HELP Pond Boss Forum! I am considering a purchase of property in Southern WV. The pond site would be an impoundment of about 8 acres. I would be damming a stream/spring that runs from a few hills a couple miles away. It is considered an intermittent stream. No aquatic life in the stream, just ground water and runoff from the watershed. My engineer I hired said that I must get a 404 permit from the corp of engineers and mitigate this stream, He said that would cost me $1,052,000 to get this permit! This seems ridiculous. I talked with Mike Otto yesterday and he said, something doesn't sound right. I talked with Bob Lusk this morning, he said it doesn't sound correct either. Yet, on another call this morning with the engineer and a couple of his experts, they both said the same thing. They basically said that any time you dam up a stream, this applies. My question to them was, then how do all these people around the country build 5-10 acre ponds every day?
This is not a "public stream" that has fish in it, or a navigable river, etc... I'm have no idea where to turn or who to ask next?

FWIW IMDO I guess I would ask the people that issue the permits if you need one in your situation. They should know the requirements better than anyone. If they say No, get it in writing.

I'm no expert and am just relaying what experience I gained from my situation in Kansas.

What agencies needed to be involved for permitting amounted mostly to how much watershed was involved. If it is a small stream it likely involves at least a fair sized watershed.

A lot of ponds are built without permits. Some of these can get in a lot of trouble later if you get crosswise with the wrong authorities. But it still gets done, either through ignorance of the law or on purpose.

It makes a difference in Kansas how many acre feet of water the pond will hold and if it is or is not for use for livestock water.

Your local NRCS guy might have very good information about the permitting process and they are often local people.

The problem with asking the agencies directly if they need to get involved, is they usually always say they do even if they don't. Inter agency control tiffs is not an unheard of thing. Starting at the local level with your NRCS agent might (or might not, depending on how competent your agent is) help keep from unnecessary involvement of those that don't really legally need to be involved.

If the EPA or the CORPS need to be involved all I can say is good luck. You will need it along with a lot of money. Property rights should be on the endangered species list.

1 million, 52 thousand for a permit? Are they nuts?

Go talk to your counties NRCS agent and see what they say.

Is the stream named and/or does it appear on offical state maps as a recognized BOW?

The stream is not named. It does show as a small broken blue line on topos. This spring/stream goes underground in several spots prior to reaching the property, then stays above ground on this property. It spills into a normal blue line stream that is named.

As far as the local NRCS, no help! They did come out to do some initial elevations, but they said they no nothing about permitting and do not want to get involved!

Permit 404 does govern exception for a stock pond for livestock, but I do not want cattle on the farm. Also, it would be hard to justify such a large lake for cattle watering anyway.

We are building the pond so that we stay under the limit of impounding 50 ft acres of water. This avoids the dam safety act permit. This, however, is the Clean Water Act regulations. Permit 404.
Apparently, if you impound more than 300 ft of an intermittent or ephemeral stream, you must mitigate the stream. Mitigate is a payment you make to the government to use the stream. The engineer said that it is $3.50 per foot of stream to mitigate. This pond runs along 3000 ft of the stream, 8 acres total. This is the over $1million dollar permit!

That's $10500 right? 3000 x $3.50. Where does the $1 million number come from?

I'm sorry. Typo, $350/ ft.
oops

I will be interested in hearing Catmando's input to this discussion.

I will throw out an alternate idea. Is it possible to build a pond next to this stream and not impede/change its course? They might have a totally different rule on this.

fnc
That's a cool thought! That might work

I fail to see where a 404 permit is needed at all. IF the stream is not listed as a flowing/ephemeral/intermittent stream on the USGS survey, you are not filling in, or changing the bottom grade, of US waters. You are not draining a wetland. You are not discharging fill into US waters. I also highly doubt it would cost $1M+ unless your engineering firm includes all their fees, construction, mitigation, and some really healthy bribes to officials!!!

Talk to the Army Corps to see what they have jurisdiction over. If the COE has no jurisdiction, it's unlikely the EPA does either in this situation...and no 404 needed.

T Watts,

I prepared a different post, but I want to sleep on it before I post more than what is in this post. I don't want to have to moderate myself or be moderated by my friends.

I'm a long-time member/officer of the West Virginia Aquaculture Association. I've been associated with VA and WV private waters management for a long time.

We are currently experiencing very serious aquaculture-related issues in WV due to somewhat-indiscriminate across-the-board budget cuts, including the elimination our WV Aquaculture Extension Service group and our state legal counsel. They would have been able to advise you and help cut through the bureaucracy. The whole infrastructure was eliminated over about the last 18 months, with the head of the WV Aquaculture Extension office, Dr. Ken Semmens, having been fired as of March 16.

As you have found, the usually very helpful NRCS folks have their hands tied because of the budget cuts. Our DNR folks are in the same situation.

As the vice president of the West Virginia Aquaculture Association, as of March 16, I have no one to go to for help and guidance in the WV government. They are all gone.

I may post more tomorrow morning after I rethink the things I'd previously written.

I wish I had better news.

The one thing I can advise is to contact our Governor, our Agriculture Secretary, your state legislative representatives, and our US Senators and Congress people.

Regards,
Ken

Most ponds are built to take advantage of runoffs from higher elevations. Is there any place on the property where you can build a dam away from the intermittent stream?

if it were me wanting to get this pond, I would contact Dr Ken Semmens and ask if he would be interested in a consultant position. He might know the tricks on how to get this done without all the cash and it might open up a consulting company (per Dr Ken) for others wanting the same. This might be a dead end but I would have to look into it. And from what I read here Catmandoo, may be able to help or advise in direction or path to take from here. looks like a lot of Goberment BS and that just pisses me off sometimes

Tracy

Right now I think Dr. Ken is pretty busy moving from Morgantown to Lexington, KY. He starts his new job at U of KY next Thursday. I'll be in contact with him after he gets a little settled in.

