Loading...
HomeMy WebLinkAboutRES 052416-I (group 3) - MUD Creation201 7HLNCE S 24054' l8^ E 87.95 fen to an 4m pin found at as 19" oddar far an an& pond ofthe said 309.06 acre tract and an eagle point ofihis trot S 19°37'38" E 207.85 foetto an iron pia sat at a force post ftr an Oftha said 308.06 acre tract and an angle pow offt tract S 2105T51" E 430.40 fief to an imu pin &a at a Jmce post Stt as pf the said 301.06 acre tract and an =Wepoh%ofthis tact. :521" E 911.32 fast to an 6cm pin set at a 20^ adarttee for an said 302.06 aera tract and so angle poiat oftbis tract: " B 3901 fiat to an iron pia found at s force post for the 308.06 acre tract sod the East corner ofthis tract et 225:04 feet pass an imn pia found at the and of a ra Mm.mu flu a total of29315 bet to a point mtbe South San Gabriel River foe an angle pone of the an angle paint of this tract (1) x si" 366W (2) S a5°06' W 9 fhst (3) S 23°01 • ,Ol (4) S 64°OS'40" 326 fact (5)S85.42'40^ .76 het (6) s srl l'40" W 269.60 fEet (7) S 70°0446" W 753.32 fast (8) S 75°4923^ W 116.10 of (land ccnvayed to L. 2199. Page 595 of the said 308,06:aore tract ant , So TBENCE N MTN" W with the North a and the Sonthwm line of the said 3=06 tar fomtd , at 297.08 fact. pea a T-poct 0. pass a ham comer post 0.6 fratrigid of foie feet tc an iron pin frnmd at a force comer post 1039327 ante tract, .an angle paint of the said point ofthis trail. 4a 1039cre tract 327 am d recorded in Volume South comer of the said MIE NCE whh the Notdreast fire of the said 103.93Z Southwest line ofthe,said 309.06 ace tract fortho ffiltOV& �(1) N 84°57'15" E 498.40 abet m an iron pia found et a (2) N 09'53'34" W 350.17 feetto as iraa pin Inuad (3) N f 120 2r W 383.79 feetto rot iron pia l and (4) N 04°4g'28" E 57398 feetw as tram pin found st a : 201 GClisik (5)N10-10'IrW 19412ieettaa60dneHfbubd inal2"elmbvet (S) N 4M3'07" E 13,02 feet to a 60d trar7 f=Dd m a 32" elm ttm (7) N 00'16'40" E 343.62 fsetto an im pin found (8) N 02.°10'40" W 320,09 fiche an iron pia fmmd (9)N01°54'08"W 104026feettoanutmpin flmndmthe Saethline 6fa Bens vat of land =veyed :to K Wood by dead recorded in Volume 5 page498 oftbe said Deed Re=*, for theNmth c mer of the said .9327 acaetrari i3IITCEN 26'39"E 17.47feettomhwpmfi mdisWeEastcomaeofthe said 3 a fur ao. mglo point oftbe said 302.06 acre tract and m aagla 16"38'20" W I62.71 feet to m irrm pm set on the Sombeerr line of y�.M2Qtar Poe North comer.ofthe raid Is arm ttac; the West comer �.O6�npetrazf, aodtha West comet of this tract. L Claude F- FTrM4 S fleldm= wmn prop Dec®bc cf 1999 and prepared fur a border of t Anynae.ofibis dmoipdan prd5birod. Soudmak lice of State wgbwap 929 1728.55 G, oob aia ng 307.949 acres of land, > or I Sorva,d do bereby certify 8tesa �m made ands my svparvisim dmivg imuwledga sad belief Ibese fields notes wem m F I�ad Devalopmiffi Coto 5R Weisberg, ?m6ten. ar offer pera�c ferny olar use orpmpasa is wrpmssly IZ North American Title Company Rxrib;r B-1 11044 Research Blvd., Bldg D Suite 100 Pay 3 Austin, TX 78759 14 EXHIBIT E Environmental Permits Page 14 of 20140941.4'4\Page 15 of 15 FILED AND RECORDED OFFICIAL PUBLIC RECORDS 2014094144 Nancy E. Rister, County Clerk Williamson County, Texas November 24. 2014 03:28 PM FEE: $73.00 ALLEN 0 EXHIBIT E Environmental Permits Page 15 of C� QtH,ENT OFTH�y� � o United States Department of the Interior � a -- A FISH AND WILDLIFE SERVICE y'9ACH 3 lea ..nrv`� 10711 Burnet Road, Suite 200 Austin, Texas 78758-4460 512 490-0057 FAX 490-0974 Stephen L. Brooks Chief, Regulatory Branch Department of the Army Fort Worth District, Corps of Engineers P.O. Box 17300 Fort Worth, Texas 76102-0300 Dear Mr. Brooks: L 1=09WITMOOM! Consultation No. 02ETAU00-2014-F-0019 This document transmits the U.S. Fish and Wildlife Service's (Service) biological opinion on the Georgetown salamander (GS) and conference opinion on the GS proposed critical habitat. It is based on our review of the proposed Shadow Canyon Project Fill Authorization' (Project) located in Williamson County, Texas, and its effects on the threatened Georgetown salamander (Eurycea naufragia) and proposed critical habitat in accordance with section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)(Act). Your August 28, 2013, letter requesting a conference was received on September 4, 2013. This conference opinion is based on information provided in the biological assessment (BA) and other sources of information. A complete administrative record of this consultation is on file at this office. Project Background and Consultation History The U.S. Army Corps of Engineers (USACE) has received an application from the San Gabriel Harvard Limited Partnership (applicant) requesting authorization to place fill in regulated waters of the United States as required by section 404 of the Clean Water Act. The applicant needs the USACE authorization to proceed with the residential and commercial development of a 311-acre tract near Georgetown, Texas (Figure 1). The USACE has determined that the Project may affect the Georgetown salamander and its proposed critical habitat. The Service previously issued an incidental take permit (ITP) to the applicant pursuant to section 10(a)(1)(B) of the Act. The ITP (TE-116313-0) authorizes the incidental take of the endangered golden-cheeked warbler (Setophaga chrysoparia). In addition, the applicant has "No Surprises" policy assurances (63 FR 8859) for the golden -checked warbler, Bone Cave harvestman (Texella reyest), and Coffin Cave mold beetle (Batrisodes texanus). As required by the ITP, the applicant 'USACE Project No. SWF-2009-00458 TAKE P'RIDEO 1 1 N,AM ERIGA-�„� EXHIBIT E Environmental Permits Page 16 of 94 Stephen Brooks — Biological and Conference Opinion Page 2 is implementing the Shadow Canyon Habitat Conservation Plan (SCHCP), which was submitted to the Service with its ITP application. Consultation History September 30, 2005 The Service receives the ITP Application for SCHCP. July 23, 2007 The Service issues the Shadow Canyon ITP to the applicant. June 28, 2011 USACE authorizes Shadow Canyon project by Nationwide Permit 29. March 18, 2012 Nationwide Permit 29 expires. June 25, 2012 The Service meets with the applicant, attorneys, and consultants to discuss project history, Shadow Canyon ITP, and type of permit amendment needed to include Georgetown salamander. August 22, 2012 The Service publishes a proposed rule to list Georgetown salamander as endangered and proposes 14 critical habitat units within Williamson County. August 24, 2012 Service provides a letter to the applicant on Georgetown salamander, describing issues that need to be addressed prior to amending ITP, including biological surveys and documents related to a major amendment of an HCP. February 13, 2013 Applicant submits Nationwide Permit 29 application to USACE April 30, 2013 The Service meets with the USACE, the applicant's attorneys and consultants regarding consultation and conference processes under section 7 and development plans. September 4, 2013 USACE provides the Service with Shadow Canyon biological assessment, and requests conference. January 30, 2014 The Service requests a 60-day extension to the consultation period. February 24, 2014 The Services publishes final rule listing Georgetown salamander as threatened (effective March 26, 2014) and proposes a 4(d) rule for activities consistent with Georgetown ordinance for certain types of developments. April 7, 2014 The Service provides the USACE with the draft biological opinion and draft conference opinion. April 24, 2014 The USACE provides the Service with preliminary comments on the draft biological opinion. August 21, 2014 The applicant provides comments to the USACE on the draft biological opinion. October 8, 2014 The USACE provides the Service with final comments on the draft biological opinion. EXHIBIT E Environmental Permits Page 17 of 94 Stephen Brooks — Biological and Conference Opinion Page 3 Biological and Conference Opinion I. Action Area and Description of the Proposed Action Action Area For the purposes of section 7 consultation, the Service defines the action area as all areas to be affected directly or indirectly by the Federal action and not merely the immediate area affected by the project (50 CFR 402.02). The September 4, 2013, BA did not describe the action area. Therefore, based on the information contained in the BA, we have determined that the action area for this conference includes the 311-acre parcel of land owned by the applicant where future commercial and residential development is planned along with nearby areas and a downstream reach of the South Fork of the San Gabriel River. The regulated placement of fill into waters of the U.S. will occur on the parcel. Indirect effects of the action may occur in areas that are on- or off -site, and are nearby or downstream of the parcel. The Shadow Canyon development (Project) is located south of State Highway 29 (SH 29) and west of Georgetown, Texas, and is partly in the Edwards Aquifer recharge zone and partly in Edwards Aquifer Contributing Zone as delineated by the Texas Commission on Environmental Quality (TCEQ 2005). The Shadow Canyon parcel is bounded on the north by SH 29, on the south by the South Fork of the San Gabriel River, and on the west and east by undeveloped private properties. The Service defines the action area for this consultation as the 311-acre Shadow Canyon parcel, all areas within 0.5 mile of the Shadow Canyon Tract, and about 6.7 river -miles of the South Fork of the San Gabriel River (Figure 2). The action area includes areas affected by direct and indirect effects, namely; (1) waters of the U.S. requiring section 404 authorization, (2) the Shadow Canyon Tract and areas adjacent to the Shadow Canyon Tract, (3) part of the Edwards Aquifer Recharge Zone, (4) the South Fork of the San Gabriel River at and downstream of Shadow Canyon to proposed subsurface critical habitat Unit 14 (San Gabriel Park), and (5) off -site areas adjacent to Shadow Canyon where roads, bridges, and developments are likely to occur. Given the uncertainty about the boundaries of the Shadow Canyon Spring springshed, it is possible that some of the recharge for Shadow Canyon Spring may come from areas outside the action area. However, the action area, inclusive of land and water within 0.5 mile of Shadow Canyon (and the nearby downstream reach of the South Fork of the San Gabriel River), is believed to capture the primary areas influenced by the Shadow Canyon development. The entire action area overlaps with either Edwards Aquifer recharge zone or contributing zone. Proposed Action The applicant has requested USACE authorization to place fill material into five jurisdictional waters of the U.S. in order to build roads, housing, and commercial development on the Shadow Canyon parcel. The Preconstmction Notification and January 2011 Nationwide Permit (NWP) 29 Authorization Request Submittal includes figures and tables providing the linear, areal, and volumetric aspects of fill to be placed in the creeks on the Shadow Canyon tract to accommodate the construction of a residential subdivision with roads. A summary of the regulated fill amounts is shown in Table 1. Waterways are numbered by the applicant and refer to the information provided by the applicant to the USACE. EXHIBIT E Environmental Permits Page 18 of 94 Stephen Brooks — Biological and Conference Opinion Page 4 The BA shows the original alignment of proposed roads in the Shadow Canyon tract. However, the applicant has agreed that no roads will be built within 80 meters of Shadow Canyon Spring. Table 1. Water ID, Length of Impact, Area of Impact in Square Feet and Acres Waterway ID Linear Impact (Meters) Areal Impact (Meters Square) Total Impact (Acres) 1 705 83 0.02 2 no impact no impact no impact 3 722 26 0.01 4 640 19 0.00 5 7,477 646 0.16 Total 9,544 773 0.19 Interrelated and Interdependent Actions The interrelated activities are activities that are part of the proposed action and depend on the proposed action for its justification. An interdependent activity is an activity that has no independent utility apart from the action under consultation. The interrelated and interdependent actions include: development of a residential and commercial subdivision including roads, stormwater system, water supply system, wastewater system, power and telecommunication utilities, single family homes, multi -family apartments, and commercial business establishments. Proposed Land Use Changes The BA describes the proposed Project on the Shadow Canyon parcel. The major aspects of the proposed development are as follows: • 658 to 674 lots of single family residential development • 25 acres (400 units) of multi -family residential development • more than 30 streets, estimated total length 6.5 miles and exceeding 45 acres • 10.4 acres of retail development • 1.8 acres of community amenities • 70 acres of open space, including: 0 25.65 acres of water quality easements, open space, and parkland 0 a pre-existing 43.84 acre karst preserve to be maintained in a natural condition Impervious Cover The drawings provided in the NWP 29 application show 658 single family lots on about 135.4 acres, excluding a 4-acre area labeled Phase 2 (revision) with 18 replacement lots. The average lot size for single family residential is estimated at 0.2 acre based on ACI Consulting Inc. figures (Figure 3). The average impervious cover for the single family residential land use (5 lots per acre) is estimated at 48% based on data presented in Cappiella and Brown (2001). USDA (1986) estimated multi -family residential development (townhouses) to have impervious cover of 65%. This is slightly higher than the maximum impervious cover for multi -family residential development stated in the Georgetown Unified Development Code (GUDC)(City of Georgetown EXHIBIT E Environmental Permits Page 19 of 94 Stephen Brooks — Biological and Conference Opinion Page 5 2012), which allows 50% impervious cover. The GUDC allows up to 60% impervious cover for multi -family residential development if a bonus is granted for designation as a Conservation Subdivision. The BA did not provide estimates of impervious cover by land use. The BA did not discuss designation as a Conservation Subdivision nor describe whether landscaped pervious medians would be part of the roads and streets of Shadow Canyon; therefore, the impervious cover associated with roadways (curb to curb) is assumed to be 100%. According to the GUDC, non-residential development, such as a retail center over the Edwards Aquifer recharge or contributing zone, is allowed 70% impervious cover for the first 5 acres and 55% impervious cover for the remain acreage. A retail development of 10.4 acres would be allowed about 62% impervious cover. The parts of Shadow Canyon designated karst preserves, bird preserve, park land, open space, and water quality easements have an unknown but likely small amount (near 0 or 1 %) of impervious cover. The wastewater system will convey sewage by gravity to a regional wastewater treatment plant. Notably, the proposed apartment and retail development as well as most of Phase 1 and 2 residential development will occur on the Edwards Aquifer recharge zone. The 43.84 acre karst preserve system is a required condition of the Service's ITP for the Shadow Canyon parcel. Waterways and Stormwater Management Shadow Canyon tract has two draws; waterway 5 (labeled WAT-5 in the BA) forms the western draw along the western property boundary and waterway 1 (with several short tributaries) forms the eastern draw. Figure 1 shows these waterways and the proposed development. The proposed stormwater system for Shadow Canyon will use conventional collection and pipeline conveyance methods and will treat stormwater with four water quality ponds prior to discharging flow into the South Fork of the San Gabriel River (South Fork). The following discusses these creeks (waterways) in order from west to east. Stormwater treatment on Shadow Canyon is relevant to Edwards Aquifer water quality since the South Fork crosses the Edwards Aquifer recharge zone upstream of San Gabriel Springs and the proposed critical habitat Unit 14. Shadow Canyon Spring occurs in waterway 5 at an approximate elevation of 830 feet based on U.S. Geological Survey topographic maps. Waterway 5 meanders on and off of the parcel along the western boundary. According to a figure in the NWP 29 application titled "Proposed Preliminary Plan with W W Easement" waterway 5 will be altered during phase 4 of project development. The alteration includes 7,477 meters of channel covering 0.16 acres (Table 1). The placement of fill into waterway 5 will be located about 435 meters downstream of Shadow Canyon Spring. The next waterway moving eastward is Waterway 2 which begins in a SCHCP karst preserve, runs about 323 meters southeast, and then joins waterway 1. No fill or alterations are proposed for waterway 2. Waterway 3 begins near the proposed cul-de-sac of Ridge Runner Drive and runs about 117 meters southeast and joins waterway 1. Part of the proposed action includes treatment of stormwater before reaching the South Fork of the San Gabriel River. Stormwater treatment pond 1-B is proposed to treat runoff from residential development in Phase 1. Waterway 1 begins near proposed Ridge Runner Drive just west of Channock Drive, and runs south through open space and parkland to its confluence with the South Fork of the San Gabriel River. Stormwater treatment pond 1-A is proposed to treat runoff from the residential and EXHIBIT E Environmental Permits Page 20 of 94 Stephen Brooks — Biological and Conference Opinion Page 6 commercial development in Phase 1. Waterway 4 is a 214 meter tributary of waterway 1. Stormwater treatment pond I-C is proposed to treat residential runoff from the Mystic Canyon Lane area of Phase 1. One factor to consider is the likelihood that part of Shadow Canyon's stormwater plans will need to be revised in order to maintain the natural integrity of the karst preserves established pursuant to the SCHCP. One of the proposed stormwater treatment ponds and part of another (shown in figures included in the NWP application) are in the SCHCP karst preserve. The Shadow Canyon subdivision phase plan figure shows Pond 1-B in the designated SCHCP karst preserve. Similarly, part of Pond 1-A appears to be located in the karst preserve. Roads There are four phases to the proposed development with an ultimate build out of more than 30 streets (curb and gutter) totaling about 6.6 miles and more than 14 acres in Shadow Canyon. The 2030 Comprehensive Plan (Georgetown Master Plan) identified planned roads to serve planned growth. Two of the proposed roads in Shadow Canyon appear to serve future developments adjacent to Shadow Canyon. Recommended long term improvements by the City of Georgetown list nine new roadways including SW 3, which is proposed to run from SH 29 through the property to the west of Shadow Canyon and intersect Shadow Canyon Drive near Shadow Canyon Spring. SW 3 in Shadow Canyon is labeled Centre Drive on some figures. SW 3 crosses proposed subsurface critical habitat of the Georgetown salamander and at the southern end of the Shadow Canyon development would cross the South Fork of the San Gabriel River. Shadow Canyon Drive begins at SH 29 and runs south and then west intersecting SW 3 near the proposed surface critical habitat. Significantly, this proposed street, west of SW 3 divides an area proposed for water quality easement and appears to be extended in the future to the west of Shadow Canyon. Please refer to the BA and NWP 29 application for more details of the proposed action. Conservation Measures Conservation measures are actions to benefit or promote the recovery of listed species that are included by the Federal agency as an integral part of the proposed action. These actions will be taken by the Federal agency or the applicant, and serve to minimize or compensate for, project effects on the species. The applicant has proposed several measures as part of the project that are intended to reduce the effects of the project on the Georgetown salamander, in particular to reduce water quality impacts from the project. To reduce the amount of sediment that is transported to waterways during construction, the applicant will use the best management practices (BMPs) for construction (silt fences, etc.). Post -construction and for the long-term, a minimum of 80% of total dissolved solids (TSS) will be captured through four water quality retention ponds. Municipal approvals for the Shadow Canyon development predate the 2013 Georgetown Edwards Aquifer Recharge Zone water quality ordinance. The planned retention ponds filter stormwater before the flow discharges to the South Fork of the San Gabriel River. The applicant will construct and maintain water quality ponds to meet or exceed the TCEQ's EXHIBIT E Environmental Permits Page 21 of 94 Stephen Brooks — Biological and Conference Opinion Page 7 minimum requirement under its Edwards Rules for 80 percent removal of total suspended solids (TSS). Regarding Shadow Canyon roads and streets, the curb and gutter design is listed by the BA as a conservation measure, diverting runoff from impervious cover away from Shadow Canyon Spring. Roadways may also be contributors of sediment and contaminants into waterways which reduce water quality, particularly when stormwater flow depth exceeds curb height. Overtopping of the curbs may happen when storm events involve high rainfall rates or when storm precipitation total approach the 1 to 5 year return interval (e.g., precipitation total exceeding 3 inches in 24 hours). The BA states: The design of this project would employ the use of concrete street curb and gutters to contain and convey the storm water run-off to the designated points of release. These points of release would be sedimentation and filtration basins that would be designed according to the TCEQ guidelines. This would ensure the capture of sediments and would treat the first flush run-off of storm water to remove total suspended solids by a minimum of 80 percent (as required by TCEQ). The land plan has locations designated to construct these basins. The basins would be maintained by the property owners association. Shadow Canyon site plans identify areas labeled water quality easement (WQE). A WQE is an area designated to be permanently maintained in a natural state. The GUDC defines nonstructural stormwater management as "any natural or planted vegetation or other nonstructural components of the stormwater management plan that included no excavation and provides or enhances stormwater quantity and/or quality control or other stormwater management benefits, and includes, but is not limited to, riparian buffers, open and green space, overland flow filtration areas, natural depression, and vegetated channels". An easement is a dedication by a property owner for specific purposes, which in the case of WQE is to limit water quality degradation by maintaining natural vegetation to help improve stormwater runoff quality. There are two WQEs at and near Shadow Canyon Spring. The larger of the two is about 6.8 acres and includes Shadow Canyon Spring. The smaller is 0.5 acre and is just north of Shadow Canyon Spring. Both are bordered by proposed road SW 3 and the western property boundary. The WQE areas are separated by an extension of Shadow Canyon Drive, which appears to have no utility except to connect to a future road west of Shadow Canyon. Appendix D of the NWP 29 application shows the planting area and plant list for areas downstream of Shadow Canyon Spring. However, close coordination with the Service prior to any disturbance to aquatic habitats associated with Shadow Canyon Spring and Waterway 5 (downstream of Shadow Canyon Spring) is recommended to help avoid adverse effects to Georgetown salamanders. For example, substrates in occupied habitats should not be disturbed since the population size for Shadow Canyon Spring is unknown and potentially small. As mentioned above, the Applicant has agreed the project will not locate any roads in Shadow Canyon within 80 meters of Shadow Canyon Spring consistent with the no disturbance zone measure in the proposed section 4(d) special rule for the Georgetown salamander (79 FR 10077). This represents both a revision to the project description and an additional conservation measure. EXHIBIT E Environmental Permits Page 22 of 94 Stephen Brooks — Biological and Conference Opinion Page 8 H. Status of Georgetown Salamander On February 24, 2014, the Service published its final rule to list the Georgetown salamander as a threatened species, and we concurrently published a proposed 4(d) special rule containing measures that provide for the conservation of the species (79 FR 10077). Currently, both the special rule and critical habitat are proposed. A. Description of Species and Proposed Critical Habitat The GS is an aquatic and neotenic (retains juvenile characteristics at maturity) amphibian. Adults are about 2 inches long and have a broad, relatively short head with three pairs of bright - red gills on each side behind the jaws, a rounded and short snout, and large eyes with a gold iris. The upper body is generally grayish with varying patterns, while its underside is pale and translucent. The tail tends to be long with poorly developed dorsal and ventral fins that are golden -yellow at the base and cream -colored to translucent toward the outer margin. Unlike the Jollyville Plateau salamander, the GS has a distinct dark border along the lateral margins of the tail fin (Chippindale et al. 2000). Proposed critical habitat consists of four components: (1) water from the Northern Segment of the Edwards Aquifer, (2) rocky substrate with interstitial spaces, (3) aquatic invertebrates for food, and (4) subterranean aquifer for shelter and protection during periods of drought or dewatering on the surface in and around spring sites. Proposed critical habitat includes