Pond Boss Forums INTRO Questions & Observations ACoE permit not mentioned in pond building article

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.