DRAFT in time to copy it and send it to the board members 30 days in advance of the board meeting. In addition, staff requires at Least 2 weeks to review and comment upon each draft nomination. Those nominations which need further work of any kind will not be considered final drafts. We commend your efforts to document and preserve this building. If you have any questions, you may contact me at 512/463-6046 or hannah.vaughan@thc.state.tx.us. Thank you for your interest in preserving Texas' cultural heritage. Sincerely, 1 \ `-.i-- Hannah Vaughan Historian ~,tl+ZE ~F ~~ w H ., ~ KERR COLDNTY ATTORNEY REX EMERSON COUNTY COURTHOUSE, SUITE BA-lO3 7OO MAIN STREET KERRVILLE, TEXAS 78028 November 14, 2007 County Judge and Commissioners RE: November 26, 2007 Martin Marietta Flood Plain Permit Dear Judge and Commissioners: I wanted to make you aware of several issues related to the hearing. 1. The issue is before the Court because Mr. Happy alleged an error in determination by the Flood Plain Administrator. The alleged error is not the issue before the Court. The issue before the Court is whether or not to grant the permit. 2. Mr. Happy has provided each of you with copies of his briefs and it is my understanding that Martin Marietta is forwarding their briefs to you. In addition I have asked Road & Bridge to forward copies of their file to you. The R&B file contains some information that is not in the other two. 3. You will be sitting as "the judge or jury". You will be the finders of fact on whether to issue the flood plain permit or deny it. Please familiarize yourself with Order number 26463 titled "Kerr County Flood Plain Prevention Order." Article 4 Section C cites the relevant factors. 4. The permit application is only for a road. It is not for mining. Mining is regulated by the State of Texas. Kerr County has zero authority over mining. 5. In the interest of judicial efficiency I would recommend that you establish a timetable wherein each side is allocated some number of minutes to present his case and then each side is allowed some number of minutes for rebuttal. 6. Do not rely on me during this hearing. You are the judge. Ask your questions and make a decision. If the losing party does not like the decision he may appeal to a court of competent jurisdiction( District). Should you have questions or concerns before the hearing please contact me. ex Emerson MAIN NUMBER (830) 792-2220 HOT CHECKS (830) 792-2221 FAx (830) 792-2228 Website: http://www.co.kerr.tx.us/attorney l Y try '^~r ~,4~~ ~ ~.y Tn ~I~Y~S;"_'_" ,~..,'~ "Ty~ ~r ~ • ~ s~ a 'z .r~i ~1~~ `r ~ ~-~.~~YU'~`57~~ A ~ °S'~c~'3~f~, 3' w• .~~. `~ 7, ~u ~1~ ~ i t s - --- ~ - ,~ '~,' } c~: s t~'}}~ ";i~, ` ter- ~~ G- ~ 1 •.S Y ` }~~ ~ rye ".~~{ Q ~~fi ax ~ ~~ ~° _- a5 ~~~%4' '~ ., ~ ! fggg. q ~ } j~.~ } ~, ~_ _ ,. ~~ ~~~de~e ~;,- ~~, r - _ err i i - ,.. ,.. - .. .- +~~ ~ _ _ . A s 1{strr z - YS`tiH!a f -. ~ t i ciac~a~i[ a - F `` '4 5, _ - d r ~.'' ~ '~ ~r ;. ~ - ~ t~'.:, . 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Box 224 Center Point, Texas 78010 634-7735 Nov. 21, 2007 To: The Kerr County Commissioners 1n reference to: Martin Marietta's haul road and new mine planned SW of my properly, set for hearing on Nov. 26, 2007 Dear Commissioner Letz: I am writing to request that you deny Martin Marietta. the permit that would allow them to build a haul. road, and take the first step in starting a new mine, at their new proposed site on Hwy. 27. The new Martin Marietta site would be directly southwest of my property. My 300 acres h_as been in my family since 1867. I have worked for most of my life to try to keep my family`s ranch. But through the years my property has been damaged by the industrial use of surrounding land. I border on the airport on my west side, and our house is many times daily shaken to its core by jet airplanes taking off, directly overhead. Lucky Three gravel mine is located directly northeast of us; Drymala is south, and Martin Marietta is southeast. On a day when the wind is strong, you can see the dust and dirt in the air over my land from Lucky Three. But by far the worse mines are Martin Marietta's and Dryrnala's present mines. Every day we wake up the sound of machinery beeping, and we constantly have to deal with clouds of dust and dirt, and noise from these mines. ] feel that between the airport and these three mines, the value of my property has been greatly reduced. Now Martin Marietta wants to build yet another new mine, directly across the highway southeast from me. The dust, dirt, and noise from this new mine would just about finish us off. In addition, Martin Marietta's new mine site was once a part of my family's land, and I once farmed it. It is the best bottom land in Kerr County. It is a crying shame to take this beautiful farm land. and turn it into and ugly big hole. When they get finished with it, what is going to be do~ae with it? We, and our children's children, will have to live with a terrible eyesore, and ruining of the land-- all to make someone lots of money. It isn't right. I respectfully request that the Commissioners consider a family ranch that has been established in Kerr County for over one hundred years, and consider the private property owner who only wants to be able to enjoy his home and land in peace. My great-grandfather did not fight the Indians to have our family property ruined by these terrible mines. Please do not allow Martin Marietta to build a new mine on this site. Very truly yours, ~~'~iv~cv~l Q,~•d111~-e~ %~ Edward and Verdie Wellborn M® ~' A rI~T MARTIN MARIETTA MATERIALS SOUTHWEST, INC. (SUCCESSOR BY MERGER TO MARTIN MARIETTA MATERIALS SOUTHWEST, LTD.) RESPONSE BRIEF IN SUPPORT OF GRANT OF DEVELOPMENT PERMIT BY KERR COUNTY FLOODPLAIN ADMINISTRATOR NOVEMBER 16, 2007 I. THE ONLY ISSUE PROPERLY BEFORE THE COMMISSIONERS' COURT IS WHETHER THE PERMIT FOR THE CONSTRUCTION OF THE HAUL-ROAD WAS GRANTED IN COMPLIANCE WITH THE ORDER Martin Marietta Materials Southwest, Inc. ("Martin Marietta") proposes to build ahaul- road across a portion of a 104 acre-tract (the "Property") leased by Martin Marietta in Kerr County. Martin Marietta applied for and was granted a permit by the Kerr County Floodplain Administrator (the "Permit") under the Kerr County Flood Damage Prevention Order, Order No. 26463 adopted on June 26, 2000 ("Order") allowing Martin Marietta to build the haul-road at ground level on the Property. At the Kerr County Commissioners' Court meeting on May 14, 2007, Mr. Nelson protested the issuance of the Permit alleging that the Permit was granted in violation of Order. Following the hearing on May 14, 2007, the Kerr County Commissioners' Court ("Commissioners' Court") decided to suspend the Permit pending confirmation by the County Attorney that the Permit had been granted in compliance with the terms of the Order. The Order applies only to "areas of special flood hazard within the jurisdiction of Kerr County, Texas." See Order, Article 3, Section A. In other words, the Order applies to areas within the 100-year floodplain. Because a portion of the haul-road will traverse land located in the 100-year floodplain, Martin Marietta was required to obtain a permit from the Kerr County Floodplain Administrator to construct the portion of the haul-road that will cross the floodplain. The only Martin Marietta activity that will occur on the 100-year floodplain is the construction of the haul-road, and therefore, Martin Marietta was only required to obtain a Permit under the Order for the construction of the haul-road. The Commissioners' Court determines appeals of the Floodplain Administrator's decisions regarding floodplain development permits under the Order. See Order, Article 4, Section D(2). The only issue properly before the Commissioners' Court is whether the Permit for the haul-road was granted in compliance with the terms of the Order. In fact, the Commissioners' Court suspended the Permit at the May 14, 2007 pending confirmation by the County Attorney that the Permit was granted in compliance with the Order. Since that time, the County Attorney has reviewed the briefs submitted by both parties and recommended to the County Commissioners' that the Permit be reinstated as originally issued to Martin Marietta. See Exhibit A (October 4, 2207 Letter from Mr. Emerson). Thus, the only legal and reasonable decision that the Commissioners' Court can make is to rely on the legal determination of its chief legal officer, the County Attorney, and reinstate the Permit as initially granted. All Permits Necessary for the Haul-Road Construction Were Obtained Mr. Nelson alleges that the Floodplain Administrator did not properly review Martin Marietta's Permit application to determine whether all necessary permits had been obtained as required by the Order. However, as further set forth in Martin Marietta's original brief, Martin Marietta not only obtained permits from the required agencies, it also subjected itself to certain 2 conditions and approvals from agencies from which permits were not required, in order to address the concerns of the Kerr County Commissioners. Airport Hazard Zoning Ordinance Mr. Nelson alleges that the City of Kerrville has not granted Martin Marietta a permit to change the use of the Property from agricultural to mining. As set forth above, the only issue within the jurisdiction of the Commissioners' Court is whether the Permit for the haul-road was granted in compliance with the Order. The Commissioners' Court therefore is required to determine whether Martin Marietta obtained the necessary permits for the construction of the haul-road only. As set forth in Martin Marietta's original brief, a permit is not required under the Kerrville Municipal-Louis Schreiner Field Airport Hazard Zoning Ordinance for the construction of the haul-road. Executive Order 11990, Protection of Wetlands Mr. Nelson alleges that compliance with laws regarding wetlands is required for Martin Marietta's operations. As set forth in Martin Marietta's original brief, the United States Department of Agriculture has determined that there are no wetlands on the Property, which includes the land on which the haul-road will be constructed. Storm Water Construction General Permit Mr. Nelson requests that this Court not reinstate the Permit until after the Texas Commission on Environmental Quality has taken action on Martin Marietta's Storm Water Construction General Permit. However, the Order does not require, or even allow, the Floodplain Administrator to inquire as to the future status of any permit validly held by the applicant for a floodplain development permit at the time of application. Section 106 of the National Historic Preservation Act Mr. Nelson also alleges that various agencies did not conduct a review of Martin Marietta's project under Section 106 of the National Historic Preservation Act ("NHPA"). The County Attorney reviewed all of Mr. Nelson's legal arguments, including those regarding Section 106 of the NHPA and determined that the Permit should be reinstated. Additionally, Mr. Nelson contacted the Texas Historical Commission ("THC") as early as January, 2007, seeking their participation and input regarding Martin Marietta's Permit application. See Exhibit B. The THC in turn contacted the TCEQ, the U.S. Army Corps, and the Advisory Council on Historic Preservation to consult them regarding Mr. Nelson's request. Id. Despite the passage of at least ten months since Mr. Nelson notified the THC, TCEQ, U.S. Corps and the Advisory Council on Historic Preservation regarding Martin Marietta's Permit, to date, no entity has submitted any comments or concerns regarding Martin Marietta's Permit. Clearly, ample time has passed within which any entity with concern over Martin Marietta's activities could have voiced such concerns. Thus, in light of the County Attorney's recommendation and the passage of at least 10 months since Mr. Nelson raised his objections to the THC, the only reasonable and legal decision of the Commissioners' Court is to reinstate Martin Marietta's Permit. 3 II. CONCLUSION The Federal Aviation Administration, Texas Historical Commission, Texas Commission on Environmental Quality, the U.S. Army Corps of Engineers and the Advisory Council on Historic Preservation, have all been consulted regarding the Permit. Despite the passage of at least 10 months, to date, no entity has submitted objection to the Permit. Additionally, after a lengthy diligence review process, the Kerr County Floodplain Administrator issued the Permit to Martin Marietta pursuant to the terms of the Order. After reviewing the applicable laws, the County Attorney determined that the Commissioners' Court should reinstate Martin Marietta's Permit. The Federal agency charged with protecting our nation's skies has already determined that Martin Marietta's entire operations, not merely the construction of the haul-road properly before the Commissioners' Court, do not pose a hazard to air navigation. The entity which Mr. Nelson argues must undertake Section 106 review, the Texas Historical Commission, has already notified Mr. Nelson that they do not have authority to conduct Section 106 review of the Permit. Accordingly, the only legal and reasonable decision for the County Commissioners to make is to reinstate the Permit to Martin Marietta as recommended by the County's chief legal officer, the County Attorney. Respectfully submitted, COX SMITH MATTHEWS INCORPORATED 112 E. Pecan, Suite 1800 San Antonio, Texas 78205 Telephone (210) 554-5581 Facsimile (210) 226-8395 Rodrigo Figueroa State Bar Number 24045872 4 2178717.2 ,~~~ of ,, KERB COUNTY ATTORNEY REX EMERSON COUNTY COURTHOUSE, SUITE BA-103 700 MAIN STREET KI;RRVILLE, TEXAS 7802$ October 4, 2007 Btll Wllllams Commissioner Precinct'2 RE: Martin Marietta Flood J'lain Fernut 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 subrrlissions. ~ Each of the issues has been addressed by the parties. It is my opinion after having A considered the arguments -and ~supp~arting documents of both parties that Flood Plain Permit i~o. 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://wwwco.kerr.tx.us/attorney 02/09/2007 13:45 8968481 ~~79~I~~3C~l~i ~'b~s S?~~a .e~~r~. fiot 1,~tt~~t Pf~asra~aitr~ 24 January 20D7 Truby l;iardin and Leonard Odom, Jr. Kali County Floodplain Administration, 4p10 San Antonio Nighwxy Kerrville, Texas 78028 K C RDAD & BRIDGE PAGE 01 RICK PERRY, GOV~ItI+10Ii JOIif7 L. NAU, III, CHAIRAlAN ~. L.9,W;~E?QCfi OAKS, EXEC.ITrivE Ar:RkCrOR Rt;: Review Process for Kerr County 1+'loodpiaixt )?erznits as related to Section 106 Deer Ivls. Hardin azrd Mr. Odom, Thank you for allz~wing Texas Historical Cotmxzzssiou staff the opportunity to reviz;w your process and gather information about how it relates tv the Section 106 process. After speaking with repzeseniatives from Texas Commission on Environmental Quality, the Fort Worth District of the t1.S. ,Army Corps of Engizteers (US.ACE), and the Advisory Couzloil on Historic Preservation, wz understand t}aat these perlnits_do not trigger_~eption lQ6 r~iews. Based on court decisions and rule. changes i,Z a~.rlti years, 5ectaotx 1 C5 of fife National N.istoric i'reserv$tiofu A,ct of 196v does not apply to "-andertakings that are zmex ely subject to State of total regulation administered pursetant 2v a delegation ar approval by a Federal agency" (Federal Register: July +6, 20t3A (Volume 6~, Num~r 121Ij). In addition, S'~ipger Scott of the USACIr Confirmed that their authority would Come into play whezt tlzc property owner, in this rage ~Iarrin Harriette yiaterials, sough3 a permit, and in fact, they dad so in the past 18 months, and the project was revie~vEd by bas office at that time. Yloase let me loloev if yon leave arty questions about this pazticular project or any in the future. sins ly, Linda Henderson for ~~ F. Lavverence Oaks, Texas State 1-tsstozic Preservation Officer Cc: Jeff Durbiim, Advisory Council on Historic Preservation Skipper Scott, Font iiVorth District, U.S. Azmy Corps of Engineers Mllce Howard, Texas Commission on Envit4~CKltrital Quality Dale }toff, Federal, Emergency iviariage~sent Agency Region VI 7. Nelson HeppY, ,H.M. Naylor Ranch P. O. IIoX 1227f+ • A,()STIN, TX 787II-227$ 512/X53-b]C0._-...Prl7t_51.21aZS~SZ2-_Tt~f3-1-t3cTOr735.2989 www.thc.htaze.t; .uy .1. NELSON HAPPY PO Box 464 CENTER POINT, TEXAS 7801 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: 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 preiudicial 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 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 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 Ker!- County Flood Damage Prevention Order, Order No. 264.63, 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 may be 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 permit therefore shall have been applied for and granted." (Emphasis added.) 3 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: "~ilntroduction 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 6 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 ofback-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 Flood lain Administrator has not made any effort to identifX 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 rounty5 indPecl, 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 useful guide on the methodology used by soil scientist to determine the existence of wetlands. 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 Q,ranted 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 Stl' 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. Ling v Payne 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 470f 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 may be 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 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.`filelson Happy PO Box 464 Center Point, TX 78010 830 285 2626 12 ~rx~ox~ ~,~aRn ~o~a:c~tt~ o~nxrc~ J~ ~,~~~r 1593 thcz hei ~r.~. ©~ a~.m5 attd rns'~ri.a'c.isx$ auk. otherw3.sa ' ,~ csrt~.i.x~aa,Ge xeg~ o~ the atrnatura~ aad ab~~at~ a~anm5tr ~.ag thg~v~.e~.zt3.ty xagtz3.a~3.n~ ~hd n~a o~ P ~' ~ ~cxeshiziq tha ~{eyxvyl3.~ b~utt~cyyP~1.-zcui~ es~abli5sh'~-nq ~ tkSO bo~ar3.ez appro~x3.ate z~nss ~~ dch~ges ~.~. the .~~•Fss,a~ioa3 aXid -1 hexr~of ; iszov~.diug' da~~.n~-ng ae~ai.a ~armr~ v.se$ baumdax`7.as Cry suGb. races; ], ~,osix.~ ~,erei,a i xo~erx~~ to t$e Xarr+s311-a ~ici~ ., 6ahra5~.az ~'iaxd ~~o~ Ynuzng iiap wha.Ch is incos~+oz~tc-3 made ~ p~ of ~ araS.sanea; F~av~en ~ ~~ax: ~ . aad a Scaxd r,~ ,~d~ aad ,~ fa~~mentq +~~~abx~.~h~5 iazpr~sitx.g panaltz~s. ~hi~ pxd,3.~uana~ is ~dag4:ad guxsue,'nt to the ~,thcri'~ 2~1 0 1 rF.,~.,.~.~a 'CYte az~ ~COri:.i1~ aot~ `Veal, T,aaa]. 6n~r ~, Ccsde ~_ ~ jVerraozt ~.5~88) . ,Y.t is heze'l~y found -r rat ar_ abs~.~.c~ian hr~~ the pr~~'~~.a1. fax the livers and psaP~y of users a~ Ke~'il.~-e aipa~- $~darsgnx3-ng . rd ~r~ a~ nccupar~ts of ~a~ future T,ous~ ~Ch~'ezuex Fie:~d attd p ~ ~ affe~ exa.s+tiza.g ~r3,~3ni.~: tlx,at axt abstsn.ct~.~ ~ ~~l.~.e ~taz~f.ciP~ T~au,is schre~~ zn~tz~azxt aHpxoaoh a~ixciuEUm~ sadu.oe the e3.'~g of are~.s t~,g7„c3r ate- th3u an °b~~ vf~ and ~cau~ra~ipg o~ ~.i.tcr~.~t, th~t~ a~ai.inh~.~s ~n~'~- od o=a ~~ the ut7.la.t~' o~ ger~~,I1.e .hareiri., icenrling to dcstx' ~' ~~ the ~17,~r~.ic X nv~~t~nt ~,acr~-s ~c~p~~ is dca7iadr'gd tha'~s ~aoxding~•Y ~,. gesstri~,l.e Mu~.oipa~.'Lauia Schxe~~~' Fie~.d fu~,~i.11s an e~sen-~3.~~. cnmxuunz}y g,~aacj eztt~ 2. tha cx'6a~ioT1 C~ aa'~~a-ishmaat rlf aA Obstruction h~ th,~a Potrs~~ia3. of bpiQ~3 & naisance ~zsd ~ta~s in~usa the section egged b'y g,~~vil~.e h1on~zP~e.~.,~Tiavl~.~ gc~o~nar ~'iel.dp anti i~ t~ 3~~C~xes-t; ~~F pttb~.z.c hea].t~s.r P~sb~.ia 3, it Ye ,necABQ~t~ara3~ we].~aze that the ~~atzon a~ sa,~st~`, aT1~y ~ ~ ah~trt~et3,Cas th~~ are ~. ~rlxra.rd to aiz B3'~IIb.L,L~IIl~6t1~. ""' Pri~:act3.F 8nt~ navigah~.ozt be gr'~ ,~, tha preven~iQn n~ thPSr~ abstxuatiot+~s ahonld the aecam~lzshed. to the ex#ent ~.gga3.lyr possi153.a hg exexasss a~ 'r.?ts po~.i~~ per arid:h.rnat ec~mfxeuaesta.an. odc the e~,~;raeianr ~t 3.s furthtx dec hazarclsk to ~he~,7.r P nev ~ ~ Q~ fh~ cree,'h7-an. Ox' astabl~.shm8nt of at3.oa o$ haaards '~~+ air $avi.g~'t.3-ter ox removesi, aI.'~esat~.on. or mi~~.g r, estzuo~zons aro Pub1.3.a Pu~aeas fax the ~~9 a~ lighting ofi b wise gad ex~~ Public ~vnd,~ ~.nd wh3.ch a Po]~..tiGn1 ~ubd3.vx.siotx maY ac?ui.ze i,artd ar iA'tare9'C.5 in Z.~.nd. the 3texrv~a.7,1v-uarx C*.ost~'h~' i7o~.Iit A4.r&a~ Zrsnf,ug Se ~t Oxr'1~3.aed ~ n~ g~xvxL1[a, Texas ~»c3, ~b,e Camm~.~~gvx-ess ~~~ 8aasd o~ t]xa c~.~~ a~ ~~4 ~pxxn,~Ey cs~ Rerx r T~s~ ~ P ~h~s px-dir:ance ~ha.l~. be knnorn a;sd ~~ be ~it1. - ~ a t &azaxd _ ~ac~iQa 1. 5haxt 1 ~,au~,s 5chr~:~.n~r ~?:Lr_1d ~-~ r e3,~d a~ '=Kr:r~'v'iI1~ ~3.nua.c9-~ Sonazsg Q~t39..S1,~13c~" t3ozx~ - xs ~srsd j,n phis Oxdxtta~agr unla~a t~.a Eev~~an, ~, uRs~i.a,~. av2t'c2xt athe~-5e xP~v,irss: - me,~n~ ~orrv~,lle Mv~~.ss~.pal..~nis schrelnpr A. Aj..rpc~r'~ p~,c1,d. R. ~I'or~ F1eVa~ioa -- maaz~,s the estab].s.t~h~, ~7.~vatiori o~ tha ~.]-gh,ect pa9.nt Qa ~:h~ uee}.a1e lnadi.ng a,xea mea~ttxad ~.xs ~e~~: ~~ mca~ see. le~v'e1.• C. ~i.3c'~.snzt ward "' ~Cen9 aAa st~7.ctL7~ a ~ ~~e ~ for the 1.~d y~hieh ob~'C~.cts th8 s~~,.r ,~prlce ~ ~~ g].~,ghts et ai'cara~ ur wh~•aXld~pzt~ta'aa`°`~'~'~~''''~''.°~' i!i th0 tha da~,tzol or ~rack~tz~' t axi tol:ing off ar ~1~3ht a~ an ~.asl?a aiul ~: ~e7c~.nc~ ~as7d.~-n3r t selati3icJ to Might, ~ z nstal.le.~s~na cx ~eai~~ ~on a~ -fie ~-~.~3ht axa~ 7 andlax data argc~ . ha2asdr~1~~ ~ ~~1~, h~cc~ ~a.itCz~t aor w i h i ha~axdaus ~o te3tiiSg a~~ °~ ~ tzrx4ka~~3 a~dl °r date act,~.tisi-~.art ax in'ter;~e~'es y~th pes~.~,~.n~-ng ~t:~ f~,igfax, and 1~~ght 'veh.'~cl,esy ' ~r'e g~zaxc~ Aga - mba.as aay axea o~ 3.and nx wa.'tea~ D. ~~' ax"f~ hazard sn~.~lht be Gpt~hli:xhed i.f sxbt . zspon wl~~.c~ ~n ~~ ded ~u this o~.nanec . pre~rt~tnt~d as pz'O'~ ~ _ A.~,rpor~ R~fc~an,ce pcs~a'~ - me~ax.s t~sC~ ~SOa nt establ_ish~d as the agpxc~ze~tc garsgraphs.a Centex' a~ tl~e azx~,or~ I.and~.z~~ axaa azsd- sn d~~:i.g~.eted, _ ~`. gppraa~ 51lx~aca -' ~. zyrfaa~ latsgitud~aza~l~ cen~grad 4ri the ¢xt cr~ded xunera~ cea~t~x7.ia-~ ~ ~~ ~~ e °s z~d~ a ha upward Pram the ez~ n~ the p~imaty Sams slnpr~,tts the nPp=cach sane h~ig~t Z~tat~o~~7-Aha d o~ th7_S Cy;s-dZsLBACee TR Pais, o L__uw ~~ ~act3.Ott ~... ~iC'~ 3,w-~..u •`^'« ~ XO&C!~'i p'L1.i'~c'~Ct3 GC~'.~].C5-dma WJaY4• - psx`imet~ flf the ~aacl't fans. pcx~,xaet~+r of the app G. APPrnrsch~ r~r~,s3,~yona~.r 8vz'~xnnt~xr and ~cTni~:~. ~cacs - ~,aaa zwags a~~ set ~farth x,n Sec~Eiam 3 of th3.r Oxdizs,ance. $, ~~ of ~~nstQbaut - .~, ~ar~rd cs5ns,i~t~.~tS o~ diva (~1 the C~~ Co~xta3.y, o~ the Ci'~y o;E ~mS3ers ,,~,pozzstcd ~' -2- ~errv'il].e, Texa V rna~rl~8~~d by 2ea~. ~,nea.~. Gov''~ CodE p,~. t g24~..03Z ~. Coasca~. Sixz~ar'e - 7~ sus~a.C~ exteud3.x~,g ou~Cwax3 and t~??ward ~s~c7m the gcx~.pheLy o~ tha har~~czri~a,1 st~aCS ar. ~- s~o~ o~ twenty' (2Q} to dnp {9.) Paz a hor~~~aatr~3- ds.stax~ca ct dour ~-:~,nusend (~,0~4} ~aa~. . ~, Iia~ard ~:~ A~.r xTQVSg~'t.9.ar _ ~ ohs'traa-b3.ars detexmit~sd to e~~iaieut ut~~~.~~ vn o~ gtT~e navigab~.e atix paa~ a~~ e~gd K. Ha~gh+t.- ~'rax she pu~~~e n~ detezmiuing tote eight J,.~i.~~ in P31. pe~est~hee d oa~tyai si~a~.3 ~~ ~~n~rkn~ ~, ~a1. e].cvabivn.~ zoning map, ~. gcxz~iznatal. ~tlrfaCa - z~ hari~ar~tal nine n~~:-h1~nd~ced-~i~ty ( 7,s+J } ~aet abCrvr; the esta~s~.shed Q T'~"~o~ e.l.ev~.t~.an, tha per~ta~~r n~ ~rthi,eh .~ ~il.a.n CQiue~,8ss ur3.th ths~ p~r4,Ttte~ar a~ '~ hraxiznuts~ ~nnc. M. xa3sxt ~-rpor~. ~anin,g ~d~rd -- means a bo~,:d cnna~.eta.ng_v~ ~3„ve ~~}~D.em~7G~3: twa ('~} membazs appoirtt2~. by ~.he: C~t~r CdL~ai~. o~ the City v~F Kerxvi3.3.e, ~sx~cs aid ~ {2 j rnembazs apgaix~.:~ed ~ t~so cazn~.~e~.cnezs cr~ur~. a~ ~Cezr Courts ~ ~'e7cas . the f Qt2x~ (4 } members sn ~tgpo:utec3 ~ha17~ e~.aa~ a ~i~''t':{t {5th} uir..s~er wbo shad.-t sexve as chaixa~ o~ said ~oi~t ~.nsar'~ Zaning },3nard. ~ ia~x tb~ ~,and3n~take o:~fuotatex3zng o~ a scra~~ ue~ p, 2~or~csonfdrm~.ng iTs+a - Any pre-~xj-stiri4 Structure, object o$ naturd,Z s~rowth, oz u.sc o~ 3.an~d which s.s in.cansi.stsnt w~,~b. ~.he praa^ie~.or~s o$ tkeis Oxd,in2ace csr 2,~I ameudmealt -therata.~ P. pbe~ru~~.ou - Rey a'~ruatl~xe. growkh~ ar o'tkte~ abject, ~,ACiudis~g a mabi~.e cb~ec-~, whs.Ch excaerl.s ~ l..imiting height set Earth is geatxon, 4 of this prd~.nanes. Q. E~~rec>x - mecca in i.ndivXd~xa1, tix~t, paz-CZ~ez'~higr cQrpo~'a~~.an, pompany, ~ ~.esacis~~.on, joint stock asc~~+c.;-~'~os, nr bodx poZatia- a.acL i.~al,u3ag a ~~ta,ste9, receiver, a~uigna~at admix-zs'txa~.oz, e~autax, gz~ardiszt, o= othBx r4'aXesexztai-~.vr_. R. 27rz!5~.'Y suri'aee - .A srxr~a.cr~ 1.cng~.tvdina7.I.g cetitesed on a ' ruz~wag. WMEn the xtius4ra~ had a speci,al.1~-' pxcparad hard surface, the px~.~-tiy snr~~tr.P rixtkmds tvra-f~ut~dred (~~Q} ~a~st bryczzd eackt. end cf tbat zu~~g~ but when the rua~rag bas an specialbp prepared hard sarfaae ar pl.ax~ed hand ~3.. sur£ae~`• the px~'XY suS£ace etcds ~t aa~h gnd o~ th~.t ~,nway. +~he width ref ~:he pri.ln~Y g,arfaoe of a xuzxwa~ wa.l~. he ~.