both surface and subsurface habitats. The proposed surface critical habitat would include the spring outlets and the spring run extending 50 meters downstream. Generally, the proposed subsurface critical habitat would include the groundwater and water -filled conduits of the Edwards Aquifer within 300 meters of the spring (or water -filled) cave. B. Life History GS live underwater in springs, creeks, pools, and in the water -filled spaces in subterranean karst rock. Typically, GS are found where the gravel and cobble substrate is suitable to meet their life history requirements and prefer to use larger cobble and boulders as cover from predators (Pierce et al. 2010). Georgetown salamanders are usually within 164 feet of a spring outlet (Pierce et al. 201 la) but are more abundant within 16 feet of a spring (Pierce et al. 2010). In contrast, Jollyville Plateau salamanders, a closely related species, have been found farther from spring openings. During a recent mark -recapture study of Jollyville Plateau salamanders in a nearby watershed, researchers found marked individuals moved up to 262 feet both upstream and downstream from a spring outlet (Bendik 2013, pers. comm.) suggesting that Eurycea salamanders in central Texas can travel greater distances from a spring opening than was previously thought. Feeding biology in GS has not been studied but if similar to other central Texas Eurycea, GS feed on amphipods, ostracods, chironomid larvae and pupae, and small snails (Tupa and Davis 1976). EXHIBIT E Environmental Permits Page 23 of 94 Stephen Brooks — Biological and Conference Opinion Page 9 Reproductive biology in GS has not been studied. Assuming reproduction in Georgetown salamanders is similar to the San Marcos salamander (Eurycea nana), males would become sexually mature the time that they grow to a snout -vent length of about 20 mm. Female Eurycea nana with a snout -vent length greater than 20 mm carry ova (Tupa and Davis 1976) and are considered gravid. Eurycea may become sexually mature in less than one year (Gluesenkamp, TPWD, pers. comm. 2014). Courtship and egg deposition by GS have not been observed. Pierce (2012) and Pierce and McEntire (2013) reported the percent gravid GS found in monthly surveys at Twin Springs and Swinbank Springs. It appears gravid GS peak in late fall and spring with few or no gravid GS reported in most summer months. The majority of gravid salamanders observed were found from November through April. Predator recognition and avoidance by Eurycea nana was documented by Epp and Gabor (2008). The most likely predators of GS include sunfish, snakes, and birds, particularly waterbirds. C. Population Dynamics It is not known or estimated how many Georgetown salamanders there are range -wide. We know of only two locations where the GS population has been estimated. These estimates were made from data collected at Twin Springs and Swinbank Springs, both located in Williamson County, Texas. The information collected from these sites indicates that the populations change seasonally, increasing in the spring and decreasing in the fall with wide monthly variations (Pierce and McEntire 2013). Assuming the spring runs in their study (Pierce et al. 2014) averaged about 1 meter wide, the density of GS at Twin Springs and Swinbank Springs averages about 5 GS per meterZ. The number of GS at a location can be estimated using different methods. Recent mark - recapture studies estimate a population size of 100 to 200 adult salamanders each at Twin Springs and Swinbank Spring (Pierce 201la, Pierce et al. 2014). At other sites the number of GS is unknown. In some instances, researchers have counted salamanders that seen at the surface. This method is expected to undercount salamanders because it relies on only those that can be seen at the surface. In our review of survey data, we found that with the exception of Twin Springs and Swinbank Springs, all sites that had been surveyed in the last 10 years had less than 50 GS. In some cases, there were considerably fewer salamanders (as little as 4) and at some sites, GS could no longer be found. There are other springs in Williamson County that may support Georgetown salamander populations, but access to the private lands where these springs are found has not been allowed, which has prevented surveys being done at these sites (Williamson County 2008). D. Status and Distribution The entire range of the Georgetown salamander is in within Williamson County, Texas. All of the known GS locations are either at spring outlets or in wet eaves. The known surface spring locations are in the San Gabriel river basin, specifically in five of its tributaries (South Fork, Middle Fork, North Fork, Berry Creek, and Cowan Creek). A groundwater divide between the watershed of the South Fork of the San Gabriel River and Brushy Creek watershed to the south EXHIBIT E Environmental Permits Page 24 of 94 Stephen Brooks — Biological and Conference Opinion Page 10 likely creates the division between the ranges of the Jollyville Plateau salamanders and GS (Williamson County 2008). Table 2 and Figure 4 show the current and historical GS localities. Table 2. Historic Georgetown Salamander Localities I Site No. Site Name Population Size I 2 0 10 11 12 13 14 15 16 17 18 Rased on 1.6 Avant Spring Bat Well Cave Buford Hollow Spring Cedar Breaks Hiking Trail Spring Cedar Hollow Spring Cobb Spring Cobb Well Cowan Creek Spring Garey Ranch Spring Hog Hollow Spring Hog Hollow H Spring Knight Spring San Gabriel Spring Shadow Canyon Swinbank Spring Twin Spring Walnut Spring Water Tank Cave Unknown Unknown, May Be Extirpated Unknown, May Be Extirpated Unknown, May Be Extirpated Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown, May Be Extirpated Unknown, Estimated at 8' 100 - 200 100 - 200 Unlaiown Unknown of snitahle hahitat and a density of 5 C;S nor Where it has been surveyed, observations of this species have been declining, and surveys have not been consistently conducted at all sites, confounding the difficulty of estimating population size and trends. For example, the GS has not been observed in more than 10 years at two spring sites (San Gabriel Spring and Buford Hollow Spring) despite several visual survey efforts (Pierce 2011, Southwestern University, pers. comm.). While we are unaware of any population surveys in the last 10 years from a number of sites, the Georgetown salamander continues to be present at the following sites: Avant Spring, Swinbank Spring, Knight Spring, Twin Springs, Cowan Creek Spring, Cedar Hollow Spring, Cobbs Spring, Walnut Spring, and Water Tank Cave (Pierce 2011c, pers. comm.; Gluesenkamp 2011a, TPWD, pers. comm.). For the most recent information on the distribution of this species, please see the final listing rule published in the Federal Register on February 24, 2014. To summarize, of the 18 known or historically occupied GS sites, only 12 sites have been recently surveyed and confirmed to have GS present. Of these 12 sites, only two sites (Swinbank Spring and Twin Spring) have been surveyed consistently (monthly) (Pierce and McEntire 2013). The distribution of aquatic organisms is often described by the watersheds in which they occur. The United States is divided and sub -divided into successively smaller hydrologic units. The nested units represent watersheds that are uniquely identified using a system of hydrologic unit codes (HUCs). The number of digits in a HUC indicates the level of watershed where fewer EXHIBIT E Environmental Permits Page 25 of 94 Stephen Brooks — Biological and Conference Opinion Page 11 digits are larger watersheds and more digits are smaller sub -basins within the larger watersheds. Considering the full range of the GS, all known localities are found in one HUC8 watershed, four HUC10 watersheds, and six HUC12 watersheds. With the exception of a recently documented GS population at Garey Ranch Spring, the Shadow Canyon Spring population is the only other known GS population in the southern part of the GS's range. There are 14 proposed critical habitat units distributed across the known range of the species at sites that have been monitored recently and others that have not been recently surveyed. The most southern subwatershed with a proposed critical habitat unit, the Lower South Fork of the San Gabriel River, has only one proposed critical habitat unit (unit 13). In contrast, the Lake Georgetown subwatershed, has seven proposed critical habitat units. Reasons for Listing 1. Habitat Modification Habitat modification is the primary threat to the Georgetown salamander. The Georgetown salamander faces habitat modification from degraded water quality, reduced water quantity, and physical habitat disturbance. Urbanization within the watershed is one of the activities resulting in pollution that may decrease water quality in stormwater, groundwater, and springflow. Urbanization of a watershed may modify the spatial distribution and rates of infiltration in the recharge zone. Urbanization results in an increase in impervious cover and typically an engineered stormwater system to convey runoff, resulting in decreased recharge. Impervious Cover and Contaminants in Runoff The Service has reviewed and analyzed the published effects of impervious cover in its February 24, 2014, final rule (final rule) to list GS as a threatened species (79 FR 10236). While the effects of an increase in impervious cover for a given site depend on local conditions, the observed trend is a degradation of aquatic habitats that increases with greater levels of impervious cover. In the final rule, we also describe the contaminants expected to be found in urban runoff and as a result of land applications. Residential subdivisions in central Texas often include lawn irrigation systems that may overwater the turfgrass and ornamental gardens. Irrigation systems may leak creating a means of mobilizing chemicals used in lawn applications. In addition to suspended solids, nutrients (primarily nitrogen and phosphorous compounds), trace metals (e.g., lead, copper, and zinc), pesticides (includes herbicides), and coliform bacteria are transported by runoff. Runoff with these contaminants may result in a decrease in invertebrates including part of the salamander's preybase. Polluted runoff may also directly affect salamander health, growth, reproduction, and potentially survival. Apparently unregulated in Williamson County, coal tar based pavement sealants may result in high concentrations of polycyclic aromatic hydrocarbons (PAHs). PAHs at certain concentrations and exposures are known to adversely affect freshwater invertebrates and amphibians (Albers 2003, Sparling et al. 2009). EXHIBIT E Environmental Permits Page 26 of 94 Stephen Brooks — Biological and Conference Opinion Page 12 Vulnerability of Groundwater to Pollution Alley et al. (1999) stated "in principle, virtually any human activity at and near the land surface can be a source of contaminants to ground water as long as water and possibly other fluids move from the land surface to the water table". The first step and challenge to protecting ground water quality and quantity in Williamson County (that Georgetown salamanders rely on) is to know which areas contribute recharge to the subject springs and caves. Unfortunately, in springs and caves with karst aquifers as a source, a signficant difficulty is identifying the recharge zone, which may or may not coincide with the surface watershed. The recharge zone for a subject spring, referred to here as the springshed, may conform or overlap with the surface watershed in part or in whole. However, while karst groundwater flows downgradient, the flow paths do not necessarily conform to surface topography and groundwater may flow under topographic highs (B. Mahler, USGS, pers. comm., 2013). Groundwater dye tracing is considered the primary means of delineating the springshed and recharge features. The U.S. Geological Survey (USGS) considered multiple methods of assessing the vulnerability of groundwater to contamination in the San Antonio, Texas area (Clark 2000, Clark 2003). These reports analyzed natural aspects related to soils, hydraulic properties of outcropping hydrogeologic units, presence or absence of caves, sinkholes and closed depressions, and slope of land surface. While depth to water was not used in the USGS vulnerability rating, depth to water is part of the U.S. Environmental Protection Agency's DRASTIC method (Aller et al. 1987) to evaluate groundwater pollution potential. In short, areas of the Edwards aquifer recharge zone with caves are rated relatively high for vulnerability to contamination. Additionally, abandoned wells may become conduits for groundwater pollution. Musgrove et al. (2011) identified the following anthropogenic sources that may affect groundwater quality: (1) septic systems, (2) leakage from municipal water and wastewater systems, (3) industrial, commercial, or residential use of fertilizers, pesticides, and volatile organic compounds (VOCs). The Edwards Aquifer recharge zone in Williamson County is at risk from hazardous material that may be spilled or leaked potentially contaminating surface water, groundwater, or both. Spills may be the result of vehicle, pipeline, or industrial accidents. Quarry operations may also result in groundwater pollution. In January 2000, aboveground storage tanks at a quarry in Comal County spilled more than 2,600 gallons of diesel fuel. Markers diagnostic of diesel (naphthalenes and xylenes) surfaced at Comal Springs (Spring Run 1) about 4 miles away in 9 days (indicating a groundwater velocity of 0.47 miles per day). Since these salamanders and their prey are strictly aquatic, water quality has been considered a main concern. All known GS localities are in Williamson County. Williamson County is experiencing rapid population growth and urbanization. Urbanization degrades water quality in stormwater runoff by increasing pollutant loads of sediment; oil, grease, and toxic chemicals from motor vehicles; pesticides and excess nutrients from lawns and gardens; viruses, bacteria and nutrients from pet waste and sewage systems; heavy metals from roof materials and motor vehicles; and thermal pollution from impervious surfaces such as streets and rooftops (USEPA 2003). EXHIBIT E Environmental Permits Page 27 of 94 Stephen Brooks — Biological and Conference Opinion Page 13 Water Quantity Reduction in Relation to Urbanization or Industry Effects Adequate springflows and groundwater levels are essential to maintaining the known populations of GS. GS populations in water -filled caves may also need groundwater movement through their habitat. A risk to GS populations is groundwater development (pumping). Pumping during severe drought may result in loss of springflow and loss of all accessible salamander habitat. Limestone rock quarries are near several GS sites. Quarries may use groundwater. Quarrying physically modifies the surface - subsurface and may alter groundwater levels and flowpaths by lowering the land surface, potentially dewatering hydrologically connected areas. The reduction or cessation of springflow at springs supporting Georgetown salamanders may result in extirpation of that population. Boghici (2011), referring in part to Williamson County, noted that the northern section of the Edwards Aquifer lacks a contributing zone and recharge is mostly from diffuse infiltration of rainfall on the Edwards Limestone outcrop. Williamson County is in the State of Texas' Groundwater Management Area 8. However, there are no groundwater conservation districts in Williamson County. The future aquifer levels of the Edwards Aquifer in Williamson County will depend on precipitation, the recharge rate, springflow rates, and groundwater demand. 2. Physical Modification of Surface Habitat Physical modification of surface habitat may occur through impoundments, feral hogs, and livestock. Cattle and horses may trample spring runs. In addition to habitat modification, other factors are contributing to the decline of the species, such as disease, predation, inadequacy of existing regulatory mechanisms, and other natural or manmade factors. The species is at further risk because of its highly restricted range, small habitat patch sizes, and small population sizes. Feral hogs, livestock, and human activities are among the most likely ways that spring sites may be disturbed. Feral hogs are becoming more abundant at spring sites with salamanders in Bell, Travis, and Williamson counties (O'Donnell 2006). The February 22, 2013, Austin American Statesman (Claire Osborn) reported on a local forum with Georgetown Police and others on feral hog problems in the Georgetown area. White (2011) reported cattle are present at two of the Georgetown salamander localities. Cattle and other livestock may trample and disturb wetland and riparian areas. It appears there are multiple instances humans have deposited gravel in spring habitat supporting Eurycea, potentially resulting in loss or severe reduction in suitable salamander habitat. This may be the case at the spring complex in San Gabriel River Park, where GS may be extirpated. 3. Small Population Size, Drought, Flooding, and Climate Change As detailed in the final rule, there are other factors that may affect the continued occupation of a site by GS and the viability of the taxon. Available evidence, with the exception of a few sites, indicates that most local populations appear to be less than 200 individuals. The census size drives demographic and ecological processes while the effective population size determines the population response to evolutionary forces (Waples 2010). If sex ratios are skewed and/or non- random mating occurs, the effective population size of these sites will be significantly less than 200. These small population sizes make the populations vulnerable to local extinction due to EXHIBIT E Environmental Permits Page 28 of 94 Stephen Brooks — Biological and Conference Opinion Page 14 demographic and environmental factors. As Morris and Doak (2002) put it, given a small populations size, " a string of bad years will cause it to actually hit the (extinction) threshold". Drought, particularly a multiyear drought, may reduce or eliminate habitats range -wide. Severe drought would lower surface water supplies and ground water levels. Lower groundwater levels means some springs will have decreased springflow or will cease to flow altogether. Flooding may result in geomorphic changes to the river channel, potentially scouring springs along the river margin. Lastly, according to Alley et al. 1999, climate change could affect groundwater sustainability in several ways: "(1) changes in ground -water recharge resulting from changes in average precipitation and temperature or in the seasonal distribution of precipitation, (2) more severe and longer lasting droughts, (3) changes in evapotranspiration resulting from changes in vegetation, and (4) possible increased demands for ground water as a backup source of water supply". While climate models are being downscaled to address regions like central Texas, there are indications that the southwest part of the U.S. will experience temperature increases along with more frequent hot extremes, heat waves, and heavy precipitation (1PCC 2007). E. Analysis of Species and Proposed Critical Habitat Likely to be Affected Many of the stressors discussed above are related to habitat modification and likewise are pertinent to proposed critical habitat effects analysis. The proposed action is likely to adversely affect Georgetown salamanders and their habitat that occur on or near the Shadow Canyon development site. We have listed the GS as threatened and proposed to designate critical habitat for this species in 14 units, including a unit 13. Unit 13 is located on Shadow Canyon Spring on the western side of the Shadow Canyon tract. The action area includes the entire proposed surface and subsurface critical habitat of Unit 13. The species and this unit are likely to be affected by the proposed action. Summary of Threats to the Georgetown Salamander The primary threat to the GS is habitat modification in the form of reduced springflows and degraded water quality in spring habitats as result of urbanization of the watersheds and recharge zones in Williamson County. The following table assigns known threats to the five factors used for listing decisions. The five factors are: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The rule provides a qualitative value of the expected level of the impact of the threat on the GS, which may change based on new information. EXHIBIT E Environmental Permits Page 29 of 94 Stephen Brooks — Biological and Conference Opinion Page 15 Table 3. Threats to the Georgetown Salamander Factor Type of Threat A Contaminants from stormwater runoff A Sedimentation from stormwater runoff A Changes in flow regime from impervious cover A Excess nutrient input A Pesticides A Catastrophic hazardous material spills A Pollution from construction activities A Construction of pipelines A Rock quarries A Groundwater pumping A Impoundments A Feral hogs A Livestock A Physical modification of surface habitat for human -related activities A Drought A Flooding D Climate change E Inadequacy of existing regulatory mechanisms E Synergistic and additive interactions among stressors E Ultraviolet-B radiation EXHIBIT E Environmental Permits Page 30 of 94 Stephen Brooks — Biological and Conference Opinion Page 16 III. Environmental Baseline This section is an analysis of the effects of past and ongoing human and natural factors leading to the current status of the species, its habitat, and ecosystem within the action area. A. Status of the Georgetown Salamander and Proposed Critical Habitat within the Action Area Georgetown Salamanders in the Action Area Known and Potential Sites In the action area, the only documented population of GS occurs at Shadow Canyon Spring. Little is known about the population of Georgetown salamanders in Shadow Canyon Spring. Shadow Canyon Spring was surveyed on March 4 and May 27, 2004, but the September 19, 2005, ACI Consulting memorandum mentioning these two surveys does not qualify or quantify the survey effort nor report the number of GS seen. Kemble White reported observing a single salamander in a small pool of water in Shadow Canyon Spring within the stone "masonry spring box" on July 20, 2009 (K. White, pers. comet, 2014). He described the box as circular, about 3 feet in diameter, and about one foot high. In summary, we do not have any historic or recent information on the local population size, area of suitable habitat available, or the condition of Georgetown salamanders in Shadow Canyon Spring. The population of the Georgetown salamanders in Shadow Canyon Spring is inferred to be small (less than 10 individuals) based on the limited amount of spring dominated aquatic habitat and abundance estimates of Georgetown salamanders at other small springs. A water well (F-36 from the Geologic Assessment prepared by ACI Consulting, 2002) on the Shadow Canyon tract also represents an additional site that may be occupied by Georgetown salamanders. This well is 8 feet in diameter, 208 feet deep with a 30 feet catch basin. The water level in the well on July 15, 2002 was reported as 35 feet below land surface. Given an estimated elevation of 865 to 870 feet, the water level in the well is similar to the elevation of Shadow Canyon Spring. If well F-36 is hydologically connected to Shadow Canyon Spring, it represents: (a) potential GS habitat and (b) potential means of (conduit for) groundwater contamination and pollution of Shadow Canyon Spring. However, we are unaware of any biological surveys or inventories of this nearby well. Like other wells in the recharge zone near GS occupied springs, this well represents potential GS habitat given the network of groundwater may have water -filled conduits connecting the well to Shadow Canyon Spring. There are at least two other small springs (F-14 and F-15) on the Shadow Canyon tract, which during wetter times may have been hydrologically connected to the spring run associated with Shadow Canyon Spring. Based on the availability of spring habitat in proximity to Shadow Canyon Spring, it is a clear possibility that Georgetown salamanders occupied and may continue to occupy one or both of the small springs (17-14 and F-15) associated with waterway 1 (WAT-1). The Service has developed Scientific Permit Requirements for conducting Georgetown salamander surveys (revised June 26, 2014 and available online) to produce sound scientific EXHIBIT E Environmental Permits Page 31 of 94 Stephen Brooks — Biological and Conference Opinion Page 17 information upon which to base decisions and conservation actions. A minimum of 15 sequential surveys are needed to better determine whether Georgetown salamanders occupy a site. The Service believes the proximity of these spring -seep habitats (F-14 and F-15) and groundwater habitat (F-36) to Shadow Canyon Spring signifies the potential for Georgetown salamanders to be present. The surveys conducted by ACI Consulting on March 4 and May 27, 2004 do not satisfy our current standards to determine absence of this species at a site. Proposed Critical Habitat in the Action Area Proposed critical habitat unit 13 is centered on Shadow Canyon Spring. Shadow Canyon Spring is the only documented GS locality in the action area. According to the BA's Appendix B, the site has indicators of fairly perennial flow such as wetland vegetation and sustained spring fauna. The author of Appendix B, Mark Adams, states that rainfall is captured in upland karst features (caves, sinkholes, and solution cavities) and as groundwater follows conduits developed in Edwards Limestone, springflow emerges at the spring orifice. The spring run associated with Shadow Canyon Spring, in the summer of 2010, ended about 600 feet downstream of the spring where surface flow is lost to alluvium. The vital needs provided by proposed