Town of Phelps, NY
Ontario County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Phelps 11-13-2007 by L.L. No. 3-2007. Amendments noted where applicable.]
GENERAL REFERENCES
Building Code administration — See Ch. 60.
Zoning — See Ch. 145.
The purpose of these regulations is to provide for the construction and operation of wind energy facilities in The Town of Phelps, subject to reasonable conditions that will protect the public health, safety and welfare.
As used in this chapter, the following terms shall have the meanings indicated:
APPLICANT
The person or entity filing an application under these regulations.
FACILITY OWNER
The entity or entities having an equity interest in the wind energy facility, including their respective successors and assigns.
HUB HEIGHT
The distance measured from the surface of the tower foundation to the height of the wind turbine hub, to which the blade is attached.
NONPARTICIPATING LANDOWNER
Any landowner except those on whose property all or a portion of a wind energy facility is located or who has an agreement with the facility owner or operator.
OCCUPIED BUILDING
A residence, barn, shop, garage, school, hospital, church, public library (or other building used for public gathering) that is occupied or in use when the permit application is submitted.
OPERATOR
The entity responsible for the day-to-day operation and maintenance of the wind energy facility.
PARTICIPATING LANDOWNER
Any landowner on whose property all or a portion of a wind energy facility is located or who has an agreement with the facility owner or operator.
SMALL WIND ENERGY SYSTEM
A wind energy conversion system consisting of a wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 250 kW and which is intended to primarily reduce on-site consumption of utility power.
TOWER HEIGHT
The height above grade of the fixed portion of the tower, excluding the wind turbine itself.
TURBINE HEIGHT
The distance measured from the surface of the tower foundation to the highest point of the turbine rotor plane.
WIND ENERGY FACILITY
An electric-generating facility, whose main purpose is to supply electricity, consisting of one or more wind turbines and other accessory structures and buildings, including substations, meteorological towers, electrical infrastructure, transmission lines and other appurtenant structures and facilities.
WIND TURBINE
A wind energy conversion system that converts wind energy into electricity through the use of a wind turbine generator, and includes the nacelle (structure which houses all of the generating components, gearbox, drive train, etc.), rotor, tower, and pad transformer, if any.
A. 
These regulations apply to all wind energy facilities proposed to be constructed after the effective date of this chapter, except that this chapter is not intended to apply to stand-alone wind turbines constructed primarily for small wind energy systems.
B. 
Wind energy facilities constructed prior to the effective date of this chapter shall not be required to meet the requirements of this chapter, provided that any physical modification to an existing wind energy facility that materially alters the size, type and number of wind turbines or other equipment shall require a permit under these regulations.
Wind energy facilities shall be permitted in all zoning districts except R1 and R2 Districts.
A. 
No wind energy facility, or addition of a wind turbine to an existing wind energy facility, shall be constructed unless a special use permit and site plan approval has been granted to the facility owner or operator approving construction of the facility under this chapter.
B. 
The permit application or amended permit application shall be accompanied with a fee as determined by the Town Board.
C. 
Any physical modification to an existing and permitted wind energy facility that alters the size, type and number of wind turbines or other equipment shall require a permit modification under this chapter. Like-kind replacements, however, shall not require a permit modification. "Like-kind" is defined as being closely similar or comparable in kind, quality, scale or quantity or degree.
A. 
The permit application shall demonstrate that the proposed wind energy facility will comply with this chapter.
B. 
Among other things, the application shall contain the following:
(1) 
A narrative describing the proposed wind energy facility, including an overview of the project; the project location; the approximate generating capacity of the wind energy facility; the approximate number, representative types and height or range of heights of wind turbines to be constructed, including their generating capacity, dimensions and respective manufacturers, and a description of ancillary facilities.
(2) 
An affidavit or similar evidence of agreement between the property owner and the facility owner or operator demonstrating that the facility owner or operator has the permission of the property owner to apply for necessary permits for construction and operation of the wind energy facility.
(3) 
Identification of the properties on which the proposed wind energy facility will be located, and the properties adjacent to where the wind energy facility will be located.
