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

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. ****

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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?