critical habitat unit 13 to the Georgetown salamanders on the individual scale include: (1) space to feed on their invertebrate preybase, (2) an aquatic environment with water quality within the physiological tolerances of the Georgetown salamander and its preybase, and (3) areas to shelter, grow, and reproduce. Table 4 provides the primary constituent elements (PCE) for proposed critical habitat of the GS (77 FR 50768). On a population scale, proposed critical habitat unit 13 provides vital needs in the form of perennial springflow supporting aquatic habitats near the spring and downstream. On the rangewide scale, proposed critical habitat unit 13 is only one of two critical habitat units from the South Fork of the San Gabriel River hydrologic unit. While it is too distant and isolated from other known GS populations to realistically be involved in intersite movement, unit 13 represents one of only 14 critical habitat units for the species and thus is important in the species conservation. EXHIBIT E Environmental Permits Page 32 of 94 Stephen Brooks — Biological and Conference Opinion Page 18 Table 4. Primary Constituent Elements (PCE) of Proposed Critical Habitat for Georgetown Salamanders PCE Georgetown Salamander Proposed Critical Habitat Primary Constituent NUMBER Elements from Proposed Rule, August 22, 2012 Water from the Northern Segment of the Edwards Aquifer. The groundwater must be similar to natural aquifer conditions both underground and as it discharges from natural spring outlets. Concentrations of water quality constituents that could have a negative impact on the salamander should be below levels that could exert direct lethal or sublethal effects (such as effects to reproduction, growth, development, or metabolic processes), or indirect effects 1 (such as effects to the Georgetown salamander's prey base). Hydrologic regimes similar to the historical pattern of the specific sites must be present, with at least temporal surface flow for spring sites and continuous flow for subterranean sites. The water chemistry must be similar to natural aquifer conditions, with temperatures between 68.4 and 69.8°F (20.2 and 21.01C), dissolved oxygen concentrations between 6 and 8 mg L-1, and specific water conductivity between 604 and 721 µS cm-1. Rocky substrate with interstitial spaces. Rocks (boulders, cobble, or gravel) in 2 the substrate of the salamander's surface aquatic habitat should be large enough to provide salamanders with cover, shelter, and foraging habitat. The substrate and interstitial spaces should have minimal sedimentation. Aquatic invertebrates for food. The spring and cave environments should be 3 capable of supporting a diverse aquatic invertebrate community that includes crustaceans and insects. Subterranean aquifer. During periods of drought or dewatering on the surface 4 in and around spring sites, access to the subsurface water table must exist to provide shelter and protection. EXHIBIT E Environmental Permits Page 33 of 94 Stephen Brooks — Biological and Conference Opinion Page 19 B. Factors Affecting Species Environment within the Action Area Water Quality The water quality of Shadow Canyon Spring and proposed critical habitat unit 13 has not been characterized but are inferred to be supportive of the Georgetown salamander and its preybase based on the mostly natural conditions of the area above the spring. A large (8-ft diameter, 208 ft deep) abandoned well on the Shadow Canyon tract (F-36) was reported by ACI Consulting (2002) but not mentioned in the BA. Wells may be vandalized and become conduits for groundwater contamination. The Texas Water Development Board well database includes several wells in the action area along SH 29. Dye trace research, which would identify recharge features and inform us of the general groundwater pathways, has not been done in this part of the Edwards Aquifer. Precipitation in the recharge zone in areas near the spring is likely to contribute to springflow. While we are currently unable to identify specific areas where human activities are most likely to degrade groundwater and affect the water quality of Shadow Canyon Spring, continuous adequate water quality and springflow will depend on maintenance of natural areas near and upgradient from the spring. Water Quantity There are only a few recorded observations of the springflow discharge rate from Shadow Canyon Spring. Appendix B of the BA states that the spring is located just above the lithologic contact of the Edwards Limestone and the underlying Comanche Peak Limestone. Above the spring, the Edwards Limestone is karstified and part of the Edwards Aquifer Recharge Zone as delineated by the TCEQ. The Shadow Canyon Spring was visited on July 26, 2010, by ACI Consulting staff who reported springflow discharge of 3 to 5 gallons per minute (0.007 to 0,011 cubic feet per second). Shadow Canyon Spring was visited by Kemble White in July, 2009, and he reported the springflow as a trickle. We are unaware of any other spring discharge estimations. Shadow Canyon Spring is a small spring and the surface area of aquatic habitat (including the bed of spring and the vertical surfaces of the spring box) is likely to be smaller than better studied GS localities like Swinbank Spring. We have no reports of springflow failing at Shadow Canyon Spring and we infer flow there is perennial at least in recent years. The current quantity of Georgetown salamander habitat in the action area is likely to support a small salamander population. However, because it is a small magnitude spring, it may be adversely affected by: (1) alterations in its recharge area that prevent or reduce recharge and infiltration, (2) pumping or inadvertent interception of groundwater in the area, and (3) reduced rainfall during a drought. Potentially even a slight decrease in groundwater levels may result in loss of flow at Shadow Canyon Spring. Currently, there is no comprehensive groundwater permitting authority in Williamson County. While Jones (2003) reported that total annual pumpage from the Northern Segment of the Edwards Aquifer is predicted to fall in the range of 5,000 to 10,000 acre-feet per year, no pumping data relevant to the Edwards Aquifer and its springs in Williamson County have been provided. Physical Disturbance of Habitat The BA included photographs of Shadow Canyon Spring surrounded by a short limestone masonry wall. The pool formed by a circular stone masonry wall reported to be about 3 feet in EXHIBIT E Environmental Permits Page 34 of 94 Stephen Brooks — Biological and Conference Opinion Page 20 diameter and 1 foot high. To the best of our knowledge, the condition of this small spring is the same as when it was surveyed in 2004. IV. Effects of the Action This section includes an analysis of the direct and indirect effects of the proposed action and its interrelated and interdependent activities on the species and/or proposed critical habitat. A. Factors to be considered This analysis will look at the effects in four focal areas, beginning with Shadow Canyon Spring and extending outward: (A) Shadow Canyon Spring and associated aquatic habitat, (B) the proposed surface critical habitat found within 50 meters of Shadow Canyon Spring, (C) the proposed subsurface critical habitat consisting of the Edwards Aquifer within 300 meters of Shadow Canyon Spring, and (D) the surface watershed above Shadow Canyon Spring and the potential recharge zone of Shadow Canyon Spring (herein, Shadow Canyon Spring Springshed) (Figure 5). The effects of the action depend on understanding how a wide variety of activities and land use changes affect: (1) groundwater-springwater water quality and (2) the areal extent and rate of recharge and infiltration to the part of the Edwards Aquifer contributing to flow to Shadow Canyon Spring. A primary factor of our uncertainty arises from not knowing the boundaries of the Shadow Canyon Spring Springshed (focal area D). The recharge area to karst spring systems is not necessarily obvious and cannot be strictly determined from a topographic map (Barbara Mahler, USGS, pers. comm. 2013). Notwithstanding the difficulties in determining the recharge area for Shadow Canyon Spring, our assumption in this opinion is that the upland area of the Shadow Canyon tract (land above the elevation contour 830 feet) provides a non -trivial amount of the recharge for Shadow Canyon Spring. Due to the relatively low springfiow rate at Shadow Canyon Spring, pollution of groundwater flowing through the conduits to Shadow Canyon Spring would be expected to have a significant effect to the spring fauna. The primary effects of the action are related to the land use changes proposed after the section 404 work is done. Therefore, land activities that generate polluted stormwater, which may infiltrate and percolate to the Edwards Aquifer (the source of Shadow Canyon Spring), represent the most likely contributor to spring water quality degradation and adverse effects to the GS. Proximity to the Action The activities proposed to be authorized by the USACE occur downstream of Shadow Canyon Spring or in an adjacent draw. The Shadow Canyon development involves land use changes from oak juniper woodlands to roads, apartments, homes, and businesses. The roads, stormwater system, and sewage pipeline system necessary for the development will cross majority of the 311 acre tract. A significant portion of these land use changes are in the Edwards Aquifer Recharge Zone and at elevations above Shadow Canyon Spring. Distribution and Timing The activities authorized by the proposed section 404 permit are expected to be done within a year of this opinion. The development of Shadow Canyon is proposed in four phases. Several EXHIBIT E Environmental Permits Page 35 of 94 Stephen Brooks — Biological and Conference Opinion Page 21 aspects including the apartment complex and commercial development are not identified with a particular phase. Nature of the Effect and Duration The activities authorized by the proposed section 404 permit are not expected to disturb or alter Shadow Canyon Spring. A water quality pond (I-C) is proposed just upstream of Spring F-14. The land use changes above Shadow Canyon Spring are expected to alter the quantity of water recharged to the Edwards Aquifer. The baseflow of area springs may decrease as there will be an increase in imperviousness of the Edwards Aquifer Recharge Zone in the Shadow Canyon tract. The proposed apartment complex is expected to have a large roof and parking lot. Concentrated runoff may form channelized paths through the thin soils to undiscovered solution openings in the Edwards Limestone. When rainfall reaches certain thresholds, infiltration and percolation of development runoff is expected to reach groundwater conduits leading to Shadow Canyon Spring. We expect there will be extended periods where springflow and spring water quality will be normal, but post -development there will be intermittent periods where rainfall overtops curbs and stormwater inlets potentially carrying heavy metals and pesticides to Shadow Canyon Spring. B. Analyses for the Effects of the Action Direct Effects No direct effects to GS salamanders are expected due to the location of the activities authorized by the proposed section 404 permit away from and downgradient of Shadow Canyon Spring. Indirect Effects The proposed development of roads, single family homes, and apartments in proximity to Shadow Canyon Spring is a primary factor to be considered in the effects of the action. The BA identifies the preservation of open space at and near Shadow Canyon Spring as a conservation measure but the narrow configuration of the open space and adjacent roads present a scenario where an above average rainfall event episodically will likely result in stormwater spilling over conventional curbs and flowing to Shadow Canyon Spring. The presence of roads near the springs means the increased risk of vehicular accidents and hazardous material spills on what likely constitutes part of the recharge zone for the spring. The proposed action involves land -clearing and construction of more than one hundred single family homes within 300 meters of Shadow Canyon Spring. The area associated with the distance of 300 meters of Shadow Canyon Spring is mentioned since it is represents the proposed subsurface critical habitat. The following is a summary of the main anticipated effects by focal area. (A) Shadow Canyon Spring Water Quality The spring is located in a designated water quality easement and no planned land disturbance is expected in the immediate vicinity of the spring. The spring itself may be subject to an increased risk of vandalism and dumping due to an increase in the nearby human population. The EXHIBIT E Environmental Permits Page 36 of 94 Stephen Brooks — Biological and Conference Opinion Page 22 springbox, if intact, would generally prevent surface runoff in the WAT-5 draw from entering the spring. The exception would be during runoff events that overtop the springbox. The nearest weather station at Lake Georgetown provides daily precipitation totals since January 1982. In the 32-year period of record from 1982 through 2013, daily precipitation totals have met or exceeded 4 inches on 6 occasions or on the average, about once every five years (Table 5). According to the U.S. Department of Agriculture (1986), the 5-year 24-hour rainfall event for central Williamson County is 5.5 inches. Additionally, Williamson County is in the area designated as a Type III rainfall pattern. Type III represents Gulf of Mexico and Atlantic coastal areas where tropical storms bring large 24-hour rainfall amounts. Assuming future rainfall rates (on an hourly scale) and rainfall totals are similar, we expect stormwater runoff to intermittently overtop the springbox whenever flow in the WAT-5 draw exceeds the stone masonry wall. Additionally, infiltration may occur in the draw immediately upstream from the spring. If the runoff water quality is harmful to insects and other invertebrate prey, GS feeding will be adversely affected. Table 5. Daily Rainfall Totals from Lake Georgetown Weather Station: 1982 through 2013 Number of Events in Average Number Daily (24 Hour) Total Period of Record at Lake of Events Per Precipitation in Inches, Georgetown Weather Year for Period of Met or Exceeded Station Record 1.5 176 5.50 2.0 91 2.84 3.0 29 0.91 4.0 6 0.19 5.0 2 0.06 14.0 1 0.03 Water Quantity — Effects to Potential Recharge The Shadow Canyon Spring occurs on an area proposed to be maintained as a water quality easement. Left in a semi -natural state, we expect no changes to recharge potential in this area. (B) Proposed surface critical habitat Water Quality Runoff from the Shadow Canyon development is expected to occasionally overtop the curb and gutter system associated with roads aligned close to the proposed surface critical habitat boundary. Additionally, two roadways nearly intersect the proposed surface critical habitat on the east and north. A spill or vehicle accident on these roads may lead to a pollution event reaching the proposed surface critical habitat. Water Quantity — Effects to Potential Recharge The subset of the proposed surface critical habitat in the Shadow Canyon tract is proposed to be maintained as a water quality easement. Left in a semi -natural state, we expect no changes to recharge potential in this area. The subset outside of the Shadow Canyon tract (immediately to EXHIBIT E Environmental Permits Page 37 of 94 Stephen Brooks — Biological and Conference Opinion Page 23 the west) is currently in the same semi -natural state. However, the two proposed roads (SW 3 and Shadow Canyon Drive) will alter the current surface topography and normally divert water that would have flowed across the recharge zone near (including upgradient from) Shadow Canyon Spring. In short, the proposed roads and other developments will likely decrease local recharge in the proposed surface critical habitat due to altered runoff patterns. Anticipated effects in the proposed surface critical habitat include episodic high flow events that will likely scour the aquatic habitat downstream of Shadow Canyon Spring. When impervious cover in the watershed increases, the flows through the draw will become more flashy. Higher water velocities may potentially remove gravels, cobbles, and rubble substrate used by GS. (C) Proposed subsurface critical habitat Water Quality The proposed land use changes in the area above proposed subsurface critical habitat represent a potential source of pollution. The BA provides minimal information on the Edwards Aquifer recharge zone land -surface water -table connection. Chemical applications within the Shadow Canyon tract are likely to include herbicides, fertilizers, temuticides, and other insecticides. These chemicals may dissolve in runoff or sorb to suspended sediments in runoff. The hazards to wildlife posed by these chemicals on residential single family lots, roads, and residential multi -family development are more likely when karst landscapes and thin soils are present since little filtration is likely to occur. In brief, springs in karst watershed setting are vulnerable to degradation from these anthropogenic chemicals and fecal group bacteria (from pets and leakage from sanitary sewer systems). A sewage leak that flowed through the subsurface to Shadow Canyon Spring would potentially harm most or all of the insects, crustaceans, and salamanders present if the high biological oxygen demand of sewage drove dissolved oxygen to an unsuitable level. The application of chemicals on lawns and landscapes will result in runoff that will transport a wide variety of pollutants presently absent from the springshed. The introduction of contaminants by human activities is expected to take place in the residential single family lots above the proposed subsurface critical habitat. Since this area is the Edwards Aquifer recharge zone and generally overlaid by thin soils, precipitation falling directly on lawns may infiltrate the subsurface and flow to groundwater pathways leading to Shadow Canyon Spring. Runoff not conveyed by the stormwater system will pond, flow overland, evaporate, be taken up by plants, or infiltrate. Water Quantity — Effects to Potential Recharge Focusing on the area within the Shadow Canyon tract over the proposed subsurface critical habitat, the proposed land use changes will result in an increase in impervious cover from the current level near zero to the expected ultimate developed state of about 48 percent. The assumed impervious cover value for single family residential development with 0.2-acre lots is interpolated from data presented in Cappiella and Brown (2001). The assumed impervious cover value for multi -family residential development is based on impervious cover allowed under the Georgetown Unified Development Code for properties over the Edwards Aquifer. EXHIBIT E Environmental Permits Page 38 of 94 Stephen Brooks — Biological and Conference Opinion Page 24 Table 6 shows the breakdown of acreages and assumed impervious cover for proposed land use in Shadow Canyon above the 830 ft contour. This shows that for the subset of Shadow Canyon above Shadow Canyon Spring (830 ft elevation), impervious cover will reach about 48 percent, based on full build out. Table 6. Land Use and Assumed Impervious Cover for Areas in Shadow Canyon above the Elevation of 830 ft. Incremental Assumed Area of Land Percent of Contribution of Shadow Canyon Impervious Use Type Total Area Impervious Cover Land Use above Cover, above 830 ft above 830 above 830 ft 830 ft Contour in Percent Contour, in ft Contour Contour, Acres in Percent Single Family Residential 480 60.9 39 18.9 (mean 0.2-acre lot) Multi -Family 60 • 27.6 18 10.7 Residential Commercial 62 • 10.4 7 4.2 Open Space 0 33.1 21 0.0 Streets 100' 22.7 15 14.7 48.4% 154.7 100 Impervious Cover Total Area, for Area above in Acres 830 ft Contour ❑ Based on Cappiella and Brown 2001 ♦ Based on Georgetown Unified Development Code (2012) and Conservation Subdivision Designation • Based on the assumptions of no impervious cover in water quality easements and no pervious medians for streets A concurrent decrease in recharge would be expected if the development occurs over the actual recharge zone for Shadow Canyon Spring. Herein, we focus on the subset of Shadow Canyon above the 830 ft contour because it is this area that has relevance to Shadow Canyon Spring and future springshed conditions. Even if the springshed occurs on properties external to Shadow Canyon, the ultimate development is expected to result in about 50 percent impervious cover upgradient from Shadow Canyon Spring. Given that Shadow Canyon Spring has a small discharge, it is likely that covering recharge features in its springshed will make it more likely that spring will cease flowing during an extended drought. (D) Springshed for Shadow Canyon Spring EXHIBIT E Environmental Permits Page 39 of 94 Stephen Brooks — Biological and Conference Opinion Page 25 Water Quality The effects in this focal area are expected to be similar to those described above for proposed subsurface habitat. The springshed may include State Highway 29 and its right-of-way. The Georgetown Development tracking system shows multiple developments under construction or planned in the potential recharge zone for Shadow Canyon Spring. All of the negative effects of urban land use discussed above are likely to occur throughout the developable parts of this focal area. Water Quantity — Effects to Potential Recharge To the extent that impervious cover increases in the springshed, recharge is expected to decrease. In this case, due to the broad and increasing pace of development along SH 29, a decrease in natural recharge is likely. An exception would be if ditches (or some inadvertent runoff pathway) hit a recharge feature, recharge would be artificially enhanced. Another exception may occur when water mains with chlorinated water break or leak, potentially recharging millions of gallons of water to a groundwater network leading in part to Shadow Canyon Spring. If chlorinated water dominated the spring area for a long enough duration, few if any salamanders would be expected to survive. C. Georgetown Salamander Response to Proposed Action Numbers of Individuals Affected Water quality degradation may adversely affect some or all of the salamanders present in Shadow Canyon Spring. The potential decrease in recharge to the aquifer supplying flow to Shadow Canyon Spring may cause the spring to shift from being perennial to ephemeral. In the event springflow fails, most or all of the observable salamanders would die. There is no site specific information that a subsurface population exists at Shadow Canyon Spring although some individuals may succeed in remaining in wetted habitat by descending into groundwater conduits or the interstices of submerged substrates. A subset of the threats and stressors discussed above in the status of the species and environmental baseline are expected to result in the degradation of water quality at Shadow Canyon Spring. The decrease in water quality would result from the conventional and expected land application of insecticides, herbicides, and fertilizer in the area immediately upgradient from Shadow Canyon Spring. Given the geologic units present and thin soils, little filtration of stormwater is expected, and degraded water that is not captured by the stormwater system is expected to infiltrate the soils, moving down through fractures, dissolved conduits, and rock facies to mix with groundwater. If contaminants in groundwater persist at levels with biological activity, we would expect decreased growth and reproduction of salamanders. In addition, pollution would reduce the numbers and biomass of susceptible invertebrates. A decrease in the invertebrate preybase would adversely affect the GS population. There are no easily available models to address multiple contaminants resulting from human activities to evaluate effects on spring dependent fauna. Sensitivity to Change Like its sister species in central Texas (Barton Springs salamander, Jollyville Plateau salamander, and Salado salamander), the Georgetown salamander is considered a sensitive EXHIBIT E Environmental Permits Page 40 of 94 Stephen Brooks — Biological and Conference Opinion Page 26 species. As discussed in the final listing rule, salamander populations associated with more urbanized areas appear to be a greater risk of extirpation. V. Cumulative Effects Cumulative effects include the effects of future State, tribal, local, or private actions that are reasonably certain to occur in the action area considered in this biological opinion. Future Federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to section 7 of the Act. The City of Georgetown has ordinances to maintain water quality in the Edwards Aquifer recharge zone while allowing development to occur. The ordinances require buffers around springs and streams in the Edwards Aquifer recharge zone. The stream buffers are scaled to the drainage area of the waterway and consider the Federal Emergency Management Agency (FEMA) designated floodplains. Georgetown water quality protection measures on the Edwards Aquifer recharge zone include permanent structural best management practices designed to remove 80 (potentially requiring 85) percent removal of total suspended solids in project runoff. New projects will be required to achieve 85% removal of total suspended solids. Groundwater Quality and Quantity The primary cumulative effects expected will result from land use changes in the springshed of Shadow Canyon Spring as Georgetown grows and urbanizes along State Highway 29. Groundwater in this area is particularly vulnerable to pollution because in karst terrains, aquifers have low self -purification capabilities (Kresic et aI. 1992). Additionally, there may be rapid infiltration of surface waters into the underground. The development of land to the west of