(4) 
A site plan showing the planned location of each wind turbine, property lines, setback lines, access road and turnout locations, substation(s), electrical cabling from the wind energy facility to the substation(s), ancillary equipment, buildings, and structures, including permanent meteorological towers, associated transmission lines, and layout of all structures within the geographical boundaries of any applicable setback.
(5) 
Documents related to decommissioning.
(6) 
A digital elevation model-based project visibility map showing the impact of topography upon visibility of the project from other locations throughout the region, to a distance of five miles from the center of the project. The scale used shall depict a three-mile radius no smaller than 2.7 inches and the base map shall be a published topographic map showing historic and cultural features and other landmarks.
(7) 
Color photographs, at least three inches by five inches, taken from locations selected by the Town Planning Board within a three-mile radius of the boundaries of the facility site. Said photographs shall be computer enhanced to simulate the appearance of the as-built aboveground site facilities as such would appear from said locations. The selection of such locations shall be based upon the scenic views and locations identified as important in the Comprehensive Plan of the Town of Phelps and the determination of other existing public viewpoints and adjacent land uses which may be impacted by the proposed wind energy facility.
(8) 
Shadow flicker analysis.
(a) 
Model and describe the zones where shadow flicker and blade glint will likely be present within the project boundary and a two-mile radius beyond the project boundary. Include the topography and buildings affected. The model shall represent the most probable scenarios of wind constancy, sunshine constancy and wind directions and speeds.
(b) 
Calculate the locations of shadow flicker and blade glint caused by the proposed project; the expected durations of the flicker and glint at these locations and the total number of possible hours per year of flicker and glint at all locations. The analysis shall point out areas where shadow flicker may interfere with residences and describe measures that shall be taken to eliminate or mitigate the problems.
(9) 
A completed New York State environmental assessment form/SEQR.
(10) 
Dimensional representation of the structural components of the tower construction including the base and footings.
(11) 
Manufacturer's specifications and installation and operation instructions.
(12) 
Certification by a registered professional engineer that the tower and base design is sufficient to withstand wind load requirements.
(13) 
All turbines shall be new equipment commercially available. Used, experimental or prototype equipment still in testing shall be approved by the Town of Phelps Zoning Board of Appeals as per the normal special use permit process.
(14) 
Necessary recorded access easements and necessary recorded utility easements, copies of which shall be submitted with the application.
(15) 
A transportation plan showing how vehicles would access the site and describing the impacts of the proposed energy project on the local and regional road system during construction and operation.
(16) 
A revegetation plan that complies with New York State Department of Agriculture and markets restoration guidelines will be submitted and must address how areas that are temporarily disturbed during construction will be restored as well as restoration after decommissioning.
(17) 
A drainage plan for construction and operation as well as an erosion plan must be developed and submitted for approval by the Town of Phelps Code Enforcement Officer and the Planning Board.
(18) 
Other relevant studies, reports, certifications and approvals as may be reasonably requested by the Town of Phelps to ensure compliance with this chapter. This may include but not be limited to bird migration studies.
(19) 
The application shall contain a written plan for storage, usage and disposal of all hazardous materials, lubricants, cleaning supplies, etc., in accordance with DEC regulations, and the written plan shall be approved by DEC.
No special use permit shall be granted unless it is determined by the Zoning Board of Appeals that the proposed use meets all of the following criteria:
A. 
The location, size and use of structure(s), nature and intensity of operations involved, size of site in relation to the proposed structure(s), and the location of the site with respect to roads giving access to it are such that the proposed use will be in harmony with orderly development of the district.
B. 
The location, nature and height of buildings, walls and fences will not discourage the appropriate development and use of adjacent land and buildings.
C. 
The proposed use shall not conflict with the Town Comprehensive Plan.
D. 
Operations of any special use shall not be more objectionable to nearby properties than would be the operations of any unconditionally permitted use.
E. 
A special use permit shall not be issued for a use on property where there is an existing violation of this chapter.
F. 
The use shall not have an adverse effect on the agriculture of the area.