~~: wi,d~ p~esox~ed ~.n Part ~? o~ ache S?edera7. ~cSY '~.~C SLS33'~ B~~yGZSB ~p~=n3Ch piviat~.on Rego-a'oioas {~'~.} sr a~zd of that xut~~~• The ~3„~ta.ng er p],aT~-rtrd fom eit~. , e7-~~'~~-+~n a~ any paiz~'~ can t~xe gxzm~~ ~z~.rt~~.cs a.s the eat n,5 tfzB aleVa~.c~ri n~ the ~earast p snxf~~e ~slxg 'z~~Y csnter~.i.ne . The titi.d~;h of ~- Px~-~' ~#,~ ~'iv~ hsindxe~d (500) faeti fez us~.~.ity ru.t~w~sys raving' xa~cs.s~.a~. ~.n~'+r~tPn~ ~,pgxaacYscs• n4n-p {z) ~cx other -~haxs utS,S.ity runwny5 the ~gidbh i~ one l bOp) goat fas ~. nan-py-ecisic~n thans~ { a Aon.•prec:~~ nn 3,~txuititant inst5ttu~eR'~ ~-~.'~ay hav~~ _ _ $ppxoach with u1-szh:i_7.i.'~"~ -n3,~,e~ a~sd e Paz yzr~c~~-aR ~pu.rths of a statute isLS-~suaaant apgrbac]~ xttiT~w~'~ Run~sy - A defined area an a~x ~;irpaxt p~:paxed dos 1and3-ng andtake--aft of a.~.rcxaft a.taag ifis 2.eagth. ~~txuc~~.s~re a ~. ahjoat, j.nc3.udin~3 a anOb~.~-~s ol~~act„ CAI1S'~~-G'~~d as ~.n.9tailed b~' man,. ~.tcZgr3 zr,.g, bu a~x h Zis~t9,'hari to btz~,~~sr tr,~ez~~ arane~~ smokeotaak~r ~ai^~at,ions . ar.~d av~rhead tx~,s7ni~ Sian 1in~s - r~ygp„~3,tian~l ~t~faao~ ~escta th ~ runwa~ en er~.~.a~as~,d rtL1'~cty {~0~ d,e4x~s ~3 the ~t1nNa~ Ce3iLE~~-.'~e+ e~-tided ~'~ a a~-ak~~ ®~ pavan £e~~: ~,oxiso7,taily fox eaa S ach s~ ~ eio ~'~,c berg g'~°~ a~ the prisna~z'y and .app conical. su~esce9. internQ~'~- the '~az~.znnt~. aAd ~'zs.n~~.t~-on~3. sur~acas ~c~r thc~5e Ro~E.ir~ns ~ aid berssr~ds'~he a~Praa,ch ~lirxaae~ r x#z,ich grpject ~czug ~ iytttit® of the Canira~- slaxf2c~, fiend a d~etattc~ of rave ~a~.~and { 5, 400) feet ~asizsad ho=Z~ant ~ ~ Y dt ~rechat1g ~a ~a +rth~ 8~ na a z,~~a~ n~G 1~ erg ( y ;. ~~ U. ~7 . rr. ak tree ~lny ob~QOt o£ r~.~:n~c~ Yr~h• ~- s~„-~~ .. a zunwa~r ~-.h~~ at cox~atz~.ats~d fox and i3~ii~.s~ ~- ra e3.iar-dri'~'~an. ai.rc=ai-~e, :.wa7..e in~oi2dad 'tp ~~ used b~' & 12 500 ~uAd~ n1a.`tim~ grog5 t3~ouh~naR~ ]. ~~hundrad ( ~ } P ~r~i,g' ,~ rnnWa~ ha~5 sn ~idn-gracisScsa ~~~~u~4n'~ ~un~~ acsduz~e. ntzJ.zz3nc~ fir ~xLRt~.?ag instrument a~groacli px dauca~ or ~avigat~.a~ ~aai~.its.r~s~ ~ri~h~~ ~ fori,t~f ~ e, a~ ma3x~taia, at ~fe~~3.Zer Texas to ~.n~t$7.3-, '~k~ Texas rind tho ~che expense az the ~~.~ a~ z~o=zv'i1,~,sr hts as ma,~ bra ~~,'+~,{~ n~ ~exzr Texas such m,.xrk`~n,gs asn.d l~.g necessary. s~..n~cr~emant - ~t ~hs.~.~. ba $he duty a~ C~.~ Maz~.ger of Sectx~. ~ • adm~.rs aster and, e~~e the 'Ch~k C3.'t~,i t.~ [ I(esrV'i3:.Y.e, ~`e-has to 9 "ca~2oriJ for 'o~'*,~itc sjzal2. ha t3~+p_~ gxr^i,~ u ari ~ regnlatz..ana pz'acttx~ed h~e~-1+ , ~,~ a~ ~a~vif:l.e, ~ ~ maw t~- tie-..~-t'~. ~a`~oF of the g i~ca.~ivn~' rec~uizect b~ phis pnspoae...~P~ ~nrsn ~i~lished :fo.~`- tb.~,•. the Git i~3r.agsr c~ the GtitY of arc~nancs to be ~,~tCd ~~aatt~t~.y can.sidc~'ed acrd Breasted or Kezz-a'i:.~.~.er ~'C2Iad sha13. b8 P. des '~C t$e k3aarci. of denied. ~gp~.~.oati.ons ~oz ~~ i~~D3.ic3 io afa va~7.~ae pritla. '~~.8 pd,~uafstte~r~: , ry f~~t fi].auq 'ustmetst for C3.ty' i~,nagex a~ the City o~ i~erzvx].1~r Te~s,s, Kho sh3~.3 ~o~'Ch tx~~n ysa~itl ap~lioatian to the $aard o~ Ad,~ Sactida 9. HC+~szl o~ Ad~uG~Em~-mot •• A._ Thexe ig hexebY vxaat~d a Board of ~1d,3ustmcn.'h to he.;r'e and e~CB~C5i.s4E tie fgJ.1_avtin<3 Par,~(~xSS { i y ~o hear and dec3,de appea~.s from aag order, -~q,~ir~.meri'~r dsei~83.flar v= data_+z~inat~a ~~as i~a the enfax ~,~ t a~ t~s O~rdi.ssasiae~illa, {~j to hoar and, decides sPec~.a~. g~G~~'~i.v3x~ to the farms of this O~~~s '~~°n wh7.`:.h suchbnBra d ed Z~r1~u.st~nt under such ~egn~.atiana s~ta3/ ~~ t.,a pas9 p { ~ j tza 3,,~~x anti dev,ide s~aif~-o '~~'~ces . g ~ ~g Board a~ gc]. jt~.stmcri'~ shaZ7, cans3.S't n~ ~,j•v F { ~ l ~ri~.le~ ts,~r~oin~iccti by ~a Cjty ~auzadil. cxt ,~ti~ C3.'ti ~{' ems Texas attd eao3i G:~~Z strVe iox a farm. at two uthority and be semoaabT.e ter vau.~e by the apPoirs~~ert~ upon ~i~te~ oh~~asr aftas a gttb~.~.o hear~q. astm~n~k. ~h8.11 ~~7t rv,las fox its ~. The Board of ~`doae~'tsre 3n, hazmtinF atizh ~e ~rLZUi.ss.atze governance acid p of thzg p~c'tirianva, Maetiugs rf the poarc7. o~ ~~~~~nt -ll-~ sc7a,a~,1 ba hpld. ~.'~ the aa11 cE thm ~airntau and at 9nab times se tre Eaa.rr~ a~ Ar3 ju.s~nGUt :ste~y c~texze. the Chan xm~.n, ar ~.n h~.9 etbee~ce the acting cisaiz`~tan, ~Y arint~,n.~.s'cGx oaths aid camps'! ~:ha at$.e~,de,race of witrie~~es. .~.,~ haax~gs c~ the Baaxd a~ ,gdjusi-~z~xit sizal~. }~e ptt~~~,c Tian R~r~rd ax hdj~zstmer~t shai.l lEe¢s~ a~ir~utes c~ its grgceed~,ngs shnwa n-r~ ter vc'~e vE each lnambex u~an r:aeh qu~Ctian f nr. iz ahee~t ox ~a,il.i.ug to vc-i:P, ~,ndzcAts.tz~ such ~actr and Khali, keenretoax'ds a~ its ~ggmiri~tj.ons and othex aEEa.ci~ r~tiosis, a.1..~ a~. ;ah~.ch sha<~.l inutlPr3trt~Z~ be ICarrxrii.n t TexasE and she]. ba a publ~.c x~acor~ e CitX cs~ D. Rohe . Bo~.rd a~ ?~.d~~stznex~i: sb~I-7. eke ''r~x'it~e~ ~s.nd3~ngs cf feat, 271d aoacZu9io~s of law ststing t~.e rart~ ugou wb.ich it .rcZ.ied when st~aki7sc~ its lc~c~~~. aanc].u3~.on~ in rati7arsi7sgr ,,.. aiE~.~.TLc~r ar ms7diE3*xA9' ~`~ nm~srr i5e ~xe R ~'~trunders~.. he or de~czm3.z~a'~-a~+ vrhich prov~,sis~tzs o~ thrn Qrdiz~azlae. ~. ~$e onuourriitg v4t~ of Eon 4 4 } ~b~x~ of ~h.e Bo.~.rri of Adjustment shall ba neaa~saxy to raroaxse etAy ozdar, ~t'.Qt7.~.S~T~n'~r d2C3.,S,1,azil O~ C~.C'~.ET~ii2'a'~3.laLt Of the ~`~~j ~zzag~x c~E the Citx nF 'SSexrvil.~.e r texas r„- to daoyc3e in. ~nvor aE the ap~s~.i,cant r~u ~y mattex upaxi which iz is re,~tirad 'ta g~.ss uudr..x tYZis {~xd~.nan~e, at' to aE~~rt any vxr~sf~.oa zn this q~ci~.nan d asVpe~ Ad9~8 the Tex. yoca2. Gcv ~ Cocibs Ann. ~~ ~.• Q3~ ( l ( ~ Sesct.lon ~,CI. gp~a2l.s A. Aziy peraaa ag~3r,~~ved, Q~ any ta,-Paycr ~fect8dy b~ aa~ clACisYan a~ fife City. Massa-gex, Q~ uh.e Ci~r ~s~f Kesrv~ll., Texas amide is hss a~mzn9.s'~atzon of this Osc~.nauoal i~ o~ t'he cpi.siicu that a dcC3.sioA a~ the Citg Mzztager of the Ca.~ry aE iCC.zFV'3li.s r Ta.:as is aR imprager e~{F~-iaati.az~ o~ these zer~ulz~tiQns, msg apgcs,7. to ~ha Board of Ad justme7i't. ~~ ~,},a„ apg~als hgzautzdax' ginst i~a taken ~ri.thxn a. zea~~aXtah],e' time as p=rxv~,~~,.d by the rtt7.~~ of 'ths Board ~~ Adj~tstmant, tsy fi1.3.r1.g ~;ith the C~.'tg rsaaagP,- of the G3.ty oz" ~arr~~.llar Texas a rustics n'~ nogea~. 9pec~.~'3.~sg the grofsn3s fihs~ceaE. Tti,~ Czty_ Mauage~ a~ the City a ~ R ~ ~~ ~s~t a~.i ~~ ~~~th47~."LYY 'CZ'8,~4Ai3,z: ~:Ct l:!•iTG ~iC~~ J pagP.rs cc~n.9tit~.'~.i~g the reGOrd ugnst v~ris;.cls tine aati.on a~spelJ.ed tzars was taks~n. C. din ep'peal aba1.7. stair a.17.. pxoaetd7.ng'a ~- EL~S'therai~e ay thg ac~tian ~appea].ed from, ~.ess ~e City 1-~nrsgex as th® City aE SarsY3.~.~-gr Texas ~mrt~~i.e~a ~a the Board af' ~idj,~rmeutr ap=ex the aot5.~s of a~paal. ria~ bean Ez.7.ed -7.2- cfith ~-tr '~hfi'~ by reaabri of t]xa Pants Stated in the cr_xt%fa-Ce~'~er a stag wau7.d, in the rpzn~.on of CitS~ Maxsa9ex of zI~ ci.ty of ~teT rvil.l~, ~exae eausa 5sauti~an~ por~.l to ~.i~a or p'sOperty• 3a suah case, pr^~~swd~.~'lgs ~~.Z i~o't bLa ~tegod exco ~ by ~-r-~3.rx' of ~e ~o~~d of Ad~us-E~e~?t an, ript.i~:a, to ~~~ Ci$y N~stagaz' p~ fifi~ City a'~ ~{esrrsrs.~.ler T~~.xaq and aR. due ca~.ti~~: ~ha~• ~ , ~hg Aoaxd o~ ~sti~tts-tznant sh~.'t~ Fix a rea,mpzssble 'ka me ~nr hearing ap~aaa.l.s, g~.ve public ucrtiaa and dna ztati ce f:a the ~13~t~.C3 ixx is~'t6r8~tr r'1Tk~ C~{~C1dFt 'F.'S~ 50.A-t ~. {t~T re~~anabl.o tip ~ vpnn the }~aariBg ~Y Pa~X ~.X' agLaP..R.t' in gersaa a~ by e.c~arst or bq` attoxaey, xhe ~c~~d of ~djtiatcneat ~q iz1 ao~rfa~-'tXr ~:~th the g- r~rovisi.ons o~ this C3rdinance, ~;c~rse oz aff~.~re3.si nonz oz .in P~,~ p~' modi~~' the oxder, xQgo,9~aman,t,, de C{ebe~y.~a.tzon appealed from and may -mndt sac h ~o~deh~ r~agai.reme~.'~, d8~,~siazs o-r do~errn~.nat~.an, anprapriatc undex the Cfxaumstazcass Sccta.r~n ~.~_ .~~a~.al RnviO~ •. ~y pexsan ag' ~,~v~~., ax aay i-.~sx~rsgcx +s~~acted, by e.Ay $eCiSiRA Cif ~e~~Aaxd O.~djua~mentr ~~ ~yppaa3, s,-a a couz-C of'. anmpvteat ~tYxisd~.ctian~ as g~gsr~,ded by ~e gizpoz:t ~nn~g Sat: ~a~. T~aca1 C-av't Cc~c~e p,,s~.u. ~Ztt1.0~41 {'Psrttnn i98~}. 5aat~-aa. ~.3 . E:irc~'t1~®B nr t~2esr -tI'ls~ Zsse a$ Zend, Cr an~* othax ~gatter, ~-.~ie ire str3.ugent ~-~.mitatzan oz re 3.xe~nt ~h~.i„~, govern and arsvai~. as X2,4:{.=8a~. ~e~2tan 19$~~ 2nnB qtr ~'e~tCte I.oc~.l Go~'•'L Cade Ann., J ~~~ ~ect~.aza. 3.~ . Pzior tsz~zr,a,s~oa RQp~,acod - phis ~ o~ ~on~~Qrd3.z~au.a~ snpgx~edas ist its ezxtixo~Y that cez-1=~.i.h A,~.~P (thc ''Pxa.ar ozc3iztan~e'' j datsP~o~ ~ 7 rprt$ Zrmti g ~caa.~d,ado~ &~ tlia Ka~~-~-a^~prr Co~71-t~' Qa~d u ors passage o~ 't.I~.9 prior t~rdi~gz i.s zsuder~d nu7.~..an ~ ed by 3,a~ a~t~q o~ same a.s "* p~t~sYr t7zd.inanca acid ~ub1.i_a~-~~-on ~d Q ~~rs~,s~vn 16. Satr~~hiii'~v - Z~ au;~ o~ ~Chs pzsiv'zsi.tan~ oaf ~hi.s ordinance cr the $~p].ic~tzo~t '~hv.xec~ 1:c ~~ paxnon os c.s.xoum~si~?-cas is ha~1d ~,i~~7.idr .such ~v~~.ix~,tq' d~al1 mat ai~e~ aZhex Pz ar a~s~l.icatY.c7r1 0~ '1=hho Osd.~-~zauce whj-oh can ~~s ~i. to ~Q t ~ h~}~;~ the s.~.~'alid . pra-sr~.aina nr ~,p~,la.~c~tion, ss~.d ~izQV~.siQaS a~ th~.s OrdinaAae 2x'e dr~c3.azr~d to ~s :~~~+'crab~.e. ~ars~3,on ~.~ • ~s~o~ t:Yi-9 pX3.i.tsauce ~s aer xs~, the pre~szv~'~inn ~h~ p~pY~s~-~ tlbl.iG 9a'~~~~r a7sd ggt~asetl ur~7-~aa"p an ublz.d hsa.I.'tb ~ P o~ the P e dc~s7,~x8d to aYa,.at, and this Qrdj.aanc~ ~ha11. be ~~zganay ~.S k.,r~ _ z.he ~'ra~_si~ i~ fnii ~oza~ ~3~-ar3, esid pv~s~~-cxa ioxtt and posti~'+.9'~~~~xec~tis.sed by ~~ox-c zart~,.nq $ ~rSt+1 ~ the ~ez~~-~-3.e==x~.x'r Co~tY Joint Airpazt ~a~-n9 .~.r2~ptac3 ~Y 1992 Bc~ax'd th3.~ ~.6 day' of C7b\57aRZ -~.4- ._ f ,t 1 ~ ~1_.._..,..~ 't~IT~~b1 R_ C4 ~xZ please or Print on This Form Failure To Provide Al! Requesfed Information May Delay Processing of Your Notice t Lion or Alteration U.S.DepartrnentofTransportation Notice of Proposed Cons ruc ~_.,...~~ e.,i~frnn adminlstrati0n ~o„~.,...,.. ------ 1. nsor (person, company, etc. proposing this action) Attn. of: Rodrigo Figueroa Attorney at Law Name: Martin Marietta Materials Address: 112 E. Pecan Suite 1800 City: San Antonio State: Texas Zip: Telephone: 210-554-5581 Fax: 2. Sponsors Representative (~fotherthan #!) Attn. of: R. Bruce Motherai P.E. Name: Motheral Industries Inc. Address: 812 A Sidney Baker City: Kerrville State: Texas Zip: Telephone: 830-257-6360 Fax: 830-257-636" 3. Notice of: ®New Construction ^ Alteration ^ Existing 4. Duration: ®Permanent ^ Temporary ( months, days) 5. Work Schedule: Beginning 8-1-07 End 6. Type: [] Antenna Tower ^ Crane ^ Building ^ Power Line ^ Landfill ^ Water Tank ^ Other Excavator 7. MarkinglPainting and/or Lighting Preferred: r- qed Lights and Paint ^ Dual -Red and Medium Intensity White Jhite -Medium Intensity ^ Dual -Red and High Intensity White ^ White -High Intensity ^ Other 8. FCC Antenna Structure Registration Number (rf applicable): B No. 2120-0001 FAA USE ONLY 44" 9. Latitude: 29° 57' 26. 89' 10. Longitude: 99° 04' 21. 11. Datum: ^ NAD 83 ^ NAD 27 ^ OtherNGV-29 12. Nearest: City: Kerrville State:Texas 13. Nearest Public-use (not private-use) or Military Airport or Heliport: 14. Distance from #13. to Structure: 3000'-55uu~ 15. Direction from #13. to Structure: 16. Site Elevation (AMSL): 153_ 3 ~ 17. Total Structure Height (AGL): 36 ft' 18.Overall height (#16. + #17.) (AMSL): 1569 ft' 19. Previous FAA Aeronautical Study Number (if applicable): -OE 20. Description of Location: (Attach a USGS 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. 21. Complete Description of Proposal: Excavation of Sand and Gravel on Martin Marietta property. Frequency/Power (kW) 152.97 mh 40 w Notice is required by 14 Code of Federal Regulations, part 77 pursuant to 49 U.S.G., Section 44718. Persons who knowingly and willingly violate the notice requirements of part 77 are subject to a civl4 penalty of $1,000 per day until the notice is received, pursuant to 49 U.S.C., section 46301 (a). Hereby certify that all of the above statements made by me are true, complete, and correct to the best of my knowledge. In addition, t agree to mark and/or light the structure in accordance with established marking and lighting standards as necessary. Date Typed or Printed name and Title of Person Filing Notice Signatur 6-26-07 R. Bruce Motheral, P.E. NSN: 0052-00-012-0008 FAA Form 7460-1 (2-99) Superrades Previous EdlUon Form ~_ - c ~ ,- ~,' -rGry+ ey- ~ PIt\ ~ ~~t ~1 ~ ~1 _ 1/ _ 1e ~ ~ o.,/ ~J ' - r -- `'y-., L.-. i + ~ ~ ti _ Z. J ~~ i~ - Nf 724 ~g ~._ _ \~// n { ~,~~~~~~, _ ~ /~; USES - Center Point, Texas ~~ - ~ // ~t 1\ ' _ Photorevised 1982 '~` t " '~. 6~.-- ~~ ,f-~-= ~~ - ~ MarEin Mlarietfa Materials ~ ~ ~' - ~ ',' ,,~ ° .~L~~I ~~, `-~ -- J~\` ~~\ , ,~ - Property Location v~.-~~ ~9 <-I _~ ~~~y/l I(6 I \\\~~oBea any l ~ ~~ r _. ~~ J 1 \._ J5~'= o l 1 e `:~~ ~ ~~' ~ ;% ~avef Fit `` ~ ~^ e _ _ ~ ^y _ i I ~ J ~-, 6M ~ i. ~ ~' ~-''~- '41~sz ~ t i ~ ,f - ~~. \ is "1 .` / . uniCipal kir~art i- ~: Shed - `~ ,~ - - r.J ~ -. , Off, ,* \ 1~~ ,' 4v ' ~~- '`\. _._ \r 1 p,~ I i f ~ ~~ 1rp ~ I `-nssx r , } 8 \. F. ~ ~~~ ~'~' it ~`' ` /, '~ ~ \ \ _~ ` ~ TW=n / i ~~~. - _ - S ~ p ~ ~ /579 I i, ` \. ~ /619 ~-. - - ~ _~~ \ ~ ~~- ~, 1~ J ~ 11644 I: ~,ii ~ /- - ~ - ` ~ ` b 1 u ~~ , {. ,, ~A .% q i i ` ~~ ~` It r'"- ~= i Icy ,~' .~ , olf -= ~ _ _~ ~y / <. l-J i .. r~ ' .7 V 1 716 ~ - ~ -1` _ - - 155 o- . •,~ ~ ~ ~' ~ ~ II YPeT. ~: s I .1 %•O // ~Gr~YeY~ Y `i `~ ~~- r64sJ1 ~ __-_ T ~ Fif If a .. n x I '~br~ v 1. ~ 4• ., ~~.~ ~~- Mari:if~[Jdan'e~fa..Maferia -_ ` - .>.\ ~' ; fs.77 ~~ Proper[ tocetion. _ - _ ~ ~ ~ _ _ _ _ u '!~ ~ - ~ F~a.~~~ J~ -153 __ _ `~ _~ ; !5~ `~ --- '- - --..._ nom-.." - ". ~ -=yam-_ _ , 9 qj ,t ~ ..o-_ ~Jrt Gu ~ ~/ ~ y-'- ~ 6 r ° ~ \ J'-~- ~ _'-ti P .1 i 1.'~ ~_ _ -- ~_- -r, ~,~,~ 4 it _. .- _. -. .., -,.. ^1}- r /._ 1. '1519 ' ,fi~x''/)f 6 - ~-- - r# a +i ~ . .. ~ ~ ~ ~ ~ ~ U.S. Army Carps of Engineers Regulatory Program Tribal Consultation & Coordination Contents: The US Army Corps of Engineers (USAGE) Works in Every State IJSACE , 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 Points s Honolulu HI, Atlanta GA, San Francisco CA, H Fort Worth TX. Jurisdiction NHPA ii Appendix C Appendix C, continued Points of Contact 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 Carps missions fulfill of eur Trust responsibility. 5 Regulatory Program Overview The Corps has regulated activities by others in navigable water- waysthrough the granting of permits since passage of the Rivers 9 Harbors Act of 1899 (RHA). The passage of the Clean Water Act in 1972 (CWA) greatly broadened this role by giving the Corps authority over dredging and filling activities affecting "waters of the lJnited States," including many wetlands. MOST COMMONLY USED LEGAL AOTHORITIES ~s Sauvie Island, Oregon Regulatory Program, Portland District Section 10 of the Rivers and Harbors Act of 1899 involves work and/or the placement of struc- tures inwaters ofthe lJnited States that may affect navigation or navigable water bodies. Section 4D4 of the Clean Water Act, the mast common authority, involves the discharge of dredged or fill material into waters of the United States, including some wetlands. U.S. Army Carps of Engineers Page 2 The Regulatory Program Individual Permits 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 most time, require public in- volvement, and are the mast similar to pure National Environmental Policy Act (NEPA) actions used in Civil Works Planning projects 33 CFR 325 specifies timelines far completing permit evaluations and making permit decisions. The Dffice of Management 8 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 Corps relies on a professional 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 >? 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 on the natural and cultural environ- ment. GPs authorize about 80% of the 1DD,000 annual authorizations issued by the Corps. Nationwide per- mits (NWPs) are the most common and least complex form of GP authorization, This program allows eca- nomicdevelopment to move forward, while meeting environmental protection requirements-conditions must be met concerning historic properties li Tribal issues before a GP can be issued. Key Points about the Regulatory Program • The IOD,ODD+ 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 120 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 how resource protection can be achieved. Less than 1% of all permits are ele- vatedbeyond 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 by 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. U.S. Army Corps of Engineers Page 3 Regulatory Jurisdiction High Marsh i Low Marsh FRESH OR BRACKISH ~ TIDAL TERRITORIAL uPLaND wETIAND TIDAL WETLAND FLAT sEAs Corps of Engineers Regulatory Jurisdiction in TIDAL WATERS SECTION 404 SECTION A04 _ Discturpe of Discharge of Dredged w Frs Matnrial Dr or Fitl feral SECTION to All Structures and Wak 1 ' -,~, ;, ..•~,1~ it p NevigabYa WaIBr of U.S. i1 1• I r '~•• 'Yy ~~ T• i ' ,Y /OrGnary High Walcr J ~ f/ MardteE wet Meedows gx-ynps - '~ Mashes RI4ERS ~ ISOLATED STREAMS S FRESH NWTER FRESH WATER LAKES UPLAND WETLAND UPLAND WETLANDS PONDS ~ Corps of Engineers Regulatory Jurisdiction in NON-TIDAL WATERS ~^ _ ___-------`_°_--- MEAN HIGH WATEfi,. U.S. Army Carps of Engineers Page 4 National Historic Preservation Act (NHPA) The NHPA states in part: Implementing Regulations - 3fi C.F.R. 800 "The historical f} This regulation, promulgated August 5, ZOD4, establishes the procedures for identifying historic properties and cultural foundations of theNation should he determining their significance, assessing impacts as a result of Federal activities, and explains NEPA coordina- preserved as a living tion and tribal consultation requirements. Subpart (b) contains the Section 1D6 requirements far consultation on part of our community Federal actions or'undertakings.' life 8 development in Seetien 106 order to give a sense of orientation to the " A Federal agency "having direct or indirect jurisdiction" aver 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." Federal Undertaking "Undertaking" means a project, activity, permits, or program funded in whale or in part under the di- rect orindirect jurisdiction of a federal Agency, including... • Those carried out 6y 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 6y a Federal agency. Appendix C (Historic Properties), 33 C.F.R. 325 -Background The Carps 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 Corps define "Permit Area" in a way that differs from the "Area of Potential Effect (APE)" defined in 36 CFR SOD. A copy of Appendix C can he found at the following wehsite: http://www.usace.army.mil/cw/cecwo/reg/33cfr325.htm#appendixC U.S. Army Carps of Engineers Page 5 Key Tribal Interests-Appendix C and 36 C.F.R 800 • The "area of potential effect" as defined in 36 CFR 8U0 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 on consultation as 3fi CFR 8UU. How- ever, the Carps' Interim Guidance, dated April 25, 2005, has a section on Tribal con- sultation based 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 6e encountered in Regulatory actions on private property. • Appendix C does not address how to conduct consultation annon-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 aver 100,000 permit applications, annually. The Appendix C Revision Process 1. AdvanceNaticeafPrapased~u/emakingissued in the Federal Register September 27, 2004,with copies mailed to all Indian Tribes and Alaska Native Corporations 2. Informal coordination with ACHP began in 2005 and is ongoing 3. Facilitated stakeholder meetings in November 2005 with Water Utility Users Group, National Association of Homebuilders, National Mining Association, Cultural Resource Groups (e.g. ACHP, NASHPO, NATHPO, National Trust far Historic Preservation etc.) 4. Invitation for continued Tribal involvement, Nov 2006- Present 5. Coordination fi consultation meetings with Tribes, Summer-early Fall 2007 6. Coordination fi consultation with the ACHP and 0MB-Winter 2ao~ 7. Conduct follow-up Tribal consultation meetings, upon request 8. Publish Final Rule -Summer 2008 Comments can be submitted by individuals, organizations, agencies, or Tribes at anytime throughout this process. 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 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. Eli ig'bility Determinations 7. Assessing Effects 8. Consultation 9. ACHP Review and Comment 10. District Engineer Decision http://www.usace.army.mil/cw/cecwo/reg/33 cfr325.htm 11 /11 /2007 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. Emer ency 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 http://www.usace.army.mil/cw/cecwo/reg/33 cfr325.htm 11 /11 /2007 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. 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. http://www.usace. army.mil/cw/cecwo/reg/33 cfr325.htm 11 /11 /2007 33 CFR Part 325 - Processing of Department of the Army Permits Page 35 of 43 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 http://www.usace.army.mil/cw/cecwo/reg/3 3 cfr325.htm 11 /11 /2007 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 may be 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. 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. http://www.usace.army.mil/cw/cecwo/reg/33 cfr325.htm 11 /11 /2007 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. http://www.usace.army.mil/cw/cecwo/reg/33 cfr325.htm 11 /11 /2007 33 CFR Part 325 -Processing of Department of the Army Permits Page 38 of 43 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. 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 http://www.usace. army.mil/cw/cecwo/reg/3 3 cfr325.htm 11 /11 /2007 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 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 http://www.usace.army.mil/cw/cecwo/reg/3 3 cfr325.htm 11 /11 /2007 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 http://www.usace. army.mil/cw/cecwo/rea/33 cfr325.htm 11 /11 /2007 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. 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 http://www.usace. army.mil/cw/cecwo/reg/3 3 cfr325.htm 11 /11 /2007 33 CFR Part 325 -Processing of Deparhnent 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 maybe 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 properly. 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 http://www.usace.army.mil/cw/cecwo/reg/3 3 cfr325.htm 11 /11 /2007 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 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. RETURN HOME http://www.usace.army.mil/cw/cecwo/reg/33 cfr325.htm 11 /11 /2007 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. http://www.wetlands. com/coe/87manp 1 a.htm 11 /11 /2007 Wetlands_US Army Corps of Engineers_Wetlands Delineation Manual Page 2 of 5 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 inacrophytic 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 http://www.wetlands.com/coe/87manpl a.htm 11/11/2007 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 may be 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 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. http://www.wetlands.com/coe/87manp 1 a.htm 11 /11 /2007 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. 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 defuution 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. http://www.wetlands.com/coe/87manp 1 a.htm 11/11/2007 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 may be used for routine determinations: a. Level 1 - Onsite inspection unnecessary. (PART IV, Section D, Subsection I). 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 ofthe 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 Tod of Page I Previous Page I Front Page http://www.wetlands.com/coe/87manp 1 a.htm 11 /11 /2007 Y a ~ ~ ~~~ ~r,~ > ~~~~: ~ ~K .~ -~ . ( y ; . ! 1~ yy~~,,.yy ~`~ _ k le c r. , <,E x y' }:: r~: ~. 