Cease and Desist Order from Army Corps of Engineers for Soundview Landscaping

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CERTIFIED MAIL _ RETURN RECEIPT REQUESTED

DEPARTMENT OF THE ARMYNEW ENGLAND DISTRICT, CORPS OF ENGJNEERS

696 VIRGINIA ROAD

CONCORD, MASSACHUSETTS 0.1 7 42-27 51

REPLY TOAlTENTION OF

January 19,2011

Regulatory DivisionCENAE-R-PEBFile Number: NAE-20 10-2257

Philip W. Grande

Soundview Landscape Supply50 Industry DriveWest Haven, Connecticut 06516

Dear Mr. Grande:

It was brought to our attention that you are currently undertaking work in waters and

wetlands at the Soundview Landscaping Supply parcel located at 50 Industry Drive, West

Haven, Connecticut. Some or all of this work appears to be within Corps of Engineersjurisdiction. Although you may have applied for or have received state or local permits, workwithin our jurisdiction without a Corps permit is a violation of Federal law. The purpose of thisletter is to 1) explain Corps of Engineers jurisdiction and ensure that you do not perform any

fuither or future unauthorized work in areas under Corps jurisdiction ,2) to explain your potential

violation, 3) to recommend that you cease and desist work in wetlands and waters while we

request certain information about the work that has already been done at this site, and 4) to

explain exactly what you must do to correct the apparently unauthorized work.

We have no record that you have obtained a Corps of Engineers permit for the discharge offill in wetlands and waters for expansion of the facility andlor the installation of stormwater

management facilities at the stie. It is possible that the work could be eligible for the non-

reporting Category I of our attached Connecticut Programmatic General Permit (PGP). Projects

meeting Category 1 of the PGP may be authorized without notifying the Corps. Please provide

adequate information if you feel that the activity you are undertaking is covered by Category 1 ofthe Connecticut PGP.

Please refer to the enclosed Corps of Engineers Jurisdiction Fact Sheet for a summary ofour authority, definitions and permit requirements. Violations of the Clean Water act and/or the

Rivers and Harbors Act may be subject to enforcement action by the Corps or the U.S.Environmental Protection Agency. Specifically, performing work within our jurisdiction without

a Corps of Engineers permit can result in prosecution by the U.S. Government. Violations ofSection 10 can result in criminal prosecution with fines ranging from $500 to $2,500 per day per

violation andlor imprisonment of up to one year. Violations of Section 404 are punishable by

civil fines of up to $25,000 per day and/or imprisonment for up to one year. You should ensure



that you obtain all required local and state permits, and any required Corps permits beforeperforming any work within our jurisdiction. Future unauthorized work within our jurisdiction

may be considered a willful violation.

Please respond to the following questions so that we may better understand your activityand its relevance to our Regulatory authority:

1. Please state your reasons for discharging fill and grading within areas subject to federaljurisdiction. Furthermore, you should be aware of the requirements of the law as explained inthis letter. Thus, you should ensure that you obtain all required permits from the Corps and the

State of Connecticut before performing any work within our jurisdiction

2. What is the exact purpose of the work and your reasons for performing or allowing the

work within our jurisdiction without first obtaining a Corps of Engineers permit?

3. Who had the ultimate responsibility to obtain the proper authorizations prior tocommencing work? Please provide the person's name, address and telephone number.

5. Were any consultants hired for this project to provide guidance regarding regulatoryrequirements? If so, please provide their names, addresses and telephone numbers.

6. Who authorized the commencement of this work?

7. Please provide us with a copy of any contracts for this work and any notice to proceed

given to your contractor.

8. On what dates did the work occur? Please be specific, giving the starting and endingdates for each area under Corps jurisdiction.

9. Please provide us with any wetlands determinations that have been performed for thisproperty.

10. Please provide drawings, to scale, that show wetland limits on your property as theyexisted prior to any site work and the limits as they exist today. The drawings should show the

precise extent of the work, including information such as dimensions, elevation contours, and the

volume of fill placed.

If we determine there has been a violation of federal law, you must either remove allwork within our jurisdiction, thereby completely restoring the area to preconstruction conditions,or apply for and receive an After-The-Fact permit to retain or modify, as appropriate any fill thatwill persist, within our jurisdiction.



aJ-

Please respond to the above questions within 30 days of your receipt of this letter and

reference file number NAE-2010-2251 in your response. If you do not respond within this time

frame, we will assume you do not intend to resolve this matter and we will take action as

required by statute.

Please contact Ms. Cori M. Rose, of my staff, at (978) 318-8306 if you have any questions.