G. 
The proposed use shall be in compliance with the requirements of this chapter.
The Planning Board shall review the site plan and supporting data before approval, rejection or approval with stated conditions as given, and take into consideration the following:
A. 
Harmonious relationship between proposed uses and existing adjacent uses.
B. 
Maximum safety of vehicular circulation between the site and road network.
C. 
Adequacy of interior circulation, parking and loading facilities, with particular attention to vehicular and pedestrian safety.
D. 
Adequacy of landscaping and setbacks in regard to achieving maximum compatibility and protection to adjacent residential districts and properties.
A. 
Design safety certification. The design of the wind energy facility shall conform to applicable industry standards, including those of the American National Standards Institute. The applicant shall submit certificates of design compliance obtained by the equipment manufacturers from Underwriters Laboratories, Det Norske Veritas, Germanishcer Lloyd Wind Energies, or other similar certifying organizations.
B. 
Uniform Construction Code. To the extent applicable, the wind energy facility shall comply with the NYS Building Codes, National Electrical Codes, NFPA and other national or state codes as deemed applicable by The Town of Phelps Code Enforcement Officer.
C. 
Controls and brakes. All wind energy facilities shall be equipped with a redundant braking system. This includes both aerodynamic overspeed controls (including variable pitch, tip, and other similar systems) and mechanical brakes. Mechanical brakes shall be operated in a fail-safe mode. Stall regulation shall not be considered a sufficient braking system for overspeed protection.
D. 
Electrical components. All electrical components of the wind energy facility shall conform to relevant and applicable local, state and national codes.
E. 
Visual appearance; power lines.
(1) 
Wind turbines shall be a nonreflective, nonobtrusive color such as white, off-white or gray.
(2) 
Wind energy facilities shall not be artificially lighted, except to the extent required by the Federal Aviation Administration or other applicable authority that regulates air safety. Lighting shall not be a nuisance to surrounding residences and, when installed on multiple turbines, shall not be synchronized but rather designed to flash independently. If FAA approval is gained to allow for upward-facing-only lights, all lighting shall be retrofitted with such lighting.
(3) 
Wind turbines shall not display advertising, except for reasonable identification of the turbine manufacturer, facility owner and operator at the base of the tower in no larger than six-inch letters.
(4) 
On-site transmission and power lines between wind turbines shall be placed underground and in accordance with Agriculture and Markets recommendations and relevant building codes.
F. 
Warnings.
(1) 
A clearly visible warning sign concerning voltage must be placed at the base of all pad-mounted transformers and substations.
(2) 
Visible, reflective, colored objects, such as flags, reflectors, or tape, shall be placed on the anchor points of guy wires and along the guy wires up to a height of 10 feet from the ground.
G. 
Climb prevention/locks.
(1) 
Wind turbines shall not be climbable externally.
(2) 
All access doors to wind turbines and electrical equipment shall be locked or fenced, as appropriate, to prevent entry by nonauthorized persons.
H. 
Meteorological (MET) tower construction. Meteorological towers shall be monopoles rather than lattice construction, and shall use no guy wires where possible.
A. 
Occupied buildings. All wind turbines shall be set back from any residence 1,250 feet. The setback distance shall be measured from the center of the wind turbine base to the nearest point on the foundation of the occupied building.
B. 
Property lines. All wind turbines shall be set back a distance of at least 1,000 feet from any adjacent property lines. The setback distance shall be measured to the center of the wind turbine base.
C. 
Public roads. All wind turbines shall be set back from the nearest public road a distance of not less than 500 feet, as measured from the right of-way line of the nearest public road to the center of the wind turbine base.
D. 
The minimum height of the end of rotor blades above ground surface shall be 30 feet.
Property owners may not waive or vary setback requirements and must adhere to setbacks as defined in this chapter, unless such variance or waiver is approved by the Town Zoning Board of Appeals. Any resolution to vary or waive any of the above setback requirements shall run with the land and be recorded as part of the chain of title in the deed of the subject property and shall be filed with the County Clerk.
A. 