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; (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 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 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. MARTIN MARIETTA MATERIALS SOUTHWEST, INC. (SUCCESSOR BY MERGER TO MARTIN MARIETTA MATERIALS SOUTHWEST, LTD.) BRIEF IN SUPPORT OF GRANT OF DEVELOPMENT PERMIT BY KERB COUNTY FLOODPLAIN ADMINISTRATOR SEPTEMBER 12, 2007 2071599.5 I. FACTS Martin Marietta Materials Southwest, Inc., successor by merger to Martin Marietta Materials Southwest, Ltd. ("Martin Marietta")t proposes to build ahaul-road across a portion of a 104 acre-tract (the "Property") leased by Martin Marietta in Kerr County. Because a portion of the haul-road will traverse land located in the 100-year flood-plain, Martin Marietta was required to obtain a permit from the Kerr County Floodplain Administrator to construct the portion of the haul-road that will cross the floodplain. On December 21, 2006, Martin Marietta submitted an application to the Kerr County Floodplain Administrator for a development permit. As clearly stated on the application, the permit requested by Martin Marietta was for construction of the haul-road only. After a lengthy diligence process by Martin Marietta and the Kerr County Floodplain_ Adminsstrator, on Febnaary 15, 2007; the Floodplain Administrator issued Permit No. F07-002 (the "Permit"), allowing Martin Marietta to build the haul-road at ground level on the Property. The Permit expressly provides that the Floodplain Administrator has reviewed plans and specifications of the proposed development for conformance with the development standards required by Kerr County Floodplain Management regulations. Additionally, the Floodplain Administrator attached the following conditions to the grant of the Permit: (1) Martin Marietta must provide a copy of all final plans or as-built drawings of the access road crossing of the A- Zone; (2) Martin Marietta must place permanent markers in the ground along the AE & A Zones of the floodplain in such a way that they are visible for employees working in the area; (3) Martin Marietta must mark on the ground where the access road crosses over A-Zone; (4) mining is prohibited in Zones A or AE under the Permit; and (5) stockpiling of materials is prohibited in Zones A or AE. Mr. J. Nelson Happy owns the H.M. Naylor Ranch adjoining the Property on which the haul-road will be constructed. Mr. Happy's property is approximately 1,500 feet from the site of the proposed haul road. At the Kerr County Commissioner's Court meeting on May 14, 2007, Mr. Happy protested the issuance of the Permit alleging that the Permit was granted in violation of the Kerr County Flood Damage Prevention Order, Order No. 26463 adopted on June 26, 2000. Following the hearing on May 14, 2007, the Kerr County Commissioner's Court decided to suspend the Permit pending investigation by the County Attorney into Mr. Happy's allegations. For the reasons set forth below, the Permit was granted in compliance with the terms of the Order and should be reinstated. II. KERB COUNTY FLOOD DAMAGE PREVENTION ORDER The Kerr County Flood Damage Prevention Order ("Order") directs the Floodplain Administrator to administer and implement the provisions of the Order and requires a development permit before any construction can take place within the areas in the floodplain. See Exhibit A, Order, Article 4, Section A; Article 3, Sections A, C. Among the Floodplain 1 The entity listed on the permit from the Kerr County Floodplain Administrator is Martin Marietta Materials Southwest, Ltd. However, since the issuance of the pernut, Martin Marietta Materials Southwest, Ltd. has been succeeded by merger by Martin Marietta Materials Southwest, Inc. 2 2071599.5 Administrator's enumerated duties is the requirement to review permits for proposed development to assure that all necessary permits have been obtained from those Federal, State or local governmental agencies from which prior approval is required. See Order Article 4, Section B(4). Specifically, approval or denial of a development permit by the Floodplain Administrator ' must be based on all of the provisions of the Order and the following relevant factors: 1. The danger to life and property due to flooding or erosion damage; 2. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; 3. The danger that materials maybe swept onto other lands to the injury of others; 4. The compatibility of the proposed use with existing and anticipated development; 5. The safety of access to the property in times of flood for ordinary and emergency vehicles; 6. The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems; 7. The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; S. The necessity to the facility of a waterfront location, where applicable; 9. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; 10. The relationship of the proposed use to the comprehensive plan for that area. Order, Article 4, Section C (2)(a)-(j). III. ARGUMENTS AND AUTHORITIES A. THE FLOODPLAIN ADMINISTRATOR CORRECTLY GRANTED THE PERMIT AFTER CONSIDERING THE FACTORS ENUMERATED IN THE ORDER As noted above, approval or denial of a development permit by the Floodplain Administrator must be based on all of the provisions of the Order and the consideration of ten factors enumerated in the Order. For the reasons set forth below, the Permit was granted with consideration to the factors set forth in the Order. 3 2071599.5 1. The danger to life and property due to flooding or erosion damage In order to avoid creating a rise by the construction of the haul-road in the floodplain, the haul-road will be constructed in such a way that there will be no change in current elevations along the road. See Exhibit B (letter from Professional Engineer stating that there will be "no rise" created by the proposed road). Martin Marietta will excavate approximately two feet down from the surface of the land. A mixture of compacted sand and gravel will then be poured into the excavated area until it fills the excavated area up to two inches from the surface. The final two inches of the excavated area will be filled-in with a mixture of tack oil and cover stone. This tack oil and cover stone mixture will seal the road and give it a rough surface. The tack oil and rock mixture will also give the haul-road an all weather surface to protect it from erosion. Accordingly, the haul-road will not change the current topography of the floodplain and will be constructed with anall-weather surface to protect it from erosion damage. In addition, Martin 1l~arietta'S planned Operatinn~ nn tl2e Property y~hir.h will be served by the haul-road, will not take place on the floodplain, will not involve residential development, and can be suspended during severe weather conditions, thereby reducing the danger to life and property due to flooding. 2. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner As noted in the discussion to factor 1 above, the haul-road will be constructed to be flush with the ground and will be constructed with anall-weather surface. Because the haul-road will not cause a rise in the floodplain and will be protected from erosion by an all weather surface, the haul-road will not be susceptible to flooding damage. 3. The danger that materials maybe swept onto other lands to the injury of others As a condition to the grant of the Permit, the Floodplain Administrator prohibited Martin Marietta from stockpiling materials in the floodplain Zones A or AE. Additionally, the haul-road will be seal-coated and will have anall-weather protection surface, which will virtually eliminate the possibility that base materials will be washed downstream in the event of a flood. 4. The compatibility of the proposed use with existing and anticipated development Construction of the haul-road is compatible with both existing and anticipated development surrounding the Property. Currently, Drymala Materials operates a sand and gravel mining operation to the east of the Property. A couple of miles further to the east of the Property, Wheatcraft materials mine sand and gravel. Gordon Roundtree conducts a sand and gravel mining operation to the west of the Property, and Lucky Three operated a limestone quarry for approximately seven years to the northeast of the Property. Additionally, in conjunction with the diligence conducted by the Floodplain Administrator before granting the Permit, the Senior Planner for the City of Kerrville provided a letter indicating that the Property was identified in the 2002 Kerrville Comprehensive Plan as an area suitable for industrial development in the future. See Exhibit C. 4 2071599.5 5. The safety of access to the property in times of flood for ordinary and emergency vehicles Although this factor does not appear to be applicable to the current situation where the permit sought is only for a portion of a private road that will be constructed on the floodplain, nevertheless, existence of the haul-road will increase the access to the Property leased by Martin Marietta in times of flood. However, as noted above in the discussion to factor 1, Martin Marietta's planned operations on the Property will not take place on the floodplain, will not involve residential development, and can be suspended during severe weather conditions. Therefore, neither ordinary nor emergency vehicles will likely need to access the property in times of flood. 6. The costs of providing governmental services during and after flood conditions ancludmg ma>uatenance and repair of Streets and bridges, and pl~bllc »tllltles and facilities such as sewer, gas, electrical and water systems The proposed haul-road is going to be constructed on private property to service Martin Marietta's private operations on lands located outside of the floodplain. Accordingly, no maintenance, repair, or other governmental services will be required in conjunction with the haul-road. 7. The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site As noted in the discussion to factor 1 above, there will be no change in current elevations on the floodplain as a result of construction of the haul-road and the haul-road will be constructed with anall-weather surface. 8. The necessity to the facility of a waterfront location, where applicable This requirement is not applicable to the construction of the haul-road. 9. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use The Floodplain Administrator and Martin Marietta worked jointly to determine the best location for the haul-road. The original location for the construction of the haul-road was going to traverse a greater amount of acres of Zone-A of the floodplain. Accordingly, Martin Marietta and the Floodplain Administrator eventually agreed on a changed route for the construction of the haul-road which will only affect six-tenths of an acre of Zone-A of the floodplain. Also, as noted above, the haul-road will be constructed with anall-weather surface to protect it from erosion damage. Any other location for construction of the haul-road would increase the traffic on nearby Highway 27 and River Road. Thus, Martin Marietta and the Floodplain Administrator considered alternative locations for the construction of the haul-road and ultimately decided on 5 2071599.5 the route that minimized construction over the floodplain and minimized traffic to nearby Highway 27 and River Road. 10. The relationship of the proposed use to the comprehensive plan for that area As noted in the discussion to factor 4 above, the Senior Planner for the City of Kerrville provided a letter to the Floodplain Administrator indicating that the Property was identified in the 2002 Kerrville Comprehensive Plan as an area suitable for industrial development in the future. See Exhibit C. The Property is also currently surrounded by several mining operations. Therefore, the proposed haul-road is consistent with both the comprehensive plan and the current use of the area surrounding the Property. B. ALL NECESSARY PERMITS WERE OBTAINED FOR THE CONSTRUCTION OF THE HATTL _I2flAi~ The Order requires that the Floodplain Administrator review permits for the proposed development to assure that all necessary permits have been obtained from Federal, State or local governmental agencies from which prior approval is required. As is further set forth below, Martin Marietta not only obtained permits from the required .agencies, it also subjected itself to certain conditions and approvals from agencies from which permits were not required, in order to address the concerns of the Kerr County Commissioners. 1. U.S. Army Corps of Engineers Generally, any discharge of dredged or fill material into the navigable waters of the United States requires a permit from the U.S. Army Corps of Engineers ("Corps"). See 33 U.S.C.A. § 1344. Generally, there are two types of Corps permits, individual and general. See 33 CFR § 325.5(a). Nationwide permits ("NWPs") are a type of general permit issued by the U.S. Army Corps of Engineers designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts. See 33 CFR 330.1(b). NWPs authorize specific types of activities throughout the nation. See 33 C.F.R. 330.2(b). Because the haul-road will cross a drainage ditch located on the eastern fence line of the Property, construction of the haul-road could arguably be considered discharge of dredged or fill material into the navigable waters of the United States for purposes of Corps regulations. However, discharge of dredged or fill material that may result from construction or maintenance of temporary roads for moving mining equipment are exempt from permit requirements. See 33 CFR § 323.4 (a)(6). Despite the fact that the construction of the haul-road is likely exempt from the Corps permit requirements, out of an abundance of prudence, Martin Marietta decided to voluntarily comply with the permitting conditions of Corps NWP No. 14, Linear Transportation Projects, for the construction of the haul-road. Some NWPs require pre-construction notification to the Corps district engineer prior to commencement of the activity in question. See 33 CFR 330.1. Specifically, NWP No. 14 requires pre-construction notification to the district engineer prior to commencing the activity if: (1) the loss of waters of the United States exceeds 1/10 acre; or (2) there is a discharge in a special aquatic site, including wetlands. The haul-road construction will cause a loss of approximately 1,750 square feet of waters and will not occur in a special aquatic site. 6 2071599.5 Accordingly, pre-construction notification to the district engineer is not required under NWP No. 14 for construction of the haul-road. Aside from pre-construction notice to the Corps when the proposed construction meets the criteria discussed above, NWP No. 14 does not require any other approval or communication with the Corps in order for construction to take place. 2. Federal Aviation Administration Regulations The Federal Aviation Administration ("FAA") regulations dealing with objects potentially affecting navigable airspace are found at 14 C.F.R. Part 77. In relevant part, the FAA regulations require that notice be provided to the FAA for construction of "any traverse way for mobile objects, of a height which, if adjusted upward 10 feet or the height of the highest mobile object that would normally traverse the road, whichever is greater, would exceed a standard of paragraph (a) (1) or (2) of [14 CFR § 77.13]." See 14 CFR § 77.13(a)(3). The standard set forth in (al(11 and (al(21 of 14 CFR ~ 77.13 is as follows: (1) Any construction or alteration of more than 200 feet in height above the ground level at its site. (2) Any construction or alteration of greater height than an imaginary surface extending outward and upward at one of the following slopes: (1)100 to 1 for a horizontal distance of 20,000 feet from the nearest point of the nearest runway of each airport specified in paragraph (a)(5) of this section with at least one runway more than 3,200 feet in actual length, excluding heliports. (ii) 50 to 1 for a horizontal distance of 10,000 feet from the nearest point of the nearest runway of each airport specified in paragraph (a)(5) of this section with its longest runway no more than 3,200 feet in actual length, excluding heliports. (iii) 25 to 1 for a horizontal distance of 5,000 feet from the nearest point of the nearest landing and takeoff area of each heliport specified in paragraph (a)(5) of this section. 14 CFR § 77.14(a)(1)-(a)(2). Anyone undertaking construction which requires notice pursuant to the FAA regulations found at 14 C.F.R Part 77, must submit FAA Form 7460-1. Martin Marietta's operation will involve several pieces of mobile equipment on the haul- road. The tallest piece of mobile equipment on the haul-road will be an excavator boom. Fully extended, the tallest point of the excavator boom will extend to a height of 36 feet. Accordingly, Martin Marietta's construction of the haul-road does not require notice to the FAA. However, in order to resolve any concerns that the Kerr County Commissioners may have regarding Martin Marietta's construction of the haul-road, Martin Marietta voluntarily submitted FAA Form 7460- 1 to the FAA. See Exhibit D. In response to Martin Marietta's submission, the FAA reviewed the details of the proposed construction, conducted an aeronautical study, and ultimately 7 2071599.5 determined that Martin Marietta's construction of the haul-road with its associated equipment does not pose a hazard to air navigation. See Exhibit E. 3. Airport Hazard Zoning Ordinance The Kerrville Municipal-Louis Schreiner Field Airport Hazard Zoning Ordinance ("Ordinance") adopted in 1992 by the Kerrville-Kerr County Joint Airport Zoning Board, regulates and restricts the height of structures and use of property in the vicinity of the Kerrville Municipal-Louis Schreiner Field Airport by creating zones and establishing certain regulations and restrictions for property included in the established zones. See Exhibit F. The restricted zones are defined in the Ordinance and are depicted on the Kerrville Municipal-Louis Schreiner Field Airport Zoning Map. See Ordinance Section 3. Generally, no material change may be made in the use of land and no structure may be erected in any zone created by the Ordinance without frst obtaining a permit from the City Manager. See Ordinance Section 7. However, the Ordinance specifically excepts certain structures and activities from the permit requirement. See Ordinance Section 7(A)(1)-(3). As noted above, the tallest point of the tallest equipment that will traverse the haul-road will extend to a height of 36 feet. Accordingly, Martin Marietta's construction of the haul-road does not require a permit under the Ordinance. See Exhibit G. Additionally, under the Ordinance, no use may be made of land within any zone established by the Ordinance in such a manner as to create electrical interference with navigational signals or radio communication between the airport and aircraft, make it difficult for pilots to distinguish between the airport lights and others, result in glare in the eyes of pilots using the airport, impair visibility in the vicinity of the airport, create bird strike hazards, or otherwise in any way endanger or interfere with the landing, taking off, or maneuvering of aircraft intending to use the airport. See Ordinance Section 5. In connection with its aeronautical study into Martin Marietta's construction of the haul-road, the FAA evaluated the radio frequency and other characteristics of Martin Marietta's equipment to determine potential interferences to air navigation. See Exhibits D, E. As a result, the FAA requested that Martin Marietta coordinate frequency activation with an FAA representative prior to beginning transmission from the site, and determined that marking and lighting are not necessary for aviation safety in connection with Martin Marietta's construction. See Exhibit E. Thus, Martin Marietta will comply with FAA recommendations to ensure that its operations will in no way interfere with aviation safety. 4. Executive Order 11990, Protection of Wetlands Mr. Happy alleges that compliance with Federal Executive Order 11990, Protection of Wetlands, is required for the construction of the haul-road. The United States Department of Agriculture has determined that there are no wetlands on the Property, which includes the land on which the haul-road will be constructed. See Exhibit H (Letter from United States Department of Agriculture to Martin Marietta). 5. Storm Water Construction General Permit On November 5, 2005, Martin Marietta obtained coverage under the Texas Commission on Environmental Quality, Storm Water Construction General Permit, for construction and 8 2071599.5 operations on certain of Martin Marietta's properties located in Kerr County, including the Property. See Exhibit I. 6. Section 106 of the National 1=Iistoric Preservation Act Mr. Happy has also alleges that the Floodplain Administrator was required to obtain cultural and historical resource approval from the Texas State Historical Preservation Officer prior to granting the Permit. Section 106 of the National Historic Preservation Act ("NHPA") states: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall; prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included ul or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under part B of this subchapter a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. Section 470f ("Section 106"). In a letter dated October 16, 2006 the Texas Historical Commission staff preliminarily determined that Mr. Happy's property, the Naylor Ranch, was eligible for listing in the National Register of Historic Places ("Register") under criterion C and possibly criterion B of the National Register of Historic Places regulations. See Exhibit J (letter from Texas Historical Commission to Ms. Matthews). In National Mining Association v. Fowler, plaintiff, anon-profit trade organization representing mining interests, brought an action alleging that certain regulations of the Advisory Council on Historic Preservation ("ACHP") exceeded the ACHP's authority under the NHPA. Fowler, 324 F.3d 752, 755 (D.C.Cir. 2003). One of the regulations challenged expanded the definition of "undertaking" subject to Section 106, to include "those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency." Id. at 755. The plaintiff in Fowler was concerned that the ACHP's regulations as written would make Section 106 applicable to state and local agencies that issue permits under cooperative federalism statutes. In particular, the plaintiff argued that although the federal government's approval of a State's overall Surface Mining and Control and Reclamation Act permitting program may arguably be an action subject to Section 106 because the federal government contributes funds to the general administration of state permitting programs and approves those programs, individual state mining permits should not trigger the Section 106 process because the federal government does not retain the authority to approve or reject individual mining project applications. Id. at 757. The Fowler Court agreed with the plaintiff and held that that Section 106 applies by its terms only to federally funded or federally licensed undertakings, and not to undertakings that are merely subject to State or local regulation administered pursuant to a delegation or approval by a Federal Agency. Id. at 760. In the present situation, similar to Fowler, the federal government retains absolutely no authority to approve or reject applications for a development permit under the Kerr County Order. The Texas Historical Commission has informed Mr. 9 2071599.5 Happy that it has no authority to comment on the grant of the Permit to Martin Marietta. See Exhibit K. Accordingly, Section 106 is inapplicable to applications for development permits under the Order. Additionally, Section 106 is not triggered by the fact that the construction of the haul- road is arguably covered by a Corps NWP. As articulated by the Fifth-Circuit court of appeals, "nationwide permits authorizing truly inconsequential activities are not triggering "licenses" under [Section 106." See Vieux Carre et al. v. Brown, 875 F.2d 453, 465 (5`h Cir. 1989). In the present. situation, as noted above, the construction of the haul-road is so inconsequential that it does not require pre-construction notification to the Corps. Therefore, compliance with Section 106 is not required by virtue of the fact that construction of the haul-road is arguably covered by NWP No. 14. rnr,s rP '1°tin"$ de~lnn^ y;~;tl, natinn:.'id.°~ „erm:±s nrov:de that no activity ~z1l.ich 'The ..,., t, .,g~. u ~~. u g ~~,. y Y may affect historic properties listed, or eligible for listing, in the National Register of Historic Places is authorized until the District Engineer has complied with the provisions of 33 CFR Part 325, Appendix C. See 33 CFR 330.4(g). Prospective permittees are required to notify the District Engineer if the activity may affect historic properties which the National Park Service has listed, determined eligible for listing, or which the prospective permittee has reason to believe may be eligible for listing, on the National Register of Historic Places. See 33 CFR 330.4(g)(2). Paragraph 15(a) of 33 CFR Part 325, Appendix C provides that an "undertaking has an effect on a designated historic property when the undertaking may alter the characteristics of the property that qualified the property for inclusion in the National Register." As outlined in the letter from the Texas Historical Commission, Mr. Happy's property is potentially eligible for listing in the Register under criterion C and possibly criterion B of the National Register of Historic Places regulations. Under criterion B and C respectively, the following sites, buildings or structures are eligible for listing in the Register: (1) those that are associated with the lives of persons significant in our past; and (2) those that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction. See 36 C.F.R. § 60.4(b)-(c). Construction of the ~ haul-road, approximately 1,500 feet away from Mr. Happy's property, will in no conceivable manner alter the characteristics of Mr. Happy's property which may qualify it for inclusion in the National Register. The existence of a haul-road on an adjacent tract of land does not alter the fact that Mr. Happy's property is associated with the life of a significant person. Similarly, the fact that Mr. Happy's property may include buildings that embody distinctive characteristics of a method of construction will not change merely because of the presence of a haul-road at least 1,500 feet away. 