I just read the article on planning and building a pond in the February issue of Pondboss. Nowhere does it mention permits or the Army Corps of Engineers.

It seems to me that everyone here, including Pondboss Magazine, is ignoring the ACoE and their permits, just hoping that they will go away. This is very short-sighted, as this very future of their readership.

I know that most people do not bother with the permit process, and I will be the first to admit that the biggest mistake I have made is trying to get a permit. I can't claim ignorance anymore, hoping for forgiveness rather than permission.

Because most people on this forum don't care and have no idea what is going on with the permit process, it is easy to ignore. But Pondboss magazine, the supposed authority, should either know better or find out what is happening to the future pond-owner-wanna-be's. This is a real problem that should be addressed.

Sorry to say Jersey, but frankly, and as you self admit, you have no one to blame but yourself.

You should edit out your negative comments about Pond Boss. What are they supposed to do?---Go out and wade through every U.S. states' regulations to let readers know how to build a pond? They have to start their spectrum of informative knowledge somewhere. Magazines about babies assume that a man and woman already know how to have sex.

As I recall, there were numerous suggestions made to you by forum members on what efforts you could try (not the "play stupid, and just build it" ones either).

I don't believe you even tried the suggestions.

Have you contacted your US Senators or Congressmen? You've never answered that question.

It seems like you want to ask questions, but only want answers that you like.

I'm only speaking for myself, but I'm getting sick of your whining and trying to place some kind of blame on Pond Boss itself.

However, I wish you the best of luck in getting your pond built.

Mike Otto is in North Texas. I've never heard of anyone here having to get the OK from the Corps of Engineers. I believe if you are doing a huge pond/lake you have to get the NRCS Ok but thats about it.

The permit process is very specific to where you live and the individual regulator(s) involved. How you approach the permit makes a huge difference from the first phone call.

Jersey, if you were confrontational or put the regulator on the defensive, good luck because you'll need it. Some areas (watersheds) have unwritten policies like "no net loss of wetlands" or maybe "no more ponds". The regulators may not not tell you about these internal mandates.

In Michigan there is a joint application for all environmental permits that goes to the MDEQ and is copied directly to USACE. I've designed gravel mines, lakes and ponds in wetlands and uplands and have never had to deal directly with USACE. I don't get involved with dams.

There is an art to the process but if your local guy is a jerk or having a bad day you better figure out a way around it, hire an attorney, consultant, call your congressman, move, or cancel the project. The environmental regulations are written so that regulators have a wide discretion and can basically turn down a project without reason. Do not put them on the defensive. If you have the type of personality that will come off as aggressive or combative, you'd better hire a professional from the start.

The major reason that I contacted the universities for a research program at my place (see post below) was to eliminate the arbitrary negative interpretation on wetland conversions by showing that open water environments and creation of upland edges is a beneficial part of a wetland complex. If the study is completed, hopefully we'll have documented research that shows benefits. I think that it also helped to leverage approval of the new permit that we needed to complete the project.

I do think it is more of a state to state thing.
Water rights in Tx are very different than they are in Colo or Montana. I'm not sure Pond Boss should be the legislative expert on each state.
If so your $29/yr buys pretty cheap lawyers.

Simply unbelievable...here's a board full of professional advice for FREE !!! But, it's still not good enough. Those who have ponds built take risks around every turn, that's why they get so passionate with their ponds, it means a LOT to them. I joke around with most about our pitfalls...ML's water turkeys, Dave's poachers, Big_Ponds water line, but they are all friends and I respect their opinions, we all learn from trial & error. If you want to take the easy route, simply buy a place with existing water. Once you have water, that's when your Pondboss Magazine pays off. Maybe Lusk's "unnamed" book about building ponds has a section about legalities.

The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) today (Tuesday, Dec. 16, 2003) reiterated the Administration’s commitment to the goal of “no net loss” of wetlands in the United States. EPA and Army Corps Issue Wetlands Decision
The adverse impacts to the aquatic environment are offset by mitigation requirements.
Recognizing Wetlands

(The Following is from the link below}
Inspection and surveillance activities are carried out by all means at the district engineer disposal. Corps of Engineers employees are instructed on the observation and reporting of suspected unauthorized activities in waters of the United States and of violations of issued permits. The assistance of members of the public and other interested Federal, State and local agencies is encouraged.

When the district engineer becomes aware of any unauthorized activity still in progress, he must first issue a cease and desist order and then begin an investigation of the activity to ascertain facts concerning alleged violations. If the unauthorized activity has been completed he will advise the responsible party of his discovery and begin an investigation. Following his evaluation, the district engineers may formulate recommendations on the appropriate administrative course or legal action to be taken.

Presently about 5,500 alleged violations are processed in Corps district offices each year. The approximate breakdown by authority is: Section 10, 10 percent; Section 404, 75 percent; and Section 10/404, 15 percent.
REGULATORY PROGRAM



My two cents, Jersey has ran into something that more people will run into. Supporters of wildlife conservation and other conservation organizations are the driving force behind these regulations.
Their definition of navigable waters includes streams that can be stepped across. With navigable waters and wetlands defined like they are a lot of area is regulated.

Kent, your comment is right on the money. Jersey's problems have been discussed ad nauseum. So many solutions have been presented and so many methods of blowing straight through that ACoE obstacle have been offered. If it's going to be a future problem for anyone, then those affected should learn how to deal with it.

The most specific story, as I recall, was Kopecky's about getting in contact with Daschle's (sp?) office. He didn't get his exact desired result, but he got to move ahead with his project.

After re-reading my first reply, I thought maybe I was just bashing Jersey after a hard week at work. But then I re-read his post, and I again got disgusted at the tone or suggestion that his situation was any of ours or Pond Boss's fault.

As pond owners, we are keepers of wetlands. It does not matter that we keep these wetlands for ours and our family/friends use. We also foster the wildlife around it. AND...we do it at our own expense.

And finally, the accusatory tone of the topic, "ACoE permit not mentioned in pond building article." I mean WTF?

The laws and how they are handled vary from state to state. And are vague in general. Lots of room for interpretation. Would be a monumental task to ask one company/publication/website to "sort it all out".

Well I can tell you what Jersy went through is REAL and IT IS THE SAME ACCROSS ALLL THE US. Wheather people want to admitt it or not, I went through what he did and it is TOUGH!! Yes I think pond boss really needs to research on this. It is that important!!!We sit here talking about building lakes and ponds all the time and its possible that we are breaking the law. Actually we breakng the law with out a 404 permit! I got my 404 permit because my stream is some what intermitent. But NOW! I am paying for it on the tail end of the project, because after a year the pond is STILL 4 feet from the top!!! and only about 5 to 6 acres instead of 9.3 acres...This has been my battle with this project, not enough water shed.
Now saying that, I have made several segestions about froming a group to confront the Core, and what ever goverment aggency, but NO ONE want to step forward!! But this is what we are going to need if we want to overcome this major obstecle!!!

My 2 cents:

To paraphrase Eastland POND BOSS has given us all the greatest blessing we could have ever hoped for!
I believe the majority of us would be relying on hearsay & old wives tales to manage our ponds were it not for POND BOSS. And who would you go to when you had a weed control, water clarity, fish disease, stunting, dam leaking, ect. ect. ect. problem?

Lusk may or may not be able to help with this issue. I'm sure he's mentioned it to those he thinks might be able to bend an ear, but just what do you think POND BOSS is? Not to berate but relatively speaking it's just an upstart magazine and has little influence with huge governmental bureaucracies like the USACE.
Lusk like the other professional fish pond/lake managers is out working his butt off trying to make a living and keep our POND BOSS mag. & website going.

The help already given is more than most of us could ever have dreamed to have.

Jersey & Big_Pond,
I would suggest if you want this issue addressed, do the research & produce an article to submit for publication in POND BOSS magazine.

I think Sunil needs to go back and read my post. I never made any negative comments about Pondboss, in fact I have complimented the magazine and this forum on many occasions. My comment is that in an article about building ponds, permits and the problems of obtaining them should be, but is not mentioned.

Sunil's comment that I have no one to blame but myself just for trying to follow the rules is the kind of attitude that justifies my point exactly. With thinking like this, pond building will, or maybe has, become something that must be done when no one is looking, hoping not to get caught, and with huge consequences when you get busted. When ponds are outlawed, only outlaws will have ponds.

The Army Corps of Engineers is a federal organization. It is not run or controlled by the states in any way. There is only one 404 form, not 50 of them. I would not expect Pondboss to research state laws.