The applicant shall identify all state and local public roads to be used within the Town of Phelps to transport equipment and parts for construction, operation or maintenance of the wind energy facility.
B. 
The Town of Phelps's engineer or a qualified third-party engineer hired by the Town of Phelps and paid for by the applicant shall document road conditions prior to construction. The engineer shall document road conditions again 30 days after construction is complete or as weather permits.
C. 
The Town of Phelps may bond the road in compliance with state regulations.
D. 
Any road damage caused by the applicant or its contractors shall be promptly repaired at the applicant's expense, returning the road to a condition satisfactory to the Town Highway Superintendent or its representatives.
E. 
The applicant shall demonstrate that it has appropriate financial assurance to ensure the prompt repair of damaged roads.
A. 
The applicant shall provide a copy of the project summary and site plan to local emergency services, including all local paid or volunteer fire and ambulance department(s).
B. 
Upon request, the applicant shall cooperate with emergency services to develop and coordinate implementation of an emergency response plan for the wind energy facility.
A. 
Audible sound from a wind energy facility shall not exceed 50 dBA, as measured at the exterior of any occupied building on a nonparticipating landowner's property. Methods for measuring and reporting acoustic emissions from wind turbines and the wind energy facility shall be equal to or exceed the minimum standards for precision described in AWEA Standard 2.1 – 1989 titled "Procedures for the Measurement and Reporting of Acoustic Emissions from Wind Turbine Generation Systems Volume I: First Tier."
B. 
The facility owner and operator shall make reasonable efforts to minimize shadow flicker to any occupied building on a nonparticipating landowner's property. The applicant shall provide a shadow flicker analysis with its application for approval as provided in this chapter.
A. 
No individual tower facility shall be installed in any location along the major axis of an existing microwave communications link where its operation is likely to produce electromagnetic interference in the link's operation.
B. 
No individual tower facility shall be installed in any location where its proximity with existing fixed broadcast, retransmission, or reception antenna (including residential reception antenna) for radio, television, or wireless phone is likely to produce interference with signal transmission or reception.
Prior to issuance of a building permit, the applicant shall provide the Town of Phelps with proof in the form of a duplicate insurance policy or a certificate issued by an insurance company of liability insurance of a level to be determined by the Town Board in consultation with the Town's insurer to cover damage or injury which might result from the failure of a tower or towers or any other part(s) of the generation and transmission facility.
A. 
The applicant shall provide the Town with a decommissioning plan which includes, but may not be limited to:
(1) 
Provisions describing the triggering events for decommissioning of wind power facilities;
(2) 
Provisions for the removal of structures, debris and cabling, including those below the soil surface;
(3) 
Provisions for the restoration of the soil and vegetation;
(4) 
A timetable approved by the Town of Phelps for site restoration;
(5) 
An estimate of the decommissioning costs certified by a professional engineer;
(6) 
Financial assurance, secured by the owner or operator, for the purpose of adequately performing decommissioning, in an amount equal to the professional engineer's certified estimate of decommissioning costs;
(7) 
Identification of and procedures for Town of Phelps access to financial assurances;
(8) 
A provision that the terms of the decommissioning plan shall be binding upon the owner or operator or any of their successors, assigns or heirs;
(9) 
A provision that the Town of Phelps shall have access to the site, pursuant to reasonable notice, to effect or complete decommissioning;
(10) 
Removal of machinery, equipment, tower and all other materials related to the project is to be completed within one year of decommissioning.
B. 
The facility owner and operator shall, at its expense, complete decommissioning of the wind energy facility, or individual wind turbines, within 12 months after the end of the useful life of the facility or individual wind turbines.
C. 
The wind energy facility or individual wind turbines will presume to be at the end of its useful life if no electricity is generated for a continuous period of 12 months.
D. 
Decommissioning shall include removal of wind turbines, buildings, cabling, electrical components, roads, foundations to a depth of 36 inches, and any other associated facilities.
E. 
Disturbed earth shall be graded and reseeded, unless the landowner requests in writing that the access roads or other land surface areas not be restored.