Shadow Canyon is relevant since it is likely to include part of the recharge zone for Shadow Canyon Spring. All of the adverse effects resulting from development discussed above apply to adjacent tracts, should they be developed. The main effect expected is a reduction in water quality. The focus of TCEQ and local regulations is to limit total suspended solids (TSS) from reaching a receiving stream. However, there are other contaminants besides TSS (e.g., neonicotinoid systemic insecticides, dissolved metals or organics) that: (1) may be present in runoff, (2) are extremely toxic to fish and other aquatic organisms, and (3) may cause morbidity and mortality of salamanders and their prey. Another potential stressor to groundwater quality is leakage or overflow from the sanitary sewer systems in the springsbed, which would potentially result in harmful levels of ammonia and lower dissolved oxygen. The future non -Federal actions that present risks to the Shadow Canyon Spring population of Georgetown salamanders are the land use changes proposed or likely in the recharge area for the spring. The land use changes will result in human activities transporting, applying, and occasionally spilling materials on the recharge zone. Given precipitation and lawn -landscape irrigation, some of these contaminants are likely to be transported by water to the groundwater network supplying flow at Shadow Canyon Spring. The biological activity of these contaminants will depend on the duration of elevated environmental concentrations and we expect the Georgetown salamander will be adversely affected in terms of its food supply, growth, health, and reproduction. The primary and secondary productivity of the Shadow Canyon Spring is likely small compared to other aquatic habitats like the San Gabriel River. Prey availability may be a main factor in the carrying capacity of the Shadow Canyon Spring habitat and pollution EXHIBIT E Environmental Permits Page 41 of 94 Stephen Brooks — Biological and Conference Opinion Page 27 of the springwater with chemicals toxic to aquatic invertebrates would likely result in a decrease in the condition and number of Georgetown salamanders present. There is uncertainty about the boundary for the recharge zone for Shadow Canyon Spring, which may extend beyond the action area. Williamson County quarry operations may intersect groundwater and alter groundwater levels and flowpaths. Additionally, an increase in impervious cover in the Shadow Canyon Spring recharge zone may result in decreased recharge. This would increase the likelihood that Shadow Canyon Spring may cease to flow during a severe drought. The proposed action is likely to degrade water quality and reduce recharge for Shadow Canyon Springs. Considering the long-term (next 100 years), multiple events are likely to occur that would result in the extirpation of the Georgetown salamander from Shadow Canyon Spring. Within the area potentially recharging Shadow Canyon Spring (upper Shadow Canyon tract and areas the west of Shadow Canyon (presumed likely to be developed), chemical applications are likely to include herbicides, fertilizers, termiticides, and other insecticides. After precipitation events, the runoff and recharge in this area are expected to have concentrations of these chemicals that exert adverse biological effects on aquatic organisms. With expected chemical use nearby over the coming years and decades, contaminants carried in recharge are expected to periodically break through to Shadow Canyon Spring. Cumulative development will increase impervious cover and concurrently decrease recharge for Shadow Canyon Spring as the areal extent available for infiltration is reduced. The entire population of Georgetown salamanders consists of more than 14 sites distributed among multiple watersheds (equivalent to HUC12 subwatersheds). To the best of our knowledge, there is not likely to be any intersite movement with the exception of the few sites close to another site. Our expectation is by the time the expected ultimate developed state of its springshed is reached, the presumably small population of Georgetown salamanders at Shadow Canyon Spring will have mortality rates that exceed fecundity rates and become extirpated (locally extinct). It is unlikely to be recolonized from the other Georgetown salamander population in the subwatershed due to the distance involved. A species viability is determined in part by the number and distribution of populations (redundancy). There are 18 known historic sites for Georgetown salamander. As stated in the final listing rule, four of the 18 sites may already be extirpated. Only two of the 18 sites are known to have a population size that exceeds 100. The status of current populations is detailed in the final rule listing GS as threatened. While the population size of 14 sites (including Shadow Canyon Spring) is unknown, the existence of multiple GS populations means the species is more likely to survive in the wild, retaining the potential for recovery. The potential extirpation of one population (Shadow Canyon Spring) reduces redundancy for Georgetown salamanders. The most southern HUC12 hydrounit (Lower South Fork San Gabriel River) in the Georgetown salamander range presently has GS populations in Shadow Canyon Spring and Garey Ranch Spring The potential extirpation of the Shadow Canyon Spring population of GS would effectively reduce representation in this hydrounit by half. However, the continued presence of 13 or more remaining populations will help ensure the species status remains at threatened as local efforts progress to conserve water quality over the Northern Segment of the EXHIBIT E Environmental Permits Page 42 of 94 Stephen Brooks — Biological and Conference Opinion Page 28 Edwards Aquifer. Thus, the proposed action is not likely to jeopardize the continued existence of the Georgetown salamander. VI. Conclusion Our biological opinion is based primarily on the current 14 Georgetown salamander populations, which provide redundancy. In addition, all currently known sites are protected by Georgetown ordinances and two of the sites are protected as preserves. After reviewing the current status of Georgetown salamander, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is the Service's biological opinion that the USACE section 404 authorization of fill in waterways of Shadow Canyon, as proposed, is not likely to jeopardize the continued existence of the Georgetown salamander. VII. Incidental Take Statement Section 9 of the Act and Federal regulations pursuant to section 4(d) of the Act prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of this Incidental Take Statement. The Service expects that USACE section 404 authorization of fill into the jurisdictional waterways of the Shadow Canyon development will not result in the incidental take of individuals of Georgetown salamanders. However, the land development activities that are interdependent to the USACE authorization will ultimately result in some groundwater pollution. The pollutants associated with an urbanized watershed are likely to be transported to groundwater upgradient from Shadow Canyon Spring over subsequent years and decades. These pollutants will vary in terms of their fate and toxicity. Eventually, given more human activities in the recharge zone, we expect peak springflows (following a rain event the springshed) will have higher concentrations of pollutants such as biogenic nitrogen (similar to the variability seen at Barton Springs) (Mahler et al. 2012). Biogenic nitrogen results from human or animal waste, or both and has been implicated as a likely source of nitrate in Barton Springs. Using nitrate as an example of an urban pollutant, we would be concerned if nitrate levels exceeded the 2 mg nitrate (NO3-N/1) level recommended by Camargo et al. 2005 to protect sensitive freshwater species. Incidental take of GS may be the result of a decrease in the availability of food, if water quality in Shadow Canyon Spring is not supportive of sensitive microcrustaceans, aquatic insects, and other invertebrate prey. A reduction in food availability may lead to a decrease in the health of individuals and growth. EXHIBIT E Environmental Permits Page 43 of 94 Stephen Brooks — Biological and Conference Opinion Page 29 We anticipate occasional storm -related recharge events causing adverse effects to 50 percent of the Georgetown salamander population at Shadow Canyon Spring as groundwater with anthropogenic compounds arrive at the spring. The return interval for this type of event (5.5 inch rain over 24 hours) is five years. Take will be in the form of death of individuals from pollution events where the mixture of urban contaminants reaches acute LC50 levels (generally in less than 48 hours). Other more frequent pollution events may inhibit Georgetown salamander growth and reproduction. Groundwater pollution may also result in chronic adverse effects to Georgetown salamanders and their invertebrate prey, the most likely of these is to reduce or inhibit growth and re roductive rates. The GS habitat available at Shadow Canyon Spring is estimated at 1.6 meter This is based on an estimated 0.6 meter2 of surface habitat and an inference that additional subsurface habitat is available. We estimate nearby subsurface GS habitat totals 1.0 meterz (consisting of nearby groundwater conduits and interstitial space). The density of GS is estimated at an average of 5 individuals per metersz, based on Pierce et al. 2014 reported population sizes for two spring runs (Twin Springs and Swinbank Springs spring runs are assumed to be I meter wide). The Shadow Canyon Spring GS population is estimated to average 8 individuals (based on 1.6 meterz GS habitat and 5 GS per meter). In the foreseeable future with the proposed development, the Shadow Canyon springs recharge zone will by dominated by urban land use. Storm -related recharge is expected to transport anthropogenic compounds persistently at low levels. Intermittently (5 year return interval), we expect storm -related recharge to present higher levels of pollutants that have concentrations directly affecting GS. A 5-year storm is anticipated to transport pollutants such as nitrate that will be detectable, elevated for more than 48 hours, and detrimental to the health of GS. The incidental take is expected to be 4 individuals over a period of five years. If the Georgetown salamander population size estimate for all Shadow Canyon Spring associated habitat is less than 4 individuals, the incidental take for this action will be considered to be depleted and no further incidental take is authorized. Periodic groundwater pollution events are anticipated. They are expected to be temporary in nature unless a persistent contaminant is spilled in the springshed. The return interval of these events is considered to be on par with larger storm events that may not occur annually but would be expected on the average every five years. While a large storm would have presumably more recharge, increase springflow, and result in some dilution of pollutants, the concern is a large storm event will mobilize pollutants on the surface in the springshed. We expect the environmental concentration of insecticides and other chemicals to remain elevated over a period of hours and perhaps days resulting in unsuitable habitat for salamanders and their prey. a. Reasonable and Prudent Measures The measures described below are non -discretionary, and must be undertaken by the USACE so that they become binding conditions of any grant or permit issued to the applicant, as appropriate, for the exemption in section 7(o)(2) to apply. The USACE has a continuing duty to regulate the activity covered by this incidental take statement. If the USACE: (1) fails to assume and implement the terms and conditions or (2) fails to require the applicant to adhere to the terms and conditions of the incidental take statement through enforceable terms that are added to the permit or grant document, the protective coverage of section 7(o)(2) may lapse. In order to EXHIBIT E Environmental Permits Page 44 of 94 Stephen Brooks — Biological and Conference Opinion Page 30 monitor the impact of incidental take, the USACE must report the progress of the action and its impact on the species to the Service as specified in the incidental take statement [50 CFR §402.14(i)(3)]. The following reasonable and prudent measures presented below are necessary and appropriate to minimize the incidental taking authorized by this biological opinion. 1. The USACE shall: (a) ensure the applicant (San Gabriel Harvard Limited) avoids and minimizes adverse effects to Georgetown salamanders, to the maximum practicable extent and (b) condition their section 404 authorization to the applicant in order to reduce potential risks to the Shadow Canyon Spring population of Georgetown salamanders. 2. The USACE shall condition their authorization to the applicant to ensure the water quality of runoff and stormwater in the Edwards Aquifer recharge zone within 80 meters of Shadow Canyon Spring is maintained in a natural state. 3. The USACE shall ensure the applicant minimizes potential pollution of groundwater near Shadow Canyon Spring by permanently protecting in a natural condition all identifiable recharge features of the Edwards Aquifer Recharge Zone supplying Shadow Canyon Spring. b. Terms and Conditions In order to be exempt from the prohibitions of section 9 of the Act, the USACE must comply with the following terms and conditions that implement the reasonable and prudent measures described above and outline required reporting/monitoring requirements. The Service does not consider these Terms and Conditions to be a major change to proposed action. These terms are non -discretionary. 1. The USACE will work with the applicant to ensure that the area within 80 meters of Shadow Canyon Spring is permanently maintained in a natural condition that is additionally free of roads, development, and sanitary sewer infrastructure (Figures 6a and 6b). In order to prevent the pollution of surface water, groundwater, and springfiow associated with Shadow Canyon Spring and reducing the effective recharge area for Shadow Canyon Spring, the proposed roads (SW 3 and Shadow Canyon Drive) will be built outside an area defined by a distance of 80 meters from Shadow Canyon Spring. All protected areas (e.g., water quality easements) will be surveyed by a registered professional land surveyor and the survey will be submitted to the USACE and Service. All protected areas will be protected in perpetuity with a third party conservation easement holder. 2. The USACE will work with the applicant to ensure that no coal -tar based sealcoat materials are applied to pavement, parking lots, playgrounds, or driveways in the Shadow Canyon tract. This will reduce a known source of the pollutant class polycyclic aromatic hydrocarbon compounds (PAHs), which are persistent and toxic to fish and other aquatic life. 3. The USACE will ensure that annual biological surveys of Shadow Canyon Spring are made and reported to USFWS. Surveys shall be made annually from the issuance of USACE authorization and continue at least five years after the completion of residential subdivision EXHIBIT E Environmental Permits Page 45 of 94 Stephen Brooks — Biological and Conference Opinion Page 31 Phase One or the multi -family development, whichever occurs last. The Service encourages the coordination of monitoring efforts at Shadow Canyon with the broader Adaptive Management working group established by the City of Georgetown and Williamson County. In the event that no surveys are done, the USACE will ensure the Service is allowed access to Georgetown salamander habitat in Shadow Canyon, including Shadow Canyon Spring, springs labeled F-14 and F-15, and the water well labeled Weisberg F-36 in the ACI Consulting report (2002). VHI. Conference Opinion Adverse Modification of Proposed Critical Habitat Analysis Effects of Action on Proposed Critical Habitat Analysis The proposed action is likely to degrade water quality and reduce recharge for Shadow Canyon Springs. These are two of the primary constituent elements described in our proposed rule for critical habitat. The Shadow Canyon tract land use changes are inextricably linked to the USACE section 404 authorization. The development of retail, residential single family, and residential multi -family are interrelated activities that depend on the proposed action for its justification. It is the effects of these activities that may compromise the PCEs of the proposed surface and subsurface critical habitats. Citing our Endangered Species Consultation Handbook (Service and NMFS 1998), "if an action affects critical habitat, but does not appreciably diminish the value of constituent elements essential to the species' conservation, the adverse modification threshold is not exceeded. On the other hand, the adverse modification threshold is exceeded when the proposed action will adversely affect the critical habitat's constituent elements or their management in a manner likely to appreciably diminish or preclude the role of that habitat in both the survival and recovery of the species". If the PCEs are temporarily degraded, proposed critical habitat unit 13 may still contribute to survival and recovery of GS. However, if proposed Critical Habitat Unit 13 becomes unoccupied due to extirpation, it will be difficult if not impossible to re-establish a GS population. If the PCEs are permanently degraded due to persistent presence of contaminants that preclude Georgetown salamanders and prey, then Unit 13 will no longer contribute to the group of 14 proposed critical habitat units deemed necessary for the viability of the GS. The loss of one of 14 proposed critical habitat units due to action related decreases in water quality and springfiow will diminish recovery potential particularly if the temporary reduction in the values of PCEs results in extirpation of GS from proposed critical habitat unit 13. Being one of 14 units, the loss would not reach the adverse modification threshold of appreciably reducing the proposed critical habitat PCEs essential to the species conservation. Conference Opinion Conclusion After reviewing the current status, the environmental baseline, the effects of the action and the cumulative effects, it is the Service's Conference Opinion that the action, as proposed, is not likely to destroy or adversely modify proposed critical habitat for the Georgetown salamander. The effects of the action may result in episodic reduction in primary constituent elements at proposed critical habitat unit 13. You may ask the Service to confirm the conference opinion as a biological opinion issued through formal consultation when critical habitat is finalized. The request must be in writing. If EXHIBIT E Environmental Permits Page 46 of 94 Stephen Brooks — Biological and Conference Opinion Page 32 the Service reviews the proposed action and finds that there have been no significant changes in the action as planned or in the information used during the conference, the Service will confirm the conference opinion as the biological opinion on the action and no farther section 7 consultation will be necessary. IX. Conservation Recommendations Section 7(a)(1) of the Act directs Federal agencies to use their authorities to fo ther the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or proposed critical habitat, to help implement recovery plans, or to develop information. The Service makes these conservation recommendations: (1) Develop, implement, and report on hydrogeologic research that delineates the springshed for Shadow Canyon Spring. This would likely include a network of groundwater wells with monitoring equipment to track groundwater levels and groundwater quality. Develop and implement land use plans that will help ensure non -degradation of proposed critical habitat PCEs due to the Shadow Canyon development. (2) Building on Conservation Recommendation 1, prepare and implement a low impact development strategy for the entire Shadow Canyon tract. Establish agreements with the Shadow Canyon landowners to have long-term commitments to the low impact development strategies and practices. (3) The Applicant should coordinate with the City of Georgetown and Williamson County to explore alternative regional roads to avoid and minimize adverse effects to proposed surface and subsurface critical habitat of the Georgetown salamander. For example, proposed road SW3 should be aligned or removed from the Shadow Canyon Project in order to avoid crossing the proposed subsurface critical habitat proposed for Unit 13 and other proposed critical habitat units. Similarly, the Applicant should end Shadow Canyon Drive at Malabar Drive or Bear Paw Lane and not build the western part of Shadow Canyon Drive. (4) The area around Shadow Canyon Spring should be adequately fenced to prevent access by livestock and people. This will help reduce the likelihood of dumping, pollution, and vandalism to the spring area. Similarly, the area around the water well F-36 should be fenced and protected from unauthorized human access. (5) With the exception of wells dedicated to geohydrologic research, no new water wells should be drilled on the Shadow Canyon tract. No groundwater should be pumped (or in the case EXHIBIT E Environmental Permits Page 47 of 94 Stephen Brooks — Biological and Conference Opinion Page 33 of a flowing artesian well, allowed to discharge) within the Shadow Canyon tract or areas potentially associated with Shadow Canyon Spring. X. Re -initiation Requirements The USACE shall request reinitiation of consultation if. (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the agency action that may affect species or critical habitat in a manner or to an extent not considered in this biological and conference opinion; (3) the agency action is subsequently modified in a manner that causes an effect to the species or critical habitat that was not considered in this biological and conference opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action. We appreciate the opportunity to work with the U.S. Army Corps of Engineers. If you have any needs or questions on the Shadow Canyon consultation -conference, please contact Tanya Sommer at 512 490-0057, extension 222. Sincerely, Adam Zerrenner Field Supervisor EXHIBIT E Environmental Permits Page 48 of 94 Stephen Brooks — Biological and Conference Opinion Page 34 Figures 1. Overview Shadow Canyon Development 2. Action Area 3. Development Phases and Jurisdictional Waterways 4. Overview Georgetown Salamander Localities Rangewide 5. Focal Areas in Analysis of Effects of Shadow Canyon Development 6a. 80 meters Setback from Shadow Canyon Spring 6b. Detail of Setback from Shadow Canyon Spring Tables 1. Impacts to Jurisdictional Waters under Section 404 2. Historic Georgetown Salamander Localities 3. List of Threats to Georgetown Salamander by Factor 4. Primary Constituent Elements of Proposed Critical Habitat 5. Rainfall Statistics for Lake Georgetown Station 6. Land Use and Assumed Impervious Cover for Areas in Shadow Canyon above the Elevation of 830 ft EXHIBIT E Environmental Permits Page 49 of 94 Stephen Brooks — Biological and Conference Opinion Page 35 References Cited ACI Consulting. 2002. Geologic assessment for the McLester Tract in Williamson County, Texas. Prepared for Harvard Investments. July. ACI Consulting. 2011. Pre -construction notification and section 404 nationwide permit #29 authorization request submittal, Shadow Canyon in Williamson County, Texas. On behalf of U.S. Army Corps of Engineers, Fort Worth District by San Gabriel Harvard Limited Partnership. January. Austin, Texas. Revised and resubmitted in 2013. ACI Consulting. 2013. Biological assessment for Shadow Canyon tract, Williamson County, Texas. Submitted to U.S. Army Corps of Engineers, Fort Worth District by San Gabriel Harvard Limited Partnership. Revised August 2013. Austin, Texas. Albers, Peter H. 2003. Petroleum and individual polycyclic aromatic hydrocarbons. Pages 341- 371 in Hoffman, D.J., Rattner, B.A, Burton, G.A. Jr., and J. Cairns, Jr., editors. Handbook of Ecotoxicology. CRC Press, Inc., Boca Raton, Florida, USA. Aller, Linda, Truman Bennett, J.H. Leer, R.J. Petty, and Glenn Hackett. 1987. DRASTIC — a standardized system for evaluating ground water pollution potential using hydrogeologic settings. U.S. Environmental Protection Agency. EPA/600/2-87/035. 455 p. Alley, William M., Thomas E. Reilly, and O. Lehn Franke. 1999. Sustainability of ground- water resources. U.S. Geological Survey Circular 1186. Bendik, Nathan. 2013. Personal communication. City of Austin Public comments on proposed rule (FWS- R2-ES-2013-0001). City of Austin. March 11, 2013. 4 pp. Boghici, Radu. 2011. Changes in water levels in Texas, 1995 to 2005. Texas Water Development Board. Report 379. July 2011. 64 pp. Camargo, Julio. Alvaro Alonso, and Annabelle Salamanca. 2005. Nitrate toxicity to aquatic animals: a review with new data for freshwater invertebrates. Chemosphere 58:1255- 1267. Cappiella, Karen and Kenneth Brown. 2001. Impervious cover and land use in the Chesapeake Bay watershed. Center for Watershed Protection. Ellicott City, MD. Chippindale, Paul T., Andrew H. Price, John J. Wiens, and David M. Hillis. 2000. Phylogenetic relationships and systematic revision of central Texas hemidactyliine plethodontid salamanders. Herpetological Monographs 14: 1-80. Clark, Allan. 2000. Vulnerability of ground water to contamination, Edwards Aquifer recharge zone, Bexar County, Texas, 1998. U.S. Geological Survey Water -Resources Investigations Report 00-4149. Clark, Amy. 2003. Vulnerability of ground water to contamination, Northern Bexar County, Texas. U.S. Geological Survey Water -Resources Investigations Report 03-4072. EXHIBIT E Environmental Permits Page 50 of 94 Stephen Brooks — Biological and Conference Opinion Page 36 Delaware NEMO. 2005. Guide to natural resource -based planning. Product of the Delaware NEMO (Nonpoint Education for Municipal Officials) Program, Delaware Sea Grant College Program, Newark, Delaware. Epp, Kristen J. and Caitlin R. Gabor. 