Sincerely,

K*lAfft^-p-l ll'1)ArrDiane M. Ray /lActing Chief, Permits & E#forcement Branch

Regulatory Division

Attachments

Copies Fumished:

Denise Leonard, Wetlands Enforcement Coordinator, Office of Environmental Stewardship,

Suite 1100 (SEE), EPA, 1 Congress Street, Boston, Massachusetts 02114-2023

Steven Tessitore, CT DEP, Bureau of Water Management, IWRD, Wetlands Enforcement,Inland Water Resources Division, 79 Elm Street, Hartford, CT 06106-5127

Kevin Clark, West HavenZEOlIW, West Haven City Hall, 3rd Floor, West Haven, CT 06516



US Armv Corpsof Engideers b

New England District JURISDICTION F'ACT SHEET

Under Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344) aDepartment of the Army (DA) permit fromthe U.S.Army Corps of Engineers is required for activities which involve the discharge of dredg"O oi nffmaterial into waters of the United States (U.S.), including not only navigable waters olthe U.S. but also inlandrivers, lakes,

streams, and wetlands. In inland waters, Corps jurisdiction under the CWA extends landward to theordinary high water mark or the landward limit of any wetlands, whichever is more extensive.

The term "wetlandsr" as used above, is defined by Federal regulations aso'...

those areas that are inundated orsaturated by surface or groundwater atafrequency and duration sufficient to support, and that under normal

91cul1tances do support, a prevalence of vegetation typically adapted for life in-saturated soil conditions...(33CFR 328.3(b), November 13, 1986 Federal Register). Wetlands generally include swamps, marshes, and bogs.Forested and meadow areas that lack standing water can also be wetlands. The Corps ures'u three-parametermethod to define the wetland/upland boundary. Please note that such boundaries might not be the same as wetlandboundaries determined by state or local regulations, since those agencies sometimes use different criteria todelineate wetlands.

Jh9 tgrm "discharge" is defined as the addition of dredged or fill material into waters of the U.S. This may

include the redeposition of wetland soils such as occurs during mechanized land clearing activities, includinggrubbing, grading, and excavation.

The term 'rfill material" is defined by Federal regulation as "...material placed in waters of the United Stateswhere the material hasthe effect of: (i) Replacing any portion of a water of the U.S. with dry land; or (ii) Changingthe bottom elevation of any portion of a water of the U.S. Examples of such fill material inilude, but are notlimited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or otherexcavation activities, and materials used to create any structure or infrastructure in the waters of the U.S. The termfill material does not include trash or garbage." (33 CFR 323.2 (e),May 9,2002Federal Register). TheEnvironmental Protection Agency is responsible for regulating discharges of wastes and othir poilutants.

Under Section l0 of the Rivers and Harbors Act of 1899 (USC 403), aCorps permit is required for all work,including structures, seaward of the mean

high water line in navigable waters^ofihe U.S. tn New England, forpurposes of Section 10, navigable waters of the U.S. are those subject to the ebb and flow of the tide, ui *.il ur ufew of the major rivers used to transport interstate or foreign commerce.

You must obtain authorization for any work within Corps jurisdiction before you can legally undertake such work.Corps permits are a limited form of authorization containing a stated set of terms and condiiions which must becomplied with. Before starting any work in waters of the U.S., people doing such work or having such work donefor them should: (1) be certain that a DA permit has been obtained or is not needed and (2) famiiiarize themselvesand their contractor with the terms and conditions of the permit. Performing any work whlch requires, but is notauthorized by, a Corps permit, or failing to comply with the terms and conditions of a Corps permit, may subjectthe developer, the landowner or other responsible parf, including the contractor, to criminal and/or civil tiaUility.

Programmatic General Permits (PGPs) have been issued for each New England state. The PGPs are located at

www.nae.usace.army.mil/reglindex.htm. Projects in Corps jurisdiction either fit Category 1 or Category 2 of thePGP, or require an Individual Permit (P). An application to the Corps isn't required for activities mieting theCategory I definition (see appendix at the back of the PGP) and all the terms and conditions of the PGP. See thePGP for more details. Those performing work under the assumption that the work is authorized under Category Iare responsible for any errors in that assumption. They should carefully check the PGP or consult our office forverification. The same situation applies if someone incorrectly determines that a project is outside Corpsjurisdiction. Activities described under Category 2 and the IP category require project-specific authori2ation fromthe Corps in writing. The difference between Category 2 and the IP is the informaiion required and the extent ofpublic-interest review.

Violations of the CWA are punishable by civil andlor criminal fines of up to $25,000 per day of violation (up to$50,000 per day for criminal hnes) and possible imprisonment. In additi,on, an order may be issued for (l) 'complete removal of the unauthorized work or fill and (2) restoration of the area to pre-construction conditions.

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Cease and Desist Order from Army Corps of Engineers for Soundview Landscaping