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 iri the National Register and therefore construction of the haul-road does not require notice to the Corps' District Engineer. Even assuming arguendo that Section 106 applies to the Permit, the regulations adopted by the Advisory Council on Historic Preservation specifically provide that "[i)f the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part." See 36 CFR § 800.3(a)(1). "Effect" is defined as alteration to 10 2071599.5 the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register. See 36 CFR § 800.16(1). As discussed above, 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. Therefore, even if Section 106 applied, the Texas State Historical Preservation Officer would not have a right to participate as requested by Mr. Happy. IV. CONCLUSION For the reasons set forth above, the Permit to construct the haul-road was validly issued pursuant to the terms of the Order. Martin Marietta will construct the haul-road and conduct its operations in accordance with the conditions attached to the Permit, as requested by the FAA, and as required by appl.cable Ct~ta arld Federal iavJ. ui order to address 1Vlr. Happy's allegations .~ ~~~.. and the concerns of the Kerr County Commissioners relating to the construction of the haul-road, Martin Marietta has gone above and beyond what is required by the terms of the Order and State and Federal law. Accordingly, Martin Marietta respectfully requests that the Permit granted by the Floodplain Administrator to construct the haul-road be reinstated. Respectfully submitted, COX SMITH MATTHEWS INCORPORATED 112 E. Pecan, Suite 1900 San Antonio, Texas 78205 Telephone (210) 554-5581 Facsimile (210) 226-8395 ~- ~ . Rodrigo Figueroa State Bar Number 24045872 11 2071599.5 KEBR COUNTY FLOOD DAMAGE PItEYENTION OAI?ER O>QAEA N0.26463 ARTICLE 1 STATUTORY AU7'NORIZAT'[ON, FINDINGS OF FACT, YURP08E APiD METI30D3 -SECTION A. g'7'A'TXJ'fY?1t~X A 1TBORI~ATION -The L,egi4lanue of the 5tiM afTexas has in Texan Water Cade, Section 16.3 I S deicgrated ti-e resptsrtsibility of local governmental units to adopt reguladorc- dcaig~d to mitimin ~tiood losses. Tlserrforc, the Cbtttntissionct'a Court of Kean Counry, Toacna; does ordain as follows: SECTION H. ~jlyGS OF~CT (1) The flood hazard areas of Kar Coutsty are :object to periodic inundation which tesuit4 in loss of life sad property, health and aafety tteurds, disruption of oocntrxa'tc and gov~artttr-e:ttt-i scvices, and ertraordittary public expasditut~ for flood ~ acu! rclisf, all of vdhieh szfvcrsely affect tins public beattfi, safety and gcRaal wolfar~e. (2) Those flood losses are crcatrd by the cumulative effect of obstructions in ftoodplains which cause an increase in flood heights and velocities, and by the occupancy of flood hamrds areas by uses vulnerable m floods and hazardous m other rands because tfuy are inadoquataly elevated., floodptoofed or otherwise protected from flood damage. SECTION C. STwTEhIENT OR>PL1RPOl5ti< It is fire purpose of this order to prvmoto the public health, saf~y and gcateraf welfare and to minimize public and private losses due to flood condition8 in spcciflc areas by provisions des'87ncd to: (l) Protect human life utd health; (2) Minimize expet~lture of public money far oocity flood cottb-of projects; (3) Minimize the Hood fqr rescue and relief efforts aBeoCiatc+d with flooding and generally undertaken d the exposxae of the gcnaral public; (4) Minimize prolonged bu$ineas intameptio[ta; (5) Minimize damngc to public ficilitia and utilitiaa such as wstsx and gas m,sins, electric, telephone and sewer linos, arrests aid bridges iocatnd in floodplaina; /~/.~ IAf~Tritt~ ~- -1- Adopted lone 26.2000 ETA. BARGEE, Deputy (ti) Help mairm3in a stable tax bast by providing for the sound use and devclq~ment of flood-prone . - - -- -- areas in such a manner as to rnittirt-iae future flood blight areas: and (7) lnsurt that potential buyers are notified that property la in a flood area. 5YCY'YON D. ~T~-ODD ~F RFJ~U INC FL441? L In order to accomplish its purposes, this order oats the following methods: (1} Restrict or prohibit uses that aro dangerous to heakh. safrty or property ins times of flood, or cause accessive incrzesca in flood heights or velocities; (2) Require that oars vuhxrable to foods, inchufirzg facilities which serve such uses, be protxtod against flood damage at the limo of initial construction; (3) Control the ahxrativn of natural fioodplains, stream channels, sad natural protetitivt barriers, which are involved in tlxc accommodation of flood waters; (4) Control filling, grading, dredgittg end other devolopmart which may iner~asc flood damage; (5) Prevemt or regulate the construction of flood barriers which-will unnaturally divert flood waters err which may increase flood hazards to ottx+r lairds. SECTION E. VIOLATIQNS ANU PENALTIES Any person, firm, corporation or agettt who shall violate a provisi~ af'this tegulati~on, or fail to comply therewith, or with airy rxqui¢xstxQtts thereof, or who shall erect, cor>stzvct, or alter, Duty structure, or shall place arty fill material, in violation of the detailed statcxnent or drawittg submitted and approved ltereund~, shall be guilty of contempt of the Commiasiormrs' Court of Kerr County, Texas. Each such person shall be deemed guilty of a separate affatae for cacti and evrry day or portuon thereof, during which any violation - of any of the provisions of this regulation a catmtittad, or continued. The Flaodplsin Administrator is authorized to file with the County Clerk a Motion suggesting cartcmpt for failure Lo cosnpty with these regulatiot>s. After filing, said Motion shall bo presented to the County Judge who shall set a day and time for the Responders to appear and show cause why hrlshe should not be bald in ootttempt, which shall not be less than ~ (10) nor more titan twenty (20) days 6rorn the date of filing of said Motion, whereupon the Clerk shall issue a citation and notice of setting for service upon said Respondent. At said hearing Respondcrtt shall be aocarded the rigltt to counsel, noel the right to fortify and offer evidrnce in his behalf. If after such bearing before the Commistiott~'g Court hdaht should be held in violation of the regulations, then hdshe may be punished by a fine not to axoeed 525.00 for tech offense err by irnprisonmer-t not to exiceod itiveuty-four (24) hours for each ef'6onss. SECTION F. Ri ikI'T O~ lEj~~Y The Floodplain Administrator, or his duly authocllxd roprt~stative, may ceder any building, strvetura, or pruttises ro perform any duties imposed upon him by this rt¢utation. _2. Adopted 1un~ 26, 2000 ~~r-rrnx ~ gTOP W4RKQ$DZr#t _-~---^ - _ Upon notice from the Floodploin Administrator that work on any building, s~ucturr, dtke, brid@~, or Any improvement which would affect water drainage, iQ being done cottdrary to the provisiems of this regulation, or m a danga'ws err unsak rnatWor, such work shall be ;n,rnodiatcly ~aPP~ Such rxxice shall be in _ writitlg and shall be given to the owttor of the property a to his agent, err the person doing the work, and shall state the conditions undo which work may be rtsurrted. Wt-ete sn emergency oxists, no writtat nortice shall bo roquired to be gival by the Fioodplain Administrator, providod written notice shall follow within . _ twttlty-foot (24) hours from the timt oral naticc t4 slap work is isutod. air-rsn~TR AFVOC~•I'I41~IO~PI~RMTT `_, The Floodplnat Administrator may revoke a permit or approval iswod under the provisions of this t~ulation in cases wham throo has begirt airy false statssnent err misrvp~tatian as u~ a material fact is the application of pieta upon which the patmit or approval was basod. __ RFCTI4tY L. ~~ . has herzby dcclarod to be tlt~ attention of the Cp~irttiflalAnC' S Court of Kerr County, Texas, thaz ~ clat:~ _ phrases, ctausea, s~stences, paragraph3, and sectie~ of this Order am s~bk, and if any phrase, srnta7zoo, paragraph, cx section of this Otdor shatld bo declared unconstitutional by the valid judgemrirt or dacroe of any court of corltpetatt jurisdictioat, sutler unconstitutionality abalt not afl'oc~t arty of the remaining phrases, clauses, setttettcoa, paragraphs, or sadtioro of this areier, since the same would have beat crtacted by the Cottunisaioners Court witS7aut inoorporatioa in this Order of such uncotnstitutionai phrase, clause. s~mr~, paragraph oc section. AIt'TICI..E 2 DEFINl'I'IONS l Urt}eas specifically defined blow, words or phrases used in five order shall be irtterpKeted to give the ~ meaning they have in common usage and t4 ®ve this ordex its roost teasornable application. - ,kLI,WIAL FAN FLOODING - meara flaading ocxtrrrir-g oo the surface of an s,liuvial fan a similar landform which originate at tho spat and is characta+riud by ttigh-velocity flours; s'ctive processes of ~~ s~~t transport, and deposition; and unpeadic~abk flow pant:: APEX - means a point on as alluvial Ann err similar landfocm boiaw which tho flow path of the major stream that fotttud the fan bornrttcs unpnodictabk and alhtvial fao flooding can ooC»r. AREA OF SHALLOW FLOODING - meaner a d~igoat~d AO, AH, err VO magi on a community's Flood Insurance Rate Map (FIRM) with a one percent err grcdter annual chance of flooding m an average depth of one to throe fod when a clearly defutvd channel dove riot ei~' "fie the path oC flooding is -3- Adopted )ime 26, 2000 wnprodietable and w6erc velocity flow tnay be evident. Such flooding is characterizad by pending or sheet fbw. AREA OF SPECIAL FLOOD HAZARD - is the land in the floodplain within a ccxtttrunity subject to a one pcrcrnt or greater chance of flooding in atry given year. The arcs may be designated as Zone A on the Flood Hazard Boundary Map (FHBM). After detailed rate making, has boon eompld:ed in preparation for publication of the P11ZM. Zeno A usually is ret'inod into ?.atu~ A, AE, ~. AO, A 1-!;r9, VO, V 1-30, VE or V. BASE FLOOD -means the flood having a one percent chance of being equaled or eacceoded in any given year, BASEMENT -means arty area of the building having its floor subgradc (below ground Icvel) on aq sidrs. CRITICAL FEATURE - maeuu an integral and rowdily id+attifiable part of a flood protection systam, without which the flood protection provided by the attire systtm would be compromised. DEVELOPMENT -means any man-made change in improved and unimproved real estate, isteluding but nc~t limited to buildings or athtr structur~ea, mining, drsdging. filling, grading. psvinEl, excavation or drilling operations a storage of oquipmortt or matm-ials. ELEVATED BUILDING - moans a r-on-bascmetrt building (i) built, in the casa of a building in Zones Al-30, AE, A, A99, AO, AH, 8, C, X, acid D, to have the top of the clevalcd floor, or in the case of a building in Zones V 1-30, VE, or V, to Gave the bottom of the lowest horizontal stru~ytttre rncmber of the elevated floor elevated above the ground level by mesas of pilings, columns (posts and piers), or shear rva]ts parallel to the floor of the water and (ii) >~~lY anchored so as not to Impair the structural intcgTity of the building doting a flood of up to tike magnitude of titre base flood. In the ca9o of Zones A l - 30, AE, A, A99, AO, AH, H, C, X, and D, "vlevatod bulldhtg" also includes a buildmg elevated by means of fill or solid foundation pcrimeta walls wit#r opettingi sufFtcient to facilitate the unimpeded movement of flood waters. In the case of Zotus VI-30, VE, or V, "elwated building" also includ,ea a building otherwix mooting the definition of "elevatxd building," even though the lower area is enclosed by means of breakaway walls if the breakaway walls meet the atandard~ of Seotiort 60.3(cx5) of the Nntipnal Flood insurance Program regulations. EXISTING CONSTRUCTION -means for the purposes of determining taus. structures for which the "start of cottstructiort" conunenead btfort the effextive daft of tba 1"1RM or before :Ianuary 1, 1975, for FI1tMs effective before that data. "Existing construction" may also be referred to e.s "existing structures." EXISTING Mq.>,iLTFACT'UItED HOME PAitK OR SYJBDIYISION - rrtrsns a mutufactured home park or subdivision for which the cautruction of facilities for servicing the lots on which the manufactured homes ate w be affnced (including, at a minimum, the installation of'tt~lrti~~ ~~ ~~ctt;~ dam ~~ and either final site grading or the pouring of corterete pads) u ~nP floodplain manag~atxutt regulations adopted by a cornmurilry. EXPANSION TO AJ't EXISTING MANUFACTURED HOME PARK OR g1IJBDTVISION -means t}tc preparation of additionsl sites by the construction of fiscilitlea for servicing the bts on wfiich the manufacwrod bontes art; to be affixed (ineludittg the installation of utilities, flu oohstrudiotl of strvet.s, and either Erna) sift grading or the pouring of concrctc pads). ~ Ado~t~C Jura 26. 2400 ~,OOD Og IErI,00pING , means a B~sl and banporary condition of partial or oompleee inundation of normally dry land areas fran: (1) the overflow of inland yr tidal waters, (2} the unusual and rapid accumulation or runoff of surface waters from any source. FLOOD IIriSURANCE RATE MAP (FIIt11~ -means an official map of a community on which the Federal Emergency Managezr~ent AS'~Y has delineated both the areas of special flood hazards and the risk premium zones applicable to tbt community. FLOOD INSURANCE STUDY - is the official rvQort provided by the Federal Emergency Management Agency. The rtport contains flood pmfiks and water surface elevation of the base flood, as vv~ell as the Flood Boundary-Floodway Map. FLOODPLAIN OR FLOOD-PROKE AREA - tn~ns any land area su9cxptible tai being inundated by water from any source (sera dcfinitiot- of tboding}. F'LOODFLAYN MANAGEMENT -means tltt opexatiat of an overall program of corrective and provor~tive measures for roducing flood darnagq including but not limited w emergency prcparedruss plans, stood control works and floodplain mattagatktrt regsilatians. grI,,00yDpy,AIAT AgAI~1AGEA'fEN'r REGULATION'S -means zrnung orders, subdivision regulations. building codes, hearth rcgulntiotu, special purpose orders (such as a floodplain ardor, grading order and erosion ceattrol order) and otter applications of policx porter. The tram describes sur_h state or local regulations, in any combination thereof, which provider standards for the purpose of flood damage prevention and rorluctian. FLOOD PROTECTION SYSTEM • teases those phq~sieal structural wortcs for which funds have bcet- authorized, approprwted, and expended and which have been construc4od specifically to modify flooding in order to reduce ttk extent of the at~eas within a community subject ro a "spacial flood hazard" and rbe extent of the depths of assuciatad hooding. Such a systocn rypk.ally includes hurricane tidal barriers, darn9, reservoirs, kvecs-err dikes. These specialized flood modifying worlcg are those eottsU:ucked in cottfotmance with sound enginacring stardards. - .-- - _ FLOOD PROOFING -means any c«nbinatdon of struct~u'st and non-structural additions, changes, or . adjustments to structures which reduce or eliminate flood damage to real estate or unproved real property, watery and sanitary facilities, structures and their oonterrt3. p'LOODWAY (REGULATORY F1.OODWAY) - menrts the channel of a rive or other waoercourse and ttu adjacent Iand areas that must be reserved in ordc to dlschsr8,e the base flood without cumulativcty increasing the water surface elgvation more than a draig~atod heiglrt. FUNCTIONALLY DEPENDENT USE - means a use, which cannot potfortn it$ 'intortded P~P~ unless it is located or carric+d out in cdoac proximity bo water. The terra includes only deckling facilities, port facilitieq that ate necessary for the loading and unloading of cargo or Passengers, and ship building and ship repair facilities, but doss not inc{udc {ong-tr~rm dotage or related tnanufactusing facilities. -~ Adopsed ]une 26, 2D00 ]iI~GSE$T ADJACENT GRADE -means the highest natural ekwatlon of the ground surface prior to construction next to the praposod walls of a structure. i~STORIC STRUCTURE - mtsns any structure that is; (1) Listed individuai}y in the Natiottai Register of Hiistorio Pieces {a listing mailntained by the Cxparttnertt of Interior) or preliminarily dRarmou+d by the 5ocrelary of the Interior as m~aeting the roquirernents for individual listing on tiyc National Register; (2) Certified or preliminarily determined try ttte Secretary of the Irntsior as cotntributing to tht histories! sigaiftcance of a registered historic district or a district preliminarity dela-rnined by the Secretary to qualify as a registered historic district; (3) Individually listed on a szato inventory of historic places in states with historic preservation Programs which trove been approved by rho 5a~ctary of Intraior, or (4) Individually listrd on a local inventory or historic places in c~ttmuniti~ with historic preservation programs that have been certified either; (e) By an approrod state program as datesmined by t}u Secretary of rho Irrt,crior or; (b) Directly by the Secretary of the ir~rior in states without approved F~r~ogrr.~s. LEVEE - trtoatrs a maa-mado structure, usually an ~rt~ cmbanktnortt, des'6"od and constructed in accordance with sound engineering practices to contain, control, or divert the flow of water so as to provide protection from tcsnparary flooding. LEVEE SYSTEM - mttatts a flood protection system which consists of a level or levees, and associated structures, such ea closure and drainage devices, whccb arc eocu~trvcted and operates! in accordance with sound tngineering practices. LOWEST )F1..00R - means rho lowest floor of the lowest atelosod Brea (including basement). P-n unfinished or flood resistant enclosure, usable sooty for patidttg or vehicles, building access or storage in err, area other than a basctncrrt srea is not cottsiderod a buildittg•a lawost floor; pravidrd that such ancloeuca i9 not built so as to rt:rsder the structure in violation of the appGcabk non-elevation desi~r coquircmcnt of Sextioct 603 of the Natioaat Flood insurance Program regulations. MANUFACI'[JRED HOMg - ~~ a structure trartspoxtable in one or more scc1'ions, which is built on a permanent chassis and is designed for use with or withaut s pe~~ foundation when cartnectod co rho required utilities. The term "rrrartufartured home" doss not Include a "roCreatiottal vehicle^. MAMJFACTURED IEiOME PARK OR SUBDIVLgION - tttannS a parcel (Of C[Mtlguou5 pareel6) Of land divided into two or rears manufactured home lots fa real or sale. MEAN SEA LEVEL - ttvearts, for purposes of the National Flood insurance Program. the National Geodetic Vertical pntum (NGVD) of 1929 or attar datum, to which base flood elevations shown on a community's Flood Insurance Rate Map era rcfcrarced. ~, Adopted Ju»c 16, 2000 NEW CONSTRUCTION • rrieaaE, for the purpose of detexmining inturancc rates, structures for which the "start of ~struction" eomrnrncad on or aftex the effective date of to initial l~"(RM-(May -i ; 1979T or----- - aftet December 31. 1974, whietteve~ is lath, stud includes any subsequestt imprrn+etnettts to such structures. For floodplain managanent purposes, "new construction" means structures for which the "star: of construction" cornmeaced on or silt the effective date of a ftooA~plain management re13u1ation adopted by a coaununity and includes arty subsequesrt improven-ents to such structures. NEW MANUFACTURED SOME PARK OR gUBAIVISION - means a matrufauctured t-ornc park or .subdivision for which the construction of facilities for servicing the lots on which the inanufacturtd bottles are w be affixed (including at a tninuntun, rho installation of utilities, the conatrttction of streNs, and tither final site gzading or the pouring of concrae pads) i' compbtod ott or after ttte ciToctivc date of floadpiain management regulations adopted by a cotrrtnuniry. RFCRFATYONAL VEHICLE - ntearu a vehiok whlah is (i) built on a single chaea~is; (ii) 400 square feet or less when rr-e~asurod at the largest horizontal projoctior-s; (iii) dos'-ga~od to be self-propcllcd oc pasffiQation on the property of aocossary buildings. such as garages or sheds not occupiiod as dwrllitt$ units or not part of the main strucr:ure. For a substantial improvb'ttt~, the actual start of construction rrxans the fast alteration of erry wall, ceiling, floor, or other structural part of a building, whether or rat that alteration affects the eoctanal dimensions of the building. STRUCTURE - rooaris a wnllcd and roofad building, including a gas err liquid storage tank, that is pruicipalty about ground, as wall as a manufactuttd homy. SUBSTANTIAL DAMAGE -means da~gc of arty origin sustained by a atructunr whereby the cost of _ _ restoring tlhc structure to its beEat~e damaged cvttdition would equal or cxceod 50 percatt of tlrc market value of the structtue bcfeKt: the damage occurrod. SUBSTANTIAL IlYIPROVEII~NT -means arty reoonstrvction, rehabilitation, ac'Idition, or other improvetr>ent of a structiu0. the cost of which oquals a excaods 50 percent of the rn,arket valor of the structure before "start of construction" of the ~provan3att. Tbv include' structures which have "substantial damage", rcgsrdless of the actual repair work perfortmod. The term does not; h°~"°v , - cutter; { I) Arty Project far improvetnrnt of a savcturc to corro~'t aciatin8 violatiotrs of stage or local tuihh, sanitary, or safety codo specifications which have beam idesttified try the local code enfacei:rcrtt official sad which are tha mirtirrium nxcsssry coriditi,oris or (2) Arq~ alteration of a "liiatvric strtitcture , providod that . the alteration will not procludt the structure's continued designation as a "historic structure." _7- ~ogteE June 26, 2000 VAR1ANt;,'E - is a grant of rtlitf to a person from the txquirtrr-ettt of this order whets specific atforrement would trsult in unnectssary t-ardship. A variance, thtrefote, permits cangt7uctiao o* devebpnxmt in a reenact othtrvvise prohibited by this order. (For ful{ eaquirom~s aoe Section 60.6 of the National Flood Inaunnot Progtarr- regulations.) VIOi,A'I'IOPI - tneana the failure of a structure or otlatr development to be fully cAnnpliaot with the cp[prntmity`s floodplain mattSgextlottt regulations. A structure Or other drvelopmatt witttatt the elevation certificate, dher certifications. or other evidet~cc of eotnpliattee rflquired in Section 603(bx5), (ex4~ (cx10), (dx3), (ex2), (ex4), or (ex5) is pcesunnod to be in violation until such time ~u that documrntation is provided. WA?ER SURFACE EI,EV,ATION - means the height, in rclatian to the National Geoddie Vertical Datum (NGVD) of 1929 (or ot3ta datum, where spe,eifiod), of floods of various tnag~itudes and frtquenciea in the floodplains of coastal a rivaino areas. ARTICLE 3 GtNgRAI. PROVISIONS SECTION A. i e-NDS TO WHICH 'I~iL6 Ol~$$„~ s The order shall apply to all areas of special flood Hazard within the juriadictlon of Kerr Gwnty, Texas SECTION B. AA4L4 FOR FS'I'AB ~ G ~" N' AKt, , a~~ ca...f•r,• ~ ~~ ~,.•, TlX areas of special flood hazard idendfied by the Federal IrmerBency Managgnant Agtncy in a scientific and a>ghtaring repdrt esrtitlad, "~ Flood Inautanoe Study fvr Karr County, Texa~t," dated July 19, 2040, with acaompany'in8 Flood Insurance Ratt Maps and Flood Boundary-Floodway Me~ps (FIRM and FBFM) and any revisions them are hereby Adopted by ~rofare~v and declared to be a pail of this order. SEC?ION C. RRTABLISIIME~j QF ~,EVELU A pevolopmrnt Permit shall be roquiral to ensure conformance with that provisions of this order. SECTION D. ~OMPLIANQ~ No structure or land shall hereafter be located, ahtred, or have its use ct~angod without full compliance Wirth the Corms of this otllor and other applicablt regulations. ~_ ,sdop«o Jw~c 1s, zooo S$C110N E. AgR,~ ~ Q~AND GRI~A~TER ~F4rRiCTIQNB This order is not intetdod to repeat, abrog~atg or impair any existing casecnatt4, covotuants, or docd restrictions. Howevei, wt~'c this order and sherbet ard~, easonunt, covenant, a dead restrtctton con#l~t or overlap, whichover imposes the mort string~ont restrictio~tts shall prevail. S]c,CTloN F. ta17'ERYRETA'~'L4N in the i:rtapruation and application of this order. all provisions shall bc; (1) cot>sidenod as minimum raquirematts; (2) liberaify construed in favor of t}u gnremittg body, and (3) deemod neither to limit nor reel any albs powers grarmed under State Statutes. SECTION G. ~ ~RNlNC ~2 DLC A_t~'~ oR L~A~~I'i'Y The degroe of flood protoction roqult~ed by q~is order is cnnsiderod reasonabb for regulatory purposes sod is basod on sci~tific and engit~oa•ing considaratiam. On taro occasions greater floocb can and will occur sad flood heiglrts tray be urcreasod by matt-made or natural causes. T?ti9 order does not imply that land outsido the atnas of spoeial flood harards or uses permitted within such arras will be flee froth flooding or flood damages. This order alull not crraoe liability on tix part of the community or e~ny o$'tcial or anptoyoe tharwf for arty flood damages that reenult fi-ocn roliance on this order of any administrative decision lawfi,lly madx theraur~ar. Axncl.E a ,w1~ISrRATIOx SEC'ITOAI A.