Dave, no offence intended, but your reply demonstrates exactly what I said about most people here have no idea about the permit process. I don't care if you are in North Texas or Manhattan, you need a permit from the ACoE to build it. The NRCS can help you with a lot of the engineering, but they do not issue permits.

Steve, you hit the nail on the head. The district engineer in your area has all of the authority do do whatever they want. I believe this is why there is so much confusion. I have heard from several pond builders in my area that our district engineer is one of the most difficult the deal with. On my very first conversation with her, I introduced myself and started telling her that I wanted to build a pond on my property. She interrupted me and said that she was not allowing any more ponds to be built. I asked why, and told her that she did not know where my property is, how big the pond would be, whether any wetlands were involved (no wetlands anywhere near me), or what my use for the pond was. She told me that I could include all of this information in my 404 form, and that it would then be denied. Period.

Eastland, where the heck do you get off saying that I am trying to take the easy way out? Did you buy or build your pond? Did you get a permit? Thought so.

Once you have water, that's when your Pondboss Magazine pays off. Then why do they write articles about building ponds?

zhkent, you could not be more correct. If you build a pond without a permit, you can be required to put the land back the way it was and pay a huge fine. Who wants to take that chance? Not me. Eastland and Sunil seem to think that this policy is OK.

Everyone, the last thing I'm trying to do is start a battle or get free legal advice. I am just trying to get information from pond owners who have actually applied for and been approved for a 404 permit. Obviously on this forum, these people are few and far between. This is not a slam, just my observation. And this explains why I have only gotten useful information from two members. (You know who you are.)

Someone who knows how to set up an anonymous poll should post the question - How many of you who built their pond had a permit?

I am not bashing Pondboss or anyone else on the forum. If I didn't like what I see here, I wouldn't read it everyday. I am only making a suggestion, and trying to bring to everyone's attention what is going on with the future of pond building. If your attitude is "I've got mine, now you get yours" then please don't reply to my posts.

Jersey, I have several ponds in North Central Texas. No permit required. On the first one, the NRCS participated with the funding. I have pulled all of my paperwork and the ACOE is not mentioned. It was partially funded for erosion control and that might exempt us from permitting. However, federal funds were used and the ACOE was never mentioned. On another, it was done before I bought the place but I know the builder, helped with the planning, and no paperwork was done. The previous owner got a free pond in exchange for the dirt. I know of none of my neighbors who have ever considered permitting; even when the NRCS helped with the layout but did not fund anything. Heck, I know guys who have stopped up what can be called navigable creeks with no problem. However, I expect this could be a problem if anyone complained. I seem to recall that anything of less than X amount of surface acres does not necessitate permitting. I'll contact the local NRCS guys to find out the answer and post the results. I do know that there is a big difference in state laws on water usage/impounding and Arizona, Colorado, New Mexico and other states have very narrow minded laws. Texas doesn't but I expect it is coming.

Nice shots Jersey. Yes I built my pond, no I didn't apply for (or need) a 404 permit, have your read the 404 exemptions ?

Certain activities in waters of the United States are exempted by law from regulation under Section 404(f), including certain farming, ranching, and forestry activities. Included are normal farming, silvicultural, and ranching activities, maintenance of recently damaged structures, construction and maintenance of farm ponds and irrigation ditches, construction of temporary sedimentation basins, and construction and maintenance of farm, forest, and mining roads using approved best management practices. However, the exemptions are applied carefully and are not intended to exempt activities with more than minor adverse impacts to the aquatic ecosystem.

I thought we decided that the rules changed in about 2001 whether you had to go through the Corp

404 is intended to stop pollutants from entering the wetland areas, dozing work applies and you need the permit if you're classified as such.

I'm wondering how much trouble George Bush
had getting his permit for his pond in Crawford.
I've never heard about a required permit in
Texas for building a pond, and my thinking is
something like that of the 'Good Ole Boys band' in 'The Blues Brothers Movie' when they were told
that they needed a permit to play. They replied
"what are you going to do if we just go in there and play anyway".

Oh where to start?

I bought my pond which sits on about 75 acres. If I wanted to build another pond on my land, or expand my pond, I would not consult with any government agency. As a side note, the PA DEP is building a retention pond on my land right now to catch run-off from some high-wall coal mining spoils which they are in process of regrading.

I told the PA DEP that if this new pond holds water, I will want to keep it (otherwise, they would drain and regrade it when the project is done). They have said that it's my choice and will do whatever I say. There is absolutely no involvement with ACoE. Zip.

Jersey, what you are saying is that pond owners on this board have done something illegal by having their ponds built without some ACoE permit/permission. The majority of people on here are telling you that you are flat out wrong. You're also going on to say that the ACoE Grim Reaper of Pond Death is coming in a very Chicken Little type of way.

There is no "I got mine" attitude here at all. I'm certain that I speak for a majority of people on this forum when I say that we wish everyone could have and enjoy a pond.

Forum members have given you so many valid suggestions of how to legally get around the ACoE (exemptions, congressmen/senators, etc.). You have not reported back on any of them meaning that you either did not try them, or you tried them and failed.

Just answer this question: DID YOU CONTACT YOUR U.S. CONGRESSMEN? SENATORS?

Whether you realize it or not, your actual English writing about Pond Boss is negative. The actual words used are negative; terms like "short sighted" and "supposed authority." It's a little bit scathing and abrasive.

You should read Eastland's post again. He suggested thay you buy an existing pond.

You are also saying that there is only one "legal" way to build a pond, and everyone here is telling you that you are wrong. They all have ponds....you don't -what does that tell you?
One thing it should tell you is that there's many ways to skin a cat; you want Pond Boss to cover them all?

Why don't you kick up a few thousand bucks so they can fund the research? Then they can include a section about how to approach your local ACoE engineers and do the same for the thousands of other ACoE engineers around the country; this would of course include each of their respective personalities too!

Wait...we better think this one out. That's going to be a thick publication. Jersey, Pond Boss is going to need about $10,000.00 more just to get to print.

In his first post Jersey said "I can't claim ignorance anymore".
Up until a year ago I was blissfully ignorant myself. My aquaintenance with the ACoE ended ok.
But what and eye opener.
The NRCS has absouletly nothing to do with this, and frankly they don't want anything to do with it. I invited the NRCS to come out to make a determination on wether an old ox bow was a wetland, they declined (it was a wetland the ACoE said).
So heres an old ditch (cut off from the main stream years ago) cutting this farmers field into two pieces. He can not fill in this ditch (illegal). Well he could legally if he went through the 404 process, got it ok'd and then built a wetland area that had roughly twice the acreage of that old ditch.
The old ditch is still there, did get to add a field entrance through it legally.
Why did I ask to start with? Someone involved told me I could go to jail if I didn't. Kind of figured the ACoE was going to be notified, either by me, or after the job was done.

Everyone,

This series on permiting has been very informative and a real eye opener. I think it has been worth the effort on everyone's part.

The law is complex and requires an attorney to decipher it (even for the CoE). Have patience, I am sure Pond Boss is looking into an article on this. Perhaps doing a good article costs too much, perhaps we just have not given them enough time, if they ask for donations, will you step up?

Jersey... This is an open forum and I think it is OK to express your opinion. As you have noticed, you must be careful about being negative about Pond Boss, it is the greatest pond site on the internet and has a lot of fans with deep ponds.

BigPond...
You said....
______________________
Now saying that, I have made several segestions about froming a group to confront the Core, and what ever goverment aggency, but NO ONE want to step forward!! But this is what we are going to need if we want to overcome this major obstecle!!!
_______________________

Lets look into forming a group. It will be a lot of work on someone's part. It will require filing a non-profit organization and may require registration as a National Political Action Group or Committee. Nothing is cheap.

I volunteer to do the following:

I will find an attorney with experience in that area and ask about the costs and general requirements.

I will email Pond Boss and ask specifically if they are interested in forming a group.

Perhaps it would be best to join another group with simular interests. Pehaps it would be best to check with some of the big boys in the Pond World, the fish food manufactures...

I will post a new topic after I find out the two items I have promised.

Hey Dennis, I am in Ok. too.
Did you just build your pond without any permit?
I am wanting to build a pond, and will probably just do it without notifying anyone.

Eastland, so I was correct. You have never applied for a 404 permit, and therefore you know nothing about it. You think you are exempt because you do some kind of farming, or ranching. But you do not know for a fact that you are exempt, and I'll put my money on that you would not be exempt, you would not have gotten a permit, and you would not have a pond if you had tried to get a permit, and that is exactly my point. You would be in the same place I am now if you had tried to get a permit. Just because you didn't does not make you right or me wrong.