F. 
An independent and certified professional engineer shall be retained to estimate the total cost of decommissioning ("decommissioning costs"). Said estimates shall be submitted to the Town of Phelps after the first year of operation and every fifth year thereafter.
G. 
The facility owner or operator shall post and maintain decommissioning funds in an amount equal to the decommissioning costs. Such decommissioning funds shall be in the form of a performance bond and shall be posted and maintained with a bonding company, provided that the bonding company is authorized to conduct such business within NYS and is approved by the Town of Phelps.
H. 
If the facility owner or operator does not complete decommissioning within the periods prescribed by the Town as permitted through this chapter, then the Town of Phelps may take such measures as necessary to complete decommissioning.
I. 
The escrow agent/bonding company shall release the decommissioning funds when the facility owner or operator has demonstrated and the municipality concurs that decommissioning has been satisfactorily completed, or upon written approval of the municipality in order to implement the decommissioning plan.
A. 
The owner or operator of the wind facility must submit, on an annual basis, a summary of the operation and maintenance reports to the Town of Phelps. In addition to the above annual summary, the owner or operator must furnish such operation and maintenance reports as the Town reasonably requests.
B. 
Any physical modification to the wind facility that alters the mechanical load, mechanical load path, or major electrical components shall require recertification. Like-kind replacements shall not require recertification. Prior to making any physical modification (other than a like-kind replacement), the owner or operator shall confer with the Town of Phelps Code Enforcement Officer to determine whether the physical modification requires a special use permit modification.
C. 
The Town of Phelps staff, along with licensed third-party professionals retained by the Town for the specific purpose of conducting inspections of the wind facility, shall have the right, once annually, and with sufficient prior notice, to accompany the owner or operator, or his agent, on the premises where a wind facility has been constructed, to inspect all parts of said wind facility installation and to require that repairs or alterations be made. The owner or operator of a wind facility may retain a licensed third-party professional engineer familiar with the specific wind facility system to prepare and submit to the Town of Phelps a written report which addresses the repairs or alterations requested, and which suggests alternate methods for addressing the concerns or provides evidence that said repairs or alterations are unnecessary. This report must be submitted within 30 days after receiving notice from the Town of Phelps that repairs or alterations are requested unless both parties have agreed to a longer period of time. The Town of Phelps will consider any such written report and determine whether the repairs or alterations should be made as originally requested or as suggested in the written report.
D. 
Inspections, at a fee to be determined from time to time by the Town of Phelps and paid by the applicant, may be made by the Town of Phelps Code Enforcement Officer, or by a qualified inspector for equipment of this type selected by the Town of Phelps, no more than once annually to certify the safety and maintenance of the wind facility and accessory structures.
A. 
The facility owner and operator shall maintain a phone number and identify a responsible person for the public to contact with inquiries and complaints throughout the life of the project.
B. 
The facility owner and operator shall make reasonable efforts to respond to the public's inquiries and complaints.
C. 
The facility owner and operator shall provide the Town with an annual report of all complaints from the previous year, including, but not limited to, number and type of complaints.
Permitted use. Small wind energy systems shall be a permitted use in all zoning classifications subject to certain requirements as set forth below:
A. 
Tower height. For property sizes between 1/2 acre and one acre, the tower height shall be limited to 80 feet. For property sizes of one acre or more, the tower height shall be limited to 200 feet, except where such height does not conform to regulations imposed by the FAA.
B. 
Setback. No part of the wind system structure, including guy wire anchors, may extend closer than 1.25 times the turbine height to the property boundaries of the installation site.
C. 
Noise. Small wind energy systems shall not exceed 50 dBA, as measured at the closest nonparticipating landowner's occupied building. The level, however, may be exceeded during short-term events such as utility outages and/or severe wind storms.
D. 
Approved wind turbines. Small wind turbines must have been approved under the Emerging Technologies Program of the California Energy Commission or any other small wind certification program recognized by the American Wind Energy Association.
E. 
