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2009-12-09 .' DEPARTMENT OF THE ARMY NEW YORK DISTRICT, CORPS OF ENGINEERS JACOB K. JAVITS FEDERAL BUILDING NEW YORK, N.Y.1027S-D090 REPLY TO ATTENTION OF: Regulatory Branch DEe 0 92009 SUBJECT: Permit Application Number NAN-2006-03278-WOR by Adams Fairacre Farms Michael Nowicki Ecological Solutions, LLC 1248 Southford Road Southbury, Connecticut 06488 RECE/VEL DEe 1 ~ 2009 -'"ll"'l\I CI.IEi:>I ,- Dear Mr. Nowicki: On October 26, 2006, the New York District of the u.s. Army Corps of Engineers received a request for a Department of the Army jurisdictional determination and authorization for the construction of a supermarket and garden center. The site consists of approximately 12.59 acres, in the Hudson River watershed, located on United States Route 9 in the Town of Wappinger, Dutchess County, New York. In the letter received on October 26, 2006, your office submitted a proposed delineation of the extent of waters of the United States within the subject property. A site inspection was conducted by a representative of this office on December 5, 2006, in which it was agreed that changes would be made to the delineation and that the modified delineation would be submitted to this office. On November 27, 2007, this office received the modified delineation. Based on the material submitted and the observations of the representative of this office during the site visit, this site has been determined to contain jurisdictional waters of the United States based on: the presence of wetlands determined by the occurrence of hydrophytic vegetation, hydric soils and wetland hydrology according to criteria established in the 1987 "Corps of Engineers Wetlands Delineation Manual," Technical Report Y-87-1 that are either adjacent to or part of a tributary systemj and the presence of a defined water body (e.g. stream channel, lake, pond, river, etc.) which is part of a tributary system. These jurisdictional waters of the United States are shown on the drawing entitled "Adams Fairacre Farms Town of Wappingers Dutchess County, NY Federal Wetland Survey Map", prepared by Morris Associates, P.S., LLC, dated August 31, 2006, and last revised November 1, 2007. This drawing indicates that there is one (1) principal wetland area on the project site which is part of a tributary system, and is considered to be waters of the United States. The wetland (Wetland "A") is located on the southern half of the property and is approximately 1.72 acres within the subject property. It should be noted that, in light of the U.S. Supreme Court decision (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178, January 9, 2001), the remainder of the wetlands shown on the above referenced drawing (Wetland "B") do not meet the current criteria of waters of the United States under Section 404 of the Clean Water Act. The Court ruled that isolated, intrastate waters can no longer be considered waters of the United States, based solely upon their use by migratory birds. This determination regarding the delineation shall be considered valid for a period of five years from the date of this letter unless new information warrants revision of the determination before the expiration date. This determination was documented using the Approved Jurisdictional Determination Form. A copy of that document is enclosed with this letter, and will be posted on the New York District website at: http://www.nan.usace.army.mil/business/buslinks/regulat/jurisdet/i ndex.htm. This delineation/determination has been conducted to identify the limits of the Corps Clean Water Act jurisdiction for the particular site identified in this request. If you object to this determination, you may request an administrative appeal under Corps regulations at 33 CFR Part 331. Enclosed is a combined Notification of Appeal Process (NAP) and Request For Appeal (RFA) form. If you request to appeal this determination you must submit a completed RFA form to the North Atlantic Division Office at the following address: Michael G. Vissichelli, Administrative Appeals Review Officer North Atlantic Division, U.S. Army Engineer Division Fort Hamilton Military Community General Lee Avenue, Building 301 Brooklyn, New York 11252-6700 2 In order for an RFA to be accepted by the Corps, the Corps must determine that it is complete, that it meets the criteria for appeal under 33 CFR Park 331.5, and that it has been received by the Division Office within 60 days of the date of the NAP. Should you decide to s~~~t8~~ORFA form, it must be received at the above address by ~t~u lUI . It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this letter. This delineation/determination may not be valid for the wetland conservation provisions of the Food Security Act of 1985, as amended. If you or your