Now don't get me wrong, I'd trade places with you in a heartbeat. I'd rather have a pond that a fight with the Corps. But I thought a permit would be easy, so I applied. Now they know who and where I am, and I am afraid to just build it anyway, like you did. The penalties are too tough.

I have 22 acres of timber pines and 20 acres of ornamental trees. ACoE says that does not qualify. I have suggested to the Corps that I would be getting cattle, but they need to actually see 25 head or more to even discuss an agricultural exemption. And the exemption would be to flood no more than 300 feet of creek. No exceptions. Less than 25 head can be watered with a trough, they say. How many cows do you have?

Bill, you are correct. The new rules went into effect in 2001 and there is legislation currently being worked on to make the rules even stricter.

Sunil, that is exactly what I am saying. Anyone who has built a pond on a strean since 2001 without a 404 permit has done so illegally. Period. If you and everyone else wants to say I'm wrong, so be it. I'm not pointing a finger or criticizing anyone. It's just a fact. I wish now that I had done what most of you all have done. If I had it to do over, I would just build it. But because I didn't, I feel it is appropriate for me to address this issue on this forum. Would you rather just be ignorant of what is going on? You could stick your head in the sand or plug your ears, but that won't make this go away.

Did you know that you cannot put a pipe in a creek for a road without a 404 permit? On your own property! If you did not know this, then you don't know the current rules.

I have taken many of the suggestions I have gotten. I have not written to my senator or congressman. My congressman is Cynthia McKinney. That probably means nothing to you, but if you knew her, you would understand. I do plan to call my state representative and go that direction. I guess the reason I haven't done this yet is that I just can't get it through my thick head that the government would actually call my creek "navigable" and prohibit me from doing anything with it. It's a tough idea to accept, and I suppose this is why many of you have trouble believing what I'm dealing with.

Oh, about the $10,000. I already spent it trying to get a permit. I'll probably spend that much more. With no guarantees.

Dennisinponca, I think you, and most everyone else here know that I never meant anything negative about this forum or Pondboss. Sunil didn't like my choice of words "short-sighted" and "supposed authority", but I have to stand by what I meant, even if you don't like my wording. It is short-sighted not to address this issue. If people are not allowed to build anymore ponds, who will buy Pondboss magazine? Yea, I know, people who either already have one, or people who build them without a permit.

And Pondboss is the supposed authority, aren't they? I personally suppose they are. I mean, they offer more information than anyone or anywhere else that I know of.

If I offended anyone, I appologize. I thought this forum was here to exchange all ideas and information concerning ponds. From MY perspective, this is a huge problem, and I came here to ask for help and ideas on how to deal with it. The ACoE is MY pond problem. I would rather have a problem with my fish not growing big enough. I wish I had geese. I would PAY to have turtles and snakes in my pond. I WANT WATER TURKEYS!

I appreciate all of the suggestions, but have not heard from anyone who has actually been through the 404 process successfully. That should get your attention, huh? Because I am up to my ears in ACoE and the 404 process, I probably know more about it than most. So I am sharing MY information with the forum. Is this not what the forum is here for?

I still want to hear from ONE person who has built a pond on a stream, and applied for and received approval on a 404 permit. Just one.

WATER TURKEYS....now that can be arranged.

Seriously, I'm glad I live in Texas...where personal freedoms are paramount.

I also feel your frustration and can only imagine what my frustration level would be if someone told me that I could not build my pond on my property which doesn't interfere with anyone else. It is a significant issue...and people should not have to hide behind ag. exemptions and whatever else to get their ponds built.

The only solution may be at the ballot box.

Jersey, I never said I built my pond on a place considered a "wetland" area. I bought my land with my hard earned dollars, it took me many months to find the perfect spot. I didn't count on a stream to provide my water, I knew exactly what the topo maps read for my watershed area, I also knew the annual rainfall along with the 25-30 year storm thresholds. I have 36" freeboard, a wide spillway, and the water level is at an all time high...very unusual for my area.

You seem to be under the impression that everyone needs a 404. I tried to provide you with the exemptions to benefit you with alternatives, but you threw them back in my face...I don't need them, feel free to re-reference YOUR loopholes.

Texas also allows wildlife exemptions, please don't insult my intelligence there, I have 2 ag exemptions and 1 wildlife...compared to your figures, I can run about 1/2 the cattle on 1/2 the size. My exemptions are strictly for tax purposes.

Have you considered an alternative approach ? You DON'T have to "plug" the creek to have a pond, with 44 acres you should be able to find another location somewhat removed from the creek causing you problems. If the focus is on waterways, distance from it. With a creek, you're subject to a washout anyway with a huge storm.

Meadowlark, someone IS telling you that you can't build a pond on your own property without interfering with anyone else. You just don't know it. That's exactly what I am trying to tell you and everyone else here. Eastland thinks that some Texas law gives him some exemption over the federal Army Corps of Engineers. It doesn't. In fact, there is a statute in Georgia's code that says if you own both sides of a creek, you CAN NOT and SHALL NOT be denied permission to exercise your riparian right to build a pond on it. My lawyer and I fought a battle based on this code and lost. Federal law takes presidence.

Not that it matters, Eastland, but my property slopes from side to side. The only logical and practical place to build a pond is at the bottom of the slope, in the creek. No wetland is involved or has even been discussed with the Corps. It bothers me that you think it is OK for the ACoE to tell me I can't build a pond on my property because of the lay of the land, but you are, as I am, entitled to your own opinion.

Jersey, for my part, I'm going to try to start fresh here and forget everything past.

In other words, I'm taking a fresh look at your situation as if I'm just hearing your lament for the first time.

You have been stopped or stalled out at a mid-level place in a federal agency. You have rights.
You must go and follow the designated channels for such and issue and take the issue higher than the federal agency. That is the US Congress and the US Senate.

They are there to listen to your problem and help. Obviously they cannot help everyone who comes to them with a problem. That's why I've mentioned in previous posting to you that you must be charismatic and pleasant as hell in your approach.

You responded to that posting about Sen. Vitter in LA. Do you think that the Senator just got a tick in his butt and said "I'm going to do ...."?

He's doing that because constituents approached him and expressed a need.

I've also mentioned that we as pond owners are in a better situation simply because the President of the USA is an avid pond person.

Also, do not write the the Congressmen or Senators; Pick up the phone and call. It simply demonstrates more determination. You may have to call back, so do it.

You initially did what you thought was correct and went to the ACoE, and now you're on their radar, or you think you're on their radar.

On a lighter note, imagine the Fed's trying to approach Meadowlark's pond. ML is sitting there in his underwear and crying. Now who's going to tell that man he can't have a pond???

Here's one more suggestion for you Jersey. It may truly work.

Don't shower or bathe for a month. Then go into the ACoE office every day and stink up the place. Each day, turn in a new 404 application. Make sure to let your scent all over the application before you turn it in.

Tell them that until you can have a pond to bath in, you're going to continue to visit them everyday.

Some of us , like me, went thru their local Soil & Water Conservation Dept. in good faith & got our ponds built. We weren't trying to just build it & hope no one finds out.
Around here that's who you see if you want a pond. They come out with a laser & shoot the lines & help with soil analysis, location ect.
I still maintain they should know if any fed's should be consulted.

A local friend did go thru the ACoE & got his pond built free ! But they didn't finish it. He had to hire someone to complete the job because he couldn't get them to come back.

All I have ever read of the ACoE's is that they will at every opportunity assume authority over anything they think they can get away with. I don't believe they have the power Jersey suggests.

If you ask them if they have jurisdiction they will of course reply in the affirmative.

Jersey,
I don't blame you for being paranoid but I doubt the ACoE has the spare manpower to monitor you specifically. Were I in your shoes I would let this rest awhile & then build my pond going thru the locals & never mention the ACoE.

If you persist to insist there is no other legitimate way to build a pond than to go thru the ACoE and wish to see something in POND BOSS then I repeat my suggestion that you research & write an article for publication in POND BOSS mag.

I am always disillusioned in persons who constantly expect someone else to take up their cause & do the hard work for them.

This thread has been an eye opener for me. I think I would now be circumspect about sharing pond plans with the ACoE. I hope they don't read the Ask the Boss forums!

Jersey, you're putting a lot of words in my mouth and not listening to what I'm saying. The pen is mightier than the sword, and if you had people behind you your odds would be a lot better. Are you so paranoid that you think the Feds are telling the ranchers and landowners everywhere that they can't provide watering holes for farm animals and wildlife ? Do you also believe a 404 is mandatory ? Did your high priced lawyer tell you that ?