^,~ a'~-*~'•i ^vi~I OF ~ FL4oA~s-anv wn~B'TIt,A'I'oR, The ICca•r County 3udge or }tis/kter assign is hereby appoirYnd lire Floodplain Admini;ttrator to administer and innpleaxrtt the provisions of this ordor and otttar spprvpriate sections of 44 CFR (National Flood i~uranes Program Regulations) pertaining to ttoodplein o~anagemrnt• SECTION & pt~TT'~'S ~r RESPONS1~Ix.I'><'IES~ pubes and ttiaportsibilitias of the Floodplain Admatistrat~ shall include; but not be limited to, the following: (1) Maintain and hold open for public inspoction all racords pettauttng to tfie provisions of this ordrr- ~ ~2} Review permit application to determine whether proposed building sits, irwctuding the plaeettteitt of tnanufacturod homes, will be rYasonably safe from flooding. _¢ A4opoo~a Lune 26, 2000 (3) Review, appro+ra or decry alt applicatioas for development permits r~egnired by adoption of this order- (4) Review ptrmiv for proposad dev~cloptnertt to assure that aEl necessary prtrrits have been obtained from those Federal, State or local govtnrmattal agencies (including Section 404 of the Federal Water Pollution Control Ad Amtndmcnts of 1972, 33 U.S.C. 1334) from which prior apptroval is required. (5) Whore interpretation le needed as to the exact location of the boundaries of the areas of special flood halards (for example,, whore titers appears to be a conflict between a mapped boundary and actual field conditions) the Floodplain Adtninlstrstor sha8 make the rtoaossary interpretation (6) Notify, in riverrine aitvatio~, ad}acertt communities and fete State Coordinel:ing Agency, which is the Texas Natural R.tsourrc Conservation Commission (iNRCC), 7tior to arty ahnration or relocation of watercourse, and submit cvidaLCa of such notification to the Federal Emergency Management Agcttry. {7) Assure that the (load carrying capacity within the altered a relocated portion of sAy watercourse is mnisrtained (a) Vlrhan base flood elevation data has not bast provided in accordance with .Article 3. Section 8, the Floodplain Administrator shall obtain, rtveow attd roaa~ortably utilize arty base fla~d elevation data and fioodway data available from a Fadoral, State or ottxr source, in order to administer the provisions of Artick 5. . (9) When a regulatory floodw~nY has not bore designated, the Floodplain Administrator must require tfiat tto now coastructioq substantial improvematts, a other davelopmcat (including fill} shalt be pertttittad within Zones Al-30 sad AE on the comrnunity's FIRM, unless tt is dernonztrated that the cumulative effect of the proposed deNoloprttatt, what cotnbirted with all other existing and ant~cipatnd development, will not imreast the watcx stufaco ebvation of the brio flood more than ono foot at any point within the corrrmuniry• (10) Under the provisions of 44 CFR Chapter I, Section 65.12, of the National Flood Insurance Program regulations, a community may approve certain dwalopmeart in Zones Al -30, AE, AH, on the cotrununity's FIRM which inctraaes the watot surface elevation of the base flood by rnore than one foot, provided first the community first applies for a cor-ditiottal PtR114 r~cvision through FEMA (Conditional Lotxcr of MAP Rcvisioa). SECTION C. It'>~RhQT >P'It4CEDURES (1) Application for a Development Permit shall bo prosarttod to the Ftoodplain ~-dministrotvr oty forms furnished by him/her and may includa, but not be limited to, playa in duplicate drawn to scale showing the location, dimensions, and elevation of proposed landscape altrtatiorJ. PLOODWAY3 Floodways - lasted within areas of special flood hazard establis[t!,d in ARiclr 3, Seztian B, are arms dasignttcd as fle>~ways. Since the flnodway is an eydr+tsnely hazAreirxrs area duo bu the velocity of flood waters which carry eiebr{s, potexrtial projactltr~ sad ezosion p~otrntial, the following provisions shall appty: (1) ErKxoachmrnts are: prohibited, including fill, now rnnstructioes, substantial imprWernes~ and other davolopment witktin the adopted regulatory nooeiway s!>~ it has boat dcmaeymatod through hydrologic and hyejraulic anatysess perforrnod in acoordanoe with standard enginexriing practice that the proposed aicroachment would nAt resuh in arty i¢scraaso in flood levels within the ca;nmunity during the oa:urresxx of the base flood discharge. (2) If Article: $, Section E (1) abpvt is satisfied, all rirw cottatruetion and substarrtinl improvunoots shall comply with all applicable flood hazard roductiotf provisions of Article 5. (3) Under the provisiana of 4t CFR Chapter 1, Section 65. i2, of Liu National Flood Insurance Regulations, a community may permit cncroach~nanu within the adopted rcgulatary~ floodway that would result in an incrtia.se ire base flood ebvations, pcovidvd that the corrrmunity first appllies for a conditie~al FIRM and floodway revision through FEMA. - i 6- named Jere 26.2000 kcn, ~" 'fin '~'~~~•°~-• ~= ~ ~ ,-~. 812-a Sidney baker • kerrviIte, texas 78028 (830) 257-6360 • fax (830) 257-6361 r~s=-` ~ - February 14, 2007 Mr, Len Odom Kerr County Flood Plain Administrator 4010 San Antonio Highway Kerrville, TX 78028 Re: Flood Plain "No-Rise" Certificate Martin Marietta Materials -Bedrock Project Ken County,. TX Dear Mr. Odom: This letter is to describe a proposed haul road for the Bedrock project expansion immediately west of the Drymala pit. Said haul road will cross a Zone "A" segment of Flli'VLA's Map No. 4826500275 E, dated July 19, 2000._ The enclosed cross section illustrates how the company plans to construct the haul road. As you can see there will be no change in current elevations along the proposed road, therefore there should be "no rise" created by the proposed road in the Zone "A" during a base flood. Yours truly, MOTHERAL I~1DUS~R~` ~v~v ~~~ ~...~:.e«r~oTN R. Bn:ce Matlieral, P.B~~ ~ s~ 2537 RBM/j m ce: Iulartin l~larietta Materials 06-6115 __._.-- _ . -- _ ... F iii C~ I N F' 1= R I N C~ t^. n N ~ T R ! 1 C: T t ~ irl R. A,~ a t~_t ~1 ~ F IlA F iii T L~. 4 L L L 4 4 a v 4 Ll v Q C L C F t., a c ~- ll L C Ll L W Q A Q D L/ Q W H U Q Q U I- H 3 J J W Q Z Q d.. W w r-, N F- O (_) W A Q !Y ~7 { ~~; - -- ,:; '~-a ~i L.? ~ _ _ .. ... (HE CITY OF '~ `• -'~ KERRVILLE, TEXAS ~ - -~ October ?(~, 2U0(, Mr. Leonard Odem, Administrator Kerr County Rood and Bridge Dcpartme;nt 4UlU San Antonio Highway Ke;n-ville, Texas 78U28 Re: Martin Marietta Materials Southwest, Ltd. 13cdrock Sand and Gravel Plant, Kerr County, Texas Dear Mr. Odem, This letter is to confirm that the l04 acre sand and gravel operation shown on the attached exhibits is located within the extraterritorial jurisdiction (ETJ) of the City of Kerrville. As you know, the City's jurisdiction in the ETJ is limited to subdivision and slgn review, the City's Zoning Ordinance and Building Codes will not be applicable at this location. It is my understanding that the current sand and gravel operation has been active for approximately 10 years and was in operation prior to being in the City's ETJ. While the tract is outside the city limits, the ETJ was "land planned" as part of the 2002 Kerrville Comprehensive Plan, this tract was identified as an area suitable for industrial development in the future. -- 1 hope this information is useful if you have any questions, please feel free to contact me at any time. ,1 ~ ~ Sincerely; , ~'" ~.,~. J Cordon Browning Senior Plann~;r City of Kerrville, Texas cc. Ryan DeBarros, Martin Marietta Materials Southwest, Lid. Charlie Hastings, P.E., Public Works Director 800 JUNCTION HIGHWAY •KERRVILLE, TEXAS 78028-5069 • 830/257-8000 ip July 3, 2007 MOTHERAL INDUSTRIES INCORPORATED 812-a Sidney baker • kerrville, texas 78028 (830) 257-6360 • faz (830) 257-6361 Bill Gunn TxDOT AVN 125E 11th Street Austin, TX 78701-2483 Re: Martin Marietta Materials Southwest, Ltd. Kerr County, Texas Form 7460-1 Dear Mr. Gunn: Enclosed please find one original and four copies of FAA Form 7460-1 submitted on behalf of Martin Marietta Materials Southwest, Ltc~. Although Martin Marietta is not required under 14 Code of Federal Regulations Section 77.13 to submit the form in connection with its proposed construction, Martin Marietta is submitting FAA Form 7460-1 out of an abundance of caution and prudence. Thank you for your help in this matter. Yours truly, MOTI-ORAL INDUSTRIES, INC. ~ i~ -i~~ R. Bruce Motheral, P.E. Enclosures RBM/jm cc: Martin Marietta Materials Southwest, Ltd. 07-'1125 ENGINEERING CONSTRUCTION & ,MANAGEMENT case ..n 7}tic Fnnn "S. Departrnent of Transportation i Istration Failure To Provide Aff Requested Information May Delay Processing of Your Notice Notice of Proposed Construction or Alteration ~deral Avlatlon Adm n 1. Sponsor (person, company, etc. proposing this action) : attn. of: Ro ri o Fi eroa ttorne at Law lame: Ma 'n Marietta M terials ,,ddress: 112 E. Pecan Suite 1800 ,;~ San Antonio State: Tex s Zip: 78205 o~ n sxe.-F5$1 Fax: i elephone: _ 2. Sponsors ReprASentative (~otherthan #7) Attn. of: R, B ce Motheral P.E. Name: M theral In ustries Inc. Address: 812•A Sidne Baker City: Kerrville State: Texas Zip: 7'802____8 _ Fax. 830-257-8381 Telephone: 830-25T-6380 New Construction ^ Alteration ^ Existing 3. Notice of: Permanent ^ Temporary ( months, days) 4. Duration: $-1-07 End _._,_--- 5. Work Schedule: Beginning 6. Type: Q Antenn9 Tower ^ Crane ^ Building ^ Power Line ^ Landfill ^ Water Tank ^ Other Excavator 7. MarkinglPainting and/or Lighs Dual a Red and Medium Intensity White ('] Red Lights and Paint ^ ^ White -Medium Intensity ^ Dual -Red and High Intensity White ^ White -High Intensity ^ Other 8. FCC Antenna Structure Registration Number (d appi~able): 21. Complete Description of Proposal: Excavat(on of Sand and Gravel on Martin Marietta property. Frequency/Power (MM 152.97 mh 40 w Notice is required by 14 Code of Federal Regulations, part 77 pursuant to 49 U.S.C., Section 44718. Persons who knowingly and willingty violate the notice L ..~ ..~h ~~ ~rP subject to a civil penalty of $1,000 per day until the notice is received, pursuant to 49 U.S.C., section 46301 (a). ___._~_., t., e'lrirtinn_ I agree tc that all of the above statements made by me are true, complete, and correct e 1 hereby certify mark andlor light the structure in accordance with established marking and lighting standards as n S 9ssaur. Date Typed or Printed name and Title of Person Filing Notice 6-28-07 R. Bruce Motheral, P.E. NSN: 0052-oo-oi FAA Form T480-1 (2-99) Supersedes Previous Edttlon rvrc rrw n 9. Latitude: 29° 57 26. '~ g° 04~ ____ 21 • 89 ~ 10. Longitude: _____..~.. - 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 5trudure: 3000'-55uv 15. Direction from #13. to Structure: 1 r,3_ 3 -.ft- 18. Site Elevation (AMSL): 36 __-~ 17. Total Structure Height (AGL): 18.Overall height (#16. + #17.) (AMSL): 1569 ~ ~ 19. Previous FAA Aeronautical Study Number (if applicable): -OE 20. Description of Location: (Attach a USGS 7.5 minute Quadrangle Map with the precise site marked and any certified survey.) Latitude and Longitude are approximately center of property shown on the section of USGS Quadrangle Map attached. • ~• (: _ _-~ ~ _ f ''' Gu~da`~t~pe. -- - ~~ ~ ~'": ` r~: USGS -Center Point, Texas f ,~ ,~ ~ u G;~ Photorevised 1982 ~. ~ ,; , ~, ~ ~ ,: ,mot. ~ ~ ' ~ ~ D\ G ~ ~ ~ .. -~ • ~ ~=~ _ ~~_- _ ~'~, - Martin Marietta Materials ~~~ ~ ~ -- ~~ ; ~~ Property Location - •1 ~ ~ - ~ ~ ~ '. ~ , r ti~, r ~~ V ~ \_" ~ r ~~ nx, _ y r. _~. ~ ~~ . ~ - ~ ~~ ~ ~ ~~~ /~ t~~ >L~ ~ ~~~~ , ~ ~ ~___ ~ Z -~ ~ its - - ~ - ~ ,TS 8 w j i !, '~ \ ~ e ~ o ! rrville , ~ ~ _ - s ~,• 1 ~ urEicipal Air~ort j : ,- shy - ~ ~~. f = _ - ~ ~ /. ` }~ '!e ~~ iYdl~ ~ /• ~0 ~ ~ ~ _ 11 - kA y ~ ~ l ~~]l, ~ a ~ / ~ ~sso r o ~ ~ ~ i"-' _ . °r ~•/ ~ 0 1 I rg.. ~V ~i, ,~ `~~ ~ ll(l~ ~ ~ ~ , ~ ~ r _ . i - YYhartnni 4'. ~6 ~V A; ~~~. ~ o ~., ~-~- a I -~~ .. ' ~ ~~ i.- I ~~-- '} ` i 1 '~ , r =- ~ ~' •'. r. ~t y `SS i c tl - /I ~j l f ~ _"-" C ~ ~j - _ r' ~ ~\J ~, ~ 5.-+ - ' ` /577n ~~j ~ ~~ -~ ~ ~t ~> /614 -~ ~~ ~- ~ \11 ~ ~ - k ~ ~ 29 ~ d _ -. rte; ~.. , n ;, •~ H ' Z , ~ M e -~ ~ Y• u \ 11 ~' - t` F r ` 1 f4 1,~"i 552 g . _, '-7 / ~:_' ~_~ li _ _ °! 1 ~~ _~ 1 ~ ~ I.. i .~- _ ~ - - a # ~~ Y ~ I a~~ ~'. Isse o- ~ ao '~ 1 ~~ ~ I`- - ~_~ - i I; '~ - 'reed ~ - ;~ \\,y~~. ,' ~ 4~ _ _ _ T--- ~~ d _ N ~ L _ T H /6Ln.. _ 779.---.. ra ~. ~ w _ - r'' r N~ ~ '' ~ ~ ~' .. ~ 154$ - - ~_~ ~ - ~f 1 ~ 'r "` _ ` r rift ~ ~ " '~ ~~' ~ ~ h i - - ~~% v - ~` ~ ~.-~,• Mar~fPManretta.Maferia _ T ~ a' '` ~'~ ~ ~ rss~ Propert~ Location. -- - .--- i ~ `~ ~ r5c0 - - ----- e - r-. _ -15~ -- ~ d ~ 3~ i - - - - 4i ~ ~ _.a,_ ~~ p r R! ~ r~ 0 ~!a ~ a ' H , ~ r. v ~ v ~ - ~ u ~ --. -- - r _ _. ~ n i ~ i' ~. J 1 y ~'~~,v 1 Z 17J 5 t i"- ~ co aP; ~,•`~ ~ ~ arm ~: ' ~ ,~~'~^Y ,-- r ,/ fin.- - 7~/ r __- 6/ ; - / ~ ,/ ,; 1i F ~+a ~--`P~- - • rcuciai r.via~wu tiunumsu'atlon Air Traffic Airspace Branch, ASW-520 2601 Meacham Blvd. Fort Worth, TX 76137-0520 Issued Date: 08/23/2007 RODRIDGO FIGUEROA MARTIN MARIETTA MATERIALS 112 E PECAN STE 1800 SAN ANTONIO, TX 78205 Aeronautical Study No. 2007-ASW-6764-OE ** DETERMINATION OF NO HAZARD TO AIR NAVIGATION ** The Federal Aviation Administration has conducted an aeronautical study under the provisions of 49 U.S.C., Section 44718 and if applicable Title 14 of the Code of Federal Regulations, part 77, concerning: Structure: EXCAVATOR Location: KERRVILLE, TX Latitude: 29-57-26.44 N NAD 83 Longitude: 99-4-21.89 W Heights: 36 feet above ground level (AGL) 1569 feet above mean sea level (AMSL) This aeronautical study revealed that the structure does not exceed obstruction standards and would not be a hazard to air navigation provided the following condition(s), if any, is(are) met: To coordinate frequency activation and verify that no interference is caused to FAA facilities, prior to beginning any transmission from the site you must contact Greg Bush at 281-876-5640. Based on this evaluation, marking and lighting are not necessary for aviation safety. However, if marking and/or lighting are accomplished on a voluntary basis, we recommend it be installed and maintained in accordance with FAA Advisory circular 70/7460-1 K Change 2. While the structure does not constitute a hazard to air navigation, it would be located within or near a military training area and/or route. This determination expires on 02/23/2009 unless: (a) extended, revised or terminated by the issuing office. (b) the construction is subject to the licensing authority of the Federal Communications Commission (FCC) and an application for a construction permit has been filed, as required by the FCC, within 6 months of the date of this determination. In such case, the determination expires on the date prescribed by the FCC for completion of construction, or the date the FCC denies the application. NOTE: REQUEST FOR EXTENSION OF THE EFFECTIVE PERIOD OF THIS DETERMINATION MUST BE POSTMARKED OR DELIVERED TO THIS OFFICE AT LEAST 15 DAYS PRIOR TO THE EXPIRATION DATE. Page 1 of 3 ___ __.______~____ __ _-__~, ~_ j.. ~__, ,,... ..~.. ...,.., t,., ...t, ..vvva ar ....,,i .. ,_..vu lily luuvJ J~lvvllllJ tJVV1u111U LV J, Lll~l~ll LJ, _ frequency(ies) and power. Any changes in coordinates, heights, and frequencies or use of greater power will void this determination. Any future construction or alteration, including increase to heights, power, or the addition of other transmitters, requires separate notice to the FAA. This determination does include temporary construction equipment such as cranes, derricks, etc., which may be used during actual construction of the structure. However, this equipment shall not exceed the overall heights as indicated above. Equipment which has a height greater than the studied structure requires separate notice to the _ FAA. This determination concerns the effect of this structure on the safe and efficient use of navigable airspace by aircraft and does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or regulation of any Federal, State, or local government body. A copy of this determination will be forwarded to the Federal Communications Commission if the structure is subject to their licensing authority. If we can be of further assistance, please contact our office at (817) 838-1994. On any future correspondence concerning this matter, please refer to Aeronautical Study Number 2007-ASW-6764-OE. Signature Control No: 530359-100610492 Linda Steele Technician Attachment(s) Frequency Data (DNE) Page 2 of 3 ~g,~~~ 2'~I2i~CT'PISiL"LQ'tJ~~ SCS.FtE~ABR F~~I+p A~R.PQA~ ~~Ag'D ~A1+T:C11C3 URD~IA1~~ J's ~~~~, I.9 9 3 . attd rpgtrie+Eiztg thQ height. of I~Tt o~?.'s~ap,pe 3;'Cg~K'~.i?~ tt~4c1 o~~0rVi3.~~ struaturea an8 ab~~cta q~buartr ~,ag tb~ vr~.ciu#.ty die the xegu3.a,t~.n~ ~ha saga o£ P P ~ exea~an~ the gesrs~i~.~.~ 2duo.~.dipa~.-vat~9.s Soh~cH~.n.er P~.r~~. ~a bnuad7=3.es ap~xo~~iate xgneS and es'~abl.a.~h~9' r~~,djug' fox ahatsges ia~ the . ~fitr;,~ioaa ssrsd thexcof; P as~ai.a term& v.6e$ boum+~at~-as ~'~ such xoues i $afin'.n~ e ~ici~1 ~,aszis 1~erei.n i referr~~ to the Kam whiC~L is incaaporat~ sahxo~as: Ffe1d AS.xpo~ 4,r~uing P rovidiag ,fcr 1n. sad made a ga of ~~ pzdiuando; Puatznaats s3a3 ast~ordc~tf c~t3h~5~h~..ag a Saard pf ,add ~pc~sitzg penal.~tycs. ~hiS 4rdiaanae is adnp't:ed ~suent to tk~e a,~,thorit 2~1 0 ~, Fed bQ The ~,-po-r.°r. ~~~g aatt ~eai. Z,oaal 6av~'~. Ccr].e Ann- ~ (gerraon ~,~$e). ntant~.e1 fer ~t is hereby' iavnd. chat ~. ohstr~'~i.Qn has the p the lives anr3 psapextY of n9er'g of Kexzvil.].e r~es3~.~-p~- aRBarzgex3.ng ra art ar accuparsts of 7.and fu'ture~ T.,ouix~ Sd~sr' that ~ e1d sad p ~ ~ affect" exi.~ting ^bstsactj,ou ~Y T~w,is Sohreiaer vi~3.ni't~r of KeXrvi3.ie ~lallf.Ci.P~"` ine~trnmaizt aSpraaah a~ rpds~ca the si~a ai axaa.s fzgld~ 2~Tk~ that a'u nb6~ ~ of f and s~aaucaZavesit'ig o~ r'L~.L'c~aft, th~~ aua.i.l:xh~.ec fox ' 1and~.g. ~. the utility' v~ g~errapxl~.e i~an~~~a-7~ tend7.~s5 to degtroy or ~ aAd tlza public iavestmen~. ~,QU3-s 5 ch-tp .rue=r ~`it3.d. r ~cording7.y it is dar~3,a=ad that J.. Kesrv'i.11e MtUi3.oiP~x-T,oui9 s~einex Fi~1-d fu~.fa.11s as 8s~eesxt~.aJ. co~nxty PAP°acj azzc~ tha cxea-tio'n r~ eat~k+~ish~eat of zsn 4bstruotio~. h~ the z, in urn the region gotpsnties3, of bGin'3 a AQi.s3al~e and may 3 served- by ICexsvi~.7.e Ninnx.cspA.~,"~auis Schxca.ncx pie].dI and i.a t~xe intexe~; a-+f pt~b~~-c health, Pubiic ~ , ~ yt is ,necagQ~r~eraZ ~el.faxe that the c~~ati.am ar safet , anr3. g estnb~ichmsttt vf~b ~ d~ ands mgt ars e. h~.?ard tv a~x navigat~ian be pr +~. tha prevention n~ thPSC pbstzµ:_t±.~^.- t~2tould the aCC~1~.sh'ed, ~=x'~~nt iag~7.1~ P°ssib3a bg exexds.ss o~ 'C3Ya pn ~~ parr vr;L~t:hrnat eouap~sesti.an. zt 3.s furthcs dec7.arad that zhe prevsntxan of f-he erceit~.nn. ox vi at3.o~r the eX-~.'mi~EiOtl~ e~tab1~.smasnt 4f hazarcl~ to n; r att 5 at cznr a>` removes., aI.'~erat~-oa or zni~~.gat~.oa of ha2ards 'CCs air aav~.g .3. azsd lightiz~ ofi nk~estzsxctxong aXO ~ubl..ia P~ptiaes fcx the 3~sazkiri9 Yaisa sad expo Public fvnd.~ sand which a Politscal subdiv9.siari maY o~qu~.ze lard or iAtax,aa~CS in ],,-~."nd. the 1Lexr~a.11'~"~~ C-ouittY ~ai~tt Aii'paXt ~on~.ag ~e ~.'~ Orrlx~.n~a ~ a~ g~rv3l.7.e+. texas and ~e Cammi~~ia~ers ~ouxt So~.~cd of tttm Cz~.X : p~ ~ha Cannty R~ $eYx'~ ~aXaS P ~hi.s Ordi.zzanc~a shah. be Scnnorn and may be ~ei21. • "' Z ~atS~.s sChrPZn~T' F;la1d ~,rpaxt Bsza.rd. saatifla 1. 5hozt a3,ted ~K " 3CPrr'V'7.116 i~waic~-pa - Zoni.~GJ O~eiiu~ce" • uay9~a the Dcb~7~tiant; - As nsrsd ~n this prd~,p.e~ncei 6eotian 2. Cpj't'C2X,2 p'~hB~7-S~ sP`~~S.re9: .- m~TTS XetrvXlle Muna.a9.;Pz.1-~~-s Schxe~npr ~'iclc3.. Fi. mart Elcvatioa - mea,n~s the estab].ish~e~ ~ma ~~ur 3 in the ku-ghegt pr~~.at ^a t~h~. a9eble laadi_ng . feet ~r~ mcan yes. 1s~ael.• StZ71C't11~ ~Z' ~~OH O~ nF~P's n~F C, g,{,~~t]K't: jiazassl -- maEtno acid a4 rice ~e~z~' fox th9 ~.t3ud sa~.i.ch chs~x~ts tha a3.r P g]•ights of ai..Tara~ ar w~alldrprtdatasar'c~+iR*i.'hi. n i>s the tha Control or trackiix~ tat an e~spax'hr of at ~Y land3.zu3. taktn,q off qr fZ:l9h a~nrl ~:z-ack3.¢J nstal.l.at3,on ax ~ea3.l~-tY xslatin~the ~ ~~•5h~ q~a~t 7 , ~ and/ox data acgCt~.5tt9.on a~ i11t~X'~CZ'es `~~•'~ °r ab Ct~v~g such, landtn5 r h~2azc~nli6, ha a~ ai..rcraft yr which io ha~~dau~ to tekirig ofd or i'1~~ trn4k~q Rz~d/or data acgttisi~ors ox ixltex~:ezeS y~th ~,_ex~,a,3.ning to fligh'~ and ~l~ght 'vahi.c~,es. a~ gezaz~d Az~a _ mraaas any area o~ .and oz water D. ~~ ~: hazard xn3~ht he ee~ablished ~ nr~t . upon which ~ri ~-~ ded i7a th~,s o~,nance . ~ze~rrtnt~d ae pro''1' r~eaoe Pc~.at - ataans the po3siL established as ~ _ A.irpazt ~f ao ra e Cuter of the ~'paxt ~.end~.ng the approx~ta 4 `~ ~'" area and- sn d~~;.gne~ted. ah 5LSx~acs -' a, S~aC~ lvtigitndi~al3.~ GQA'rarad OXt g roa ant-Nard and F. pp cexlt~~l~a r ~xtend~-n3 as~d at tha the pxteaded runara~ aUr~ace upward (rota tha end v~ the p~iz~xY Sam6t slnp~a .as the approach eoue height li.m~.tatsa~~7-~h~ tsat earth 7-a SaC~t3~vi1 A. o£ tha ~ d;raLSiBAce . IR 8 ezimet~ of the appXoeah our~aca oa3,acid.es w~.t1Z the ~ar^,.x`~e,- of tk~e apjyroa~Gh xana. ~_ ApFraa,ch. '~zazssitianal~ 8vz'Zzaatal, acid Ccmir_a~. ~oao~ - ~heae z,p~,as are set ~n~r-th in gecta.aa 3 e~ th7Le gxa;rance= .t ~ ]3ar.~rd coa~~st3.2•t! of ~,ive { ~ y $ • ~~ of Ar3~nsta~a fihs t:~.'~y C`.cunc3.1. et the City of mambers mpPazn'~cd hY -2- I~errw'i11e. Texas as pxc~vi,cied by 2ex. Y,acal Corv'~ Cad$ Anri-, §24X•032. (Veznau 198Bj . out'wax3 and ~pWara • ~.~ conSca~. SYYr.~~ce ~ A ~faca extan~g frrlm the pax;.pherY of the ho~~.~ati'~a1 su:rfaas ar_ a slaps c~ -tyrHpt~r { 20 } to °nP fa~'~ ~az a h°~'~~antal distance of ~ ~ Ofl0) - s. R. T,. M. ~ay7 r ~-:}~r~us ( ' R~a~cd to Aa.r 1q~,vs}~+'h advaz~e have a aubstant~.a1 H~~iC3.EAt V.t1.~5,7.PL~LDI1 0~ the sa~.gbt . ~ For 111 2~.~. P,t~~7.es ORi1i~ 7.aap! N- C3 . P. ~- R. ~, obstx'~a~ion de•tezstti,.aed t^ effect nn i:hC safe a'ad naviga~ala s,j,xspaca< thQ pu~nsa ref debezmiaiszg the hesight 7.~-ibs get fob iR th3~s r}Td~,~anae aid St~ozan on i:h~ the datum shall ~P mwr~n Seers. 1.wa1 e7.cYectian~ 2 a t-rr~F-:--hY~rtdxed--fifty SarizoAta]. turf ~a { - A st~~-sh dp~r~+ost el8v~.t~.Ca, the. { 7.~0) feet alrav ~ he 1.an peinc9„8es with the ~,pi-teeter peramate= of ~whi.ah i.n p df 't:.~ hox'izon~,al. ~nn~. orb ~°niug tiQ~srd -oceans a borr~d co~aaieta,zsg.vf ~aiat ASrP ° ~ mamba=s appo3xtt~. by the G7ty' ~~„Qe (~}7neIlt17G~~= '~W ~ ) ~d~~ ~SC3, ~Z$ {L~ C01~ciL a~ thg ~3.ty of Karrvil3.a, tn~rmbe~ rsppointed by tho carnmisa3.oTzezs Causr. °~ Rex= 3`he f Gt1z (4) mextib~~ ~c aPPaiuted ~hECll CouIi~l ~exas• m~er who sfsa.3,1 sexQe as Cha1~n of e7.aeL a fi~'t':h (~~) oard. sa~.d ~oa.~t ~.i.~pOZt ~az~ing 8 .Laud~.ag Axv~ - ~~s -the $uy~ace area of •the ~par•t ta-.. far the ~,anding. ^off, or taxizng of aircraft. tiaYSStpu~orm~-ng iTsv - Aug Pxe-cxj-stiu4 stxuct~re, object of nat't~-ral growth, or '~~c of Land w}1,iah. i.s incansist,ent w~.th the pravieians of tkci.s D~'dinaace dr an aztteAdm~31t th~etQ- Obeb~uct~.au - Any atru.a~.ure, grp~r ar other ok~atitsf sAC1a~-~3 e. mabj-~.e °b ject~ whs.Ch exceeds u 7-~~- 5 he:~ght set faith in Seaton n of tlsi.s ordin~atrs. P~x^smx - mcana in indivxdaa-Z, f~~ P~aaz~~h~.p{ corpoxatia7x, oampany, ~ assacia~i~rnz, jos.'nt steak a,scs~ociat3~. ar bcdy Pali-'ba.c~ mod. i.lzalndoa a '~~. g,a add-as-s'tx2ctnrr e~cutox~ +~lasdi~t. or recaave=, am~s.gn r .^.th:~ rg~rreSHxxkat-?_vt. 1'~1sna~' sstrlaee - A s,xrf3c~' ~,ongztv.~alI.~* cerit~ed on a runveay- When •hhe zuawaY halt a $peciall.$ px~+para~. hand s~aca, the pxim~'~Y susfrtcP rs~chr_rcds tea-hundred (2p0) fact b~rcnd each cad of that ~sz~ag'r but sthea the rua~ay }mss no specially ps8~+arad bard sQ.L"~ace cr p_latuced hard ~3.. • snx~ac~:> the p~~~ syr~aee ends 3t aa~h gzsd of ~.t +~he width o~ the prim4z'Y g,~ace a~ a ~wa~ ruz~u$Y - egcx~ed ~.a ~+art 7 7 0~ ~tbe ~?gdeFa3. wiS.1 be thee: wid'~s PY ~,~}, fcsr the must gyrcisa approach pvistfan Relations { es.,~hsr eud d~ twat x~u~Y' The ~icting or p},~~-nrd ~oz xi~~ 4~~.r'~8-ca is the eazae e7-PV~t~.ou o~ ang post' on 'rhe g t~zs z~~Y e.5 •tfz6 e1.,aVa'C.i.c~ of t'he riesroat p snrta~=P j.s a cstiter~.inc . The wj„rl'~ o~ a Px~ Trra W 500} fret fax v.t3.~.i'~'y zurlw.~ys havi3t+g ~~,~ give: h~,,ndxsd ( Qnt sppxe~aches. z~on-pxctc~.s~.on ixzstr~ than nt.