CERTIFIED MAIL _ RETURN RECEIPT REQUESTED

DEPARTMENT OF THE ARMY

NEW ENGLAND DISTRICT, CORPS OF ENGJNEERS 696 VIRGINIA ROAD CONCORD, MASSACHUSETTS 0.1 7 42-27 51
AlTENTION OF
REPLY TO

January 19,2011

Regulatory Division CENAE-R-PEB File Number: NAE-20 10-2257

Philip W. Grande Soundview Landscape Supply 50 Industry Drive

West 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 Engineers jurisdiction. Although you may have applied for or have received state or local permits, work within our jurisdiction without a Corps permit is a violation of Federal law. The purpose of this letter 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 of 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 nonreporting 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 of the Connecticut PGP.

fill in wetlands

Please refer to the enclosed Corps of Engineers Jurisdiction Fact Sheet for a summary of our 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 of Section 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 before performing any work within our jurisdiction. Future unauthorized work within our jurisdiction may be considered a willful violation.

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

1. Please state your reasons for discharging fill and grading within areas subject to federal jurisdiction. Furthermore, you should be aware of the requirements of the law as explained in this 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?
the proper authorizations prior to commencing work? Please provide the person's name, address and telephone number. 5. Were any consultants hired for this project to provide guidance regarding regulatory requirements? If so, please provide their names, addresses and telephone numbers.

3. Who had the ultimate responsibility to obtain

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 ending dates for each area under Corps jurisdiction. 9.
property.
Please provide us with any wetlands determinations that have been performed for this

10. Please provide drawings, to scale, that show wetland limits on your property as they existed 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 all work 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 that will persist, within our jurisdiction.

a J-

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 respond to the above questions

Please contact Ms. Cori M. Rose, of my staff, at (978) 318-8306

if you have any questions.

Sincerely,

Diane M. /l Acting Chief, Permits & E#forcement Branch Regulatory Division Attachments Copies Fumished:

ll'1)Arr flAfft^-p-l Ray

K*

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 Corps of 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 from the U.S.Army Corps of Engineers is required for activities which involve the discharge of dredg"O oi nff material into waters of the United States (U.S.), including not only navigable waters olthe U.S. but also inland rivers, lakes, streams, and wetlands. In inland waters, Corps jurisdiction under the CWA extends landward to the ordinary 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 as o'... those areas that are inundated or saturated 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...(33 CFR 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-parameter method to define the wetland/upland boundary. Please note that such boundaries might not be the same as wetland boundaries determined by state or local regulations, since those agencies sometimes use different criteria to delineate 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, including grubbing, grading, and excavation.
The term 'rfill material" is defined by Federal regulation as "...material placed in waters of the United States where the material hasthe effect of: (i) Replacing any portion of a water of the U.S. with dry land; or (ii) Changing the bottom elevation of any portion of a water of the U.S. Examples of such fill material inilude, but are not limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the waters of the U.S. The term fill material does not include trash or garbage." (33 CFR 323.2 (e),May 9,2002Federal Register). The Environmental 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, for purposes of Section 10, navigable waters of the U.S. are those subject to the ebb and flow of the tide, ui *.il ur u few 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 be complied with. Before starting any work in waters of the U.S., people doing such work or having such work done for them should: (1) be certain that a DA permit has been obtained or is not needed and (2) famiiiarize themselves and their contractor with the terms and conditions of the permit. Performing any work whlch requires, but is not authorized by, a Corps permit, or failing to comply with the terms and conditions of a Corps permit, may subject the 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 the PGP, or require an Individual Permit (P). An application to the Corps isn't required for activities mieting the Category I definition (see appendix at the back of the PGP) and all the terms and conditions of the PGP. See the PGP for more details. Those performing work under the assumption that the work is authorized under Category I are responsible for any errors in that assumption. They should carefully check the PGP or consult our office for verification. The same situation applies if someone incorrectly determines that a project is outside Corps jurisdiction. Activities described under Category 2 and the IP category require project-specific authori2ation from the Corps in writing. The difference between Category 2 and the IP is the informaiion required and the extent of public-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.