Just as a data point here. I live in Upstate NY. I recently ( fall 2003 ) put my pond in my backyard ( which backs up to but - over 200 yards away - from certified wetlands ) I cut into a small seasonal creek, but did not divert it, to provide water to the pond. The outlet of the pond kicks back into the creek about 200 feet from where I cut into it. I initially talked to the Army Corp to verify things and what permits I needed. Since I was not stopping the creek only taking some water off from it and since I was not within 100 yards of the certified wetlands I was told that no 404 permit was needed. I then went through the local soil and water department and asked what permits were needed and if there was any need for federal involvement since it was so close to wetlands. They came out and shot the pond and dug the test holes and readied everything and the answer was a resounding NO there was not any needs for a permit from the County, State, or Federal. They did say contact the town to see if there were any building permits required. I did so and found there wasn't any required there as well. Thus I went ahead and built the pond as laid out by the Soil and water group and had the full knowledge and blessing of the Amy Corp and all local - Federal governments.

Now I am not sure why they would say one thing to you and in my case I was told there was no need for any permits. Maybe it was the size of my pond ( about .25 A ) or maybe it was the way I cut into the seasonal creek. These may be things you may want to check into. All I can tell you is that Yes I did go through the process of looking into all of the permits I thought I needed and was very open and courteous and kind to all involved and found that indeed I did not need the 404 to put in my pond let alone any other permit.

To this date the only permit I have ever had to get is one from the DEC that shows I own a farm pond. That permit was needed to show to the hatcheries that I can purchase any fish I want for stocking purposes in my pond.

I hope that this helps and gives some other perspective on the situation. I truly believe that as you go to state to state and see how the different agencies in those states interpret the laws, they come out with varied outcomes. Mine is just one example of how you can talk to all the same people and agencies in a different state and get a totally different answer.

Good luck and we all feel your pain on being denied something I think we all feel is our right to have on our own property.

Here is an interesting site with maybe some explanations of why different areas have different approaches to 404.

Below you will find an excerpt from the site:

http://www.cleanwateract.org/pages/c7.htm
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Are there exemptions to Section 404 permits?

Section 404( f) exempts some activities from regulation under Section 404. These activities include many ongoing farming, ranching, and forestry practices. These practices do require a permit, however, if the dredging or filling will create a new use for the water “that will impair the flow, circulation or reach of the navigable waters in question.”


Who issues permits to alter wetlands, and leads enforcement of Section 404?

The Army Corps of Engineers administers the Section 404 program. It makes individual permit decisions and develops policy and guidance. Some states have taken parts of the 404 responsibilities from the Army Corps. **** In addition, every general permit is essentially implemented and enforced by the state. ****

------------------------------------------------

I hope that this helps clean up some of the issues we all see from state to state and how and if we are told that a permit is needed.

It all comes down to selective enforcement. The Clean Water Act is Federal therefore it applies to everyone (Jersey is correct). Some may qualify for exemptions, others will simply live in areas where enforcement is lacking. Just like all other federal environmental laws including CERCLA, RCRA, etc., the states may assume primary enforcement authority by promulgating their own regulations provided that the state law is "equal to or more stringent than the federal law". The frustrating thing is that some people can ignore the regulations and not be punished, while others are denied permits or spend $$$ acquiring and maintaining their permits.

I've worked for both state and federal agencies and have been an environmental consultant for over 15-years and have seen hundreds of examples of selective enforcement. In an earlier post I said that it depends on which state you live in, that is not correct, it depends on which state, county and township. States like New Jersey, California, New York and Michigan have the tightest environmental enforcement in the nation.

If you live in an area where you can just put in a pond without a permit, consider yourself lucky but it may still be a violation. I know many people in rural townships in Michigan who have done just that, while I have spent five years and a lot of time and money for my permits. There would definitely not be any ponds on my property if I were not in the environmental business, did not know the permitting process well and could not do all the work myself.

Jersey, you are also right about having knowledge of the requirements. There is an ignorance clause standard in the penalty section of the regulations. Fines will be larger for those who have previous knowledge prior to committing a violation. Another reason why, I couldn't take a chance with my project. It could have cost me everything plus my career.

It's just a matter of time until enforcement hits the frontier. I'm not sure if pushing the issue through politicians would help or just increase enforcement actions. I tend to think it would be the latter. Scientific study on this issue will not show that the installation of ponds protects the nation's water supply (actually the contrary is probably true). My best advice is to buy an existing pond or buy property where you can put in a pond without a major headache (others have given this advice).

Let's face it, the Pond Boss forum is a small group of voters with little or no political clout. Let's say for sake of argument that an organized group was able to get the federal government's attention. From EPA's perspective, they would be obligated to find out why the Clean Water Act was not being enforced in certain areas and could threaten to pull federal funding from state programs. The result would not be positive for many potential pond builders but may result in more consistent enforcement.

Steve,

Your statement, in the next to last paragraph, "Scientific study on this issue will not show that the installation of ponds protects the nation's water supply (actually the contrary is probably true)" is an interesting one. Where could one find information related to that statement?

It seems that the subject of wildlife/waterfowl habitat loss is constantly in the media. I've often wondered what effect the addition of all these individual ponds have had on this issue but never gave much thought to the effects (negative) on the nations water supply.

Thanks for the post

Russ

Jersey,

Thanks for the postings and multiple follow up.

I have an existing pond and plan to build another. I simply can not afford to get into a situation where I have to spend $10 grand, put up with the heartache, and still have the risk never getting a permit. I am too old to put up with the crap you have been through.

I am truly thankful for this series as now I am certain that someday there will suddenly be another pond appear on the "Big Brother" spy pictures and there will not be one single call or visit to the "responsible parties". It is a simple risk / gain / punishment analysis.

I kindly ask you to write and submit an article on your experience with the permitting process to Pond Boss. It would be interesting to see the nightmare in print and may serve to embarress the Core. It would also serve as another method to get the attention of those in power. I would love to send a copy of Pond Boss to my legislatures. Perhaps they would get hooked and be more supportive of land owners.

Thanks again,

First, Pond Boss is a publication that is available all over the world. The man in Cancun, the folks from Canada and myself have no need for ACofE permitting info, pond building info, for sure. In some places, building a pond on a year around stream is against "local law" so it's not just a "form 404 issue". Second you have to own up to some responsibility here, you wanted a pond, you asked the lady, she told you no. It sounds like you are still trying to explain what part of no you don't understand. At this point your only real option is elected official help and a change of attitude, you will need to beg and plead with politicians, get the press on your side, make this a "big brother" thing. I have seen this method work with the Core, they have limited resources and an expensive, unpopular battle with you is just not cost effective for them, they like to think they are the good guys. Involve a Core official who is of a higher status than the local director. It is time consuming, but cheaper than a lawyer, lawyers usually put you in an unwanted adversarial position.

Rad, I think the part of "NO" I don't understand is the part where they tell me what I can and can't do on my own property, while affecting no one else. If you understand it, please explain it to me. If you accept it, don't bother.

I am going to contact a couple of elected officials today, and I will post my progress, or lack of it, on the forum. I also promise to write an article for Pondboss about this whole ordeal once it it over.

For those of you who are following this mess, here are the Georgia codes which apply. Look at section 4. I tried to get a permit from my county, hoping to avoid the feds, they said "No problem, just bring us your 404 permit and we'll approve it." I am sure they have no idea what they are asking.

Title 44, Chapter 8, Section 1 (44-8-1)
Running water belongs to the owner of the land on which it runs; but the landowner has no right to divert the water from its usual channel nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner.

Title 44, Chapter 8, Section 3 (44-8-3)
The owner of a nonnavigable stream is entitled to the same exclusive possession of the stream as he has of any other part of his land. The legislature has no power to compel or interfere with the owner's lawful use of the stream, for the benefit of those above or below him on the stream, except to restrain nuisances.

Title 44, Chapter 8, Section 4 (44-8-4)
It shall be lawful for all corporations and individuals owning or controlling lands on both sides of any nonnavigable stream to construct and maintain a dam or dams, together with canals and appurtenances thereof, across the stream for the development of water power and for other purposes; provided, however, this Code section shall not be construed to release individuals or corporations constructing such dam or dams and appurtenant works from liability to private property owners for damages resulting from the construction and operation thereof either by overflow or otherwise.

Title 44, Chapter 8, Section 5 (44-8-5)
(a) As used in this chapter, the term "navigable stream" means a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable.
(b) The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream.

Title 44, Chapter 8, Section 9 (44-8-9)
All persons owning lands on any watercourses are authorized to ditch and embank their lands in order to protect the lands from freshets and overflows in the watercourses, provided that the ditching and embanking does not divert the watercourse from its ordinary channel; but nothing in this Code section shall be so construed as to prevent the owners of lands from diverting nonnavigable watercourses through their own lands.