tenant are USDA program participants, or anticipate participation in USDA programs, you should request a certified wetland determination from the local office of the Natural Resources Conservation Service prior to starting work. The submittal entitled "Adams Fairacre Farms Route 9 Wappingers Falls, NY 12590 Wetlands Disturbance and Mitigation Plan", Drawing Number ACOE 1 of 4, prepared by Tinkelman Architecture PLLC, dated September 4, 2007, and last revised November 16, 2009, indicates that the total impacts to waters of the United States would involve the discharge of fill material into a maximum of 0.302 acres of waters, including wetlands. The above referenced drawing and the submittals entitled "Adams Fairacre Farms Route 9 Town of Wappinger, N.Y. Wetlands Disturbance and Mitigation Plan", Drawing Number ACOE 2 of 4, and "Adams Fairacre Farms Route 9 Wappingers Falls, NY 12590 Wetlands Disturbance and Mitigation Plan", Drawing Number ACOE 3 of 4, both prepared by Tinkelman Architecture PLLC, both dated September 4, 2007, Drawing Number ACOE 2 of 4 last revised November 9, 2009, and Drawing Number ACOE 3 of 4 last revised September 9, 2009, indicate that approximately 0.581 acres of wetlands would be established as mitigation. Based on the information submitted to this office, and accomplishment of notification in accordance with the applicable federal requirements, our review of the project indicates that an individual permit is not required. It appears that the activities within the jurisdiction of this office could be accomplished under Department of the Army Nationwide General Permit Number 39. The nationwide permits are prescribed as a Reissuance of Nationwide Permits in the Federal Register dated March 12, 2007 (72 FR 11092). The work may be performed without further authorization from this office provided the activity complies with the permit conditions listed in Section B, No. 39, Section C, any applicable New York District regional conditions, the following special conditions, and any applicable regional conditions added by the State of New York, copies enclosed. 3 ~ Special Conditions (A) This Corps permit does not authorize you to take an endangered species/ in particular the Indiana bat (Myotis sodalis). In order to legally take a listed species/ you must have a separate authorization under the Endangered Species Act (ESA) (e.g./ an ESA Section 10 permit or a Biological Opinion (BO) under ESA Section 7/ with "incidental take" provisions with which you must comply). The enclosed FWS BO contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with "incidental take" that is also specified in the BO. Your authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the attached BO, which terms and conditions 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 Corps permit. However/ the FWS is the appropriate authority to determine compliance with the terms and conditions of this 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. (B) The permittee shall accomplish compensatory mitigation through the successful establishment of 0.581 acres of wetlands/ as described in the above referenced drawings. (C) All grading and planting in conjunction with the wetlands mitigation work shall be completed prior to the completion of the discharge of fill authorized herein. (D) The permittee shall ensure that all proposed mitigation plantings have an eighty-five (85) percent survival rate and all established wetland areas in conjunction with the compensatory mitigation shall have an eighty-five (85) percent coverage rate of hydrophytic plants (those with a regional indicator status of FAC, FAC+/ FAC+/-/ or OBL in the report entitled "National List of Plant Species that Occur in Wetlands/ Northeast [Region 1] ", published by the U.S. Fish and Wildlife Service). The permittee shall also ensure that the vegetation in the newly established wetland does not consist of more than a total of 5% areal coverage of common reed (Phragmites australis), purple loosestrife (Lythrum salicaria), reed canary grass (Phalaris arundinacea), Japanese knotweed (polygonum cuspidatum)/ Tartarian honeysuckle (Lonicera tartarica) / Eurasian milfoil (Myriophyllum spicata), and/or other invasive species. 