Pond Boss Forums INTRO Questions & Observations wetlands...

Hello everyone. I'm glad to join all of you here. This is my first of what I am sure will be many posts. Here is my current situation:

I am looking at purchasing a 5 acre piece of property from a family member. The location and price are excellent. There is a site directly behind where I plan to build the house that looks as close to perfect for a pond as I could ever imagine. One problem...I think it may be wetlands. Should I just dig and not worry about it? Should I contact the ACoE, basically knowing I will be shot down? Is it common practice to incorporate a portion of wetlands into a pond without much worry? What are the real chances of getting in trouble? Lots of questions, I know, but I am kinda stressed about this. I have always dreamed of having my own pond, but the whole wetlands regulations thing has me paranoid. Any advice would be much appreciated. Thanks.

I believe you will find a stout "negatori" from the posters here when it comes to the corp. First make sure your concern is founded. Your NRCS office should be able to provide strip maps of the area that have wetland areas designated.

Welcome to PB J.R. I agree with Brettski that the NRCS or your state environmental department would be a good starting point to gather information concerning your property and any wetlands that may be onsite. If its decided that there are in fact wetlands on your property, discuss your options with them. Concerning the ACoE, if you are a gambler Vegas may offer better odds especially if you are located anywhere near Jersey's location. (Jersey is a frequent PB poster with a lot of "love" for the ACoE).

A search using the topics, ACoE and/or wetlands should yield some useful information.

You should only contact the ACoE if you definitely do not want a pond. The NRCS can be some, but not much help. The geological survey maps that are available on the web denote wetlands. Last time I looked at a pond, it was wet, so I say go for it. You may have to get a land disturbance permit from your local county gov't.What county are you in?

J.R.,

Welcome to Pond Boss. You'll enjoy the resources available to you here.

Regarding your situation, don't let others here discourage you...a consultant specializing in this field will get you a long way.

Here is where you start:

1. Have a limited wetlands assessment performed by a professional in this field.

2. The LWA will determine if you need to contact the USACE. The LWA will also conclude what type (if any) of wetland you have.

3. Should you have a wetland and need a permit (it's actually called a pre-construction notification) from the USACE, you will probably be able to qualify under a section of the Nationwide Permit Section 404. The LWA will be a guidance document during this part of the process.

4. If your consultant cannot find a Nationwide Permit to classify your project, you'll have to file for an individual permit. This process is a little longer and more costly, but not impossible.

Here are some key points to keep in mind:

1. Until you have a professional perform a LWA, don't make presumptions on the feasibility of your project.

2. The USACE is mostly concerned with the mitigation of that wetland. For instance, if the "wetland" you think is on this piece of property is degraded (your consultant will be able to identify this for you); you may be able to work within a NW permit.

3. The USACE loves to see a mitigation plan for enhancing or rebuilding wetland on-site for what you destroy when you build your pond.

4. Although federal law supercedes any state and local laws where conflict about a certain rule of that law applies, there might also be some local and state requirements as well as the USACE requirements when working around wetlands or building bodies of water.

Typically your local NRCS office is going to be more privy on knowing the local and state laws. 9 times out of 10, the NRCS will not give you accurate information regarding the USACE.

Lastly, do not let anyone discourage you from your project. Hire a professional consultant that specializes in this field and he/she will get you a long way, with the most accurate information available.

I hope this is helpful. The best of luck with your project!

Thanks for the info., guys.

Jersey, I am in Ware county. The county won't issue a permit until I have the wetlands think checked. I have a friend that works for the Corps but I am still undecided about involving him. I know he will be on my side, but he still has a job to do and the restrictions seem pretty serious. I talked to him over the phone and he basically said he could get me a permit for 1/10 of an acre within the wetland area....not much of a pond in my book. The area is not confirmed wetlands, but probably will be as soon as the Corps gets involved. I am leaning towards just digging. Ask for forgiveness instead of permission kind of thing...I don't know. Do people get in trouble for this thing often? I am not trying to build a housing development here...just dig a small fishing hole.

J.R.,

If your LWA concludes you have a degraded wetland that you want to mitigate, you can probably file under the Nationwide Permit number 27 for wetland restoration activities. Under this NW permit, there are not linear or acreage limits (such as the 1/10 acre your friend mentioned - probably referring to NW permit 18 or 39). Remember, you will have to restore these wetlands on-site, not replace them all together with the pond alone.

I don't mean to rain on your parade, but as for asking forgiveness...you'll have to do that before a federal judge should anyone decide to report you or stumble upon your project. Violation of these wetland laws is a federal offense punishable by federal pen time and/or excruciating fines.

We recently had a client that tried to go the route of "dig and ask permission later". They were reported and given a cease and desist order from a federal judge. Then, they had to go before the federal judge and try to plead "ignorance". At the end of the judicial process, they were slapped with a $1M+ fine for violating these laws. I don't wish that on anyone.

Before you close on the land you're looking at, resolve to follow through with your project the legal way so you don't pay for the consequences later. It's much cheaper to do something right the first time, than try to fix what you shortcut, after the fact. It's the responsible and right thing to do. Otherwise, find another piece of land that you can build a pond outside of those jurisdictional waters.

Here's your professional advice, at no charge.