Interesting codes!!! It looks like there are a great deal of conflicting statements in the codes. You are not allowed to change the course of any running water. You can however use the stream in anyway like you would use any other part of your land. ...etc Man I am sure a lawyer had fun putting this together in a way such that it can be interpreted in any way by any individual however they felt like on any given day.

I did see that it did have a clause for generating power. Did you ever thing of adding a small generator on the outlet of the pond to generate power and thus maybe get by on that clause? If so then you could have power there for whatever you wanted for the pond ( i.e. aeration, lights ... etc )

Who knows, All I know is when you get lawyers involved it will cost you more than the project itself. Good luck with this and I hope your politicians can help straighten this out for you.

It's not really that bad. I checked on the definition of "diverting water". They said as long as the creek enters and exits your property in the natural creek bed, you are OK. So you can't run the creek over to your brother-in-laws property and take it away from the guy next door. I don't have a problem with that.

The problem here is that the ACoE completely contradicts the state code by telling me that I can't do anything at all. Again, read section 4.

I say after a couple of months, just build it.
They aren't out to 'get' people.

Section 1 appears to contradict the rest of it. If this is Georgia law, I would assume (Yeah, I know) that some legislator sponsored it and carried it through the state legislature. In all sections, it appears to uphold landowner property rights. Since you are doing research, see if you can find out who the sponsor is/was and try to get a clarification from him/her regarding their intent. They might have proposed it to help property owners, like you, escape and receive protection from governmental heavy handedness. Your local legislator could be invaluable here. You live in the community and are a voter.

In Texas, we have a bill before the legislature to protect rural property owners from city codes. Due to the rising price of land and ever increasing development, cities are incorporating/grabbing rural land outside of city limits. They seldom want to talk about providing services but are interested in collecting city taxes. NO question that the rural schools need more funding. The bill would allow newly incorporated landowners to keep hunting on their land. Right now, you can live 10 or more miles out of town, get incorporated and no longer shoot in the new city limits.

Robinson, I did ask about fish farming. I was told that it does not exempt me on the basis of agriculture. I wasn't smart enough to ask if it gave me an exemption based on something else.

Dave, I like your suggestion, and I have already placed a call to follow up. I don't think section 1 really contradicts the rest. It is really saying that if your creek exits your land and enters my land at point X, you can't divert it and send it out somewhere else. You wouldn't want your neighbor upstraem to do that, would you?

BD, I won't say you are wrong, but locally the ACoE owns and uses small planes to look for unauthorized activity. They recently issued a stop work order on a guy building a pond and confiscated the contractors equipment for not having a 404 permit. If that isn't going out to get people, I don't know what is.

Jersey, I read it like you do but I guess I should have said that the Corps might be wanting to use it to control what is clearly none of their business.

I was just thinking. This might not have gone through the state legislature but was enacted by a state department of something or other.

Dave,

I didn't know about the bill in the legislature. Sounds like something we should all support. I don't have any risk of being incorporated....at least for another century...but I sure would support that bill. Thanks for the info.

You have gotten a lot of good advice and you appear to have formulated a plan of attack. Everybody except the Army Core lady wants to be a good guy, that’s how they get elected/appointed and stay there. Use that to your advantage, you need to be the victim of an overbearing bureaucracy that blindly administers the law in a heavy handed, officious way. Which is what she sounded like “No ponds in my district!” “But, I haven’t submitted my application”, “Ok, submit ,then I’ll say no.” It worked for me.
I would also suggest that you visit another district office and just chat with the officer in charge about general policies regarding pond building, approach as if you were just contemplating buying a piece of property and building a pond. There just may be a valid reason why there are no ponds being built in your area.

It appears to me there is an ever increasing trend to control the use of water by the various governing boards. We now have a water board in the county where my property is to control the pumping of water wells. I think this may have been brought on by some water companies buying a piece of property, drilling a well and pumping too much water. However, this affects all property owners in that one will have to get a permit to drill a well and then a meter to make sure you don't pump more than allowed or pay extra. I'm not sure of all the details but I do know voters did approve this board. My point is this. We all know that water and the use there of is going to be a major issue before us.

I just got off the phone with the Tulsa USACE office. I was talking to a nice guy named Michael and in a brief 4 minute call, I got some information.

First, his jurisdiction is limited to wetlands and waterways defined as creeks or greater. As we have seen, this definition is highly flexible. I asked about a farm pond, and he mentioned an exemption. The entire code as I could get from him was 33 USC 1344 (jurisdiction) Section 323.4 and the Farm Pond exemption is E-3. I asked about number of critters watered and he said there was no minimum. I asked "So I could have one billy goat drinking out of a 5 acre pond and it would be OK" and he replied, "You better have that one billy goat there or we are going to come after you."

He offered more help, to include assistance (most likely the kind I probably don't want) to fix my leaking pond. I tried to get more detailed definitions out of him, but I have a feeling he was a little busy. I mentioned the only creek involved the one leaking out of the back side of my existing pond and he said that he could help in getting that fixed. Again, I'm almost afraid to ask what assistance, because there is the possibility that I could get slapped with a whole bunch of new requirements.

I am going to continue getting information from the Corps. Although there are mostly civilians running it, I do occasionally bump into people I have known in my military career that I may be able to get some answers from. I'll keep everyone posted.

Shawn,
A million thanks for the info. I will look up the regs you posetd and see what they say. Thanks for keeping us in mind.

Wow! The 33 USC 1344 code is just that...code. Do we have any lawyers on the forum? I might as well be trying to read Chinese!

The 33 CFR part 323.4 section (3) looks to me to say farm ponds are exempt, but again, I'm not a lawyer.

What do the rest of you all think about it?

Jersey quoted:

I still want to hear from ONE person who has built a pond on a stream, and applied for and received approval on a 404 permit. Just one.

Jersy I did get a 404 permit from the core of engineers, the only problem was that I built it on an intermeadite stream....meaning if we have NO rain for a period of time then...the streamwill STOP flowing...it took me a month to get this....But the draw back is after a year of GOOD raining my 9 1/2 acre pond is still 4 to 5 feet from the top, about 25 feet of water as of now....don't get me wrong the pond is 7 acres now...but it is supposed to be 9.5 acre full.

Now, I knew ALL about your troubles because I have looked at soo many tracts of land for years and the FIRST thing that comes to mind is getting a CORE permit...how would I do it..what would I have to do...ect....I truely know your pain .....The next Lake I build I KNOW for sure I will have to get a farm exemption of some sort...Unless the LORD has mercy on me and smiles on me again like he did before...

BP, I knew you that got your permit. I thought you didn't need one being on an intermittent stream. What made you decide to get a permit? Could I get a copy of your application? PM me if you get a chance. Thanks.

Jersey - Big_Pond, I also have a pond on a seasonal stream/creek that dries up mid summer for about 4 weeks or so, or until a heavy rain comes along. When asking if I needed the permit I was told by all including the ACOE that I did not. Now the interesting thing is that when the stream is running like it did the other day after a heavy thunder and rain storm it is running at about 300,000 to 600,000 gallons per hour. Not a small stream or small flow. Thank god I was told by all that I didn't need the permit to divert the creek into my pond and back out the back of it again.

I got my designed by the NRCS...they told me I needed to get a 404 permit frm the army. They said even though I DID NOT have or get the permit they could still help any way...but I got mine ANY WAY cause I wanted to be safe....Now I am totally leagel...maybe we could meet some where and I can show it to you...It has the official Government US seal on it and tho WHOLE 9 yards....from the ARMY of DEFFENSE..

BTW are you from Social cirle?? there is a pond for sale out there now! It is about 5 to 6 acres in size. It is near that tire place, right behind the egg processing plant.

BP,
I'm actually in Stone Mountain. I am going to build a house in Jersey once the pond is built. Actually, I may be building before then. Then I might have a flood if you know what I mean.

Well why not sell what you have and move another 30 minutes out in some where like Oglethorpe County??? That way you can Have a WHOLE lot more and can build with out worrying about the core..Land in Walton county is about $15,000 per acre where as land in Oglethorpe County is $3,500 per acre!!!

I tell you for years I was looking in Walton County for a ponds or pond sights and could never find it. I tried and tried...could never afford it plus there were NEVER any lake sights there...that's what you might have to do....move to a different location...