~3.ity ~xrvr~.~'s the w~.ctth a.s one 2 der oth®r et der ,~ ~~_py-ecisictn { } t}yons ahd. t 1, 4 0 4 j £G a nom,-grec ~~ c,n i.~~,.ent 1.~}~Tnen'~ ~iWa~ havinS ae 1cFt as tksrge' approach with v1-si.}a ~.~.t'Y' mi.nim~ d ~oz y~r~cis~.ou ~purth5 a~ a statute m~.I.e, inststuvBnt s,p~rpaeh zAn~~'~ - A de~iYSed arse on ~. a,~.T~axt Pxepaxed dos S . Buns~~ craft al.aag its ].sngth• 1and~q a.nd •t~ke-•af~ of a s.x ' a IS10~~•~-B QIa'~ BCC, r $tra,atnre 4 ~ri ohjcct, 1.ncludi~9 ~GZgdzr.g, bnt ttot cnnstzo.ctaa to•~ceza ~ csanc~ ~ smakeotaak~, 1; ~.ted to ~ bn41,~~s r ~.czmations. $,nd ogsrhee~d t,r~emi~tdion lines- n, ~z~,~itiaaal. ~~ ~e aan Xescta Chef Tunwa~ a ~az7.~~ an'd' . rtt-'ticty {S0~ de4x ~ ded at a e~o~sg of seven (7) the zuntvay cezi'Gerl. ~eeextcR of ver'ti~ai-tiY' tr~u ~.kzc s.idc3 . feat horiaantel,ly ~ Toach snr~uaes '~a ~cr~,ax'g tbgY o~ ~~ pr~pty a~.d -app and conj-cal. surface9. ia~ternQC•t tht horyznttal ~gj,tj..oT7s3. s~~acas ~cr these ~ozticnah and be~'ss~ sth~ Tx Nfs.i„ah prajec~t Haug ctaua~ a~ ~~,ve ap~aach Rlxx'~aGed - svsfaee, extend. a ~- ~r~ ~ehe edge ltia~.~s o~ 5h000 a£ ~ ~$~ed ho=i.zout 901 ciagree anglce -tk~an.saad ( , of the aPPxoach s~f has c~eiat~ Iz.ne ety ( , to ~~ axteuded nzTnva~ p' • Tree - ZLny ob~QCt o~ n~-~:tiset3. 9r~h' R~~~ - a znnway +3iest it caaatsv-aced '~oz and . w, i1tiU.~X xo e1~ax-dri~?•ars a3xer ~tgroas intmMded 't° ~va hn 3s d p (12 , 5 0 0 } pau~as a-a.~uc- ~a~~~ ~' w~ig'ht 2.~d ].ens ~ • as ,A rnstiwa~ $av~.ztg g„ ~iba-gror.~.sS.dn. z~s~Zu.~a~a~ Bonus's' ~,AStrutneat aPproaeh praceduxB nt.a.l.~.ain~3 air Px~.e~'tzaB ida~e, ar . uavi~at~.on taailiti~ss~ wiih~~ ~ fax ~ca~~h a~st~rr~.i.ght-~.n • axes {3?'~"a t~a'vrs.9stioA ~ ~ p -~- aan-pxcciaion ~.nfits~ent aPPzoach pxaced~~e has been a~,Pxovvd ar p~ annad_ pzsci6~.oa Sristxun,,ant R'~TaY "' A runway hav~,ng au Pw1 stiff y• rvcoduz'e tttill~.l.tt4 an IYtstL'~ent. instttitmenf. ~~rcracks B stem Mme) ax I,attdi.IIq System {IT.~ 1 ~ a y~iozawava LaAd3.r4q sy a exae5.s~.on A oach R~.ds~r {S?AR) . x~: ~.::a o~PStL~I}~ ~. ruilvcay PFr . oach 6yetaxn. is p,Lanz~ed and i~ has r,Qhich a, PxCa~-gian aP~z. so iAr3icated on an apprrsved a%a:gc~t 1ai+tiut. plea v*' ~nY at.Yt~sr pl_~rinzng dacu3ue~'st- ou'E- the g=ovisiats.~ v~ ~-.ia gect3.aa. 3 _ ~anESF ~ Xn rrt7J's' to asz~r Qrdj.nance, ~th.ere are hexehY cza~zed aid ath h o p,,~gxpach 6uzf~accss which i3tCludGe a~-L ^~ the 1-:tn;d ].,pzzt~' b Transition Suxft-~~s~iCip~Ia.~~ ui.srsrhz'k-.finer F~tr~ SSLrf-~orrm~ ~rc app~,y to K~zro'~.X ~p consiet~.g o~ aue (1) sheet, pxe):+~rad by showzc vn the So~.n~ tale `ie~Gr3s ~m~artm,e~'C o~ Rvi.atl.flnr Austiu, R'BaCeS and dated Oct+~ S.r ~, f ;i.990 t why-ch ~.s attached to ~s " Ordinari~e and z¢azLe. a paxt aria lQ.~atad ~ moxcz tF3an aae a~ the restrcti4e?hea~~'ht hcrea~ . An__ , ~~ _ . - e„n~idexecl ~ tae ac~.j~ _ ~ ~~~.' zcn~ tiri~.~s ~h~. m~ .._ - ~„i; the aixaums exsan a iev~..Gi., ax aaY Socta,nn. ~1_ .7ud.~,c~.a1 goviaw' - ~Y' p ~ uetment, map ~.~xp~-gex is~feetedr by say dacician~isd t~an,d a P 7 as resvideri oY~an gppea3. 'ta a GGtart of` compvtcnt ~ Zg1.Q47. { gizgoz~ 9,nn~'~ Aat, T`e~, Laoal Gov't CncI,E ~• ].98g} . eme~l.a.ea - 'L'ose City CotClnCi1 of 'the 6e4*.~-na ~a • Ezi~oraemextt Auld ~ ~exad ~Y City rah Rer.~:4ti.l.l.e, 'L'cxaa and the C~urn~sd~.at3.on. ~aa agtitin to j.ziat~.tute in anY court of ccunpe'tent ~ vio7.atzcri of this th ~,ts pxQ~'8atr xastralr.~ corxCatr or abate ang Urdinatice Qr o~f arty axda= a1: ~t.I.~ng made b rio elimited, ta, ~ st~atian nr enfntcem~tit inciudin~~ the A1xPa~'b ~flning ~r aduti~- aetian. fnr a.nju>YC Ci~~ ~~ a ~2.~:1, Oast9.r3.ed~on 1988 ~ . ~1 CSC. X+oCB]. GoV '~ Sactioa 13 . PeAalt~QB - each ~osas.lgatad h zsun~3~~dshl c ~ itu~e ragnyat3aa Crr~zr or. ru7.zo.5 p a ~3.ne ~ ~ mi.rcdrrace.nax a.ad 11pan CtJA~r1CL~.DA shxl7. Sae 'p'er-ghable bx' not i(tore thaw $200_00 a~ ~aah dey a ~trio3.at~.an ar~3TC~.nuae to ax~.st sba7...7. cnst.~~.tn'se a separate offense. Sact3.tipt 14. Can~1~3.c'~3-~J ~sgU7,a~E3.vast ~- 'WhcrP there cX~.ste 3 canfli.et between anydn~Lhe re~+~~-a't1.ons os u~licebl.~ ty the wine other r8gulat.~.ons apP the had- ht °~ ~ri T.h~ ~gS1,~,A,3nGe 74 Y area, whet za.:. the o~infl.ict be with respect to .;:.~-.,,_ a-1;. mr~ce striLctlir®B ar '~fieesr -t~'i~ use o~ Zandr O~ y otuei iw~-~•._•. ~ stria-gent 1.smitatian ox ra~e~nt sh~'i.l. gaverl~ sad Prevail as th6 Aixpoz~ Z~a~.ng ~'.Ct, TeXa,e Zoca3. Goy' t Code Amn. , provided. by ~24Y..90], tye~,vn i9$~l ~13~ ~„~~,an ~.5 . ~ Priar ozc~inaaod Replacod - Z`hi.s ~ Ddi-3~u ~Dai~3~Ordina~B supax~sdas ,_~ 3.te exit ~x~YPd~Gh 1~ ~~1980 ~ hesa~a~Qx~ adopted by (thc Upxs.or ~~3ia~Ge'' ~v,~at ZL9. ort Zrmtng pQasd, 9,~ paid tha ~e~ri.13-e.•7SPrr Co~'atY ~, vvid upon passage of '~~-9 ?si^s Ordine~e ,7..s xBnde~Ed nu1.]. -~ o~ same a ~ "~ ar~~ssed by lam d ubl.i ~a,~.7-an and Qast~.~ ordina'aae az~ ~ scrves'abili~.~r - I~ anY o~ ~ha pxg4is~.4'n5 of tbi.s ~ea~xvn 1~ y lication thaXeof I:~ rstsg pesHOn os cs.xowus~~.ncea ard~na.~.ce Qs ~h~ app all 7~at af~ec~ at'kiex grav;i.e~a.ons is hold y~va].id, .such 3.uvr!t:1-i:d~~Y ~~ can ~~ gi'v'ma ef~cat ~vi'~hou~ ar ag~l,icatY,aa o~ -tho g~.iuaace ~`'~-ioh to Chia ezsd ~h~' tha yavalid . pro~ri.eion os a1'k"~ aa3.azrad to ba ~,~,vrre~~.e. lisov~,siQns fl~ this pxdinatlae ire d 'Llte ~d,~,ata Qp~r~~i.azi- o~ Sec'~s.ou 17 - fi~~~ct3va Date _ Wh~xeag, thy. pxgy~s~.v~.s a~ ~ha-9 pxdj.na.~a 3.s ne~~;~saxy fax the psa®exvatii.an aYsd g8p,sr~.I. tre3far,P as o~ .the public gQalth, publ.iG sa~etFr dco7.az8d to sxz,st, cad ~,h~ y prd9:ar,.~aaa sha13. ~ _ zha Jam nt g~~;genay is hereby ascags ~* in fe1]. Lorca cad ~~~e~z ~ vb~.i.csa iont azu~ p+~s~ i'~g ~~ req~il.sed ~Y ~pas~ zou~.nq $^ard assd p law. o~ ~onZn4 Rued by 'kha ~ez:~~~-a ICex'T CnlaA'tY ~aiA't ~~ da o~ .~12X.Yr..-_---~ 1992. Baaxd ~~ I6 X` c'ib~67n~1 -14- wzT~3~ R. 4 $~Z IIA7~E G~G~~' Attn: Rodrigo J. Figueroa, Attorney at Law 112 East Pecan, Suite 1800 San Antonio, Texas 78205 Re: Kerrville Airport RPZ/Avaigation Easement and Clearances, Kerrville, Texas Dear Mr. Figueroa: At your request we have reviewed the City of Kerrville Airport Hazard Zoning. Ordinance, dated July 16, 1992, which references a Zoning Map, dated October 1, 1990, prepared by the Texas Department of Aviation, Austin, Texas. Within the aforementioned Ordinance, "Section 7. Permits" A.(1), A.(II), and A.(III); state that no permits are required for future uses that do not exceed 75-feet above the ground surface. Therefore no permit(s) should be required for your sand and gravel operation on the proposed 100 +/- acre tract from which you want to remove sand and gravel. This is because your maximum anticipated equipment height will be only 36-feet above the ground surface, which is well below the 75-foot maximum. The proposed site does lie partially under two (2) slope zones (50:1 Approach Slope, 7:1 Transition Slope) as well as the 10,000-foot Horizontal Surface. The Zoning Map indicates Runway End Elevation of 1588 MSL. The Approach Elevations shown on the above referenced Zoning Map varies from approximately 1630 MSL to 1640 MSL. The Transition Slope above your property ranges from approximately 1633 MSL to 1766 MSL, and the 10,000-foot Horizontal Surface is shown to be 1766 MSL. The Elevations at your proposed site vary between 1530 and 1540 above MSL. Since you tallest piece of equipment is reported to be only 36-feet above the ground, your maximum height would be 1576 (1540+36) MSL, which is well below even the lowest elevation restriction (1630 MSL) above your site. This means that there is no possibility of your equipment extending into any of the three (3) aforementioned zones as outlined on the Zoning Map. Thank you for the opportunity of working with you on this project and if you have any additional questions please let us know. Yours truly, MOTHERAL IlvDUSTRIES, INC. ~~ ~d.%~°~! R. Bruce otheral, P.E. RBM/jm Enclosures 07-7125 EI~GIi'~E~RING COI~ISi'RUCI"ION & MF~NAG~~11=~1T United States Natural 420 Water Street, Department of Resources Suite lol Agriculture Conservation Kerrville Texas 78028 "'~~~~~ ~~.~, ~. ~;; ,.rM.,s--... _, ~~~.~, Service (830) 896-4911 i;xt. 3 1/9/07 Sandy Garcia Martin Marietta Materials RE: Wetlands on Max Duncan Property Mr. Garcia, You called me about the occurrence of wetlands on property located between the Kerrville Airport off Highway 27 and River. road that is owned by Max Duncan: This property does not contain any wetlands delineated by a soil scientist according to Kerr County Soil Survey. If you have any questions or need additional information, give me a call at 830,896.4911 X3. Regards, v Joe Franklin District Conservationist Kerrville Field Office i`,.,1171i Via', I ii; rU',cd.; '.rh;l t:, ,~;.eu.-,. ~,... i~~Cflil :+~Iai1N.: ~. !:.i z..-i ~i({~JiCr:i~l ,. ~~. -~ February 8, 2006 Dear Applicant: Re: TPDES General Permit for Construction Storm Water Runoff Storm Water Notice of Intent Authorization Your Notice of Intent application for authorization under the general permit for discharge of storm water associated with construction activities has been received. Please refer to the attached certificate for the identification number that was assigned to your project/site and the effective date. Please use this number to reference this project/site for future communications with the Texas Commission on Environmental Quality (TCEQ). A Notice of Termination must be submitted when permit coverage is no longer needed. You may obtain a Notice of Termination form at the web site listed below. All authorizations that are active on September 1st of each year tivill be assessed an annual fee of $100.00. The Notice of Termination must be post marked for delivery to TCEQ on or before September 1 to avoid the annual fee assessment. The billing statement ~vilf be mailed to tl~e Operator in January and payment must be made within 30 days to avoid late fees. It is~the responsibility of the Operator to notify the TCE~LS-term Water Processing cente-- of any change in address supplied on the original Notice of Intent. If you have any questions regarding coverage under this general permit or other technical issues, you may contact the storm water technical staff at (512) 239-4671. For questions related to processing you tnay contact the Storm Water Processing Center by email at SWPERMITna tcea state h us or by telephone at (S 12) 239-3700. Also, you may obtain information on the storm water web site at www.tcen state tx us. Sincerely, L'Oreal Stepney, Director Water Quality Division !' -d y y m U ~ ~ '~ ~ y ~ O C ~ v O p m ~, [ ,D ~ a v b ~ a~ H ~ ~ ' a O ~ ~ ~ a ~ ~ ~ ~ ~ • ~ N p p ~ ~ ~' ~ ~ ~ °' ~ ~' O J Q o y 3 ~ _ 3 ~, b '~ ~ ~, ~ '~ Q~N a ~ ~ ~ g a~ o ~ ~ Wiz- o Z v; y ~ • ~ . _ en ~ ~n ° C ~ ~ w • ~ ¢ w Z ~ ~ a~ o ~ N o `~ ° ~ 3 ~ w o ~ _ Qz=z r` .- `r~r~~ N G Cn W a> ~ ~ C7, ~ ~ O p ~ ~ .. ~ LJ :b. .C ~ N - a C C ~ ~ ~ ~ y d~A ' V ~ a ~ Q z ~ a i j, ~ . c~ ~ +~-, ~ ~ ~ ~ ~ ~ a. ,~ o a o ~ O Q F ~ O 5 a~ U C ,~ u. w . •~ ~ i. y . ~..~ ft7 a~ + ~ .n N ,~ o ~ y -° y ~ . ~ ~-' k. .a y ~ `./ ~ - [tY > ~ cad ~ p C U cd ~ ' ~ O ~ on ~ !-, ~ a N ~ v 3 ~ ~ ~ . ~~ ~ ~ 3 o c ' ~ " ~ v~ Q ¢ o ~ ' 3 ~ a ~ E-. o +- . V a m ~. L 0 ® [d C °' ~ V U o .; . ~. 7 O U ~ (7 y ~ ~ m ti ' ~'' ' 'fl ~ ~ r r{ ~ ~ F+ N C OQ CA O O ~ = O C/~ 'Y a~ ~ .C t, ~ ~ _ C OC a'"i ~ .O p N v'i .~'".. ~ O "O O U 'O V f!7 O O U ~ b 'C ~ ~ I T .-. C ~ a ~ _ (~ L ~ cC i, y ~ J .~ ~ C O Q ~,' ~ ~ C 60 'O'' C cC O Q ~' ccf ~ h O C v z. ~ ~ U OA y O ~ O Q ~ O y C ° ~ ~ ~ O ~ ~.. cab o ~ O v uiw~ z ~-w ~ > ~ ° , ,~ O ~ y c ~ ~° `~ . n - v~a~`cN~ ... •~ ~ .~ w ° ~ z ~ a ~ ~ ;~ wZ -v w ~ ~ ~ ----- C y cd O n, 'U C O~Q~NZ m O ._._ __ __. . E~ 3 3 .~ H _ .~ a n. ~~~Y~v - -- TEXAS COMMISSION ON ENVIRONMENTAL QUALITY • P.O. BOX 13087 Austin, TX 78711-3087 GENERAL PERMI'T' TO DISCHARGE WASTE under provisions of Section 402 of the Clean Water Act and Chapter 26 of the Texas Water Code Construction sites located in the state of Texas may discharge to surface water in the state TPDES General Permit NO. TXR150000 This is a new general pernut issued pursuant to Seddon 26.040 of the Texas Water Code and Section 402 of the Clean Water Act. only according to effluent limitations, monitoring requirc~ents and other conditions set forth in this permit; as well as the rules of the Texas Commission on Environmental Quality (TCEQ), the laws of the State of Texas, and other orders of the TCEQ. The issuance of this general permit does not grant to the permittee the right to use private or public property for conveyance of storm water and certain non-storm water discharges along the discharge route. This includes property belonging to but not limited to any individual, partnership, corporation or other entity, Neitlier does this pernut authorize any invasion of personal rights nor any violation of federal, state, or local laws or regulations. It is the responsibility of the permittee to acquire property rights as maybe necessary to use the discharge route. This permit and the authorization contained herein shall expire. at midnight five years after the date of issuance. - .. ISSUED AND EFFECTIVE DATE:. MAR .. 003. F the C 's ion ' TCEQ General Permit Number TXR150000 Relating To Discharges From Construction Activities Table of Contents Part I. Definitions .......... ......................................... Page3 Part II. Permit Applicability and Coverage .................................. Paoe 7 b Part III. Storm Water Pollution Prevention Plans ............................. Page 18 Part IV. Numeric Effluent Limitations ..................................... Page 28 Part V. Retention of Records ............................................ Page 29 Part VI. Standard Permit Conditions ....................................... Page 29 Part VII. Fees ......................................................... Page 30 Appendix A. Periods of Low Potential by County ............................. Page 3l Attachment 1 Construction Site Notice for Part II.D.1 Waivers ................... Page 32 Attachment 2 Construction Site Notice for Part II.D.2. Authorizations ............. Page 33 Attachment 3 Discharge Monitoring Report for Concrete Batch Plants ............. Page 34 Page 2 TPDES General Permit TXR150000 Part I. Definitions Best Management Practices - (B1VIPs) Schedules of activities, prohibitions of practices, maintenance procedures, structural controls, local ordinances, and other management practices to prevent or reduce the discharge of pollutants. BMPs also include treatment requirements, operating procedures, and practices to control construction site runoff, spills or leaks, waste disposal, or drainage from raw material storage areas. Commencement of Construction - The exposure of soils resulting from activities such as clearing, grading, and excavating. Common Plan of Development - A construction activity that is completed in separate stages, separate phases, or in combination with other construction activities. A common .plan of development is identified by the documentation for the construction project that identifies the scope of the project, and may include plats, blueprints, marketing plans, contracts, building permits, a public notice or hearing, zoning requests, or other similar documentation and activities. Facility or Activity -Any TPDES "point source" or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the TPDES program. Final Stabilization - A construction site status where either of the following conditions are met: (a) All soil disturbing activities at the site have been completed and a uniform (e.g, evenly distributed, without large bare areas} perennial vegetative cover with a density of 70% of the native background vegetative cover for the area has been established on all unpaved areas and areas not covered by permanent structures, or equivalent permanent stabilization measures (such as the use of riprap, gabions, or goetextiles) have been employed. (b) For individual lots in a residential construction site by either: (1) the homebuilder completing final stabilization as specified in condition (a) above; or (2} the homebuilder establishing temporary stabilization for an individual lot prior to the time of transfer of the ownership of the home to the buyer and after informing the .homeowner of the need for, and benefits of, final stabilization. (c) For construction activities on land used for agricultural purposes (e.g. pipelines across crop or range land), final stabilization may be accomplished by returning the disturbed land to its preconstruction agricultural use. Areas disturbed that were not previously used for agricultural activities, such as buffer strips immediately adjacent to a surface water and areas which are not being returned to their preconstruction agricultural use must meet the final stabilization conditions of condition (a) above. Page 3 TPDES General Permit TXR150000 Large Construction Activity -Construction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than five (5) acres of land. Large construction activity also includes the disturbance of less than five (5) acres of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than five (5) acres of land, Large construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, and original purpose of a ditch, channel, or other similar storm water conveyance. Large construction activity does not include the routine grading ofexisting dirt roads, asphalt overlays ofexisting roads, the routine clearing ofexisting right-of--ways, and similar maintenance activities. Municipal Separate Storm Sewer System (MS4) - A separate storm sewer system owned or operated by a state, city, town, county, district, association, or other public body (created by or pursuant to state law) having j urisdiction over the d isposal ofsewage, industrial wastes, storm water, or other wastes, including special districts under state law such as a sewer district, flood control or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization. Notice of Intent (NOI) - A written submission to the executive director from an applicant requesting coverage under a general permit. Notice of Termination (NOT) - A written submission to the executive director from a permittee authorized under a general permit requesting termination of coverage. Operator -The person or persons associated with a large or small construction activity that meets either of the following two criteria: (a) the person or persons have operational control over construction plans and specifications to the extent necessary to meet the requirements and conditions ofthis general permit; or (b) the person or persons have day-to-day operational control of those activities at a construction site which are necessary to ensure compliance with a storm water pollution prevention plan for the site or other permit conditions (e.g. they are authorized to direct workers at a site to carry out activities required by the Storm Water Pollution Prevention Plan or comply with other permit conditions). Permittee - An operator authorized under this general permit. The authorization may be gained through submission of a notice of intent, by waiver, or by meeting the requirements for automatic coverage to discharge storm water runoff and certain non-storm water discharges. Point Source-Any discernible, conftned, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock concentrated animal feeding operation, landfill leachate collection system; vessel or other floating craft from which pollutants are, or may be, discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff. Page 4 TPDES General Permit TXR150000 Pollutant - (from the Texas Water Code, Chapter 26) Dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, filter backwash, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into any surface water in the state. The term "pollutant" does not include tail water or runoff water from irrigation or rainwater runoff from cultivated or uncultivated rangeland, pastureland, and farmland. Pollution - (from the Texas Water Code, Chapter 26) The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any surface water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose. Runoff Coefficient -The fraction of total rainfall that will appear at the conveyance as runoff. Separate Storm Sewer System - A conveyance or system of conveyances (including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains), designed or used for collecting or conveying storm water; that is not a combined sewer, and that is not part of a publicly owned treatment works (POTW). Small Construction Activity -Construction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one (1) acre and less than five (5) acres of land. Small construction activity also includes the disturbance of less than one (1) acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one (1) and less than five (5) acres of land. Small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, and original purpose of a ditch, channel, or other similar storm water conveyance. Small construction activity does not include the routine grading of existing dirt roads, asphalt overlays of existing roads, the routine clearing of existing right-of--ways, and similar maintenance activities. Storm Water -Storm water runoff, snow melt runoff, and surface runoff and drainage. Storm Water Associated with Construction Activity -Storm water runoff from a construction activity where soil disturbing activities (including clearing, grading, excavating) result in the disturbance of one (1) or more acres of total land area, or are part of a larger common plan of development or sale that will result in disturbance of one (1) or more acres of total land area. Structural Control (or Practice) - A pollution prevention practice that requires the construction of a device, or the use of a device, to capture or prevent pollution in storm water runoff. Structural controls and practices may include but are not limited to: silt fences, earthen dikes, drainage swales, sediment traps, check dams, subsurface drains, storm drain inlet protection, rock outlet protection, reinforced soil retaining systems, gabions, and temporary or permanent sediment basins. Surface Water in the State - Lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, _____ _____ creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits Page 5 TPDES General Permit TXRI50000 of the state (from the mean high water mark (MHWM) out 10.36 miles into the Gulf), and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all water-courses and bodies of surface water, that are wholly or partially inside or bordering the state or subject to the jurisdiction of the state; except that waters in treatment systems which are authorized by state or federal law, regulation, or permit, and which are created for the purpose of waste treatment are not considered to be water in the state. Temporary Stabilization - A condition where exposed soils or disturbed areas are provided a protective cover, which may include temporary seeding, geotextiles, mulches, and other techniques to reduce or eliminate erosion until either fcnal stabilization can be achieved or until further construction activities take place. Waters of the United States - (from title 40, part122, section 2 of the Code ofFederal Regulations) Waters of the United States or waters of the U.S. means: (a) all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (b) all interstate waters, including interstate wetlands; (c} all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds that the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters: (1) which are or could be used by interstate or.foreign travelers for recreational or other purposes; (2) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (3) which are used or could be used for industrial purposes by industries in interstate commerce; (d) all impoundments of waters otherwise defined as waters of the United States under this definition; (e) tributaries of waters identified in paragraphs (a) through (d) of this definition; (f) the territorial sea; and (g) .wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition. Page 6 TPDES General Permit TXR150000 Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR § 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to .manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes ofthe Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. . Permit Applicability and Coverage A. Discharges Eligible for Authorization 1. Storm Water Associated with Construction Activity Discharges of storm water runoff from small and large construction activities may be authorized under this genera( permit. ~. Discharges of Storm Water Associated with Construction Support Activities Discharges of storm water runoff from construction support activities, including concrete batch plants, asphalt batch plants, equipment staging areas, material storage yards, material borrow areas, and excavated material disposal areas may be authorized under this general permit provided: (a) the activity is located within a 1-mile distance from the boundary of the permitted construction site and directly supports the construction activity; (b) the storm water pollution prevention plan is developed according to the provisions of this general permit and includes appropriate controls and measures to reduce erosion and discharge of pollutants in storm water runoff from the supporting industrial activity site; and (c) the industrial activity either does not operate beyond the completion date of the construction activity or obtains separate TPDES authorization for discharges. 