2008. Innate and learned predator recognition mediated by chemical signals in Eurycea nana. Ethology 114: 607-615. Georgetown, City of. 2012. Georgetown Unified Development Code. Title 17 of the Georgetown Code of Ordinances. IPCC. 2007. Climate Change 2007: synthesis report. Summary for policymakers. Jones, Ian C. 2003. Groundwater availability modeling: northern segment of the Edwards Aquifer, Texas. Texas Water Development Board Report 358. Kresic, Nevan, Petar Papic, and Radisav Golubovic. 1992. Elements of groundwater protection in a karst environment. Environ. Geol. Water Sci. 20(3):157-164. Mahler, Barbara. 2013. Personal Communication. Email to U.S. Fish and Wildlife Service, Patrick Connor. November 6. Mahler, Barbara J., Bradley D. Garner, MaryLynn Musgrove, Amber L. Guilfoyle, and Mohan V. Rao. 2006. Recent (2003-05) water quality of Barton Springs, Austin, Texas, with emphasis on factors affecting variability. U.S. Geological Survey Scientific Investigations Report 2006-5299. Morris, William F. and Daniel F. Doak. 2002. Quantitative conservation biology, Theory and practice of population viability analysis. Sinauer Associates, Inc. Sunderland, MA. O'Donnell, Lisa, M. Turner, Mark Sanders, E. Geismar, S. Heilman, and Laura Zebehazy. 2006. Summary of Jollyville Plateau salamander data (1997-2006). City of Austin Watershed and Development Review Department. December 2006. 50 pp. Pierce, Benjamin. 201 la. Report on ecological studies of the Georgetown salamander (Eurycea naufragia) at two sites in Williamson County, Texas, May 2010 - April 2011. Report to the Williamson County Conservation Foundation, Southwestern University, Georgetown, Texas. 37 pp. Pierce, Benjamin. 201 lb. Personal communication. Georgetown salamander site visit notes. October 4, 2011. U.S. Fish and Wildlife Service, Austin, Texas. 3 pp. Pierce, Benjamin. 2011c. Personal communication to U.S. Fish and Wildlife Service. Eurycea naufragia: Locations of known sites. May 12, 2011. 2 pp. Pierce, Benjamin. 2012a. Update on studies of the Georgetown salamander, Eurycea naufragia. Presentation. Southwestern University, Georgetown, Texas. June 11. EXHIBIT E Environmental Permits Page 51 of 94 Stephen Brooks — Biological and Conference Opinion Page 37 Pierce, Benjamin. 2012b. Ecological studies of the Georgetown salamander (Eurycea naufragia) at two sites in Williamson County, Texas, July 2011 - July 2012. Southwestern University, Georgetown, Texas. July 25, 2012. 34 pp. Pierce, Benjamin, James L. Christiansen, Alexis L. Ritzer, and Taylor A. Jones. 2010. Ecology of Georgetown salamanders (Eurycea naufragia) within the flow of a spring. Southwestern Naturalist 55: 291-297. Pierce, Benjamin and Ashley Wall. 2011. Review of research literature related to the biology, evolution, and conservation of Georgetown salamander, Eurycea naufragia. Report to the Williamson County Conservation Foundation, Southwestern University, Georgetown, Texas. 40 pp. Pierce, Benjamin, Kira D. McEntire, and Ashley E. Wall. 2013. Summary of research on movement of the Georgetown salamander (Eurycea naufragia) within two surface springs in Williamson County, TX. Department of Biology, Southwestern University, Georgetown, Texas. Pierce, Benjamin and Kira D. McEntire. 2013. Ecological studies of the Georgetown salamander (Eurycea naufragia) at two sites in Williamson County, Texas, Year 3, August 2012 - July 2013. Report to the Williamson County Conservation Foundation, Southwestern University, Georgetown, Texas. September 15, 2013. 21 pp. Pierce, Benjamin, Kira D. McEntire, and Ashley E. Wall. 2014. Population size, movement, and reproduction of the Georgetown salamander, Eurycea naufragia. Herpetological Conservation and Biology 9(1):137-145. Sparling, Donald W., R. Halbrook, and T. Bommarito. 2009. Acute and chronic effects of coal tar and asphalt sealants on salamanders. Final Report to City of Austin. Southern Illinois University. 65 pp. Texas Commission on Environmental Quality. 2005. Edwards Aquifer Recharge Zone — Chapter 213 Rules. Maps and GIS dataset. Contact Person: Greg Smithhart, TCEQ, Austin. Tupa, Diana D. and William K. Davis. 1976. Population dynamics of the San Marcos salamander, Eurycea nana Bishop. Texas Journal of Science 27:179-195 U.S. Department of Agriculture. 1986. Urban hydrology for small watersheds TR-55. Natural Resources Conservation Service, Conservation Engineering Division. Technical Release 55. U.S. Environmental Protection Agency. 2003. Developing water quality criteria for suspended and bedded sediments (SABS), potential approaches. Office of Water, Office of Science and Technology. Draft. August. U.S. Fish and Wildlife Service. 2007. Federal Fish and Wildlife Permit TE-116313-0 to San Gabriel Harvard Limited Partnership. For 308 acres Shadow Canyon Tract, Williamson County, Texas. 6 pp. EXHIBIT E Environmental Permits Page 52 of 94 Stephen Brooks — Biological and Conference Opinion Page 38 U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1998. Endangered Species Consultation Handbook, Procedure for Conducting Consultation and Conference Activities under Section 7 of the Endangered Species Act. March. Waples, Robin. 2010. Spatial -temporal stratifications in natural populations and how they affect understanding and estimation of effective population size. Molecular Ecology Resources 10:785-796. White, Kemble. 2011. Personal communication. Email from Kemble White, SWCA, to Joshua Booker, USFWS. September 9, 2011. 3 pp. Williamson County Conservation Foundation. 2008. Final Williamson County Regional Habitat Conservation Plan. 248 pp. EXHIBIT E Environmental Permits Page 53 of 94 a 0 1\ 0 1 1 y 6 I /�. .. ..... ... • �'�� ",` I, STATE HIGHWAY 29 Z1111gp.: OEM OMM I r t.25 0.5 1 Miles,A .. 1 KNO •• ���• ®Action Area On &Near Shadow Canyon RIVERS & CREEKS ZONE - EDWARDS AQUIFER TCEQ OW Proposed Critical Habitat Subsurface Unit No. Contributing Recharge SHADOW CANYON TRACT Transition - - - PROPOSED ROAD SW3 Waterway_ActionArea EXHIBIT E Environmental Pbe Number Site Name HYDROl1NIT HUC12 la Cobb Springs Dry Berry Ck lb Cobb Well Dry Berry Ck 2 Cowan Creek Spring Low Berry Ck 3 Bat Well Cave Low Berry Ck 4 Walnut Spring Lk G'town 5 Twin Spring Lk G'town 6 Hogg Hollow Spring Lk G'town 7 Cedar Hollow Spring Lk G'tc,m as Knight Spring Lk G'town Bb Cedar Breaks Hiking Trail Lk G'town 9 Water Tank Cave N&M Fork San Gabriel 10 Avant Spring N&M Fork San Gabriel 11 Buford Hollow Springs N&M Fork San Gabriel 12 Swinbank Spring N&M Fork San Gabriel 13 Shadow Canyon Spring L S Fork San Gabriel 14 San Gabriel Spring Smith Brnch & San Gabriel 15 Garay Ranch Spring L S Fork San Gabriel 16 Hogg Hollow II Spring Lk G'town 37 5 0 0.5 1 2 ® Miles FIGURE 4 OVERVIEW GEORGETOWN SALAMANDER SITES Q Proposed Critical Habitat Subsurface <= 300 m PROPOSED ROAD SW3 ®SHADOW CANYON BOUNDARY • GEORGETOWN SALAMANDER SITE EXHIBIT E Environmental Permits Page 57 of 94 dip 0 20 40 80 Meters FIGURE 6b 80 METER SETBACK FROM SHADOW CANYON SPRING, 1:900 scale J Shadow Canyon Tra reposed Subsurface CH ECHARGE20NE Karst Preserve /�/J�`J//J�J� �MSetback them Spdng{'//,//J7k100-YEAR FLOOOPLAIN C W0 Easement OProposed Sedate CH OWELL, SPRING 4 Shadow Canyon Sprang Regulatory Division DEPARTMENT OF THE ARMY FORT WORTH DISTRICT, CORPS OF ENGINEERS P. O. BOX 17300 FORT WORTH, TEXAS 76102-0300 Received° JAN .1 G 201 i Harvard Investments SUBJECT: Project Number SWF-2009-00458, Shadow Canyon Development January 23, 2015 Mr. Chris Cacheris San Gabriel Harvard Limited Partnership 17700 North Pacesetter Way Scottsdale, Arizona 85255 Dear Mr. Cacheris: This letter is in regard to information received February 14, 2009, and subsequent information revived August 12, 16, 21, 2013, August 21, and December 8, 2014, concerning a proposal by San Gabriel Harvard Limited Partnership to construct a residential housing development which includes single-family, multi -family and commercial development located approximately three miles west of the city of Georgetown, Williamson County, Texas. This project has been assigned Project Number SWF-2009-00458. Please include this number in all future correspondence concerning this project. Under Section 404 of the Clean Water Act the U.S. Army Corps of Engineers (USACE) regulates the discharge of dredged and fill material into waters of the United States, including wetlands. USACE responsibility under Section 10 of the Rivers and Harbors Act of 1899 is to regulate any work in, or affecting, navigable waters of the United States. Based on the description of the proposed work, and other information available to us, we have determined this project will involve activities subject to the requirements of Section 404. The USACE based this decision on a preliminary jurisdictional determination that there are waters of the United States on the project site. We have reviewed this project under the pre -construction notification procedures of Nationwide Permit General Condition 31 (Federal Register, Vol. 77, No. 34, Tuesday, February 21, 2012). We have determined this project is authorized by Nationwide Permit 29 for Residential Developments. To use this permit, the permittee must ensure the work is in compliance with the specifications and conditions listed on the enclosures and the special conditions listed below: 1) The permittee shall implement and abide by the mitigation plan included in the "Pre - construction Notification and Section 404 Nationwide Permit #29 Authorization Request Submittal, Shadow Canyon, In Williamson County, Texas, prepared by ACI Consulting, dated January 2011. The permittee shall implement the mitigation plan concurrently with the construction of the project and complete the initial construction and plantings EXHIBIT E Environmental Permits Page 61 of 94 -2- associated with the mitigation work prior to completion of construction of the project. Completion of all elements of this mitigation plan is a requirement of this permit. 2) The permittee shall submit a set of half-size (11 inch by 17 inch) as -built drawings of the mitigation work conducted under this permit within six months of completion of construction of that portion of the project. If the USACE determines that the permittee has not adequately completed all elements of the mitigation plan, the permittee must provide an additional final report within 60 days after completion of additional work. 3) The permittee shall dedicate in perpetuity by conservation easement and notice of restriction, as a mitigation area, the mitigation areas identified in the mitigation referenced in Special Condition 1 above and the USFWS Biological Opinion Dated December 1, 2014. The only exceptions to this real estate instrument shall be easements in existence on the date of this authorization. The mitigation area shall not be disturbed, except by those activities that would not adversely affect the intended extent, condition, and function of the mitigation area. Unless otherwise specified, livestock grazing, mowing, and similar activities are not allowed. The permittee shall survey the mitigation area, develop an appropriate real estate instrument for the surveyed area, submit the draft real estate instrument to the USAGE for review and approval, and record the USACE approved real estate instrument with the County Clerk. The permittee shall provide a copy of the recorded real estate instrument to the USAGE prior to commencing any ground -disturbing activity within the permit area. The real estate instrument shall not be removed from the deed or modified without written approval of the USAGE and conveyance of any interest in the property must be subject to the real estate instrument. 4) The permittee shall develop financial assurances for the long term success of the mitigation plan and submit to the USAGE for approval prior to implementation of any mitigation. 5) The permittee shall establish and implement a self -monitoring program that includes the following actions: a. designation, in writing, of a responsible party to coordinate with the USACE concerning on site inspections and compliance with permit conditions; b. notification to the USAGE of the schedule of activities for each phase of the project at least 30 days prior to the start of soil -disturbing activities; and c. implementation of a reporting program that shall include annual written compliance/monitoring reports to the USAGE, due October 1 of each year. Each report shall contain at a minimum, the following information: Compliance reports are required even if no work is conducted during the reporting period. EXHIBIT E Environmental Permits Page 62 of 94 -3- 1) a summary of all activities that occurred during the reporting period; 2) documentation of the progress and/or completion of all authorized work, including work required under the mitigation plan; 3) the approximate acreage, linear feet (of streams), location, type, and description of waters of the United States impacted during the reporting year; 4) the approximate acreage, location, type, status, and completion date (actual or projected) of the ongoing mitigation that occurred during the reporting period; 5) a description of completed mitigation areas, including a topographic map showing the location and acreage of vegetation planted or waters of the United States created and supporting documentation, including vegetative species and planting rates or stems per acre; 6) documentation of compliance with all permit conditions, including erosion control; 7) representative photographs of the progress and success of mitigation worts accomplished under this permit; 8) a cumulative summary of impacted and restored/enhanced/created/preserved waters of the United States categorized into the following classes: (a)Forested Wetlands (b)Non-forested Wetlands (c)Streams Within Ordinary High Water Marks (OHWM) (d)Ponds Within OHWM 9) documentation that disturbed areas with exposed slopes, such as borrow ditches, road embankments, stream banks, and road crossings, are addressed appropriately and re -vegetating adequately and not suffering erosion damage where necessary; and 10) schedule changes. d. The permittee shall submit compliance reports until the USACE verifies that the permittee has successfully completed all compensatory mitigation plan requirements, the mitigation areas have met the standards of Special Condition 1, and all authorized construction activities have been either completed or omitted from the project. The permittee shall submit compliance reports until the USACE has verified that all mitigation areas have met the performance standards identified in Special Condition 1. 6) This USAGE permit does not authorize you to take an endangered species, in particular the Golden Cheeked Warbler (Setophaga chrysoparia), and Georgetown Salamander (Eurycea naufragia). In order to legally take a listed species, you must have separate authorization under the Endangered Species Act (ESA) (e.g., a permit under section 10 of the ESA, or a biological opinion (BO) under Section 7 of the ESA, with an incidental take provisions with which you must comply). The enclosed U.S. Fish and Wildlife (FWS) BO for consultation number 02ETAU00-2014-F-0019 contains mandatory terms EXHIBIT E Environmental Permits Page 63 of 94 in and conditions to implement the reasonable and prudent measures that are associated with an incidental take that is also specked in the BO. Your authorization under this USACE permit is conditional upon you implementing and abiding by all project elements identified in the enclosed FWS BO and your compliance with all of the mandatory terms and conditions associated with incidental take identified in 'the enclosed BO. The terms and conditions of the BO are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BO, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non-compliance with your USACE permit. However, the FWS is the appropriate authority to determine compliance with the terms and conditions of its BO, and with the ESA. For further clarification on this point, you should contact the FWS. Should the FWS determine that the conditions of the BO have been violated, normally the FWS will enforce the violation of the ESA, or refer the matter to the Department of Justice. Please note that the USFWS biological opinion includes a section of conservation recommendations that, if implemented, would further minimize the potential impacts of the project on federally listed threatened and endangered species. While these recommendations are not conditions of this authorization, we encourage you to include each of these recommendations in this and future projects that may affect the species in question. Failure to comply with these specifications and conditions invalidates the authorization and may result in a violation of the Clean Water Act. We have determined the proposed activity would comply with all the terms and conditions of Nationwide Permit 29 for Residential Developments and the adverse environmental effects of the proposed project would be minimal both individually and cumulatively. Therefore, we are waiving the 300-linear foot limit for loss of streambed in this case. Our verification for the construction of this activity under this nationwide permit is valid until March 18, 2017, unless prior to that date the nationwide permit is suspended, revoked, or modified such that the activity would no lonaer comply with the terms and conditions of the nationwide permit on a regional or national basis. The USACE will issue a public notice announcing the changes when they occur_ Furthermore, activities that have commenced, or are under contract to commence, in reliance on a nationwide permit will remain authorized provided the activity is completed within 12 months of the date of the nationwide permit's expiration, modification, or revocation, unless discretionary authority has been exercised on a case -by - case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5(c) or (d). Continued confirmation that an activity complies with the specifications and conditions, and any changes to the nationwide permit, is the responsibility of the permittee. EXHIBIT E Environmental Permits Page 64 of 94 -5- The permittee must sign and submit to us the enclosed certification that the work, including any proposed mitigation, was completed in compliance with the nationwide permit. The permittee should submit the certification within 30 days of the completion of work. This permit should not be considered as an approval of the design features of any activity authorized or an implication that such construction is considered adequate for any purpose intended. It does not authorize any damages to private property, invasion of private rights, or any infringement of federal, state, or local laws or regulations. Thank you for your interest in our nation's water resources. If you have any questions concerning our regulatory program, please refer to our website at http://www.swf.usace.army.miYMissions/Regulatory.aspx or contact Mr. Frederick Land at the address above or telephone (817) 886-1729, Please help the regulatory program improve its service by completing the survey on the following website: http://corlismapu.usace.army.mil/cm—apex/f?p=regulatory_survey. Sincerely, Stephen L Brooks Chief, Regulatory Division Enclosures Copy Furnished: Mr. Steve Paulson ACI Consulting 1001 Mopac Circle, Suite 100 Austin, Texas 78746-6804 Mr. David Galindo Director, Water Quality Division Texas Commission on Environmental Quality MC-150 P.O. Box 13087 Austin, Texas 78711 Ms. Tanya Sommer U.S. Fish and Wildlife Service Ecological Services Field Office 10711 Burnet Road, Suite 200 Austin, Texas 78758-4460 EXHIBIT E Environmental Permits Page 65 of 94 NATIONWIDE PERMIT 29 Residential Developments Effective Date: March 19, 2012 (NWP Final Notice, 77 FR 10184) Residential Developments. Discharges of dredged or fill material into non -tidal waters of the United States for the construction or expansion of a single residence, a multiple unit residential development, or a residential subdivision. This NWP authorizes the construction of building foundations and building pads and attendant features that are necessary for the use of the residence or residential development Attendant features may include but are not limited to roads, parking lots, garages, yards, utility lines, storm water management facilities, septic fields, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The discharge must not cause the loss of greater than 1/2-acre of non -tidal waters of the United States, including the loss of no more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds the district engineer waives the 300 linear foot limit by making a written determination concluding that the discharge will result in minimal adverse effects. This NWP does not authorize discharges into non -tidal wetlands adjacent to tidal waters. Subdivisions: For residential subdivisions, the aggregate total loss of waters of United States authorized by this NWP cannot exceed 1/2-acre. This includes any loss of waters of the United States associated with development of individual subdivision lots. Notification: The permittee must submit a pre -construction notification to the district engineer prior to commencing the activity. (See general condition 31.) (Sections 10 and 404) Nationwide Permit General Conditions Note: To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case -specific conditions imposed by the division engineer or district engineer. Prospective pennittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR §§ 330.1 through 330.6 apply to every NWP authorization. Note especially 33 CFR § 330.5 relating to the modification, suspension, or revocation of any NWP authorization. 1. Navigation. (a) No activity may cause more than a minimal adverse effect on navigation. (b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the pennittee's expense on authorized facilities in navigable waters of the United States. (c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or EXHIBIT E Environmental Permits Page 66 of 94 work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. 2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. 3. Spawnins Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized. 4. Migratory Bird Breedine Areas. Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable. 5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or is a shellfish seeding or habitat restoration activity authorized by NWP 27. 6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act). 7. Water Supply Intakes. No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization. 8. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable. 9. Management of Water Flows. To the maximum extent practicable, the pre -construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization and storm water management activities, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre -construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities). EXHIBIT E Environmental Permits Page 67 of 94 10. Fills Within 100-Year Floodplains. The activity must comply with applicable FEMA- approved state or local floodplain management requirements. 11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance. 12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low -flow or no -flow. 13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the affected areas returned to pre -construction elevations. The affected areas must be revegetated, as appropriate. 14. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable NWP general conditions, as well as any activity -specific conditions added by the district engineer to an NWP authorization. 15. Single and Complete Project. The activity must be a single and complete project. The same NWP cannot be used more than once for the same single and complete project. 16. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a "study river" for possible inclusion in the system while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). 17. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. 18. Endangered Species. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which "may affect' a listed species or critical habitat, unless Section 7 consultation addressing the effects of the proposed activity has been completed. (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. Federal permittees must provide the district engineer with the EXHIBIT E Environmental Permits Page 68 of 94 appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address ESA compliance for the N WP activity, or whether additional ESA consultation is necessary. (c) Non-federal permittees must submit a pre -construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or if the project is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally -listed endangered or threatened species or designated critical habitat, the pre -construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed work or that utilize the designated critical habitat that might be affected by the proposed work. The district engineer will determine whether the proposed activity"may affect" or will have "no effect" to listed species and designated critical habitat and will notify the non - Federal applicant of the Corps' determination within 45 days of receipt of a complete pre - construction notification. In cases where the non -Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the project, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification the proposed activities will have "no effect" on listed species or critical habitat, or until Section 7 consultation has been completed. If the non -Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species -specific regional endangered species conditions to the N WPs. (e) Authorization of an activity by a NWP does not authorize the "take" of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the U.S. FWS or the NMFS, The Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word "harm" in the definition of "take" means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. (f) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the U.S. FWS and NMFS or their worldwide web pages at http://www.fws.gov/ or http://www.fws.gov/ioac and http://www.noaa.gov/fisheries.html respectively. 