Two reasons. First, I work in northeast Atlanta, so I will already be at least an hour from work. Second, Walton county is still in America, last time I checked. I am starting to wonder about that though. It's not the county that is giving me the trouble, it's the feds. Actually it's the district engineer at the Corps, and Oglethorpe county is in the same district.

Yeah but out in rual Oglethorpe you are bufferd from any Federal intrest....It is STILL Northeast atlanta area....Atlanta is growing SO FAST and property is going up in value almost 30 to 40 % a year, it will not be long for Oglethorpe to be like Walton....

I know. But now we are back to hiding and hoping not to get caught. I can do that where I am. And why would I want to sell 66 acres that is going up 30-40% a year? If I build a pond on it it might go up 100% !!!

An interesting read, and you don't have to be lawyer:

http://conlaw.usatoday.findlaw.com/supreme_court/briefs/01-1243/01-1243.mer.resp.pdf

Shows how far reaching the Corps can be and their actions were upheld by the Supreme Court.

Oglethorpe county is going up 30 to 40% a year...in fact there was a guy right around the coner from me who bought 100 acre for right at $1000.00 per acre 2 years ago NOW he sold it for 2600.00 per acre...I think Oglethorpe county is actually the better investment...the price is soo much lower and it is ONLY a little ways out.....But if your heart is set on Walton county you are going to have to make that work.....

Another possibly helpful site: http://www.sac.usace.army.mil/permits/rpp-bro.html

I'm posting research as I come across it. Sorry it doesn't immediately answer questions, but you are getting what you pay for!

BP, It not so much that my heart is set on Walton, as it is my job is set in NE Atlanta. An hour is my limit for driving to/from the office.

If you read the definition on that CoE document:

Navigable waters are defined as waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate or foreign commerce up to the head of navigation. Section 10 and/or Section 404 permits are required for construction activities in these waters.

You couldn't float a toy boat in my creek today. But the Corps calls it "navigable".

Shawn, I read the case you posted and it's a case of stupidity. The land owner applied for a 404 and was denied. He proceeded to rip with a dozer anyway, and "obliterated", "completely filled" wetland areas. The Gov't let him off when he restored a section of wetlands, then proceeded to rip again, the Gov't made him stop, then ISSUED him a permit to rip in 40+ acres...he then tore up 4000+ acres !!! He admitted blame. The poor SOB did it all for the greed of money. That's why the 404 is in place, he wasn't a pond lover, he was a crook who would do anything to make a dollar. It's easy to blame big brother for everything...but the line has to be drawn somewhere. Good reference Shawn, it was an eye opener. Jersey...surely you can convince the people in charge of your jurisdictional wetlands that your project is either "not related to wetland areas", or "not intrusive to the surroundings" It seems like the only real reason that you could be denied is that the land strata being disturbed will fill downstream wetlands. I would get some get core samples tested to strengthen your case for the permit.

Eastland, you are right, the guy really pushed his luck and got bit. I don't have a whole lot of sympathy. A couple of interesting points in the case that I found though is the definition of wetlands. From what I read, these were not necessarily swamps, but more basins that had the potential to hold water or keep it from going into the ground. Except for lately, I don't think that this area is a particularly rain prone area. The other is that while this particular guy was out for the almighty dollar, he most likely had an attitude that "this is my land, I paid for it, and I can do what I want with it!"

For better or worse, this is the problem with any government oversight. Too little control and the wants of others irreversibly damages the environment not only on their land, but several others as well. Too much control, and you lose the ability to do what you want to do, even though you think there is no or negligible effect on others. Take the Pothole region in the Northern Plains states. Critical habitat for nesting waterfowl. Spring meltoff and rains fill in low lying areas with relatively shallow amounts of water. Unfarmable. The Clean Water Act (the real issue with 404 permits) prohibits filling them in, making thousands of acres unfarmable and the remaining ground difficult. These potholes are generally dry later in the year, but those spring wet months of shallow water provide massive insect crops for growing young ducks, with no 20lbs blue cats or flatheads to gobble them up. Those ducks then fly south in the fall, providing vital revenue for duck hunting outfits in Louisana.

All that said (and I apologize for this getting long winded), most of the time there probably isn't a whole lot of damage that our little old ponds are going to cause. But I also had a NRCS guy tell me that wetlands were 3 ft. or shallower, so my 6-10 ft. pond was "destroying" wetlands, thus under Corps jurisdiction. Now I happen to have my pond situated where I can expand and deepen the pond while mitigating the loss of current wetlands with the creation of new. The Corps generally loves the term "mitigating". A hint for future requests.

They told me I could build my pond if I mitigated. All they wanted was for me to pay the mitigation bank $135 per foot of stream. Let's see, 900 feet x $135 = $121,500

Yeah they always give this option....They discussed this with me when I started....I then hired a consultant for like 300 or 400 bucks I think...He went through another core officer who knew him and was much more helpfull...

Would your consultant be interested in calling me?

He died a year ago...the Guy I worked with at the core was named Allen Miller...

Alan Miller is still with the Corps.
Got assigned to Bagdad.
Guess that what happens for helping a pondbuilder.

I am certainly no expert on the permit process but I have tried it twice and thought I'd share my experiences. I currently have a pond under construction (see "my first pond" on selecting a site). With that one I started by talking to the local conservation office and they said since I was not in a protected area and was basically excavating out an area to catch rainwater (there is only water flowing in the area after the snow melts or heavy rain periods)I did not need any permits. They did tell me to talk to the Dept of Transportation because it would be close to the highway so I did that and they said no problem because I was not building a dam and there was already a culvert under the road designed for the area. So as far as I know this pond is legal and I did not need any permits. Technically I guess I could have done this pond without even checking with anyone but I didn't know that at the time.
On the second project I have a creek that runs through my land, the creek flows all year and varies from 12-24 inches deep and 4-6 feet wide. My plan is to excavate a pond along the creek and then cut into the creek and divert some of the water into the pond and then at the other end of the pond have the water flow back into the creek. I again started at the conservation office and they said on this one I would need to check with the Iowa Dept of Natural Resources because I may be in a protected wetlands area. I called the number they gave may and the gentleman I spoke to said that I was not in a protected area so I could dig there. He also said that I would need to talk to the "water rights" part of the DNR and gave me the number. I again explained to project to tha guy and he said that as long as I was not stopping the flow of the creek I was ok but that I would need to have a "water storage permit" He sent me the paperwork, which was a single page with just some generic questions and a description of the project. That gentleman was the first person that said anything to me about the Corp of Engineers. He said that his understanding was that the Corp would not have a permit that I would need for a project like this but he recommended calling just to be sure. I called the number that he gave me and once again explained the project. The gentleman at the Corp of Engineer explained that essentially the corp regulates the placement of soil into waterways (building dams on creeks, filling in wetlands,...). He explained that since I am not putting soil into the waterway I did not need a permit from the Corp of Engineers. So again as far as I know this pond will be legal and the only permit that I will need is the water storage permit because I will be confining some water.
I don't know if this will help anyone but just thought I'd share the information.

Thanks Matt for the info. I am sure your first pond wouldn't need a permit, but I am sure that your second pond beside the creek would have been difficult to get, at best, if you were in my district. It really comes down to the engineer in charge of your district.

Post some pictures of your project as it progresses. I wish you all the success in the world, and thanks again.

Excellent post, I hope it clarifies things for Jersey and others. I would like for him to get his pond and move forward. Referencing Page 2 of this post : "404 is intended to stop pollutants from entering the wetland areas"

1) Are you in a wetland area ? If so, you'll need a permit. Case studies here show they aren't as bad to deal with as the horror stories suggest.
2) No wetland area, know your rights, take before and after pics of low lying areas near your pond, just to be safe.

Quite honestly, I believe local chapters mean a lot when it comes to regulations (State or Federal)...I also appreciate the work of everyone who achieved issuing Comorant Permits in TX. United we stand, divided we fall...kind of stole that line

That is exactly why I am so terribly frustrated. I am not in or even near any wetland. The application fof a 404 permit is filled with nothing but questions about how much wetland you are going to disturb. But I have been told by my county that I must have a permit from the corps, and the corps has told me that they will not issue me a permit.

I am taking a new route now, and will discuss it here soon. Again, thanks to everyone here for the input.

Jersey, I know you are probably tired of hearing things like this, but have you tried to file some kind of exemption letter with the Corps? I worked on a Clean Air permit with my company here in Oklahoma and I just had to prove that we were not emitting enough pollutants to require a permit. I received a certificate from the Department of Environmental Quality that said I was not required to have a permit. It wouldn't surprise me that the Corps won't issue you a permit because you aren't required one. But since you may not have asked the right question, you haven't gotten the right answer. It is not uncommon for a governmental entitiy to not offer additional information beyond what was asked for.