I'm also sending you a PM with contact information for a friend who has a trout fishing resort about 50 miles SW of me. He has been all the way to the Supreme Court over issues. He has been dealing with the COE and EPA for several years. I had lunch with him and Ken Semmens on the day before Dr. Ken's last day at WVU. At that time he felt that he was finally able to move forward. He may have some good insight.

Ken G.

When I built my pond here in WV last year I was told I would need a permit for anything over 3/4 of an acre or a dam taller than 25'. I began my project without knowing exactly how big the pond would be. I tried to get an engineer from the DEP to help me but all they did was give me a book on pond building with lots of math involved.

Fast forward to the completion and the DEP show up because a neighbor complained about my lack of silt screens. Pond is now an acre big and dam is right at 25'. The 3 dep agents asked if they could walk around the pond, I told them no they are not welcome and they are trespassing.

After I cooled off for 5 minutes I went back outside and apologized. I told them that when I needed them during my project they were nowhere to be found. All I could get from them was a book ( which I showed them). Now you show up after the fact because someone complained. I said its just BS!

They asked again if they could walk around, I said ok. 10 minutes later they knocked at my door and said we have no problems here and you won't be hearing from us again.

So I guess that being said, the moral to my story is just build it.

I had almost exactly the same situation when I built my pond but mine is only 1 acre so it fit under the 300 ft. stream disruption limit. When I was filling out the 404 it struck me that it wouldn't matter if I was building a mall or a pond - same form, same regs.

Great info, all.
Rainman, it is an intermittent stream.
Catmandoo, I will reach out to these contacts.
Others, there is no way to re route the stream. Not interested in putting a pond on the other part of the property due to the difficulty getting there.

I am meeting with the core of engineers on Tuesday to discuss what I would need to get a waiver or possibly and agriculture exemption. I am not really wanting cattle on the farm, but if I need to, I will on some acreage about 500 yards from the pond site. I could have the cattle leasee use the pond to fill there water troughs.

I'm not interested in building it without the permits. From what I understand, the fines are extremely high if you are caught, such as thousands per day!. Only 1 disgruntled neighbor or 1 contractor that doesn't win the bid is all it takes to turn me in.

oops, Corp of engineers not core

T, any ditch can be considered an Intermittent Stream during a rain event, and we all know the EPA would love control over every drop of rain...in fact, they are trying to pass those rules right now to gain control over all water above, on or below the ground inside the US borders. My question is, has the COE or EPA actually declared they have jurisdiction over the area in question? Has your state? Your engineering firm may just assume a 404 permit is required, but that permit is often not required at all. Also, mitigation does not always need to be in the form of a cash payment. IF a 404 is needed, the EPA/COE may prefer a shallow "wetlands" type area be built instead of cash....that could be a win win for you.

As far as cattle, the pond can be fenced off from them and water sent to a trough below...or a few goats used instead of cattle....Vegetation control??

Well, at least you didn't identify medical corpsmen as "corpse - men" the way a certain Leader of the Free World did!

Good points. Also I'd point out that Floating Islands could be used to create wetlands; 250 sq feet is the equivalent of an acre of wetland.

Really good information! Thank you!

Great info all, Thank You

We just built our pond last fall in VA with a permit from the CoE. We were told we need to keep the stream disturbance to 300 linear feet and less than a 10th an acre of wetlands disturbed. The CoE was good to work with other than they were very busy. We asked for 400 ft in our application along with 200 ft of stream bank widening above the pond to create wetlands in the back 100ft and stream of the pond. They came back and approved this without charging for the mitigation credits over 300 ft. It came across to me that they do have some leeway in the permit as long as you are creating habitat and not getting into a pond size that falls under the dam safety regulations. I'd be happy to share my experience if anyone wants more information. Just PM me. The land disturbance permit was our bigger sticking point which is ridiculous since we are creating an impoundment and the nature of the dam controls runoff. The project is one big catch basin!

That is good to know you had a good experience with the CoE.

I've had a wash that only carries water during a rain event. But since it carried more watershed than the local NRCS could approve for a water way I would have to get CoE involved. Decided to leave it "as is" because of the possible red tape involved.

I met with the corp of engineers on Tuesday.

Very frustrating! They basically said that any time you dam up a hollow or any watershed you are probably going to have to get a private permit and deal with this costly "mitigation"

They said even if it is a small ditch that only gets water in it after a rain, it is considered a water of the state and is going to fall under these regulations.

This pretty much prohibits any dam being built in hilly or mountain regions like WV that back up more than 300 ft of a ditch, stream etc...

How in the world can I build a 5 acre lake without backing up a ditch/stream etc... and damming up a hollow or getting runoff from several hills?

They said the ditch doesn't even have to show up on a map to qualify. If it has water in it after a rain, chances are it will qualify. They also told me the minimum in leu mitigation fee was $800 per foot of stream you impact!

Apparently, the regulations got much more restrictive in 2008!

I have no idea now how to go about looking for property to build a 5 acre bass pond

Something you might be able to do is build a series of smaller ponds. I actually like the smaller ponds because they are easier to manage. You could also dedicate them to LMB SMB,AND HSB.

Since you asked for ideas .... I don't know if this is feasible with your situation but, if it is, only make the dam high enough to backup the creek 300 feet then dig out as far and deep as you want on each side of the creek. Big pond but only backing up 300 feet of creek.