19. Migratory Birds and Bald and Golden Eagles. The pemtittee is responsible for obtaining any "take" permits required under the U.S. Fish and Wildlife Service's regulations governing compliance with the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act. The permittee should contact the appropriate local office of the U.S. Fish and Wildlife Service to determine if such "take" permits are required for a particular activity. 20. Historic Properties. (a) In cases where the district engineer determines that the activity may affect properties listed, or eligible for listing, in the National Register of Historic EXHIBIT E Environmental Permits Page 69 of 94 Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. (b) Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the National Historic Preservation Act. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address section 106 compliance for the NWP activity, or whether additional section 106 consultation is necessary. (c) Non-federal permittees must submit a pre -construction notification to the district engineer if the authorized activity may have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre -construction notification must state which historic properties may be affected by the proposed work or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of or potential for the presence of historic resources can be sought from the State Historic Preservation. Officer or Tribal Historic Preservation Officer, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre -construction notifications, district engineers will comply with the current procedures for addressing the requirements of Section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted and these efforts, the district engineer shall determine whether the proposed activity has the potential to cause an effect on the historic properties. Where the non -Federal applicant has identified historic properties on which the activity may have the potential to cause effects and so notified the Corps, the non -Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects or that consultation under Section 106 of the NHPA has been completed. (d) The district engineer will notify the prospective permittee within 45 days of receipt of a complete pre -construction notification whether NHPA Section 106 consultation is required. Section 106 consultation is not required when the Corps determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR §800.3(a)). If NHPA section 106 consultation is required and will occur, the district engineer will notify the non - Federal applicant that he or she cannot begin work until Section 106 consultation is completed. If the non -Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps: (e) Prospective permittees should be aware that section I 1 Ok of the NHPA (16 U.S.C. 470h-2(k)) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of EXHIBIT E Environmental Permits Page 70 of 94 any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/fHPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties. 21. Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this permit, you must immediately notify the district engineer of what you have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 22. Designated Critical Resource Waters. Critical resource waters include, NOAA- managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public comment. (a) Discharges of dredged or fill material into waters of the United States are not authorized byNWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with general condition 31, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal. 23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that adverse effects on the aquatic environment are minimal: (a) The activity must be designed and constructed to avoid and minimize adverse et Vets, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal. (c) Compensatory mitigation at a minimum one -for -one ratio will be required for all wetland losses that exceed 1/10-acre and require pre -construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse effects of the proposed activity are3ninimal, and provides a project -specific waiver of this requirement. For wetland losses of 1/10-acre or less EXHIBIT E Environmental Permits Page 71 of 94 that require pre -construction notification, the district engineer may determine on a case -by -case basis that compensatory mitigation is required to ensure that the activity results in minimal adverse effects on the aquatic environment. Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332. (1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in minimal adverse effects on the aquatic environment. (2) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, wetland restoration should be the first compensatory mitigation option considered. (3) If permittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) — (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)). (4) If mitigation bank or in -lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided. (5) Compensatory mitigation requirements (e.g., resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan. (d) For losses of streams or other open waters that require pre -construction notification, the district engineer may require compensatory mitigation, such as stream rehabilitation, enhancement, or preservation, to ensure that the activity results in minimal adverse effects on the aquatic environment. (e) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2-acre, it cannot be used to authorize any project resulting in the loss of greater than 1/2-acre of waters of the United States, even if compensatory mitigation is provided that replaces or restores some of the lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure that a project already meeting the established acreage limits also satisfies the minimal impact requirement associated with the NWPs. (f) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the restoration or establishment, maintenance, and legal protection (eg., conservation easements) of riparian areas next to open waters. In some cases, riparian areas may be the only compensatory mitigation required. Riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it is not possible to establish a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or establishing a riparian area along a single bank or shoreline may be sufficient. Where both EXHIBIT E Environmental Permits Page 72 of 94 wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses. (g) Permittees may propose the use of mitigation banks, in -lieu fee programs, or separate permittee-responsible mitigation. For activities resulting in the loss of marine or estuarine resources, permittee-responsible compensatory mitigation may be environmentally preferable if there are no mitigation banks or in -lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the permittee. For permittee-responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management. (h) Where certain functions and services of waters of the United States are permanently adversely affected, such as the conversion of a forested or scrub -shrub wetland to a herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse effects of the project to the minimal level. 24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non -Federal applicants to demonstrate that the structures comply with established state dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety. 25. Water Ouality. Where States and authorized Tribes, or EPA where applicable, have not previously certified compliance of an NWP with CWA Section 401, individual 401 Water Quality Certification must be obtained or waived (see 33 CFR 330.4(c)). The district engineer or State or Tribe may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal degradation of water quality. 26. Coastal Zone Management. In coastal states where an NWP has not previously received a state coastal zone management consistency concurrence, an individual state coastal zone management consistency concurrence must be obtained, or a presumption of concurrence must occur (see 33 CFR 330.4(d)). The district engineer or a State may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements. 27. Regional and Case -By -Case Conditions. The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in its section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act consistency determination. EXHIBIT E Environmental Permits Page 73 of 94 28. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit. For example, if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the United States for the total project cannot exceed 1/3-acre. 29. Transfer of Nationwide Permit Verifications. If the permittee sells the property associated with a nationwide permit verification, the permittee may transfer the nationwide permit verification to the new owner by submitting a letter to the appropriate Corps district office to validate the transfer. A copy of the nationwide permit verification must be attached to the letter, and the letter must contain the following statement and signature: "When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terms and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below:' (Transferee) (Date) 30. Compliance Certification. Each permittee who receives an NWP verification letter from the Corps must provide a signed certification documenting completion of the authorized activity and any required compensatory mitigation. The success of any required permittee- responsible mitigation, including the achievement of ecological performance standards, will be addressed separately by the district engineer. The Corps will provide the permittee the certification document with the NWP verification letter. The certification document will include: (a) A statement that the authorized work was done in accordance with the NWP authorization, including any general, regional, or activity -specific conditions; (b) A statement that the implementation of any required compensatory mitigation was completed in accordance with the permit conditions. If credits from a mitigation bank or in -lieu fee program are used to satisfy the compensatory mitigation requirements, the certification must include the documentation required by 33 CFR 332.30)(3) to confirm that the permittee secured the appropriate number and resource type of credits; and (c) The signature of the permittee certifying the completion of the work and mitigation. 31. Pre -Construction Notification. (a) Timing. Where required by the terms of the NWP. the prospective permittee must notify the district engineer by submitting a pre -construction notification (PCN) as early as possible. The district engineer must determine if the PCN is complete within 30 calendar days of the date of receipt and, if the PCN is determined to be incomplete, notify the prospective permittee within that 30 day period to request the additional EXHIBIT E Environmental Permits Page 74 of 94 information necessary to make the PCN complete. The request must specify the information needed to make the PCN complete. As a general rule, district engineers will request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the district engineer will notify the prospective permittee that the PCN is still incomplete and the PCN review process will not commence until all of the requested information has been received by the district engineer_ The prospective permittee shall not begin the activity until either: (1) He or she is notified in writing by the district engineer that the activity may proceed under the NWP with any special conditions imposed by the district or division engineer; or (2) 45 calendar days have passed from the district engineer's receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. However, if the permittee was required to notify the Corps pursuant to general condition 18 that listed species or critical habitat might be affected or in the vicinity of the project, or to notify the Corps pursuant to general condition 20 that the activity may have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification from the Corps that there is "no effect" on listed species or "no potential to cause effects" on historic properties, or that any consultation required under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or Section 106 of the National Historic Preservation (see 33 CFR 330.4(g)) has been completed. Also, work cannot begin under NWPs 21, 49, or 50 until the permittee has received written approval from the Corps. If the proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin the activity until the district engineer issues the waiver. If the district or division engineer notifies the permittee in writing that an individual permit is required within 45 calendar days of receipt of a complete PCN, the permittee cannot begin the activity until an individual permit has been obtained. Subsequently, the permittee's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2). (b) Contents of Pre -Construction Notification: The PCN must be in writing and include the following information: (1) Name, address and telephone numbers of the prospective permittee; (2) Location of the proposed project; (3) A description of the proposed project; the project's purpose; direct and indirect adverse environmental effects the project would cause, including the anticipated amount of loss of water of the United States expected to result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; any other NWP(s), regional general perrrrit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any relatedactivity. The description should be sufficiently detailed to allow the district engineer to determine that the adverse effects of the project will be minimal and to determine the need for compensatory mitigation. Sketches should be provided when necessary to show that the activity complies with the terms of the NWP. (Sketches usually clarify the project and when provided results in a quicker decision. Sketches should contain sufficient detail to provide an illustrative description of the proposed activity (e.g., a conceptual plan), but do not need to be detailed engineering plans); (4) The PCN must include a delineation of wetlands, other special aquatic sites, and other waters, such as lakes and ponds, and perennial, intermittent, and ephemeral streams, on the project site. Wetland delineations must be prepared in accordance with the current method EXHIBIT E Environmental Permits Page 75 of 94 required by the Corps. The permittee may ask the Corps to delineate the special aquatic sites and other waters on the project site, but there may be a delay if the Corps does the delineation, especially if the project site is large or contains many waters of the United States. Furthermore, the 45 day period will not start until the delineation has been submitted to or completed by the Corps, as appropriate; (5) If the proposed activity will result in the loss of greater than 1 /10-acre of wetlands and a PCN is required, the prospective permittee must submit a statement describing how the mitigation requirement will be satisfied, or explaining why the adverse effects are minimal and why compensatory mitigation should not be required. As an alternative, the prospective permittee may submit a conceptual or detailed mitigation plan. (6) If any listed species or designated critical habitat might be affected or is in the vicinity of the project, or if the project is located in designated critical habitat, for non -Federal applicants the PCN must include the name(s) of those endangered or threatened species that might be affected by the proposed work or utilize the designated critical habitat that may be affected by the proposed work. Federal applicants must provide documentation demonstrating compliance with the Endangered Species Act; and () For an activity that may affect a historic property listed on. determined to be eligible for listing on, or potentially eligible for listing on, the National Register of Historic Places, for non -Federal applicants the PCN must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. Federal applicants must provide documentation demonstrating compliance with Section 106 of the National Historic Preservation Act. (c) Form of Pre -Construction Notification: The standard individual permit application form (Form ENG 4345) may be used, but the completed application form must clearly indicate that it is a PCN and must include all of the information required in paragraphs (b)(1) through (7) of this general condition. A letter containing the required information may also be used. (d) Agency Coordination: (1) The district engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level. (2) For all NWP activities that require pre -construction notification and result in the loss of greater than 1/2-acre of waters of the United States, for NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre -construction notification and will result in the loss of greater than 300 linear feet of intermittent and ephemeral stream bed, and for all NWP 48 activities that require pre -construction notification, the district engineer will immediately provide (e.g., via e- mail, facsimile transmission, overnight mail, or other expeditious manner) a copy of the complete PCN to the appropriate Federal or state offices (U.S. FWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Office (THPO), and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will have 10 calendar days from the date the material is transmitted to telephone or fax the district engineer notice that they intend to provide substantive, site -specific comments. The comments must explain why the agency believes the adverse effects will be more than minimal. if so contacted by an agency, the district engineer will wait an additional 15 calendar days before making a decision on the pre -construction notification. The district engineer will fully consider agency comments received within the specified time frame concerning the proposed activity's compliance with the terms and conditions of the NWPs, including the need EXHIBIT E Environmental Permits Page 76 of 94 for mitigation to ensure the net adverse environmental effects to the aquatic environment of the proposed activity are minimal. The district engineer will provide no response to the resource agency, except as provided below. The district engineer will indicate in the administrative record associated with each pre -construction notification that the resource agencies' concerns were considered. For NWP 37, the emergency watershed protection and rehabilitation activity may proceed immediately in cases where there is an unacceptable hazard to life or a significant loss of property or economic hardship will occur. The district engineer will consider any comments received to decide whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5. (3) In cases of where the prospective permittee is not a Federal agency, the district engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by Section 305(b)(4)(13) of the Magnuson -Stevens Fishery Conservation and Management Act (4) Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre -construction notifications to expedite agency coordination. D. District Eneineer's Decision 1. In reviewing the PCN for the proposed activity, the district engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or maybe contrary to the public interest. Fora linear project, this determination will include an evaluation of the individual crossings to determine whether they individually satisfy the terms and conditions of the NWP(s), as well as the cumulative effects caused by all of the crossings authorized by NWP. If an applicant requests a waiver of the 300 linear foot limit on impacts to intermittent or ephemeral streams or of an otherwise applicable limit, as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51 or 52, the district engineer will only grant the waiver upon a written determination that the NWP activity will result in minimal adverse effects. When making minimal effects determinations the district engineer will consider the direct and indirect effects caused by the NWP activity. The district engineer will also consider site specific factors, such as the environmental setting in the vicinity of the NWP activity, the type of resource that will be affected by the NWP activity, the functions provided by the aquatic resources that will be affected by the NWP activity, the degree or magnitude to which the aquatic resources perform those functions, the extent that aquatic resource functions will be lost as a result of the NWP activity (e.g., partial or complete loss), the duration of the adverse effects (temporary or permanent), the importance of the aquatic resource functions to the region (e.g., watershed or ecoregion), and mitigation required by the district engineer. if an appropriate functional assessment method is available and practicable to use, that assessment method may be used by the district engineer to assist in the minimal adverse effects determination. The district engineer may add case -specific special conditions to the NWP authorization to address site -specific environmental concerns. 2. If the proposed activity requires a PCN and will result in a loss of greater than 1/10- acre of wetlands, the prospective permittee should submit a mitigation proposal with the PCN. Applicants may also propose compensatory mitigation for projects with smaller impacts. The district engineer will consider any proposed compensatory mitigation the applicant has included in the proposal in determining whether the net adverse environmental effects to the aquatic EXHIBIT E Environmental Permits Page 77 of 94 environment of the proposed activity are minimal. The compensatory mitigation proposal may be either conceptual or detailed. If the district engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse effects on the aquatic environment arc minimal, after considering mitigation, the district engineer will notify the permittee and include any activity -specific conditions in the NWP verification the district engineer deems necessary. Conditions for compensatory mitigation requirements must comply with the appropriate provisions at 33 CFR 332.3(k). The district engineer must approve the final mitigation plan before the permittee commences work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation. If the prospective permittee elects to submit a compensatory mitigation plan with the PCN, the district engineer will expeditiously review the proposed compensatory mitigation plan. The district engineer must review the proposed compensatory mitigation plan within 45 calendar days of receiving a complete PCN and determine whether the proposed mitigation would ensure no more than minimal adverse effects on the aquatic environment. If the net adverse effects of the project on the aquatic environment (after consideration of the compensatory mitigation proposal) are determined by the district engineer to be minimal, the district cngineer will provide a timely written response to the applicant. The response will state that the project can proceed under the terms and conditions of the NWP, including any activity -specific conditions added to the NWP authorization by the district engineer. 3. If the district engineer determines that the adverse effects of the proposed work are more than minimal, then the district engineer will notify the applicant either: (a) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (b) that the project is authorized under the NWP subject to the applicant's submission of a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level; or (c) that the project is authorized under the NWP with specific modifications or conditions. Where the district engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN. period, with activity -specific conditions that state the mitigation requirements. The authorization will include the necessary conceptual or detailed mitigation or a requirement that the applicant submit a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level. When mitigation is required, no work in waters of the United States may occur until the district engineer has approved a specific mitigation plan or has determined that prior approval of a final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation. E. Further Information 1. District Engineers have authority to determine if an activity complies with the terms and conditions of an NWP. 2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law. 3. NWPs do not grant any property rights or exclusive privileges. EXHIBIT E Environmental Permits Page 78 of 94 4. NWPs do not authorize any injury to the property or rights of others. 