Wow Jersey. I did not need a COE permit for my pond, but (possibly) would for the biggee I plan for the future...we'll see.

I work in the enviro. field and have a few thoughts, similar to Svoberts'.

Navigability is a wide-open question. Have you had anyone (or done it yourself) research the average year-round flow on this stream? If it is really as small as you claim, you might consider doing this research and doing the calculations to determine how much "flow" you would be affecting. On top of this, obtain satellite photos and/or topo maps of the area, to prove no wetlands are involved. NRCS office can certify this part of the claim.

Now...here's where I always begin, if possible, in any permitting process. Go for the exemption. Don't ask for one, but in a nicely worded business letter, state your claim for exemption, and why it's valid.

Put this all together (keep a copy) and send it to the director of your regional office of the ACOE, not to the gal you originally spoke to. This director will put it with whomever needs to review it. Keep your original meeting with this gal out of it.

Put the ball in their court. This will make them provide a certifiable reason...chapter and section...as to why your exemption is not valid, if this is the case. No one person in any governmental body has authority to deny anything just because of their position. They must have a defensible reason.

They may, in fact, be able to deny your permit. However, in doing so, they must point to the section of code that invalidates your claim. You might have to have a lawyer actually read the section they reference to decipher if it's valid...but that's later.

Remember, these people have no incentive to quickly do anything...they just have to get it right even if it takes forever. I would add a section to the letter similar to "...barring timely response from ACoE, this project is scheduled to commence on XX/01/2006...". Give them plenty of time to respond...3-6 months or so. Send it certified and then at least you can show you interpreted the law one way, and gave them the chance to prove you wrong.

Long winded...but it's the gubment we're talking about.

" If you put the Federal Government in charge of the Sahara Desert, in 5 years there would be a shortage of sand"

Milton Friedman

You have to go through the CORE for ANY pond or lake you build now! No matter the size.

I disagree, big_pond. I can think of several cases where you don't. But I would carefully research whether or not any individual project falls under their jurisdiction.

Well here in Georgia you have to have a 404 permit for ANY pond, unless it is for farm use.....Trust me I have been there three times already for three different lakes we have built.

And the definition of "farm use" is very narrow. Growing things and having farm animals isn't enough to cut it.

Robinson, you bring up a great point. I lived in Savannah, GA for a while and a friend of mine was a Colonel Full Bird at the Savannah USACE office. Unfortunately, that was 5 years ago and he has moved on. I remember the water issues on the coast, and I remember how the whole state was on water restrictions during my time there. Even though the USACE is a federal agency, I'm sure they are influenced by regional "sensitivites" such as water shortages. My job at a water trucking company (oilfield) I have had to research water rights in several areas. In North Dakota, there are very few restrictions for drawing water. Just a few miles away in Montana, we had to go through a lengthy process to get a water permit, and it is tightly controlled. In Colorado, the value of a piece of property can vary greatly on how many water rights it has (you can have a half a right, one right, two rights, etc.) In a "green" state like California, I bet it is nearly impossible. I live in Oklahoma, a farm and ranch state and highly erosionable, so ponds are easily built, sometimes even encouraged to prevent erosion. Which brings us back 5 or six pages into this thread, that to do a comprehensive article on pond building to include the 404 permits is a daunting task. State regulations and interpretations of Federal regs vary greatly and sometimes may boil down to what kind of day the engineer you are talking to has had. But I have greatly enjoyed this thread and plan to look further into it with my local USACE office and I will post my results, just as soon as I see the light at the end of the tunnel!

There is no question that water is an issue here in the Atlanta area. My property is about 35 miles east of the city, and my creek is fed from a spring that emerges about 1/2 mile from me, on my neighbors property. The creek empties into a big creek about a mile downstream from me, then into a big lake, and eventually on to the Gulf. I have to ask myself how holding 25 acre-feet of water on my property would affect the water problems in Atlanta.

But I certainly agree that different Corps districts have their own priorities. And I agree even more that it matters who you ask and what kind of mood they are in that day.

I have contacted my congressman and he is asking a corps engineer in DC what the formal policy is on situations like mine. We agreed to start with general questions and work our way to my specific problem. I'll keep the forum posted on how this goes.

That's a tough question. I can tell you that you can take a big step across it, about 4', and it's about 3 inches deep. There isn't a lot of fall on my property, about 13' over 1000'. Maybe 100 gallons / minute? Just a WAG.

Robinson, I wish you were right because then I would know why. I was told "NO, you cannot build a pond" before we ever discussed where I was building it, whether it was on a creek or not, whether there was a wetland involved, or any of these trivial details. When I pointed this out to the Corps engineer, I was told that I could go ahead and submit the 404 application, but that it would be denied because "we are discouraging people from building ponds". Then they explained to me how mitigation works. $150,000 is how mitigation works. So I said - Why don't you just say NO? They replied, "We did."

Mr. Robinson
I have had quite a bit of experiance in building ponds in this state and I can tell you The Atlanta city area has NOTHING to do with it. Jersey in the Walton County area in town called gues what "Jersey". Any way I am 70 miles out side of the Atlanta city area, 30 miles further out from him. Now before I had this 140 acre tract I have now. I had to go WAY! WAY! out almost 200 miles or more to find property because the propert values where Me and Jersey are now was going up so fast. I could not afford land in these areas, but I wanted that 8 to 10 acre lake REALY BAD!!! It was an all out QUEST for this lake!!!! But to make a long story short, I have litterly been ALL over the state looking for 10 acre and up lake sites. Have Peresently have a family member who is bulding two HUGE 20 and 50 acre lakes in South Georgia. He had to go through the exact same hoops I had to go through....In fact he got the farm exemption for his. I am looking at more lake sights in middle Georgia and it is STILL the same story. So I don't think growth or water shortages has really anything to do with it.

Shoot with growth comes $$$$$$$$$$$$$$ ...yeah Jersey is in a sensitive area I am a little more over looked because I am 30 minutes from him..

I don't care what!!! I will take 40% appretiation first and fore most before anything....the pond would have to come later...

Cool those remarks...Texans prefer "Oil Wells" first Especially at $60 per barrel

I wouldn't need a permit from the Corps if I was drilling an oil well. I figure with the property values going up like they are and with the problem building ponds around here, if I can get this pond built, the water will be worth as much as oil!

That is VERY true Jersey...With a lake on the property the land is worth 2 to 3 times as much with out a lake or pond..

I spoke with my friend that was in the USACE a few years back. Unfortunatly, he never dealt with the 404 side.

I also looked very briefly at the USDA book on building ponds, I didn't see 404 permits mentioned there, either, just a brief comment on checking local regs.

My local (county) gov't says to just bring them my corps permit and they will give me their OK.

I think I have a solution, but I just can't make it public yet. Stay tuned because you'll really like this story.

Well the next issue Mike Ott will be talking about the Dreaded 404 Program!!! He could spend 2 to 3 issues on this subject alone!! I hope someone from the magazine talks with an official ACOE person and get the REAL story behind this....There is to much hear-say on this IMPORTANT subject.

Mike, I am guessing the article is already written, but if you will PM me, I'll let you in on what's up.

Jersey,

Can you give us any updates on your pond situation yet??

Russ

Russ, It's just killing me that I can't go into what's up. I can only say that things are progressing very nicely in my favor. The reason that I don't want to make this public is that I don't know who reads this board. There are some people who could cause me headaches if they knew the path that I'm on, and I can't take the chance. I don't mean to sound cryptic, and I hope y'all understand.

What I will say is that what I am working on will be very good news for anyone who is thinking about legally building a pond.

We appreciate you not telling us if you'd have to kill us afterward.

Now that's funny!
ROTFLMAO

Jersey,

I'm about to start the permitting process myself. Any new developements?

Be ready for a FIGHT!!!

Guys, it is really killing me that I can't discuss it, but the good news is that I should be able to spill it in about it in about a week or so. I don't think my approach will be a lot of help to you guys out in Texas, but it is what I had to do and it appears to have worked for me. Understand that until I get to a certain point, there are certain people who could ruin the whole thing, so I ain't talkin'. I am sure that you all will get a kick out of it, though.

I don't blame you Jersy. Stay mum until the right time, ... But I can't wait!!

I'll wait. The best story I ever heard, I had to wait 15 years for. And I haven't told the full version to anybody else in the 7 years since I heard it.

Theo, you just haven't told the "full" version because you can't remember it all when you're telling it ! hahah, messing with you.