Compliance with Uniform Building Code. Building permit applications for small wind energy systems shall be accompanied by standard drawings of the wind turbine structure, including the tower, base, and footings. An engineering analysis of the tower showing compliance with the Uniform Building Code and certified by a licensed professional engineer shall also be submitted. This analysis is frequently supplied by the manufacturer. Wet stamps shall not be required.
F. 
Compliance with FAA regulations. Small wind energy systems must comply with applicable FAA regulations, including any necessary approvals for installations close to airports.
G. 
Compliance with National Electric Code. Building permit applications for small wind energy systems shall be accompanied by a line drawing of the electrical components in sufficient detail to allow for a determination that the manner of installation conforms to the National Electrical Code. This information is frequently supplied by the manufacturer.
H. 
Utility notification. No small wind energy system shall be installed until evidence has been given that the utility company has been informed of the customer's intent to install an interconnected customer-owned generator. Off-grid systems shall be exempt from this requirement.
Wind power construction projects located in county-adopted, state-certified agricultural districts shall comply with the following guidelines. The project sponsor is encouraged to coordinate with the New York State Department of Agriculture and Markets (Ag and Markets) to develop an appropriate schedule for milestone inspections to assure that the goals of these guidelines are being met. For larger projects, the project sponsor shall hire an environmental monitor to oversee the construction and restoration in agricultural fields.
A. 
Siting guidelines.
(1) 
Minimize impacts to normal farming operations by locating structures along field edges and in nonagricultural areas where possible.
(2) 
Locate access roads which cross agricultural fields along ridge tops where possible to eliminate the need for cut and fill and reduce the risk of creating drainage problems.
(3) 
Avoid dividing larger fields into smaller fields, which are more difficult to farm, by locating access roads along the edge of agricultural fields and in nonagricultural areas where possible.
(4) 
All existing drainage and erosion control structures such as diversions, ditches, and tile lines shall be avoided or appropriate measures taken to maintain the design and effectiveness of the existing structures. Any structures disturbed during construction shall be repaired to as close to original condition as possible, as soon as possible, unless such structures are to be eliminated based on a new design.
B. 
Construction guidelines.
(1) 
The surface of access roads constructed through agricultural fields shall be level with the adjacent field surface.
(2) 
Where necessary, culverts and water bars shall be installed to maintain natural drainage patterns.
(3) 
All topsoil must be stripped from agricultural areas used for vehicle and equipment traffic and parking. All vehicle and equipment traffic and parking shall be limited to the access road and/or designated work areas such as tower sites and laydown areas. No vehicles or equipment will be allowed outside the work area without prior approval from the landowner and, when applicable, the environmental monitor.
(4) 
Topsoil from work areas (tower sites, parking areas, open-cut electric cable trenches, along access roads) shall be stockpiled separate from other excavated material (rock and/or subsoil). At least 50 feet of temporary workspace is needed along open-cut electric cable trenches for proper topsoil segregation. All topsoil will be stockpiled immediately adjacent to the area where stripped/removed and shall be used for restoration on that particular site. Topsoil stockpile areas shall be clearly designated in the field and on the on-site working set of construction drawings.
(5) 
In cropland, hayland and improved pasture, a minimum depth of 48 inches of cover will be required for all buried electric cables. In unimproved grazing areas and land permanently devoted to pasture, a minimum depth of 36 inches of cover will be required. In areas where the depth of soil over bedrock ranges from zero to 48 inches, the electric cables shall be buried entirely below the top of the bedrock or at the depth specified for the particular land use, whichever is less. At no time will the depth of cover be less than 24 inches below the soil surface.
(6) 
All excess subsoil and rock shall be removed from the site. On-site disposal of such material may be allowed if approved by the landowner and, when applicable, the environmental monitor, with appropriate consideration given to any possible agricultural or environmental impacts. (Any permits necessary for disposal under local, state and/or federal laws and regulations must be obtained by the contractor, with the cooperation of the landowner when required.)
(7) 
In pasture areas, work areas will be fenced to prevent livestock access, consistent with landowner agreements.