Dang Trent. I sure enjoy your slow time of the year. Know any good rain dances?

Thanks for the advice, Trent. I think I will follow it. I do, at least, have a friend in the ACOE who is willing to help as much as he can. I certainly won't be up against what Jersey has had to deal with. Perhaps he can help me find a loophole that will enable me to enlarge the pond beyond the 1/10th acre. I will ask him about the Nationwide Permit 27. For the record, there are no streams or creeks involved...just a low lying area that stays wet. There is a creek well below the proposed pond site (several hundred feet) but not within it. I do not own the land yet, so if all else fails I haven't lost anything and can simply find another piece of property. Thanks again for the advice.

I might add one thought for consideration and this is not to derail Trent's advice as he obviously knows about this stuff.

One would hope that a government agency would apply the policies and laws consistently in each state in the USA. However, we all know that this is not the case. Each region has it's own specific priorities, and many times, each region is subject to the individuals who work at that specific location. It is also my belief that many of those individuals have zero accountability for their actions so they have no risk if they advise you incorrectly or tell you bogus information. For many of them, it would take an act of God for them to loose their jobs.

While this forum gives outstanding advice, it is not a substitute for doing extensive local research.

Or at least an act on their own part. Saying "No" to everyone = safe. Saying "Yes" and letting something happen - I could get in trouble.

The whole thing just seems way out of proportion to me. I am all for protecting the environment, believe me. But this seems like laws that were created and should be used to keep large developments and major pollutants out of our wetland areas are instead being used to prosecute individuals trying to create a 2 acre fishing pond. From the way it sounds, I could dump a truckload of polluted garbage in the middle of an elementary school playground and sit on top of it handing out porn magazines to the kiddies and be in less trouble than if I scoop out a small, insignificant section of wetland for the purpose of creating a fish pond. Just seems like a case of environmental extremism and not at all fair. Hopefully, I can find a loophole to squeeze through somewhere. At least I have someone on the inside who will try to help me.

Boy,

You got that right. Here in Indiana I was told by a local health inspection department head about when he called the Corps of Engineers about a farmer draining a wetland area. He was told that if it was under 25 acres, "please don't bother us." I swear on a bible he told me this.

Wow- For that amount of money you could move to Texas and build a 30 acre lake. I would listen to Trent and stay out of the wetlands. Your loophole could land you in the same court.

You might be concerned over a problem that doesn't even exist. First discover if a wetland is involved and, if so, follow the advice offered by Trent Lewis to the letter.

Posters please be careful in giving legal advice someone could get in trouble. Read the following link to the SWANCC case. If you have trouble talk to your lawyer.

http://supct.law.cornell.edu/supct/html/99-1178.ZS.html

ewest, can you summarize the significance of that text in layman's terms, please?

Here is one group's thought.

Nearly five years ago, the Supreme Court ruled 5-4 that the Clean Water Act did not protect so-called “isolated” wetlands that provide critical habitat for migratory birds. Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (January 9, 2001). Since the spring of 2004, the U.S. Army Corps of Engineers has opened more than 11,000 acres of wetlands to development in fifteen states, after determining that they are exempt from the Clean Water Act under the Court’s SWANCC decision. Our next Chief Justice may well determine whether our wetlands will continue to shrink because the federal power to protect them is cut back even further.

Ewest, thanks for stating the obvious.

I'm sure any sensible person would know that we are not attorneys, nor do we make a representation on anyone's behalf over an internet forum.

But since people have been known to assume, I might as well speak up on this subject.

This is a statement straight out of our client agreements with regards to legal advice and the LWA service we provide:

"PondMedics Incorporated observations, findings and opinions must not be considered as scientific certainties, but solely as opinions based on our professional judgment concerning the significance of the limited data gathered during the course of the project. Further, the services herein shall in no way be construed, designed or intended to be relied upon as legal interpretation or advice.

It should be understood that only the USACE can make the final jurisdictional wetland determinations, including types of permit(s), if any, that may be required prior to redevelopment of the Site(s). PondMedics Incorporated cannot guarantee that the USACE will accept all provisions of the permitting process without modification or revision."

Ewest, should I post the above statements in my discussion forum signature or should I consult my attorney before I make such a decision and action?

Not to be interpreted as legal advice:

There is another case before the supreme court right now challenging the definition and terms of "jurisdictional waters".

We are keeping a close eye on this case, as it could change much of what we are doing today with our clients.

Trent I can't give you legal advice. Ask your lawyer what you should do.

Eric,

Whew! It's getting deep in here! Thanks for your input.

It sounds like we need to lighten it up a little, uh? How 'bout some lawyer jokes!?

I'll trade you one for one with contractor jokes.

Theo,
I've always wondered ... Is a contractor anti tractor?
Would someone in drafting be a pro tractor type of guy?
Or perhaps he just works with big horses?

I don't care if you are lawers or not. You are giving me friendly, helpful advice and I appreciate it. I am not going to break the law...I have too much to lose. But you can bet I will exhaust every option I have to bend this particular law. I just don't see any rational reason why I shouldn't be able to dig a fishing pond on this site.

Please keep giving the free legal advice. That way if I do get in trouble I can always say "Trent Lewis and the folks on Pond Boss told me it was the law!"

...just kiddin'!