4 (E) The permittee shall provide to this office annual reports on the status of the compensatory mitigation activities, in each of the following five (5) years after initiation of the activities authorized by this permit. These reports shall be submitted no later than October 15 in each of these years. All data for the reports must be collected between the dates of April 15 and October 15 in the same year it is submitted. If this office determines that the success criteria outlined in Special Condition (D) above has not been met for at least three consecutive years, this period will be extended and the permittee shall continue to submit monitoring reports every year until this office determines that the success criteria has been met for three consecutive years. These reports shall include the following at a minimum: 1. A list of dominant plant species, along with their estimated frequency and percent areal cover in each vegetative strata (i.e. tree, shrub and herbaceous) for each cover type within the mitigation site; 2. Color photographs showing all representative areas of each cover type within the mitigation site, taken at least once each year during the period between June 1 and August 15; 3. A Corps of Engineers approved wetland delineation data sheet for each cover type within the mitigation site; 4. Vegetation cover maps, at a scale of one inch equals 100 feet, or larger scale, outlining the extent (in acres) of each cover type within the mitigation site shall be prepared for each growing season; 5. Well and gauge data showing water elevations within the mitigation site recorded twice a month during April through September of each year. The location of the monitoring well or gauge shall be shown on the plan view engineering drawing; and 6. A remedial planl if necessary, outlining all practicable steps taken or proposed to be taken to ensure the success criteria outlined in Special Condition (D) above are met by the specified due date of the next monitoring report. (F) The permittee shall ensure that no mowing of the mitigation area shall occur. 5 (8) The permittee shall undertake the authorized filling activities in a manner aimed at reducing impacts upon the general environment. In addition, the permittee shall not stockpile fill or other materials in a manner conducive to erosion, or in areas likely to cause high turbidity runoff during storm events. All exposed soils shall be re-vegetated in a timely manner to further reduce potential effects. The permittee shall also fence off all wetlands and other sensitive ecological areas during construction periods to prevent equipment and personnel from entering these areas. (H) The permittee shall secure a conservation easement or deed restriction on the wetland mitigation site to guarantee its preservation for wetland and wildlife resources. Copies of the instrument(s) effecting such easement shall be submitted to the New York District Corps of Engineers for approval prior to execution, and the instrument(s) shall be executed and recorded with the Dutchess County Registrar of Deeds within one year following the initial plantings/seedings of the mitigation site. (I) The permittee shall assume all liability for accomplishing the corrective work should the New York District determine that the compensatory mitigation has not been fully satisfactory. If the New York District does not find the mitigation satisfactory, an extension of monitoring time may be required to cover any necessary remedial work. This determination covers only the work described in the submitted material. Any major changes in the project may require additional authorizations from the New York District. Care should be taken so that construction materials, including debris, do not enter any waterway to become drift or pollution hazards. You are to contact the appropriate state and local government officials to ensure that the subject work is performed in compliance with their requirements. This verification is valid for a period of two years from the date of this letter, unless the nationwide permit is modified, reissued, or revoked. This verification will remain valid for two years from the date of this letter if the activity complies with the terms of any subsequent modifications of the nationwide permit authorization. If the nationwide permits are suspended, revoked, or modified in such a way that the activity would no longer comply with the terms and conditions of a nationwide permit, and the proposed activity has commenced, or is under contract to commence, the permittee shall have 12 months from the date of such action to complete the activity. 6 This authorization is conditional on the applicant's receipt of the required water quality certificate or waiver from the New York State Department of Environmental Conservation (NYSDEC). No work may be accomplished until the required approval from NYSDEC has been obtained. Within 30 days of the completion of the activity authorized by this permit and any mitigation required by this permit, you are to sign and submit the attached compliance certification form to this office. If any questions should arise concerning this matter, please contact Brian A. Orzel, of my staff, at (917) 7900-8413. Sincerely, /J, ". ~\ \S ~U;I-. /~--v Richard L. Tomer Chief, Regulatory Branch Enclosures cf: NYSDEC - Region 3 Town of Wappinger 7