(8) 
All pieces of wire, bolts, and other unused metal objects will be picked up and properly disposed of as soon as practical after the unloading and packing of turbine components so that these objects will not be mixed with any topsoil. (Any permits necessary for disposal under local, state and/or federal laws and regulations must be obtained by the contractor, with the cooperation of the landowner when required.)
(9) 
Excess concrete will not be buried or left on the surface in active agricultural areas. Concrete trucks will be washed outside of active agricultural areas. (Any permits necessary for disposal under local, state and/or federal laws and regulations must be obtained by the contractor, with the cooperation of the landowner when required.)
C. 
Restoration guidelines.
(1) 
Following construction, all disturbed agricultural areas will be decompacted to a depth of 18 inches with a deep ripper or heavy-duty chisel plow. In areas where the topsoil was stripped, soil decompaction shall be conducted prior to topsoil replacement. Following decompaction, all rocks four inches and larger in size will be removed from the surface of the subsoil prior to replacement of the topsoil. The topsoil will be replaced to original depth and the original contours will be reestablished where possible. All rocks four inches and larger shall be removed from the surface of the topsoil. Subsoil decompaction and topsoil replacement should be avoided after October 1, unless approved on a site-specific basis by the landowner in consultation with Ag and Markets. All parties involved should be cognizant that areas restored after October 1 may not obtain sufficient growth to prevent erosion over the winter months. If areas are to be restored after October 1, some provision should be made to restore any eroded areas in the springtime to establish proper growth.
(2) 
All access roads will be regraded to allow for farm equipment crossing and to restore original surface drainage patterns or other drainage pattern incorporated into the design.
(3) 
All restored agricultural areas shall be seeded with the seed mix specified by the landowner in order to maintain consistency with the surrounding areas.
(4) 
All surface or subsurface drainage structures damaged during construction shall be repaired to as close to preconstruction conditions as possible, unless said structures are to be removed as part of the project design.
(5) 
Following restoration, all construction debris will be removed from the site.
D. 
Two-year monitoring and remediation.
(1) 
The project sponsor will provide a monitoring and remediation period of no less than two years immediately following the completion of initial restoration. The two-year period allows for the effects of climatic cycles such as frost action, precipitation and growing seasons to occur, from which various monitoring determinations can be made. The monitoring and remediation phase will be used to identify any remaining agricultural impacts associated with construction that are in need of mitigation and to implement the follow-up restoration.
(2) 
General conditions to be monitored include topsoil thickness, relative content of rock and large stones, trench settling, crop production, drainage and repair of severed fences, etc. Impacts will be identified through on-site monitoring of all agricultural areas impacted by construction and through contact with respective farmland operators and the Department of Agriculture and Markets.
(3) 
Topsoil deficiency and trench settling shall be mitigated with imported topsoil that is consistent with the quality of topsoil on the affected site. Excessive amounts of rock and oversized stone material will be determined by a visual inspection of disturbed areas as compared to portions of the same field located outside the construction area. All excess rocks and large stones will be removed and disposed of by the project sponsor.
(4) 
When the subsequent crop productivity within affected areas is less than that of the adjacent unaffected agricultural land, the project sponsor as well as other appropriate parties will help to determine the appropriate rehabilitation measures to be implemented. Because conditions which require remediation may not be noticeable at or shortly after the completion of construction, the signing of a release form prior to the end of the remediation period will not obviate the project sponsor's responsibility to fully redress all project impacts.
(5) 
Subsoil compaction shall be tested using an appropriate soil penetrometer or other soil compaction measuring device. Compaction tests will be made for each soil type identified on the affected agricultural fields. The subsoil compaction test results within the affected area will be compared with those of the adjacent unaffected portion of the farm field/soil unit. Where representative subsoil density of the affected area exceeds the representative subsoil density of the unaffected areas, additional shattering of the soil profile will be performed using the appropriate equipment. Deep shattering will be applied during periods of relatively low soil moisture to ensure the desired mitigation and to prevent additional subsoil compaction. Oversized stone/rock material which is uplifted to the surface as a result of the deep shattering will be removed.