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Department of the Army letter.08.16.2002REPLY TO ATTENTION OF. Regulatory Branch DEPARTMENT OF THE ARMY NEW YORK DISTRICT, CORPS OF ENGINEERS ALBANY FIELD OFFICE 1 BOND STREET TROY, NEW YORK 12180 AUG 16 2002 SUBJECT: Permit Application Number 2001-00902-YN by Schermerhorn Properties, Inc. Mr. Thomas Nace Nace Engineering, P.C. 169 Haviland Road Queensbury, New York 12804 Dear Mr. Nace: RECEIVED Au,], z 0 1002 61 TOpLN OF ANN NG OFFICERY On May 29, 2001, the New York District Corps of Engineers received a request for a Department of the Army jurisdictional determination and authorization for the discharge of fill material into waters of the United States to facilitate the construction of a medical office building. The request was submitted by Nace Engineering, P.C., as consultant for the applicant. The site is located on a 5.2 acre parcel within the 82 acre "Baybrook Professional Park" which lies batween Bay and Meadowbrook Roads, in the Town of Queensbury, Warren County, New York. At an inspection of the project site on June 19, 2002, a representative of this office confirmed the extent of waters of the United States on the subject property. In a pre -construction notification submittal dated July, 2002, which included a drawing e-.titled "Baybrook Professional Park, Medical Office Building, Grading Drainage, and Wetland Disturbance Plan", prepared by Nace Engineering, P.C., dated June 20, 2002, and revised July 16, 2002, the applicant indicated that the total impacts to waters of the United States would involve the discharge of fill material into a maximum of 0.21 acres of waters of wetlands. As mitigation for the proposed impacts to aquatic resources, the applicant proposes to establish 0.39 acres of wetlands from an upland area that lies immediately adjacent to existing wetlands. 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 an Issuance of Nationwide Permits in the Federal Register dated January 15, 2002 (67 FR 2020). 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. Special Conditions (A) The permittee shall accomplish compensatory mitigation through the successful creation of 0.39 acre of freshwater wetlands from uplands, as described and depicted in the drawing "Baybrook Professional Park, Medical Office Building, Wetland Mitigation Plan and Details", dated January 29, 2002 and revised July 16, 2002, and in the aforementioned report in paragraph two of this letter. The permittee shall ensure that all proposed mitigation plantings meet the federal wetland criteria outlined in the report entitled "Corps of Engineers Wetland Delineation Manual", dated January 1987, with current Corps of Engineers guidance. (B) The permittee shall erasure that all proposed mitigation plantings have an eighty-five (85) percent survival rate and the created 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+, FACW +/-, 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 created wetlands does not consist of more than a total of 10% areal coverage of common reed (Phragmites australis) and/or purple loosestrife (Lvthrum salicaria). If the survival and coverage rates are not met by August 15, 2001, and each year of the monitoring period, the permittee shall take all necessary measures to ensure the level of survival and coverage by the end of the next growing season, including re -planting and re -grading if necessary. (C) The permittee shall provide to this office annual reports on the status of the mitigation activities, prepared during the growing season, no later than October 31 in each of the following five (5) years after initiation of the activities authorized by this letter. These reports shall include the following at a minimum: i. All plant species, along with their estimated relative frequency and percent cover, shall be identified by using plots measuring 10 feet by 10 feet with at least one representative plot located in each of the habitat types within the mitigation site. The location of each plot shall be identified on the plan view engineering drawing. 2 ii. vegetation cover maps, at a scale of one inch equals 100 feet, or larger scale, shall be prepared for each growing season. iii. Photographs showing all representative areas of the mitigation site shall be taken at least once each year during the period between 1 June and 15 August. iv. Surface water and groundwater elevations in representative areas of the mitigation site shall be 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. V. A Corps of Engineers wetland delineation data sheet for each cover type within the mitigation site. If this office determines that the success criteria outlined in (A) and (13) above has not been met for at least three consecutive years during the five-year monitoring period, this period will be extended until this office determines that the success criteria has been met for three consecutive years. (D) 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. (E) The permittee shall ensure that no mowing of the mitigation area shall occur. (F) 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. (G) 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 Warren County Registrar of Deeds within one year following the initial plantings/seedings of the mitigation site. (H) 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 3 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. (I) The permittee shall not initiate any activities on the project site until notified by this office that the requirements of the Federal Endangered Species Act have been satisfied. (J) The permittee shall not initiate any activities on the project site until a revised drawing is submitted to this office that clarifies the size of the proposed wetland creation area. Drawing W-3, entitled "Wetland Mitigation Plan and Details", revised July 16, 2002, presently indicates the area is 1.33 acres. (K) If wetland impacts are anticipated to access the mitigation area, the permittee shall notify this office and shall provide a drawing showing the affected area, temporary erosion control measures, and a restoration plan. The permittee shall not initiate the work until the aforementioned submittal has been reviewed by this office and has-been notified that they may proceed with the 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 i.r.aterials, 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, suspended 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. It should be noted that additional waters of the United States exist within the remainder of the 82-acre site known as "Baybrook Professional Park". Any future impacts on the remainder of the site will be reviewed cumulatively with the impacts authorized by this letter. 4 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 Kevin Bruce, of my staff, at (518) 273-7420. Sincerely, e rge Nieves Chief, Western Permits Section Enclosures cf: NYSDEC - Region 5, Warrensburg (5-5234-00287/00003) Town of Queensbury Schermerhorn Properties, Inc. USFWS, Cortland 5