Jersey...this better be good, Theo established a pretty high benchmark ! (even if it's not parallel to uncovering what "really" happened during the Kennedy assassination) We will all breathe a sigh of relief when you get the go ahead on your pond. I can only imagine how "passionate" you will get, once the dirt starts moving !

I think I would wait until the dirt is packed and water is impounded.

I hear ya Dave, but then I wouldn't be able to show all of the pictures and tell you how excited I am once the 953's start rolling!

Jersey:

When I started to build my pond in 2002 I talked to NCRS and asked them if any permits were needed. They told me none were needed.

I thought better safe than sorry so I called the county engineer and he said no permit was needed. I then called the state water office and the chief engineer said that if my drainage area above the dam was not greater than several hundred acres I was exempt from any state requirements. Since my drainage area was 75 acres I was OK.

One of my son's friends parents said that the Corps of Engineers required a permit. I thought what the H, it never hurts to ask. I called and left a message, after several days of no return call I thought they were'nt interested. A week or so later I just happened to be in the office over the noon hour and the phone rang and it was the Corps of Engineers deputy on the phone. He said that the Corps had jurisdiction of any area that flowed water enough to bend vegetation over and that a permit or a finding that an exception applied was required. I asked him what happened if I built the dam without the permit. He said if they found an unpermitted or a dam built without a permit they would make me remove it.

I then applied for a agricultural exeception and in about two weeks a letter arrived stating that I met the exception in and confirming that I could build the dam without a permit.

I was lucky to have unwittingly gotten the Corps exception approval despite trying to ask anyone who I could identify as requiring a permit as to what permits were required.

Rock Creek

Rock Creek,
What was the basis for your agricultural exemption? Cattle? Crops?

2002 is when the rules changed, but it sounds like you asked after the new rules went into effect, being that they are now in charge of every drop of water that ever touches land.

Your ACoE engineer was much more reasonable than mine. At least they were willing to talk to you.

Jersey:

At that time I had cattle on the place and intended to use the pond to water them. Since then I have signed up with the ASCS riparian initiative to improve timber stands along creeks and am using the water to water the tree seedlings during the dry spells. The riparian initiative is to improve water quality in the creeks and to prevent erosion. The Corps representative stated that the exception, once granted, would remain effective even if I quit running cattle on the place. I suspect that this new use (being environmentally friendly and government sponsored) might be even more pursuasive to the Corps. If you have these kinds of programs in your area you might try enrolling and see if that helps you.

Rock Creek

The levees are and have been in place for decades. What you're seeing on TV is the result of breaches in two of those levees. Keep watching and you'll perhaps witness the result of a fear of God being lacking in a segment or segments of a population.

Dudley:

Am I correct that N'awlins was originally above the level of the Mississippi, but with 2-3 hundred years of the river rising due to silt and the city NOT rising due to keeping the river out, it is now several feet below the level of the River? If it weren't for the levees, it would be underwater all the time.

Maybe someone should suggest not rebuilding there?

Boy, this this get off topic!

But I appreciate the ACoE actually doing what we pay them to do.

Yes, rebuilding levees for a major city on a river that has major ship traffic is much more my idea of "navigable waterway" work.

Dudley, your comments sound like those of a man of faith. They are almost verbatim what my wife said.

I've been sitting pondering about the magnitude of Katrina.

As I previously posted, a close friend of mine lived at Pass Christian, Mississippi which no longer exists. Nothing habitable for a considerable distance exists. They are in a motel at Columbus, Missippi.

His home is gone, the childrens (6) schools are gone, the grocery stores are gone and the hotels/motels are gone. There are no public utilities. The Church is gone. The hospital where his wife worked is gone. He worked for a New Orleans defense contractor that was right on the coast. There is no place to stay for a considerable distance from what was home and source of income. He has no word, so far, about his job. There is no city hall, fire or police station. In short, the infrastructure that we call society no longer exists.

He is insured and has flood insurance. In the short term, how does he return and to what?

I've been through my share of tornados but they cause a much narrower band of destruction. The people of the afflicted area have huge challenges facing them. I can't even imagine those challenges.

Our company has an office in Terrytown LA which is accross the river and SE of New Orleans.

Our branch manager and staff from that office all got out safely, however, they have no idea about the condition or existence of their homes.

From what I can tell, our whole office must have been underwater (or still is), and the manager only lived a few miles from the office.

Does anyone know of a source of information to find out what areas have been affected etc. Everything I can find seems vague at best.

Hey Yall the Army Corp of engineers is supposed to be looking at the breached levees in New Orleans to try to fix it! Good Luck to poor Ole New Orleans...I wonder if they will make New Orleans get a FREAKING!! permit to fix this dam or levee huh? It will probably take them 3 month to cut through the red tape...Those Turds!! Every time I see them in the news I cringe!! Maybe the US should send the folks to Iraq to fight in this useless war!! That is bout what they good at……..sorry ticks me to see this bunch of clowns to so call help people!!

http://www.cnn.com/2005/WEATHER/08/31/katrina.levees/index.html

Sunil; Ham radio operators maybe.

Big Pond, this is the thing the ACOE is good at. No red tape, no local officials. Just guys with machinery.

Thoes guys aint good at anything but causing TROUBLE!!! Heck! just ask Jersey and all my friends!!

Theo, I can't answer your question. One of the many theories I've heard is that the weight of the buildings caused the land to sink. The Corps of Engineers could probably provide commentary on the most likely scenario. Maybe Big Pond will offer to call the ACOE office in New Orleans to try to get that information.

Jersey, sounds reasonable to me!

Bob, as you know, a fear of God's reprisal has historically kept people in line, and even without that fear hanging over their heads, most people develop a sense of acceptable behavior. Others are only a few generations past using cow crap as a hair dressing.

Dave, perhaps our wise leaders will decide that New Orleans would function best as a port only. Or better, allow it to remain a pond. Wouldn't have to be concerned about adding structure.

Sunil, I don't know of any source for that information, but maybe Big Pond could ask that question when he calls the ACOE office.

Big Pond, the ACOE always makes every attempt to be accommodating. Maybe you should try the "Be Nice" approach. javascript:void(0)
Smile

Thanks guys, I'll try both suggestions.

I did speak to the New Orleans Branch Manager who is currently domiciled in Panama City, FL. His clan is doing fine and just trying to figure out how and when they can get back to Lousiana to position themselves for getting back into New Orleans.

If anyone knows anything about the condition of I-10 between Slidell, LA. and Mobile, AL., please let me know. My co-worker is not having any luck finding any info. on that topic.

Dudley, not wanting to assume anything here, but because you still have internet, does that mean you didn't get hit that hard? I hope all is OK at your pad. Don't forget, I still have a sub-let open on that sunken tire and wood pallet chalet in my pond that we've been saving for you. You can have it anytime, but you may have to grow some gills first!

Sunil, this is probably about as good as any place to look. http://www.mdot.state.ms.us/
I-10 closed til tommorrow @5:00 pm for search and rescue.

I just heard that a large group of doctors went to the N.O. charity hospital to attempt to help those left in the city and their cars have been stolen, looted or otherwise destroyed by the people they're trying to help. Looking out the windows they saw looters wearing their stolen mink coats walking in water well laced with sewage. Unfortunately, they'll probably all survive exposure to that poisonous swill to each have fifteen children who will adopt like philosophies. Don't rent that condo; I'm on my way to Somerset to tie weights to my feet in order to occupy it without gills.

Sunil, I'm so furious that I neglected your inquiry and I apologize for that. The only thing I had was four young (two years old) LSU Gold fig trees growing near my pond that got blown around too much. I managed to get them erect and staked them in that position. Hopefully they'll survive, but if they don't, I won't consider it a problem.

Thanks for asking, my friend.

Thanks Ross, that website is helpful.

Dudley, glad to hear you're intact.

Dudley,
You'll notice that Big Pond and I are both in the same ACoE district. It's a toss up between us who dislikes them the most. I started off by being "nice", after all, I wanted something from them. I get the impression BP is a fairly nice guy too.

Jersey, I wasn't implying that you, Big Pond or anyone else who has business with the ACOE weren't nice people. Using myself and my previous posts as a good example, we sometimes don't handle circumstances as diplomatically as we perhaps should when we become anxious and frustrated when things aren't progressing as we believe they should be.

No offense taken, Dudley. I just don't want anyone to think that either BP or I stormed into the ACoE office with any kind of attitude or animosity. In my case, I just called them to ask which form I should fill out for a pond, and was told not to bother because it would be denied. They didn't know me, where my property is, how big of a pond I wanted to build, what the purpose of the pond was, or whether it was to be creek-fed or just a low spot on the ground. Things went downhill from there.