5. NWPs do not authorize interference with any existing or proposed Federal project. F. Definitions Best management Practices MPs): Policies, practices, procedures, or structures implemented to mitigate the adverse environmental effects on surface water quality resulting from development. BMPs are categorized as structural or non-structural. Compensatory mitigation: The restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved. Currently serviceable: Useable as is or with some maintenance, but not so degraded as to essentially require reconstruction. Direct effects: Effects that are caused by the activity and occur at the same time and place. Discharge: The term "discharge" means any discharge of dredged or fill material. Enhancement: The manipulation of the physical, chemical, or biological characteristics of an aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s). Enhancement results in the gain of selected aquatic resource function(s), but may also lead to a decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic resource area - Ephemeral stream: An ephemeral stream has flowing water only during, and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow. Establishment (creation): The manipulation of the physical, chemical, or biological characteristics present to develop an aquatic resource that did not previously exist at an upland site. Establishment results in a gain in aquatic resource area. High Tide Line: The line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm. Historic Property: Any prehistoric or historic district, site (including archaeological site), building, structure, or other object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to anIndian tribe or Native Hawaiian organization and that meet the National Register criteria (36 CFR part 60). Independent utility: A test to determine what constitutes a single and complete non -linear project in the Corps regulatory program. A project is considered to have independent utility if it EXHIBIT E Environmental Permits Page 79 of 94 would be constructed absent the construction of other projects in the project area. Portions of a multi -phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility. Indirect effects: Effects that are caused by the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Intermittent stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow. Loss of waters of the United States: Waters of the United States that are permanently adversely affected by filling, flooding, excavation, or drainage because of the regulated activity. Permanent adverse effects include permanent discharges of dredged or fill material that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a waterbody. The acreage of loss of waters of the United States is a threshold measurement of the impact to jurisdictional waters for determining whether a project may qualify for an NWP; it is not a net threshold that is calculated after considering compensatory mitigation that may be used to offset losses of aquatic functions and services. The loss of stream bed includes the linear feet of stream bed that is filled or excavated. Waters of the United States temporarily filled, flooded, excavated, or drained, but restored to pre -construction contours and elevations after construction, are not included in the measurement of loss of waters of the United States. Impacts resulting from activities eligible for exemptions under Section 404(f) of the Clean Water Act are not considered when calculating the loss of waters of the United States. Non -tidal wetland: A non -tidal wetland is a wetland that is not subject to the ebb and flow of tidal waters. The definition of a wetland can be found at 33 CFR 328.3(b). Non -tidal wetlands contiguous to tidal waters are located landward of the high tide line (i.e., spring high tide line). ,Open water: For purposes of the N W Ps, an open water is any area that in a year with normal patterns of precipitation has water flowing or standing above ground to the extent that an ordinary high water mark can be determined. Aquatic vegetation within the area of standing or flowing water is either non -emergent, sparse, or absent. Vegetated shallows are considered to be open waters. Examples of "open waters" include rivers, streams, lakes, and ponds. Ordinary High Water Mark: An ordinary high water mark is a line on the shore established by the fluctuations of water and indicated by physical characteristics, or by other appropriate means that consider the characteristics of the surrounding areas (see 33 CFR 328.3(e)). Perennial stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow. Practicable: Available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. Pre -construction notification: A request submitted by the project proponent to the Corps for confirmation that a particular activity is authorized by nationwide permit. The request may be a permit application, letter, or similar document that includes information about the proposed work and its anticipated environmental effects. Pre -construction notification may be required by EXHIBIT E Environmental Permits Page 80 of 94 the terms and conditions of a nationwide permit, or by regional conditions. A pre -construction notification may be voluntarily submitted in cases where pre -construction notification is not required and the project proponent wants confirmation that the activity is authorized by nationwide permit. Preservation: The removal of a threat to, or preventing the decline of, aquatic resources by an action in or near those aquatic resources. This term includes activities commonly associated with the protection and maintenance of aquatic resources through the implementation of appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic resource area or functions. Re-establishment: The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former aquatic resource. Re-establishment results in rebuilding a former aquatic resource and results in a gain in aquatic resource area and functions. Rehabilitation: The manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural/historic functions to a degraded aquatic resource. Rehabilitation results in a gain in aquatic resource function, but does not result in a gain in aquatic resource area. Restoration: The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former or degraded aquatic resource. For the purpose of tracking net gains in aquatic resource area, restoration is divided into two categories: re-establishment and rehabilitation. Riffle and pool complex: Riffle and pool complexes are special aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a course substrate in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize Pools. Riparian areas: Riparian areas are lands adjacent to streams, lakes, and estuarine -marine shorelines. Riparian auras are transitional between terrestrial and aquatic ecosystems, through which surface and subsurface hydrology connects riverine, lacustrine, estuarine, and marine waters with their adjacent wetlands, non -wetland waters, or uplands. Riparian areas provide a variety of ecological functions and services and help improve or maintain local water quality. (See general condition 23.) Shellfish seeding: The placement of shellfish seed and/or suitable substrate to increase shellfish production. Shellfish seed consists of immature individual shellfish or individual shellfish attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may consist of shellfish shells, shell fragments, or other appropriate materials placed into waters for shellfish habitat. Single and complete linear project: A linear project is a project constructed for the purpose of getting people, goods, or services from a point of origin to a terminal point, which often involves multiple crossings of one or more waterbodies at separate and distant locations. The term "single and complete project" is defined as that portion of the total linear project proposed or accomplished by one owner/developer or partnership or other association of owners/developers that includes all crossings of a single water of the United States (i.e., a single waterbody) at a specific location. For linear projects crossing a single or multiple waterhodies EXHIBIT E Environmental Permits Page 81 of 94 several times at separate and distant locations, each crossing is considered a single and complete project for purposes of NWP authorization. However, individual channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies, and crossings of such features cannot be considered separately. Single and complete non -linear Project: For non -linear projects, the term "single and complete project" is defined at 33 CFR 330.2(i) as the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers. A single and complete non -linear project must have independent utility (see definition of"independent utility"). Single and complete non -linear projects may not be "piecemealed" to avoid the limits in an NWP authorization. Stormwater management: Stormwater management is the mechanism for controlling stormwater runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding and mitigating the adverse effects of changes in land use on the aquatic environment. Stormwater management facilities: Stormwater management facilities are those facilities, including but not limited to, stormwater retention and detention ponds and best management practices, which retain water for a period of time to control runoff and/or improve the quality (i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater runoff. Stream bed: The substrate of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorganic particles that range in size from clay to boulders. Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not considered part of the stream bed. Stream channelization: The manipulation of a stream's course, condition, capacity, or location that causes more than minimal interruption of normal stream processes. A channelized stream remains a water of the United States. Structure: An object that is arranged in a definite pattern of organization. Examples of structures include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent mooring structure, power transmission line, permanently moored floating vessel, piling, aid to navigation, or any other manmade obstacle or obstruction. Tidal wetland: A tidal wetland is a wetland (i.e., water of the United States) that is inundated by tidal waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 328.3(f), respectively. Tidal waters rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer he practically measured in a predictable rhythm due to masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the high tide line, which is defined at 33 CFR 328.3(d). Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1) Guidelines. They are areas that are permanently inundated and under normal circumstances have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of vascular rooted plants in freshwater systems. W aterbodv: For purposes of the NWPs, a waterbody is a jurisdictional water of the United States. If a jurisdictional wetland is adjacent — meaning bordering, contiguous, or neighboring— to a waterbody determined to be a water of the United States under 33 CFR 328.3(a)(1)-(6), that waterbody and its adjacent wetlands are considered together as a single EXHIBIT E Environmental Permits Page 82 of 94 aquatic unit (see 33 CFR 328.4(c)(2)). Examples of "waterbodies" include streams, rivers, lakes, ponds, and wetlands. ADDITIONAL INFORMATION This nationwide permit is effective March 19, 2012, and expires on March 18, 2017. Information about the U.S. Army Corps of Engineers regulatory program, including nationwide permits, may also be accessed at hgp://v%,ww.swfusacc,.army.mil/rcpulatory or http:i/www.usace.army.miLMissions.'CivilWorks/Re ue lator ProaramandPermitsasspx NATIONWIDE PERMIT (NWP) REGIONAL CONDITIONS FOR THE STATE OF TEXAS The following regional conditions annly within the entire State of Texas: 1. Compensatory mitigation is required at a minimum one -for -one ratio for all special aquatic site losses that exceed 1 A 0 acre and require pre -construction notification (PCN), and for all losses to streams that exceed 300 linear feet and require PCN, unless the appropriate District Engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project -specific waiver of this requirement. 2. For all discharges proposed for authorization under nationwide permits (NWP) 3, 6, 7, 12, 14, 18, 19, 25, 27, 29, 39, 40, 41, 42, 43, 44, 51, and 52, into the following habitat types or specific areas, the applicant shall notify the appropriate District Engineer in accordance with the NWP General Condition 31, Pre -Construction Notification (PCN). The Corps of Engineers (Corps), except for the Tulsa District, will coordinate with the resource agencies as specified in NWP General Condition 31(d) (PCN). The habitat types or areas are: a. Pitcher Plant Bogs: Wetlands typically characterized by an organic surface soil layer and include vegetation such as pitcher plants Sarracenia sp.), sundews rosera sp.), and sphagnum moss (Snhamum sp.). b. Bald Cypress -Tupelo Swamps: Wetlands comprised predominantly of bald cypress trees I'axodium distichum , and water tupelo trees ssa a uatica , that are occasionally or regularly flooded by fresh water. Common associates include red maple Acer rubrum , swamp privet orestiera acuminate , green ash raxinus oennsylvanica) and water elm lanera uatica . Associated herbaceous species include lizard's tail Sautvrus cemuus , water mermaid weed (Proseruinaca slip.), buttonbush (Ceohalanthus occidentalis) and smartweed (Polvgonum spp.). (Eyre, F. H. Forest Cover Types of the United States and Canada. 1980. Society of American Foresters, 5400 Grosvenor Lane, Bethesda, Maryland 20814-2198. Library of Congress Catalog Card No. 80-54185) 3. For all activities proposed for authorization under NWP 12 that involve a discharge of fill material associated with mechanized land clearing in a forested wetland, the applicant shall EXHIBIT E Environmental Permits Page 83 of 94 notify the appropriate District Engineer in accordance with the NWP General Condition 31 (Pre - Construction Notification) prior to commencing the activity. 4. For all activities proposed for authorization under NWP 16, the applicant shall notify the appropriate District Engineer in accordance with the NWP General Condition 31 (Pre - Construction Notification), and work cannot begin under NWP 16 until the applicant has received written approval from the Corps. 5. For all discharges proposed for authorization under all N WPs, into the area of Caddo Lake within Texas that is designated as a "Wetland of International Importance" under the Ramsar Convention, the applicant shall notify the Fort Worth District Engineer in accordance with the NWP General Condition 31. The. Corps will coordinate with the resource agencies as specified in NWP General Condition 31(d) (Prc-Construction Notification). 6. For all discharges proposed for authorization under NWP 43 that occur in forested wetlands, the applicant shall notify the Fort Worth District Engineer in accordance with the General Condition 31 (Pre -Construction Notification). 7. For all discharges proposed for authorization under any nationwide permit in Dallas, Denton, and Tarrant Counties that are within the study area of the "Final Regional Environmental Impact Statement (EIS), Trinity River and Tributaries" (May 1986), the applicant shall meet the criteria and follow the guidelines specified in Section III of the Record of Decision for the Regional EIS, including the hydraulic impact requirements. A copy of these guidelines is available upon request from the Fort Worth District and at the District website www.swf.usace.army.mil (select "Permits"). 8. Federal Projects. The applicant shall notify the Forth Worth District Engineer in accordance with the NWP General Condition 31, Pre -Construction Notification (PCN) for any regulated activity where the applicant is proposing work that would result in the modification or alteration of any completed Corps of Engineer projects that are either locally or federally maintained and for work that would occur within the conservation pool or flowage easement of any Corps of Engineers lake project. PCN's cannot be deemed complete until such time as the Corps has made a determination relative to 33 USC Section 408, 33 CFR Part 208, Section 208.10, 33 CFR Part 320, Section 320.4. 9. Invasive and Exotic Species. Best management practices are required where practicable to reduce the risk of transferring invasive plant and animal species to or from project sites. Information concerning state specific lists and threats can be found at: h!W://www.invasivespeciesinfo.eov/unitedstates/tx.slitmi. Best management practices can be found at: httn://www.invasivesoeciesinfo.eov/toolkit/orevention.shtml. Known zebra mussel waters within can be found at: http://nas.er.usgs.eov/Queries/LmbysLas�. EXHIBIT E Environmental Permits Page 84 of 94 10. For all discharges proposed for authorization under NWPs 51 and 52, the Corps will provide the PCN to the US Fish and Wildlife Service as specified in NWP General Condition 31(d)(2) for its review and comments. EXHIBIT E Environmental Permits Page 85 of 94 EXHIBIT E Environmental Permits Page 86 of 94 -IVIOU3WWOO IIVIM ONlNcJS NOANVO MOOVHS o ooeHnS jej!geH leOpuO -dOd O lOV2LL NOANVO MOOVHS ® 9L=l IR Kzl SONINdS ■ S-LN3W3SV3OM � r 3Hn1V3d 1S21VN n — 3lONIW3S 3NIl3dld £ - deep 4 9OZ '9£-d IIeM jejeM * 3M3SMd 1S8M1 dOH F uleldpoold JeaA 00L VW3d ® U]Nnnnoo e0eynsgnS )eEgeH IMMUO -dOJd C) S.LNBWlaVdV 3StlHd 1N3WdO13�0 1N3WdOl3A3U NOANVO MOOb'HS M31AI13AO 4 mino d m WWW OS6 On on 08 06 o ? r, "=I 1 !mlmwl� o09'L o0Z'L 009 006 OR 0 ;�.\ 1 I I 1 .�� ' r :._ -hrr u a� V1 I+' + 1.0)♦ SPA STATE HII e, t soU[HFORA _SANGA'E3RIELRIVER^).���� ! ` t 0 0.25 0.5 1 Miles FIGURE 2. ACTION AREA - SHADOW CANYON PROJECT - i `�• `'"� Action Area On &Near Shadow Canyon RIVERS & CREEKS ZONE - EDWARDS AQUIFER TCEQ Proposed Critical Habitat Subsurface Unit No. - Contributing Recharge ` IJ SHADOW CANYON TRACT Transition , - - - PROPOSED ROAD SW3 Waterway_ActionArea 6 s MS OVOa 03SOdOad o ..CZ a6,u43. 9-lvwl , TdIOa3WW0o lltll3a EP ll3M 9Ej � ` j U33(1 ONv- AIIWt-iiiinW lVI1N3OIS3a I i I ONIadS s�-d Q E-1VM Z D .�.yns9WS I.Y.9.H I- WO P"oda� SNIadS Ypd El ZdVM4-4*4m# .aeyWS 7eP9.H IeoPuO Paaoduy® ll3MYONV-S9NIad5 Z t lVMo%lf °JNIadSNOAWDMOOVHS 35VHd 1OV211 NOAM10MOOVHSI i L—r� N3321O SlOI IVIlN3OIS3?3 S3SVHd-MM013A30 ONV SAVMN3IVM 404 N01103S - lOVrdl NOANVO MOOVHS '£ 3zinqu r SiGPIN 094 09E 04Z M 09 0 >r _ Y 1 4e �q ® d^e e /i_ aLo A NOANVO E Number Ske Name HYDROUNIT HUC12 to Cobb Springs Dry Barry Ck lb Cobb Well Dry Barry Ck 2 Cowan CwerJt Spring law Berry ck 3 Bat Wag Cans Lox Barry Ck 4 Wahna Sprig Lk G'tovm 5 Twln Spring Lk Gtawn 6 Hogg Hollow spring Lk Gl wm 1 Cedar Hollow Spring Lk GYown Ba Knign Spring Lk G'town Bb coder Brasier Hiking Trail Lk Glaxn 9 Water Tank Cave N&M Fork San Gabriel 10 Pmam Sprig N&MFork San Gabriel 11 Buford Hollow Sprbgs N&M Fork San Gabriel 12 Swhnbank Spring N&M Fork Sae Gabriel 13 Shadow Carryon Spring L S Fmk Sae Gabriel 14 San Gabriel Spring Smith Brood & San Gabriel 15 Garay Ranh Spring L S Fork San Gabriel 16 Hogg HoSom 0 Spring Lk GYown r 1 • �, 1 yg / ELoByCgkvr LakGeorg E c I __�J 0 0.5 1 2 ®Milea ) (\ FIGURE 4 OVERVIEW GEORGETOWN SALAMANDER SITES Q Proposed critical Habitat Subsurface <= 300 m m- PROPOSED ROAD SW3 SHADOW CANYON BOUNDARY ® GEORGETOWN SALAMANDER SITE 7*1 Om m 0 10 >- MCI w 0 D O 0 0 > Im -0 > w >Z> ANK,57777, 0 O HO > z O o d E 0 60 160 320 Meters FIGURE 6a 80 METER SETBACK FROM SHADOW CANYON SPRING j IShatlmv Cerrym pmetl Subsurface CH ECHARGEZONE ffaratPmadm ( jBO M Sedme fmm Spring =-YE FLOODPL N .__�r. �/ (DWELL SPRING E V.O Enammt ®PropmW Surfxa CH 0 Shod w Crtrym SpNg OupdS WAUVO xnMa 0 HDWS;MSPWdwd� 1Nawem rm IL.J� 9NNds ITT MO H daoo'Id Utl -OOWWPdS ww/yav9leS W oil ) —d*M 3NOZ 3aNtlH�3 H�ea9mc7nS DesoOWnl lr+w uoRueJ x.We4Sl V.� �I t ._—_ alLOS OO6VONMdS NOANVO MOGVHS W02H N3tl913S bAJ-31N 08 99 M ingiA U, f= Ma;aW 09 Ot4 OZ m 0 a m m rn N a E a a n c u E c 0 c w EXHIBIT F Master Development Fee Calculation Form INSTALLMENT WORKSHEET TOTAL DISTRICT BONDS SOLD: $ LESS ALLOWABLE DEDUCTIONS: Surplus and Escrowed Funds $ Non -Construction Costs: Legal and Financial Advisory Fees: $ Interest Costs: Capitalized Interest $ Developer Interest $ Bond Discount $ Administrative and Organization $ (including creation costs and operating advances) Bond Application, Market Study, $ and other bond issuance costs (based upon costs approved far reimbursement under applicable TCEQ rules, and an audit of developer reimbursable expenses performed at the time of each Bond issue) TCEQ Bond Issuance Fee $ Application, Review and Inspection Fees $ TOTAL ALLOWABLE DEDUCTIONS: $ NET MDF AFTER ALLOWABLE DEDUCTIONS: CITY PERCENTAGE: TOTAL MDF: X 10%*"* ** ACTUAL AMOUNT TO BE BASED ON COSTS APPROVED FOR REIMBURSEMENT BY TCEQ AS AUDITED BY DISTRICT AUDIT *** OR SUCH OTHER PERCENTAGE DETERMINED IN ACCORDANCE WITH SECTION S.64 OF THE CONSENT AGREEMENT Consent Agreement Williamson County MUD #34 Exhibit F Page 1 of 1 EXHIBIT G PARTIAL ASSIGNMENT OF RECEIVABLES AGREEMENT 278 Georgetown Inc., a Texas corporation ("Assignor'), located at 4408 Spicewood Springs Road, Austin, Texas 78759, has entered into a Development Financing Agreement (the "Financing Agreement") with Williamson County Municipal Utility District No. 34 (the "District") in connection with the design and construction of certain water, sewer, drainage, water quality, transportation and other facilities on the condition that the Assignor will be reimbursed in the future from the sale of bonds issued by the District for such purposes, subject to the terms and conditions of the Financing Agreement and the Consent Agreement by and among Assignor, the District, and the City of Georgetown, Texas ("Assignee") setting forth the terms and conditions of Assignees consent to creation of the District. Assignor hereby assigns TEN PERCENT (10%) of the net proceeds received from the District through the issuance of every series of bonds issued by the District (the "Funds") to Assignee in satisfaction of the requirements of Section 5.04 of the above - referenced Consent Agreement, or such other percentage of proceeds as the City may determine is necessary in accordance with Section 5.04 of the Consent Agreement, but not to exceed a cumulative total of ONE MILLION FIVE HUNDRED THOUSAND U.S. DOLLARS ($1,500,000.00). The District and Assignor shall ensure that each installment payment of the Funds will be paid to the City in conjunction and simultaneously with Owner's receipt of reimbursement from the bonds. Assignor and Assignee agree that this partial assignment of the Funds shall terminate at such time as the City has received an aggregate total of ONE MILLION FIVE HUNDRED THOUSAND U.S. DOLLARS ($1,500,000.00) of Funds. Assignor and Assignee shall file an executed Termination of Partial Assignment of Receivables Agreement in the Official Public Records of Williamson County at such time. By execution of this instrument, Assignee hereby accepts such assignment and assumes all of Assignor's rights, title, and interests in and to the Funds and the right to receive the Funds, and instructs the District to pay the Funds to Assignee rather than Assignor. Executed to be effective on the day of 20. (signatures follow) Consent Agreement Williamson County MUD #34 Exhibit G Page 1 of 4 ASSIGNOR: 278 GEORGETOWN, INC., a Texas corporation 0 Date: STATE OF TEXAS § § COUNTY OF § Joseph W. Straub, President This instrument was acknowledged before me the _ day of , 2016, by Joseph W. Straub, in his capacity as President of 278 Georgetown, Inc., a Texas corporation, on behalf of said corporation. Notary Public Signature Printed Name: My Commission Expires: Consent Agreement Williamson County MUD #34 Exhibit G Page 2 of 4 The Assignee hereby accepts the Partial Assignment of Receivables. Executed this the day of 20_ CITY OF GEORGETOWN, TEXAS a Mayor ATTEST: By: City Secretary APPROVED AS TO FORM: um City Attorney STATE OF TEXAS § § COUNTY OF WILLIAMSON § This instrument was acknowledged before me the day of , 2016, by , Mayor of the City of Georgetown, Texas, a home -rule city, on behalf of the City. Notary Public Signature Printed Name: My Commission Expires: Consent Agreement Williamson County MUD #34 Exhibit G Page 3 of 4 The District hereby consents to the Partial Assignment of Receivables. Executed this the ATTEST: Name: Title: STATE OF TEXAS § COUNTY OF WILLIAMSON § day of WILLIAMSON COUNTY UTILITY DISTRICT NO.34 M President 20_ MUNICIPAL This instrument was acknowledged before me the _ day of , 201,E by , President of Williamson County Municipal Utility District No. 34, a special district formed and operating under Chapters 49 and 54 of the Texas Water Code. Notary Public Signature Printed Name: My Commission Expires: Consent Agreement Williamson County MUD #34 Exhibit G Page 4 of 4 EXHIBIT H WILLIAMSON COUNTY MUNICIPAL UTILITY DISTRICT NO.34 NOTICE TO PURCHASER THE STATE OF TEXAS COUNTY OF WILLIAMSON The real property, described below, that you are about to purchase is located in the Williamson County Municipal Utility District No. 34 (the "District'). The District has taxing authority separate from any other taxing authority and may, subject to voter approval, issue an unlimited amount of bonds and levy an unlimited rate of tax in payment of such bonds. As of this date, the rate of taxes levied by the District on real property located in the District is $ on each $100 of assessed valuation. If the District has not yet levied taxes, the most recent projected rate of tax, as of this date, is $ on each $100 of assessed valuation. The total amount of bonds, excluding refunding bonds and any bonds or any portion of bonds issued that are payable solely from revenues received or expected to be received under a contract with a governmental entity, approved by the voters and which have been or may, at this date, be issued is $. and the aggregate initial principal amounts of all bonds issued for one or more of the specified facilities of the District and payable in whole or in part from property taxes is $ The District has the authority to adopt and impose a standby fee on property in the district that has water, sanitary sewer, or drainage facilities and services available but not connected and which does not have a house, building, or other improvement located thereon and does not substantially utilize the utility capacity available to the property. The District may exercise the authority without holding an election on the matter. As of this date, the most