3. Non-storm Water Discharges The following non-storm water discharges from sites authorized under this general permit are also eligible for authorization under this general permit: (a) discharges from fire fighting activities; Page 7 _.. - .. . TPDES General Permit TXR150000 (b) fire hydrant flushings; (c) vehicle, external building, and pavement wash water where detergents and soaps are not used and where spills or leaks of toxic or hazardous materials have not occurred (unless spilled materials have been removed; and if local state, or federal regulations are applicable, the materials are removed according to those regulations), and where the purpose is to remove mud, dirt,. an dust; (d) water used to control dust; (e) potable water sources including waterline flushings; (f) air conditioning condensate; (g) uncontaminated ground water or spring water, including foundation or footing drains where flows are not contaminated with industrial materials such as solvents. 4. Other Permitted Discharges Any discharge authorized under a separate NPDES, TPDES, orTCEQ permit may be combined with discharges authorized by this permit. Section B. Limitations on Permit Coverage Post Construction Discharges. Discharges that occur after construction activities have been completed, and after the construction site and any supporting activity site have undergone final stabilization, are not eligible for coverage under this general permit. Discharges originating from the sites are not authorized under this general permit following the submission of the notice of termination (NOT) for the construction activity. 2. Prohibition of Non-Storm Water Discharges Except as provided in Part II. A.2., A3., and A4., all discharges authorized by this general permit must be composed entirely of storm water associated with construction activity. 3. Compliance With Water Quality Standards Discharges to surface water in the state that would cause or contribute to a violation of water quality standards or that would fail to protect and maintain existing designated uses are not eligible for coverage under this general permit. The executive director may require an application for an individual..perm.it oralternative-° --Y•----- ~ -- _ Page 8 TPDES General Permit TXR150000 general permit (see Part ILG.3) to authorize discharges to surface water in the state from any activity that is determined to cause a violation of water quality standards or is found to cause, or contribute to, the loss of a designated use. The executive director may also require an application for an individual permit considering factors described in Part II. G.2. 4. Discharges to Water Quality-Impaired Receiving Waters. New sources or new discharges of the constituents of concern to impaired waters are not authorized by this permit unless otherwise allowable under 30 TAC Chapter 305 and applicable state law. Impaired waters are those that do not meet applicable water quality standards and are listed on the EPA approved Clean Water Act Section 303(d) list. Constituents of concern are those for which the water body is listed as impaired. Discharges of the constituents of concern to impaired water bodies for which there is a total maximum daily load (TMDL) implementation plan are not eligible for this permit unless they are consistent with the approved TMDL and the implementation plan. Permittees must incorporate the limitations, conditions, and requirements appl icable to their discharges, including monitoring frequency and reporting required by TCEQ rules, into their storm water pollution prevention plan in order to be eligible for coverage under this general permit. Discharges to the Edwards Aquifer Recharge Zone Discharges cannot be authorized by this general permit where prohibited by 30 Texas Administrative Code (TAC) Chapter 213 (relating to Edwards Aquifer). (a) For new discharges located within the Edwards Aquifer Recharge Zone, or within that area upstream from the recharge zone and defined as the Contributing Zone, operators must meet all applicable requirements of, and operate according to, 30 TAC Chapter 213 (Edwards Aquifer Rule) in addition to the provisions and requirements of this general permit. (b) For existing discharges, the requirements of the agency-approved Water Pollution Abatement Plan under the Edwards Aquifer Rules are in addition to the requirements ofthis general permit. BMPs and maintenance schedules for structural storm water controls, for example, may be required as. a provision of the rule. All applicable requirements of the Edwards Aquifer Rule for reductions ofsuspended solids in'storm water runoff are in addition to the requirements in this general permit for this pollutant. For discharges from large construction activities located on the Edwards Aquifer contributing zone, applicants must also submit a copy of the NOI to the appropriate TCEQ regional office." Page 9 TPDES General Permit TXR 150000 4. Effective Date of Coverage (a) Operators of construction activities described in either Part II. D.1. or D.2. are authorized immediately following compliance with the conditions ofPart II. D.1. or D.2. that are applicable to the construction activity. (b) Operators of all other construction activities eligible for coverage under this general permit, unless otherwise notified by the executive director, are provisionally authorized two (2) days from the date that a completed NOI is postmarked for delivery to the TCEQ. If electronic submission of the NOI is provided, and unless otherwise notified by the executive director, operators are provisionally authorized 24 hours following confirmation ofreceipt ofthe NOI by the TCEQ. Authorization is non-provisional when the executive director finds the NOI is administratively complete and an authorization number is issued for the activity. (c) Operators are not prohibited from submitting late NOIs or posting late notices to obtain authorization under.this general permit. The TCEQ reserves the right to take appropriate enforcement actions for any unpermitted activities that may have occurred between the time construction commenced and authorization is obtained. 5. Notice of Change (NOC) Letter Ifthe operator becomes aware that it failed to submit any relevant facts, or submitted incorrect information in an NOI, the correct information must be provided to the executive director in a NOC letter within 14 days after discovery. If relevant information provided in the NOI changes, a NOC letter must be submitted within ] 4 days of the change. A copy of the NOC must be provided to the operator of any MS4 receiving the discharge. 6. Signatory Requirement for NOI Forms, Notice ofTermination (NOT) Forms, NOC Letters, and Construction Site Notices NOI forms, NOT forms, NOC letters, and Construction Site Notices must be signed according to 30 TAC § 305.44 (relating to Application for Permit). Contents of the NOI The NOI form shall require, at a minimum, the following information: (a) the name, address, and telephone number of the operator filing the NOI for permit coverage; (b) the name (or other identifier), address, county, and latitude/longitude of the construction project or site; .._ ._ _. _ .. _ __ .. ~..__.._... _: Page 14 TPDES General Permit TXR150000 (c) number of acres that will be disturbed (estimated to the largest whole number); (d) whether the project or site is located on Indian Country lands; (e) confirmation that a SWP3 has been developed. and that the SWP3 will be compliant with any applicable local sediment and erosion control plans; and (f) name of the receiving water(s). Section E. Application to Terminate Coverage Each. operator that has submitted an NOI for authorization under this general permit must apply to terminate that authorization following the conditions described in this section of the general permit. Authorization must be terminated by submitting aNotice ofTermination (NOT) on a form supplied by the executive director. Authorization to discharge under this permit terminates at midnight on the day. the NOT is postmarked for delivery to the TCEQ. If electronic submission of the NOT is provided, authorization to discharge under this permit terminates immediately following confirmation ofreceipt oftheNOT by the TCEQ. Compliance with the conditions and requirements of this permit is required until an NOT is submitted. 1. Notice of Termination Required The NOT must be. submitted to TCEQ, and a copy of the NOT provided to the operator of any MS4 receiving the discharge, within thirty (30) days, after: (a} final stabilization has been achieved on all portions of the site that is the responsibility of the permittee: or (b) another permitted operator has assumed control over al I areas of the site that have not been finally stabilized; and (c} all si It fences and other temporary erosion controls have either been removed, scheduled for removal as defined in the S WP3, or transferred to a new operator if the new operator has sought permit coverage. Erosion controls that are designed to remain in place for an indefinite period, such as mulches and fiber mats, are not required to be removed or scheduled for removal. 2. Minimum Contents of the NOT The NOT form shall require, at a minimum, the following information: (a} if authorization was granted following submission of a NOI, the perm ittees site-specific TPDES general permit number for the construction site; Page 15 TPDES General Permit TXR150000 (b) an indication of whether the construction activity is completed or if the pennittee is simply no longer an operator at the site; (c} the name, address and telephone number of the permittee submitting the NOT; (d) the name (or other identifier), address, county, and latitude/longitude of the construction project or site; and (e) a signed certification that either all storm water discharges requiring authorization under this general permit will no longer occur, or that the applicant to terminate coverage is no longer the operator of the facility or construction site, and that all temporary structural erosion controls have either been removed, will be removed on a schedule defined in the SWP3, or transferred to a new operator if the new operator has applied for permit coverage. Erosion controls that are designed to remain in place for an indefinite period, such as mulches and fiber mats, are not required to be removed or scheduled for removal. Section F. Waivers from Coverage The executive director may waive the otherwise applicable requirements of this general permit for storm water discharges from small construction activities under the terms and conditions described in this section. 1. Waiver Applicability and Coverage Operators of small construction activities may apply for and receive a waiver from the requirements to obtain authorization under this general permit where: (a) the calculated rainfall erosivity R factor for the entire period of the construction project is less than five (5}; (b) the operator submits a signed waiver certification form, supplied by the executive director, certifying that the construction activity will commence and be completed within a period when the value of the calculated rainfall erosivity R factor is less than five (5); and (c) the waiver certification form is submitted to the TCEQ at least two (2) days before construction activity begins. 2. Effective Date of Waiver Operators of small construction activities are provisionally waived from the otherwise applicable requirements of this general permit two (2) days from the date that a completed waiver certification form is postmarked for delivery to TCEQ. .Page 16 TPDES General Permit TXRI50000 3. Activities Extending Beyond the Waiver Period If a construction activity extends beyond the approved waiver period due to circumstances beyond the control of the operator, the operator must either: (a) recalculate the rainfall erosivity factor R factor using the original start date and a new projected ending date, and if the R factor is still under five (5), submit a new waiver certification form at least two (2) days before the end of the original waiver period; or (b) obtain authorization under this general permit according to the requirements delineated in either Part ILD.2. or Part ILD.3. at least two (2) days before the end of the approved waiver period. Section G. Alternative TPDES Permit Coverage 1. Individual Permit Alternative Any discharge eligible for coverage under this genera( permit may alternatively be authorized under an individual TPDES permit according to 30 TAC Chapter 305 (relating to Consolidated Permits}. Applications for individual permit coverage should be submitted at least three hundred and thirty (330) days prior to commencement of construction activities to ensure timely issuance. 2. Individual Permit Required The executive director may suspend an authorization or NOI in accordance with the procedures set forth in 30 TAC Chapter 205, including the requirement that the executive director provide written notice to the permittee. The executive director may require an operator of a construction site; otherwise eligible for authorization under this general permit, to-apply for an individual TPDES permit because of: (a) the conditions of an approved TMDL or TMDL implementation plan; (b) the activity is determined to cause a violation of water quality standards or is found to cause, or contribute to, the loss of a designated use of surface water in the state: and (c) any other considerations defined in 30 TAC Chapter 205 would include the provision at 30 TAC § 205.4(c)(3)(D), which allows TCEQ to deny authorization under the general permit and require an individual permit if a discharger "has been determined by the executive director to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the executive director." Page 17 TPDES General Permit TXR150000 3. Any discharge eligible for authorization under this general permit may alternatively be authorized under a separate, applicable general permit according to 30 TAC Chapter 205 (relating to General Permits for Waste Discharges). Section H. Permit Expiration This general permit shall be issued for a term not to exceed five (5) years. Following public notice and comment, as provided by 30 TAC g 205:3 (relating to Public Notice, Public Meetings, and Public Comment), the commission may amend, revoke, cancel, or renew this general permit. If the TCEQ publishes a notice of its intent to renew or amend this general permit before the expiration date, the permit will remain in effect for existing, authorized, discharges until the commission takes final action on the permit. Upon issuance of a renewed or amended permit, permittees may be required to submit an NOI within 90 days following the effective date of the renewed or amended permit, unless that permit provides for an alternative methnri fnr nhtal.^.iP.g a',:thorizatlon. In the event that the general permit is not renewed, discharges that are authorized under the general permit must obtain either a TPDES individual permit or coverage under an alternative general permit. Part III. Storm Water Pollution Prevention Plans (SWP3) Storm water pollution prevention plans must be prepared for storm water discharges that will reach Waters of the United States, including discharges to MS4 systems and privately owned separate stone sewer systems that drain to Waters of the United States, to identify and address potential sources of pollution that are reasonably expected to affect the quality of discharges from the construction site, including off-site material storage areas, overburden and stockpiles ofdirt, borrow areas, equipment staging areas, vehicle repair areas, fueling areas, etc., used solely by the permitted project. The SWP3 must describe and ensure the implementation of practices that will be used to reduce the pollutants in storm water. discharges associated with construction activity at the construction site and assure compliance with the terms and conditions of this permit. Individual operators at a site may develop separate SWP3s that cover only their portion of the project provided reference is made to the other operators at the site. Where there is more than one SWP3 for a site, permittees must coordinate to ensure that BMPs and controls are consistent, and do not negate or impair the effectiveness of each other. Regardless of whether a single comprehensive SWP3 is developed, or separate SWP3s are developed for each operator, it is the responsibility of each operator to ensure that compliance with the terms and conditions of this general permit is met in the areas ofthe construction site where that operator has operational control over construction plans and specifications or day-today operational control. Section A. Shared SWP3 Development For more effective coordination of BMPs and opportunities for cost sharing, a cooperative effort by the different operators at a site is encouraged. Operators must independently submit an NOI and obtain authorization, but may work together to prepare and implement a single comprehensive S WP3 for the entire construction site. - - -- - - - -- ---- Page 18 TPDES General Permit TXR150000 The SWP3 must clearly list the name and, for large construction activities, the general permit authorization numbers, for each operator that participates in the shared SWP3. Until the TCEQ responds to receipt of the NOI with a general permit authorization number, the SWP3 must specify the date that the NOI was submitted to TCEQ by each operator. Each participant in the- shared plan must also sign the S WP3. 2. The SWP3 must clearly indicate which operator is responsible for satisfying each shared requirement of the SWP3. If the responsibility for satisfying a requirement is not described in the plan, then each permittee is entirely responsible for meeting, the requirement within the boundaries of the construction site where they perform construction activities. The SWP3 must clearly describe responsibil ities for meeting each requirement in shared or common areas. Section is. t~esponsibilities of Operators Operators with Control Over Construction Plans and Specifications All operators with operational control over construction plans and specifications to the extent necessary to meet the requirements and conditions of this general permit must: (a) ensure the project specifications allow or provide that adequate BMPs may be developed to meet the requirements of Part III of this general permit; (b) ensure that the SWP3 indicates the areas of the project where they have operational control over project specifications (including the ability to make modifications in specifications); (c) ensure all other operators affected by modifications in project specifications are notified in a timely manner such that those operators may modify best management practices as are necessary to remain compliant with the conditions of this general permit; and (d) ensure that the S WP3 for portions of the project where they are operators indicates the name and TPDES permit numbers for permittees with the day- to-day operational control over those activities necessary to ensure compliance with the SWP3 and other permit conditions. In the case that responsible parties have not been identified, the permittee with operational control over project specifications must be considered to be the responsible party until such time as the authority is transferred to another party and the plan is updated. Page 19 _ _ - TPDES General Permit TXR150000 (c) the total number of acres of the entire property and the total number of acres where construction activities will occur, including oft=site material storage areas, overburden and stockpiles of dirt, and borrow areas; (d) (e) (~ (g) data describing the soil or the quality of any discharge from the site; a map showing the general location of the site (e.g. a portion of a city or county map); a detailed site map (or maps) indicating the following: (i) drainage patterns and approximate slopes anticipated after major grading activities; (ii) areas where soil disturbance will occur (iii) locations of all major structural controls either planned or in place; (iv) locations where stabilization practices are expected to be used; (v) locations of off-site material, waste, borrow, fill, or equipment storage areas; (vi} surface waters (including wetlands) either adjacent or in close proximity; and (vii) locations where storm water discharges from the site directly to a surface water body. the location and description of asphalt plants and concrete plants providing support to the construction site and authorized under this general permit; (h) the name of receiving waters at or near the site that will be disturbed or that will receive discharges from disturbed areas of the project; and (i) a copy of this TPDES general permit. 2. The SWP3 must describe the best management practices that will be used to minimize pollution in runoff. The description must identify the general timing or sequence for implementation. At a minimum, the description must include the following components: (a} . Erosion and Sediment Controls (i) Erosion and sediment controls must be designed to retain sediment on-site to..the -..extent practicable with consideration for local - Page 22 ~i 1 1 t a TPDES General Permit TXR] 50000 topography, soil type, and rainfall. Controls must also be designed and utilized to reduce the offsite transport of suspended sediments and other pollutants if it is necessary to pump or channel standing water from the site. (ii) Control measures must be properly selected, installed, and maintained according to the manufacturer's or designer's specifications. If periodic inspections or other information indicates a control has been used incorrectly, or that the control is performing inadequately, the operator must replace or modify the control as soon as practicable after discovery that the control has been used incorrectly, is performing inadequately, or is damaged. (iii) Sediment must be removed from sediment traps and sedimentation ponds no later than the time that design capacity has been reduced by 50%. (iv) If sediment escapes the site, accumulations must be removed at a frequency to minimize further negative effects, and whenever feasible, prior to the next rain event. (v) Controls must be developed to limit, to the extent practicable, offsite transport of litter, construction debris, and construction materials. (b) Stabilization Practices The SWP3 must include a description of interim and permanent stabilization practices for the site, including a schedule of when the practices will be implemented. Site plans should ensure that existing vegetation is preserved where it is possible. (i) Stabilization practices may include but are not limited to: establishment of temporary vegetation, establishment of permanent vegetation, mulching, geotextiles, sod stabilization, vegetative buffer strips, protection of existing trees and vegetation, and other similar measures. (ii) The following records must be maintained and either attached to or referenced in the SWP3, and made readily available upon request to the parties in Part III.D.I of this general permit: (a) the dates when major grading activities occur; (b) the dates when construction activities temporarily or permanently cease on a portion of the site; and Page 23 TPDES General Permit TXR150000 (d) Velocity dissipation devices shall be placed at discharge locations and along the length of any outfall channel to provide anon-erosive flow velocity from the structure to a water course so that the natural physical and biological characteristics and functions are maintained and protected. 6. Approved State and Local Plans (a) Permittees must ensure the SWP3 is consistent with requirements specified in applicable sediment and erosion site plans or site permits, or storm water management site plans or site permits approved by federal, state, or local officials. (b) SWP3s must be updated as necessary to remain consistent with any changes applicable to protecting surface water resources in sediment erosion site plans or site permits, or storm water management site plans or site permits approved by state or local official for which the permittee receives written notice. 