recent amount of the standby fee is $ . An unpaid standby fee is a personal obligation of the person that owned the property at the time of imposition and is secured by alien on the property. Any person may request a certificate from the District stating the amount, if any, of unpaid standby fees on a tract of property in the District. The District is located in whole or in part within the corporate boundaries of the City of Georgetown, Texas. The taxpayers of the District are subject to the taxes imposed by the municipality and by the district until the district is dissolved. By law, a District located within the corporate boundaries of a municipality may be dissolved by municipal ordinance without the consent of the District or the voters of the District. Consent Agreement Williamson County MUD #34 Exhibit H Page 1 of 3 The purpose of this District is to provide water, sewer, drainage, or flood control facilities and services within the district through the issuance of bonds payable in whole or in part from property taxes. The cost of these utility facilities is not included in the purchase price of your property, and these utility facilities are owned or to be owned by the district. The legal description of the property you are acquiring is as follows: (Date) Signature of Seller PURCHASER IS ADVISED THAT THE INFORMATION SHOWN ON THIS FORM IS SUBJECT TO CHANGE BY THE DISTRICT AT ANY TIME. THE DISTRICT ROUTINELY ESTABLISHES TAX RATES DURING THE MONTHS OF SEPTEMBER THROUGH DECEMBER OF EACH YEAR, EFFECTIVE FOR THE YEAR IN WHICH THE TAX RATES ARE APPROVED BY THE DISTRICT. PURCHASER IS ADVISED TO CONTACT THE DISTRICT TO DETERMINE THE STATUS OF ANY CURRENT OR PROPOSED CHANGES TO THE INFORMATION SHOWN ON THIS FORM. "The undersigned purchaser hereby acknowledges receipt of the foregoing notice at or prior to execution of a binding contract for the purchase of the real property described in such notice or at closing of purchase of the real property. (Date) Signature of Purchaser "(Note: Correct tax rate, bond amounts, and legal description are to be placed in the appropriate space.) Except for notices included as an addendum or paragraph of a purchase contract, the notice shall be executed by the seller and purchaser, as indicated. If the district does not propose to provide one or more of the specified facilities and services, the appropriate purpose may be eliminated. If the district has not yet levied taxes, a statement of the district's most recent projected rate of tax is to be placed in the appropriate space. If the district does not have approval from the TCEQ to adopt and impose a standby fee, the second paragraph of the notice may be deleted. For the Consent Agreement Williamson County MUD #34 Exhibit H Page 2 of 3 purposes of the notice form required to be given to the prospective purchaser prior to execution of a binding contract of sale and purchase, a seller and any agent, representative, or person acting on the seller's behalf may modify the notice by substitution of the words 'January 1, ' for the words 'this date' and place the correct calendar year in the appropriate space.) Consent Agreement Williamson County MUD #34 Exhibit H Page 3 of 3 ORDINANCE NO. An Ordinance of the City Council of the City of Georgetown, Texas, amending part of the Official Zoning Map to rezone approximately 278.21 acres of the Isaac Donagan and Joseph Thompson Surveys from the Residential Single -Family (RS) District to the Planned Unit Development (PUD) District; repealing conflicting ordinances and resolutions; including a severability clause; and establishing an effective date. Whereas, an application has been made to the City for the purpose of amending the Official Zoning Map, adopted on the 121h day of June, 2012, for the specific Zoning District classification of the following described real property ("The Property"): 278.21 acres of the Isaac Donagan and Joseph Thompson Surveys, as described in the attached survey, hereinafter referred to as "The Property'; and Whereas, the City Council has submitted the proposed amendment to the Official Zoning Map to the Planning and Zoning Commission for its consideration at a public hearing and for its recommendation or report; and Whereas, public notice of such hearing was accomplished in accordance with State Law and the City's Unified Development Code through newspaper publication, signs posted on the Property, and mailed notice to nearby property owners; and Whereas, the Planning and Zoning Commission, at a meeting on May 3, 2016, held the required public hearing and submitted a recommendation of approval to the City Council for the requested rezoning of the Property with the following recommended changes to the PUD development plan: 1) As illustrated on Exhibit D to the PUD Ordinance, Open Space Summary, the Concept Plan requires at least 22 acres of public parkland/open space to be located along the South San Gabriel River, and for a public trail (the San Gabriel River Trail) to be located in the parkland. This 22 acre public parkland and associated San Gabriel River Trail, will, when dedicated and constructed, fully satisfy the City's parkland dedication requirements for the Property,as well as the pr-epefty . The entirety of the 22 acres of parkland shall be dedicated to the City, along with public right-of-way, no later than the recording of the first Final Plat for any portion of the Property containing residential lots. 2) The trail shall be approximately 5,266 linear feet in length constructed along the entire length of the South San Gabriel River as it traverses the Property, be ten foot Ordinance Number: Description: Shadow Canyon PUD Ordinance Date Approved: May 24, 2016 Page 1 of 3 Case File Number: REZ-2016-002 Exhibits A & B Attached (10)' wide, and be made of concrete. It must be located within the dedicated parkland or the open space in the general location shown on Exhibit D to the PUD Ordinance. The trail 4aillwad 1erA4ietss shall be constructed to meet Texas Accessibility Standards (TAS). 3) The trail shall be constructed in its entirety on the earlier of; (a) Prior to final acceptance of any lot in Parcel 2, 6 or 7 shown on Exhibit D to the PUD Ordinance, let dot; or (b) 180 days after the City provides written notice via the means stated in the Consent Agreement stating that design or construction of any adjacent section of the trail (on property east or west of the Property) has commenced. Final acceptance of any lot shall be defined as final acceptance of the subdivision iml2rovements serving any part parcel 2, 6, or 7 shown on exhibit D. Should fiscal be posted to allow the recordation of the subdivision plat for one of the above mentioned parcels the posted fiscal instrument shall not be released until the trail is complete; and Whereas, the City Council, at a meeting on May 10, 2016, held an additional public hearing prior to taking action on the requested rezoning of the Property. Now, therefore, be it ordained by the City Council of the City of Georgetown, Texas, that: Section 1. The facts and recitations contained in the preamble of this Ordinance are hereby found and declared to be true and correct, and are incorporated by reference herein and expressly made a part hereof, as if copied verbatim. The City Council hereby finds that this Ordinance implements the vision, goals, and policies of the Georgetown 2030 Comprehensive Plan and further finds that the enactment of this Ordinance is not inconsistent or in conflict with any other policies or provisions of the 2030 Comprehensive Plan and the City's Unified Development Code. Section 2. The Official Zoning Map, as well as the Zoning District classification for the Property is hereby amended from the Residential Single -Family (RS) district to the Planned Unit Development (PUD) district with a base zoning district of Residential Single -Family (RS), in accordance with the attached Exhibit A (Field Notes and Sketch), Exhibit B (PUD Development Plan) and incorporated herein by reference. Section 3. All ordinances and resolutions, or parts of ordinances and resolutions, in conflict with this Ordinance are hereby repealed, and are no longer of any force and effect. Section 4. If any provision of this Ordinance or application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions, or application thereof, of this Ordinance which can be given effect without the invalid provision or Ordinance Number: Page 2 of 3 Description: Shadow Canyon PUD Ordinance Case File Number: REZ-2016-002 Date Approved: May 24, 2016 Exhibits A & B Attached application, and to this end the provisions of this Ordinance are hereby declared to be severable. Section 5. The Mayor is hereby authorized to sign this ordinance and the City Secretary to attest. This ordinance shall become effective in accordance with the provisions of state law and the City Charter of the City of Georgetown. APPROVED on First Reading on the 101hday of May, 2016. APPROVED AND ADOPTED on Second Reading on the 241s day of May, 2016. THE CITY OF GEORGETOWN: Dale Ross Mayor APPROVED AS TO FORM: Charlie McNabb City Attorney Ordinance Number: Description: Shadow Canyon PUD Ordinance Date Approved: May 24, 2016 ATTEST: Shelley Nowling City Secretary Page 3 of 3 Case File Number: REZ-2016-002 Exhibits A & B Attached Exhibit Page I of 10 ase ine LandSurveyors, Inc. 8J33 Cyas+P.hrP,•0riae .Aarrin, fftpu 78754 Wgirtartd7irm av10015100 Offm 512.374.9722 'fax: SIL873-9743 METES AND BOUNDS DESCRIPTION BEING 278.21 ACRES OF LAND OUT OF THE ISAAC DONAGAN SURVEY, ABSTRACT NUMBER 178 AND THE JOSEPH THOMPSON SURVEY, ABSTRACT NUMBER 608; BOTH IN WILLIAMSON COUNTY, TEXAS, AND BEING THAT SAME TRACT OF LAND CONVEYED AS 278.212 ACRES TO 278 GEORGETOWN INC. BY INSTRUMENT OF RECORD IN DOCUMENT NUMBER 2014094143 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING at a 12" rebar found for the northernmost northeast comer of said 279.212 acre tract, being the northwest comer of a 10.550 acre toot of land conveyed to MGC Highway 29 Development, LL-C by instrument of record in Document Number 2007014835 of the Official Public Records of Williamson County, Texas and also being in Ore south right-of-way line of State Highway Nunber 29 (R.O.W. varies}, THENCE along the north line of the 278.212 acre tract and the west and south lines of said 10.550 amebeer the following four (4) courses: 1. South 04928'24" West(record: South 04031100" West), passing at a distance of 18.38 feet a 12" rebar found with plastic cap, which reads "G & R Surveying" and continuing for a total distance of71.56 fad (record: 71.55 feet) to a l2" mbar found; 2. South 72146'33" Fast wrlistance of 556:93 feet (record: South 72048'45" Eau a distance of 556.79 feet) to a 12"mbar sawhh plastic cap which m.ads "Baseline, Inc.'; 3. Soudr 79"18'22" East a distance of 70.58 fmt (record: South 79°2245" Last a distanceof 70.62 feet) to a 5/8" rebar found; 4. North 690I6'34" Bast a distance of 197.69 feet (record: North 69018'00" Pau a distance of 197.85 feet) to a 12" rebar set with plastic cap, which reads "Baseline, Inc." for the easternmost northeast comer of the 278.212 acre tract; THENCE South 25"58'40" Eau (record: South 260O1'15" Eau), along do east line of the 278212 acm uact and continuing along the south line of the 10.550 acre tact a distance of 51.58 feet (ocord: 51.61 fact) to a 12" rcbar set with plastic cap, which reads "Baseline, Inc." for an angle point in the south line of the 10.550 acne tied and being the northwest comer of a 291.09 acre tract of land conveyed to Judy Dean Wolf Hindelang, Susan Jane Wolf Robertson, Jay Leon Wolf, Jr. end Iva Wolf McLachlun by instrument of record in Document Number 2009090679 of the Official Public Records of Williamson County, Texas and known therein as "Tract Five - Parcel Three,., (WO6527o6.3) A-1 Page 2 of 10 THENCE along the east line of the 278.212 acre tract and the west line of said 291.09 acre net the following eight (8) courses: 1. South 21008'52" East a distance of 692.23 feet (record: South 21"09' 15" East a dislanec of 692.23 fat) to a 12" rebar found; 2. South 21"15'01"Basta distance of393.09 feet (record: South 21°I7'00" East a distanceof 393.19 feet) to a 12 rebar found with cap, stamped "Pape Dawson"; 3. South 24059'27" Past a distance of 88.15 feet (record: South 24-58' 15" Fast a distance of 88.21 fat) to a 12" mbar found; 4. South 19038' 10" East a distance of 207.78 feet (record: South 19°39'00" East a distance of 207.78 feet) to a 12" rebar found; 5. South 2105711" East adistance of450AI feet(rccord: South 21°58'45" Fast a distance of 450.41 feet) to a I2" rebar found; 6. South 20055'39" East a distance of 911 A2 feet (record: South 20.56' 15" East a distance of 911.34 fat) to a 12" rebar found; 7. South 21 °40'34" East a distance of 388.49 feet (record: South 21-41'00" East a distance of 388A9 feet) to a W' nebarfound for the southeast comer of the 278212 acre tract, being the southwest comer of the 291.09 acre tract and being in Ore north line of a 457 acre tract of land conveyed to W.T. Guy by instrument of record in Volume 345, Page 460 of the Dad Records of Williamson County, Texas; THENCE South 49°50'28" West (record: South 49"49'00" West), crossing through said 457 acre tract, along the called south line of the 278212 acre tract, passing at a distance of 215.95 feet (record: 215.93 feet) a ]IT'rebar found with cap, stamped "RPLS 5784 on the edge of a bluff and continuing for a total distance of 295.28 fort (record: 295.15 fed) to a calculated point in the west line of the 457 acre tract, being the north line of a 104820 am tract of land conveyed to A.C. Weir and Esther Weir by instrument of record in Volume 522, Page 451 of the Deed Records of Williamson Comity, Texas and designated as "Firs[ Tract" therein and being the approximate centerline of the Son Gabriel River; THENCE North 81057'4T' West (record: North 81°59'00" West), along the called south line of the 278.212 acre tract, the west line of the 457 acre trad, the east line of said 1048.20 arse tract and the approximate centerline of the San Gabriel River, passing at a distance of 195.03 feet a calculated point at the approximate intersection of the cenerline of the San Gabriel River with the south line of the Isaac Donagan Survey, Abstract Number 178, being the north line of the Joseph Thompson Survey, Abstract Number 608 and being the northwest comer of the 457 acre had and continuing along the called south line of the 278.212 acre tract, the north line of the 1048.20 acre trod and the approximate centerline of the San "net River for a total distance of 645.06 fed (record: 644.97 fed) to a calculated point; THENCE along the south line of the 278.12 acre tract, the north line of the 1048.20 acre tract and the approximate centerline of the San Gabriel River the following six (6) courses: 1. South 55006'29" West a distance of 519.75 fed (record: South 55005'15" West a distance of 519.75 fat) to a calculated point, {Wo6527o6.3; A-2 Page 3 of 10 2. South 23001'29" Wear a distance of 1534.01 feet (record: South 23000'15" Weta distance of 1534.01 feet) to a calculated point; 3. South 69008'29" West a distance of 326.36 fed (record: South 69'07'15" West a distance of 326.36 fat) to a calculated point; 4. South 85"42'29" West a distance of 621.76 fed (record: South 85*41'15" West a distance of 621.76 fat) to a calculated point; S. South Sri I'29" West a distance of 269.60 foet (record: South 57010'15" West a distance of 269.60 feet) to a calculated point; 6. South 70'04'29" west a distanceof755.32 feet(=Ord: Soul100003'15"Westadisumceof 755.32 fed) to a calculated point for the northwest coma of the 1048.20 acne tract and being the northeast comer of a 190.40 core Imct of land conveyed to Tons Crushed Slone Company by instrument of record in Volume 743, Page 47 of the Deed Records of Williamson County, Texas; THENCE South 7504912" West (record: South 75048'15" West), along the seuth line of the 278212 acre tract, the nwrdh lire of said 190.40 acre had and the approximate centerline of the San Gabriel Rivera distanceof 116.10 fee( (record: 116.101bet) to a calculated point for the southwest comer of the 278.212 acre tract and being the southeast comer of a 103.9327 acre tract of land conveyed to Blbert L. Brown and Beverly D. Brown by instrument of record in V olume 2189, Page 585 of the Official Records of Williamson County, Texas; THENCE along the west line of the 278.212 acre tract and the east line of said 1039327 acre tract the following ten (10) courses: 1. North 01027' 13" West a distance of 1,642.38 feet (record: North 01 028'15" West a distance of 1,642.451 fat) to a M" Faber found; 2. North 84'56.46" East a distance of 498.41 feet (record: North 84"56'00" East a distance of 499.38 fat) to a 12" rebar found; 3. North 09'53'36" West a distance of 350.08 fed (record: North 0905445" West a distance of 350.05 fed) to a 1/T'rebor found; 4. North I1018'36' Westa distance of383.88 feet (record: North 11'21'45" West a distance of 383.76 feet) to a 1f2" rebar found; S. North 04'46'49" East a distance of 575.81 fed (record: North 04'47'00" East a distance of 575.94 feel) to a 1/2" mbar found; 6. North 10012'10" West a distance of 192.13 feet(record: North 10-11'15" West a distance of 192.14 feat) to, a nail found; 7. North 40'55' 15" East a distance of 13.10 fed (record: North 40'32' 15" East a distance of 13.02 fat) to a nail found; S. Nord 00'17'W' East a distance of 343.:70 fed (record: North 00015'45" Fast a distance of 343.66 fed) to a I/T'rebar with plastic cap set which reads "BASELINE INC."; (W0652706.3) A-3 Page 4 of 10 9. North 02.1 V06" West a distance of 320.09 fact (accord: Notch 02011' 15" West a distance of 319.98 feet) to a 12" rebnr Pound with illegible cap; 10. North 01 °54.34" West a distance of 174.14 fat (record: North 01"56'00" West a distance of 174.07 fat to a 12" richer found for the northwest comer of the 278.212 acre tract, being the southwest comer of Shadow Canyon Commercial Section 3; a subdivision of record in Document Number 2014095365 of the Official Public Records of Williamson County, Texas; from which a 12" rebar found in the was( line of said Shadow Canyon Commercial Section 3 and the east line of the 103.9327 acre tract hears North 01054'34" Wes[ a distance of 1,049.31 feet (record: North 01054'08" West adistance of 1,049.26 fat); THENCE along the north line of the 278212 arse trap and the south and east lines of Shadow Canyon Commercial Section 3 the following 5 coarser; I . North 83037.24" East a distance of 248.64 fat (record: North $3033' 15" East a distance of 248.63 feet) to a 12" mbar found with cap, stamped "RPLS 5784" for a point of ourvamre; 2. Along a non-tangontial curve to die right having a radius of 345.00 feel, (record: 345.00 fat) a length of 155.98 feet, (record: 156.12 fcel) a delta angle of 25054' ]4" and a chord which bears North 64139'03" East a distance of 154.65 feet, (record: North 64042.00" East a distance of 154.79 feet) to a nail found; 3. North 77"42'35" East a distance of 499.24 fat (record: North 77040'00" Fast a distance of 498.83 feet) to a 12" rebar found; 4. North 209FS2"W2sl a distance of402,50 feet (record: North 20°14'00" West a distance of 402.27 feet) to a 12" rebar found with cap, stamped "RPLS 5784" for a point of curvature; 5. Along a tangential curve to the right havinga radius of 150.00 feat, (record: 150.00 feet) a length of 235.69 fat, (record: 235.76 feet) a dclutangle of 90°01.41"end a chord which bears North 2201 P49" East a distance of 212.18 feel, (record: North 22008'0(f' East a distance of 212.23 feet) toe 12" rebar found with cap, stamped "RPLS 5784" far an angle point in the mst line of Shadow Canyon Commercial Section 3, being an angle point in the west line of Shadow Canyon Commercial Section 2; a subdivision of record in Document Number 2010086635 of the Official Public Records of Williamson County, Texas THENCE along the north Ihne of the 278212 acre tract and the south and east lines of said Shadow Carryon Commercial Section 2 the following fora(4)cmmes: 1. Continue along a tangential curve to the right, having a radius of 150.00 fat (record: 150.00 feet), a length of 235.41 fat (record: 235.67 feels a delta angle of 89055' 18" and a chord, which hears South 67"48'02" East a distance of 211.99 feet (record: South 67"51' 14" Past a distance of212.17 feet)toa W" rebar found with cap, stamped'W S5784"for a point of tangency; 2. South 22°59'I T' East a distance of 68.03 feet (record: South 22*51'54" East a distance of 68.24 feet)to a 12" rebar found with rap, stamped "RPLS 5784" for a point of curvature; 3. Along a tangential curve to the right, having a radius of 797.62 feet (record: 797.62 fat), a length of 343.26 feet (record: 343.51 feet), a delta angle of24039'26" and a chord, which {Wo652706.3} A-4 Page 5 of 10 bears South 37011'42" Past a distance of 340.61 feet (mcord: South 37012' 18" East a distance of 340.86 feel to a 12" mbar found with cap, stamped "CCC 4835' 4 North 09049'27" East (record: North 09045'08" Eas), passing at a distance of 654.97 feet (record: 655.00 feet) a calculated point for an angle point in the cast line of Shadow Canyon Commercial Section 2, being Ore south comer of Shadow Canyon Commercial Section 1; a subdivision of record in Document Number 2008045660 of the Official Public Records of Williamson County, Texas and passing at an additional distance of 72.93 feet a 12" rebar found with illegible plastic cap and continue another 2.15 fee for a distance of 75.06 feet (record: 75.06 fee) from said south comer of Shadow Canyon Commercial Section I for an overall distance of 730.04 feet (record: 730.06 fcet) to a 12" mbar set wiOr plastic cep, which roads "Baseline, Inc." for a point of curvetme; THENCE along the north line of the 278.212 acre tract and the east line of said shadow Canyon Commercial Section I the following two (2) courses: 1. Along a tangential curve to the left, having a radius of 567.50 feel (record: 567.50 feet), a length of260.39 fee (record: 26039 feet), a delta angle of 26"17'21"(record: 26017'22'7 and a chord, which bears North 03"21'52" West adistance of 258.11 feet (record: North 03°22'43" West a distance of 258.11 feet) to a 12" mbar found wigs illegible plaslic cop for a point of tangency; 2. North 16030'33" West a disrenceof 114.79 feet (record: Ninth 16°3l'24" Westa distance of 114.87 feet) to a 12" mbar set with plastic cap, which mads'Basalina, inc." for an angle point in the north line of the 278.212 acm tract, being the northernmost northeast comer of Shadow Canyon Commemial Section I and also being in the south right-of-way line of said State Highway Number 29; THENCE North 73029'52" East (record: North 73028'45" East), alongthe north line of the 278212 acre tract and the south right-of-way line of State Highway Number 29 a distance of 289.31 feet (record: 289.39 feet) to lie POINT OF BEGINNING. This tract contains 278.21 acres of land, mom or less, out of the Isaac Donagan Survey, Abstract Number 178 and the Joseph Thompson Survey, Abstract Number 508 in Williamson County, Texas. Bearing Basis: Texas State Plane Coordinates, Central Zone, NAD.83V96CORS. Ronnie Wallace Date Registered Professional land Surveyor State of Texas No. 5222 File: SAPmjees4Shadow CanyonlDocslField NoteslBoundary 278 Ao.doc {W06527o6.3} A-5 WLS ➢I➢ CIS z1z m!m THE J AND S.H. 29 (R.O.W. VARIES) 2010086635 \T1iiuO.P.R.W.C.T. FRS 61N' sTa' m" yr PPIS 6LN' 4=' 278.21 AC. OF I DETAIL I 278 GEORGETOWN INC. 278.212 AC. DOC. NO. 2014094143 O.P.R.W.C.T. DETAIL MGC HIGHWAY 29 DEVELOPMENT, LLC 10.550 AC. DOC. NO. 2007014835 O.P.R.W.C.T. i i 1 � L3 (t",;v SEE SHEET 7 FOR LEGEND SEE SHEET 10 FOR LINE A: CURVE TABLES GRAPHIC SCALE 300 150 0 300 W FEET Yuqwlzip 291.09 AC. CT RVE—PAR THREE' DOC. NO. 2009090679 O.P.R.W.C.T. MATCHLINE SHEET 6 ��0- MATCHLINE SHEET 7 a➢ uN To Acco F B a45EUNE LAND SURVEYORS, INC 1.21 ACRES OF LAND OUT OF THE IN SURVEY, ABSTRACF NUMBER 178 AND PANi39onHL1.V+DR1RVt17NQ�Rw� 65WKs, IOMPSON SURVEY, ABSTRACT NUMBER 008; smamsnwLAWa mst, IN WILUAMSON COUNTY. TEXAS �r .ftmm wn¢:sus>+sm rax:snensw BAT SAME TRACT OF LAND CONVEYED A9 ,CRES TO 278 GEORGETOWN. INC. BY D1K'`� IT OF RECORD IN DOCUMENT NUMBER m SHEET OF TEE OFFICIAL PUBLIC RECORDS OF -.e •r n+u: _, __ 6 0/ 10 tWo6527o6.3} A-6 ________MATCHLINE SHEET 6 MATCHLINE SHEET 7 1 ` SEE SHEET 7 278 GEORGETOWN INC. FOR LEGEND 278.212 AC. SEE SHEET 10 DOC. NO. 2014094143 FOR LINE @ CURVE TABLES O.P.R.W.C.T. F2_78_.2_1A_C_.l JUDY DEAN WOLF WOLF SUSANDHLA JJANNE Z 178 Aw"d ,,,�,4,,. �j�d4'.T� JAY LEON WOLF. JR. IVA WOLF m MCLACHLAN 291.02 AC,— x TRAOT FIVE —PARCEL rn THREE' y 00C. NO. 200909060679 �1 GRAPHIC SCALE OtUW; O.P.R.W.C.T. DEED LINE OF 457 AC. PER VOL 345, PC. 480 J00 750 0 IN FEET APPRO DO� LINE SyRA R NUMBER 178 - MPRO%oMM1E "m LINE OF ,WEPH THOM SON SU ABSTRACT NUMBER 608 6 O R.O.W. DA.W.C.T. O.P.R.W.C.T O.R.W.C.T. I 1 (c n «I m 608 A.C. WEIR A: ESIHER WEIR w. 1048.20 AC, 'FIRST TRACT" VOL. 522. PAGE 451 D.R.W.C.T. 1/2' IRON REBAR FOUND (NOTED, IF CAPPED) 1/2' IRON REBAR SET WITH CAN. 'BASELINE, INC.- MAIL FOUND CALCULATED POINT RIGHT OF WAY DEED RECORDS WILLIAMSON COUNTY, TEXAS OFFICIAL PUBLIC RECORDS WILLIAMSON COUNTY, TEXAS OFFICIAL RECORDS WILLIAMSON COUNTY, TEAS RECORD INFO. DOC. NO, 2014094143 O.P.R.W.C.T. RECORD INFORMATION—DOC. NO. 2002093325. O.P.R.W.C.T. RECORD INFORMATION—DOC. NO. 2008045600. O.P.R.W.C.T, RECORD INFORMATION—DOC. N0. 2010086635, O.P.R.W.C.T. RECORD INFORMATION—DOC. NO. 2014085365, O.P.R.W.C.T. BASIS OF BEARINGS: TEXAS STATE PUKE COORDINATES, CENTRAL ZONE, MAD 83/', SIK1'CH TO ACCOMPANY FIELD NOTES OF 278.21 ACRES OF LAND OUT OF BASELINE LAND SURVEYORSs INC THB ISAAC DONAGAN SURVEY, ABSTRACT NUMBER 178 AND PROF86/OW LAW SWOMYMSERW� THE JOSEPH THOMPSON SURVEY, ABSTRACT lain ER 008; BOTH IN NH,IJAMSON COUNTY, TEXAS °�8T�s00Y41°01fl00 AND BEINO THAT SAMB TRACT OF LAND CONVEYED AS orsama:A,s�n Au: s77mAsw ....a ..... ......... .,.. ,.e,.,. ,. .,.. mrb�. T OF RECORD IN DOCOMi OF THE OFFICIAL PUBLIC (Wo6527o6.3} A-7 SHEET 7 of 10