7. Maintenance All erosion and sediment control measures and other protective measures identified in the SWP3 must be maintained in effective operating condition. If through inspections the permittee determines that BMPs are not operating effectively, maintenance must be performed before the next anticipated storm event or as necessary to maintain the continued effectiveness of storm water controls. If maintenance prior to the next anticipated storm event is impracticable, maintenance must. be scheduled and accomplished as soon as practicable. Erosion and sediment controls that have been intentionally disabled, run-over, removed, or otherwise rendered ineffective must be replaced or corrected immediately upon discovery. 8. Inspections of Controls In the event of flooding or other uncontrollable situations which prohibit access to the inspection sites, inspections must be conducted as soon as access is practicable (a) Personnel provided by the permittee and familiar with the SWP3 must inspect disturbed areas of the construction site that have not been finally stabilized, areas used for storage of materials that are exposed to precipitation, and structural controls for evidence of, or the potential for, pollutants entering the drainage system. Sediment and erosion control measures identified in the SWP3 must be inspected to ensure that they are operating correctly. Locations where vehicles enter or exit the site must be inspected for evidence of off-site sediment tracking. Inspections must be conducted at least once every fourteen (14) calendar days and within twenty four (24) hours of the end of a storm event of 0.5 inches or greater. Page 26 TPDES General Permit TXR150000 Where sites have been finally or temporarily stabilized, where runoff is unlikely due to winter conditions (e.g. site is covered with snow, ice, or frozen ground exists), or during seasonal arid periods in arid areas (areas with an average annual rainfall of 0 to 10 inches) and semi-arid areas (areas " with an average annual rainfall of 10 to 20 inches), inspections must be conducted at least once every month. As an alternative to the above-described inspection schedule of once every fourteen (14) calendar days and within twenty four (24) hours of a storm event of 0.5 inches or greater, the SWP3 may be developed to require that these inspections will occur at least once every seven (7) calendar days. If this alternative schedule is developed, the inspection must occur on a specifically defined day, regardless of whether or not there has been a rainfal I event since the previous incnPnt;nn (b) Utility line installation, pipeline construction, and other examples of long, narrow, linear construction activities may provide inspection personnel with limited access to the areas described in Part IILF.8.(a) above. Inspection of these areas could require that vehicles compromise temporarily or even permanently stabilized areas, cause additional disturbance of soils, and iricrease the potential for erosion. In these circumstances, controls must be . inspected at least once every fourteen (14) calendar days and within twenty four (24) hours of the end of a storm event of 0.5 inches, but representative inspections may be performed. For representative inspections, personnel must inspect controls along the construction site for 0.25 mile above and below each access point where a roadway, undisturbed right-of--way, or other similar feature intersects the construction site and allows access to the areas described in Part III.F.8.(a) above. The conditions of the controls along each inspected 0.25 mile segment may be considered as representative of the condition ofcontrols along that reach extending from the end ofthe 0.25 mile segment to either the end of the next 0.25 mile inspected segment, or to the end of the project, whichever occurs first. As an alternative to the above-described inspection schedule of once every fourteen (14) calendar days and within twenty four (24) hours of a storm event of 0.5 inches or greater, the S WP3 may be developed to require that these inspections will occur at least once every seven (7} calendar days. If this alternative schedule is developed, the inspection must occur on a specifically defined day, regardless ofwhether or not there has been a rainfall event since the previous inspection. (c) The SWP3 must be modified based on the results of inspections, as necessary, to better control pollutants in runoff. Revisions to the S WP3 must be completed within seven (7) calendar days following the inspection. If existing BMPs are modified or if additional . BMPs are necessary, an -- -'rnplementation-schedule must be described in the S WP3 and wherever Page 27 TPDES General Permit TXRI50000 possible those changes implemented before the next storm event. If implementation before the next anticipated storm event is impracticable, these changes must be implemented as soon as practicable. (d) A report summarizing the scope of the inspection, names and qualifications of personnel making the inspection, the dates of the inspection, and major observations relating to the implementation of the SWP3 must be made and retained as part of the.SWP3. Major observations should include: The locations of discharges of sediment or other pollutants from the site; locations of BMPs that need to be maintained; locations of BMPs that failed to operate as designed or proved inadequate for a particular location; and locations where additional BMPs are needed. Actions taken as a result of inspections must be described within, and retained as a part of, the SWP3. Reports must identify any incidents of non- compliance. Where a report does not identify any incidents of non- compliance, the report must contain a certification that the facility or site is in compliance with the SWP3 and this permit. The report must be signed by the person and in the manner required by 30 TAC § 305.128 (relating to Signatories to Reports) 9, The SWP3 must identify and ensure the implementation of appropriate pollution prevention measures for all eligible non-storm water components of the discharge. Part IV. Numeric Effluent Limitations Section A. Limitations All discharges of storm water runoff from concrete batch plants that qualify for coverage, and that are authorized to discharge storm water under the provisions of this general permit must be monitored at the following monitoring frequency and comply with the following numeric effluent limitations: Parameter Total Suspended Solids Oil and Grease pH Limitations Monitoring Daily Maximum Frequency 65 mg/1 1/Year* 15 mg/I 1/Year* between 6 and 9 standard units 1/Year* * If discharge occurs. Section B. Reporting Requirements Results of monitoring for determining compliance with numeric effluent limitations must be recorded on a discharge monitoring report (DMR). The DMR must either be an original EPA No. 3320-1 form (Attachment 3 ofthis general permit), a duplicate ofthe form, or as otherwise provided __.by_ the executive director. Monitoring must be conducted prior to December 3151 for each annual Page 28 TPDES General Permit TXRI50000 itoring period. A copy of the DMR must either be retained at the facility or shall be made ly available for review by authorized TCEQ personnel upon request, by March 3151 following :nd of each annual monitoring period. If the results indicate the violation of one or more of numeric limitations, the permittee must also submit the DMR to the TCEQ's Information urces Center (MC 212) by March 31 S' of each annual monitoring period. V. Retention of Records permittee must retain the following records for a minimum period of three (3) years from the *hat a NOT is submitted as required by Part II.D. For activities that are not required to submit ~T, records shall be retained for a minimum period of three (3) years from the date that either: stabilization has been achieved on all portions of the site that is the responsibility of the ittee; or another permitted operator has assumed control according to over all areas of the site ave not been finally stabilized. RPcnrds inrli~de; A copy of the SWP3 plan. All reports and actions required by this permit, including a copy ofthe construction site notice. All data used to complete the NOI, if an NOI is required for coverage under this general permit. VI. Standard Permit Conditions The permittee has a duty to comply with all permit conditions. Failure to comply with any permit condition is a violation of the permit and statutes under which it was issued, and is grounds for enforcement action, for terminating coverage under this general permit, or for requiring a discharger to apply for and obtain an individual TPDES permit. Authorization under this general permit may be suspended or revoked for cause. Filing a notice of planned changes or anticipated non-compliance by the permittee does not stay any permit condition. The permittee must furnish to the executive director,-upon request and within a reasonable time, any information necessary for the executive director to determine whether cause exists for revoking, suspending, or terminating authorization under this permit. Additionally, the permittee must provide to the executive director, upon request, copies of all records that the permittee is required to maintain as a condition of this general permit. It is not a defense for a discharger in an enforcement action that it would have been necessary to halt or reduce the permitted activity to maintain compliance with the permit conditions. Inspection and entry shall be allowed under Texas Water Code Chapters 26-28, Health and Safety Code §§ 361.032-361.033 and 361.037, and 40 Code of Federal Regulations (CFR) § 122.41(1). The statement in Texas Water Code § 26.014 that commission entry ofa facil ity shall occur according to an establishment's rules and regulations concerning safety, internal security, and fire protection is not grounds for denial or restriction of entry to any part of the Page 29 TPDES General Permit TXRI 50000 facility or site, but merely describes the comrriission's duty to observe appropriate rules and regulations during an inspection. 5. The discharger is subjectto administrative, civil, and criminal penalties, as applicable, under Texas Water Code §§ 26.136, 26.212, and 26.213 for violations including but not limited to the following: a. negligently or knowingly violating CWA, §§ 301, 302, 306, 307, 308, 318, or 405, or any condition or limitation implementing any sections in a permit issued under CWA, § 402, or any requirement imposed in a pretreatment program approved under CWA, §§ 402(a)(3) or 402(b)(8); b. knowingly making any false statement, representation, or certification in any record or other document submitted or required to be maintained under a permit, including monitoring repot Ls of repot Lj of cV111p11 al ll~l' of IlV I1V V1l1p I1a11~+V. 6. All reports and other information requested by the executive director must be signed by the person and in the manner required by 30 TAC § 305.128 (relating to Signatories to Reports). 7. Authorization under this general permit does not convey property or water rights of any sort and does not grant any exclusive privilege. Part VII. Fees Section A. Application Fees An application fee of $100 must be submitted with each NOI for coverage of a large construction activity. A fee is not required for submission of an NOT or NOC letter. Section B. Water Quality Fees Large construction activities authorized under this general permit must pay an annual Water Quality Fee of $100 under Texas Water Code 26.0291 and according to TAC Chapter 205 (relating to General Permits for Waste Discharges). Page 30 Appendix A. Periods of Low Erosion Potential by County Start Date -End Date Dec. 15 -Feb. 14 Archer Baylor Brown Callahan Childress Coke Coleman Concho Cottle Dimmit Eastland Edwards Fisher Foard Hardeman Haskell Irion Jones Kerr Kimble King Kinney Knox Mason Maverick McCulloch Menard Nolan Real Runnels Schleicher Shackelford Stephens Stonewall Sutton Taylor Throckmorton Tom Green Uvalde Wichita W i lbarger Young Zavala Start Date -End Date Nov. 15 -Apr. 30 Andrews Armstrong Borden Brewster Briscoe Carson Castro Crane Crosby Dawson Deaf Smith Ector Floyd Gaines Garza Glasscock Hale Hansford Hartley Howard Hutchinson Lubbock Lynn Martin Midland Mitchell Moore Oldham Pecos Potter Randall Reagan Scurry Sherman Sterling Swisher Terrell Terry Upton Start Date -End Date Feb. 1 -Mar. 30 Hal l Start Date - End Date Nov. 15 -Jan. 14 or Feb. 1-Mar. 30 Crockett Dickens .Kent Motley Val Verde Start Date -End Date Nov. 1-Apr. 14 or Nov. 15 -Apr. 30 Dal lam Hockley Lamb Parmer Ward Start Date -End Date Nov. 1 - Apr. 30 or Nov. 15 -May. 14 Bailey Cochran Jeff Davis Loving Presidio Reeves Winkler Yoakum Start Date -End Date Nov. 1 -May. 14 Culberson Hudspeth Start Date -End Date Jan. 1 -Jul. 14 or May. 15 -Jul. 31 or Jun. 1 -Aug. 14 or Jun. 1~ -Sept. 14 or Jul. 1 -Oct. 14 or Jul. 15 - Oct. 31 or Aug. 1 -Apr. 30 or Aug. 15 -May. 14 or Sept. 1 -May. 30 or Oct. 1 -Jun. 14 or Nov. 1 - Jun. 30 or Nov. i~ -Jul. 14 El Paso Start Date -End Date Jan. 1 -Mar. 30 or Dec. i -Feb. 28 Collingsworth Wheeler Donley Gray Hemphill. ..__.- =---._..._..__.._ Lipscomb ----- -- Ochiltree Roberts .. Page 31 Attachment 1 TPDES General Permit TXR150000 CONSTRUCTION SITE NOTICE FOR THE Texas Commission on Environmental Quality (TCEQ) Storm Water Program li ~rL' ~ ~~1r~1tt1L ~~i~1Y111 ~1v~~1JVViJV The following information is posted in .compliance with Part II.D.1. of the TCEQ Genera] Permit Number TXR150000 for discharges of storm water runoff from construction sites. Additional information regarding the TCEQ storm water permit program may be found on the Internet at: .,r_,._....:,+:.,~,/.,,~ror„Prr„ /w.amPrrn/tnriP¢tnrm WWW.LIII tiG.JLC1tG.L1l.uJ~ c. u in ~uu ~~.. u,... ••~•••• •• •. _••... - --------- Contact Name and Phone Number Project Description: Physical address or description of the site's ocation, estimated start date and projected end ate, or date that disturbed soils will be tabilized) For Construction Sites Authorized Under Part II.D.1.the following certification must be completed: I (Typed or Printed Name Person Completing This Certification) Certl fy under penalty Of law that I have read and understand the eligibility requirements for claiming an authorization by waiver under Part II.D.1. of TPDES General Permit TXR150000 and agree to comply with the terms of this permit. Construction activities at this site shall occur within a time period listed in Appendix A of the TPDES general permit for this county, that period beginning on and ending on I understand that if construction activities continue past this per'-od, all storm water runoff must be authorized under a separate provision of this general permit. A copy of this signed notice is supplied to the operator of the MS4 if discharges enter an MS4 system. I am aware there are significant penalties for providing false information or for conducting unauthorized discharges, including the possibility of fine and imprisonment for knowing violations. Signature and Title Date Page 32 Attachment 2 TPDES General Permit TXR150000 ~~ - ~~~ t.t.r.. ~~t.r .ate i...r i~r ~.~. ,viii r ~„ CONSTRUCTION. SITE NOTICE FOR THE Texas Commission on Environmental Quality (TCEQ) Storm Water Program 'TPD~C vui~i~u~..ii~ ~LRt~~T1 T~R1jV~V~lt~' The following information is posted in compliance with Part II.D.2. of the TCEQ General Permit Number TXRIS0000 for discharges of storm water runoff from construction sites. Additional information regarding the TCEQ storm water permit program may be found on the Internet at: WWW YnPCC CYAtP tX uc~nermittinv/~zratarnarm/~~n.~r,or.,,/+,.,ao~+..~... Contact Name and Phone Number Project Description: (Physical address or description of the site's ocation, estimated start date and projected end ate, or date that disturbed soils will be tabilized) Location of Storm Water Pollution -- - - - - - - - Prevention Plan rut ~,unsuucurJn ~Ires r~utnonzea unaer tart II.U.1. (Obtaining Authorization to Discharge) the following certification must be completed: I (Typed or Printed Name Person Completing This Certification) Certify under penalty Of law that I have read and understand the eligibility requirements for claiming an authorization under Part II.D.2. of TPDES Genera] Permit TXRIS0000 and agree to comply with the terms of this permit. A storm water pollution prevention plan has been developed and implemented according to permit requirements. A copy of this signed notice is supplied to the operator of the MS4 if discharges enter an MS4 system. I am aware there are significant penalties for providing false information or for conducting unauthorized discharges, including the possibility of fine and imprisonment for knowing violations. Signature and Title Date Page 33 O 0 O O X r E a u c C7 w D a. 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Z - ~ ~ kr._ 3'~~r zW ea O ~ ~ i « ~F: ~~~oFCWwi J . - J ~ X i • • z z=o3~~j ozi • • : • _ ° ~ i U~ ~ oo~ . ~ LLo Q ~~ ~~W ~ _ - - u ;N>wo~zz O w a ; #~~ j ~ : ' .c ~., W ~ ~ Q U v ~ ~~ y~ f C 1 X '. ~. G: = ~ U ~ ~ ., . wg -wu~. ~ = wg w:w '~ wg tug'; ~ w~ ww ~' ¢~ z ~ J a w ~~ J ~n.:w ~~; J a w g~ J n::~w.= z~ J a w ~~ -_ J; d w ~~; J a w ~~ J' a'. w g~ ~ W U U a ~ !n ~ .(~,+i (n Cn. rU: In u7 ~; (n Q ~=(f.: Q.' Q ~ r ttl ~ ~ LLf ~ W LLl ~ w O :: _.. _ ---- --..._ J r F- fY ~ ~ W ~ N y ~ W ~ ~._ _. C ~~ IO d~ ~ .:..- ---- ----_ _... Z -- ~ -- W O O 0 Q7 v ~ o N v Z ;m O O c7 v E m 0 ~ a Qa ~ E w ,~ [*1 b: Q. ~~PTE °~'? ~'EX A. S ~ ~-jISTORICAL ~Olbdll~dISSION The State agency for Historic Preseroation October 16, 2006 Mary Matthews PO Box 464 Center Point, TX 78010 RICK PERRY, GC?VERNOR JOHN L. NAU, III, CHAIKMAN F. LAWERENCE OAKS, EXECUTIVE DIRECTnR RE: Determination of Eligibility, Howard M. Naylor Ranch, Kerrville, Kerr County, TX Dear Ms. Matthews: Thank you for your inquiry regarding the National Register of Historic Places. Staff has examined the information you submitted, and has determined that the Naylor Ranch is eti~ible for listing in the National. Register of Historic Places under criterion C, in the Area of Architecture, and possibly criterion B for its association with Naylor. You have already collected a large amount of information about the ranch. The next step will be to assemble your research into a National Register nomination. Enclosed are materials to assist you in preparing a nomination. The CD contains a blank National Register fomn (this is a slightly different format than the one you submitted) and a nomination for architect designed house in Dallas. Use the sample nomination to organize your narrative sections and construct your arguments for significance and integrity. Because you submitted a partially completed National Register form, I am also including some initial comments to help guide your efforts: National Register criteria requires that a property, or its significant associations, be at least fifty years old or exceptionally significant. Resources on the ranch that are less than fifty years old should not be considered contributing, while buildings which are more than fifty years old may be considered contributing even if they are in poor condition (such as sheds) If the ranch is nominated for architecture only the period of significance can be a single year, the date of construction. If it is nominated for association with Naylor, the period of significance should be cut off at the fifty year mark. Include some information on the Rowsey's but keep the focus of the nomination on the Naylor's because the Rowseys occupation of the ranch post dates the period of significance. If the ranch is going to be nominated for association with Naylor,`it should be nominated under criterion B (person) rather than criterion A (events). In order to establish the significance ofNayIor, the nomination will need to discuss the context of the petroleum industry and his individual contributions. We can discuss this further and decide together weather or not to pursue criterion B. To coordinate the archeological documentation you, or your archeologist, can contact Dan Potter, regional archeologist at 512-463-8884 or dan.notter(a~thc state tx us. f'. O. l30x 12276 AiJST11Y. T3; 7871 l-?276 - 512/463-6100 FAJt 512/475-4872 TDD 1-800/735-2989 www.thc.state.tx.us ~ c~ All nominations are reviewed b}~ the State Board of Rcview, which meets three times each year. To aid in meeting the final draft deadline for any given SBR meeting, it is recommended that first draft nomination forms be submitted to me for a courtesy review as soon as it is ready. In order for your nomination to be placed on tl~e agenda, we must receive a FINAL DRAFT in time to copy it and send it to the board members 30 days in advance of the board meeting. In addition, staff requires at least 2 weeks to review and comment upon each draft nomination, Those nominations which need further work of any kind will not be considered final drafts. We commend your efforts to document and preserve this building. If you have any questions, you may contact me at 51 ?/463-6046 or hannah.vaughan@thc.state.tx.us. Thank you for your interest in preserving Texas' cultural heritage. Sincerely, ~~ .,~ Hannah Vaughan Historian Zj ~,~~~'r u~,~ '~`~~AS ~ - ~I~S'~Ok~r~A.G ~t'~~I+~1455>~C~1~ 30IvIay 2aQ7 Rex l=.mcrsa>a Kerr County Attorney Ida Main Street, Suite BA,I Q3 Kerrville, Texas 7$02 )iiCCC p'C•KRY, GOVF.1tNOR jax11 J„ hATJ, Irl. GHAf1tMeE~`1 r-. 1.RV~fiRErTC$ vhrvtartirt lvtarictxa Materials development Dear Mr. Emelrson: We received n letter Last week krorn Mr. d. Nelson Happy asking that we clarify our position on i.ss~tes related to development ad}scent to the H.M. Naylor Ranch.. He asked that wC write directly to the county, with a copy also mailed to him. 1VIr. Happy indicated that ot~r letters regazding the matter, one dated January 24, 2407, and one dated May 1, 2007, seemed contrary to one another. Ou;r position Iias txat chascged, ~d the Fetters are consistent. At this tune, we have tao authority to review the flood plain permitting for the ad3acent Ivf artin Marietta Materials site under Section. l Q6 oF'the ~Eatianal Histaric Preservation Act. 'T'fie Advisory Council on Historic Preservation (ACI-iP) is assessing the matter, because it represents an ongoing disagreement between the ACHP and federal agencies, ira this case the US-Army Corps o£ Fn.gineers and the Federal Emergency Ivlanage~ment Agency. 'fhe issue remains at the federal level. As stated in ow previous letter, we will rema±n in contact with the AC[-iP and will support their efforts in funding a resolution. Sincerely, -- F. Lawercnce Oaks, State Historic Preservation. a~f'icer FLO/lch Cc: Martha Catlin, Advisory Council on Historic Pzesczvation J. I~telson Happy . p, p, k407: L~Z7b • AU5'1'II't,'i'Y 7R71F-22'6 512/#G3-6tR0 FAX 512/4;5-4872 - "r'DD 1-600/735-2,64 ~•av~•.thc.stxtc.tr.~ ~ ~ I5°I'~~IC.AL ~{~I'~]MISSIOI~i Tbs Seta ABe~rcJ'. for bi~storac Prlesa~t 24 3anuary 20177 Truby Hardin and Leonard Odom, Jr. ltetx County Flvodplain Adn3inastration 4010 Salt Antonio Hxgltvr$y Kerrville, Texas '78028 RICK PERRY, GavEZtNOIi JOHN L NAU, ID, CHAIRM,4N ~. a..aw~Errc~ v~xs, racEarrtv~e tazR>?czox Ke: Review Process for Derr County F'laodplaim Permits ss related to Section l Q6 Dear Ms. Hardin aad Mr. Odom, Thank you for allowing Texas Historical Cotruxzzssion staff the opportunity to revlzw your process and gather information about how it zmlateS to the Section 1 fl6 process. A.ftar speaking with zepz~sentatives from Texas Commission on Environmental Quality, the Fart Werth District of the U.S, Army Corps of Engineers (USAGE), and the Advisory Council on Historic Preservation, we understand that these permits do not truer Section 106 z~Yi~Ws- $ased on court decisions and rule changes t,-t ~;,°rrt yam, 5ectiou 105 of the rvaitona! F~~storic Preservation Act of 1960 does not apply to "under~kiags that are aEUercly subject to State of local regrt}a~ott administered Pursisa~,t h~ a delagstion air approval by a ~cdI agzrrcy°' (Federal t~tegister: Iuly 6, 2004 (Valtuaie G9, Number 123j). In addition, Skipper Scott of the USAGE cenfirnred that their authority would Come into play whew ttxe property owner, in this case ltiiartin Marietta Materials, sought s permit, and in fact, they did so in the past t 8 months, and the project was reviewed by ]ais office at that tune. Ytease let me [rnow if you have any questions about this patticu}ar project or any in the future. Sine .ly, c Linda Hehdersoo for - F. Lawerence Oaks, Texas 5ta5e }-listoric Preservation Officer Cc: Ieff Durbiim, Advisory Coutici] on Historic Preservation Skipper Scott, Fozt Worth District, U.S. Amy Corps of Engineers Mt~lce Howard, Texas Cginmission on Ecrvirolazt~etrta! Qr:rlity Hale Haff, Fedes~sl Emergenry Msaagex~eztt Agcy Region VI ]. Nelson Happy, H.M. Naylor 1Zanch P. O. SOX 12275 • tlUSTI1Y, TX 787it-2r8 • SIZ!'F33-5I041.• P!ti3(~i~4Z9~13Z,Z_TAD.;--f3voI~35.2g89 wlvw.thcars:=.~.u:f - .-- -~~--- --