Pond Boss Forums INTRO New Forum Member Introduction Before the dig: Laws?

Hello All,

I have about 3 acres of creek bottom that becomes a flood zone following the winter thaw. The water only runs about a foot deep during this flooding, and returns to normal after a week or so. When it does flood, it washes over a state owned gravel road, forcing that road to be closed for the duration.
I would like to emplace a .75 - 1 acre pond in the center of the flood plain, and dig ditches that would ease the flooding of the road. I know that there are various laws that protect the flow of creeks, and I imagine there are probably laws regarding the digging of a pond. I just have not found anything along those lines in the various forums. It seems like a lot of folks are able to just pick a site and start digging.

My property is in Barboursville/Charlottesville Virginia. I am deployed to Afghanistan at the moment, so I have plenty of time to learn the ropes. Please feel free to chime in.

You definately want to understand the law before digging. In Indiana, I would start with the DNR because they seem to be most interested in promoting wildlife rather than acting as policemen. In Virginia, it looks like your agency is DGIF (see link below). They could probably point you in the right direction. Flood plains are handled differently in different places. I just had a wetland mitigated in a flood plain on my place, but it was a previously cultivated field.

http://www.dgif.virginia.gov/about/

UpaTree -

First off, let me thank you for your service. I pray for your safety and that before long you'll be back here in Va enjoying the planning and construction of a new pond!

I'm in your neck of the woods (Greene County) and just finished a new pond this past Friday. The 5.3 inches of rain we got Monday nite & Tuesday has it half full already, so the timing was great.

As far as permitting, I had to contact the county erosion and sediment guy at the building department. Since I was able to declare it an agricultural pond, as opposed to recreational, the E&S permit was waived. If you're in Albemarle County things may be different.

You're also supposed to contact the Army Corps of Engineers. I think most people around here never do and just take their chances, but Vinny Pero is the engineer who covers the charlottesville area - Vincent.D.Pero@usace.army.mil. The Corps gets alot of flack around here - and alot of times for good reason - but luckily this guy was very reasonable. He allowed me to build under "Regional Permit 5" which limited me to 300' of streambed. However, RP5 is no longer in effect and I was told the permit they'll replace it with will be more cumbersome.

Also, if you havn't realized already there is tons of great info on pond contruction and pond management on this site. So get into the archives and ask questions when you got em!

I am in Indiana, but the state laws that we abide by were mandated nationally by the EPA or Army Corps. You will likely need a dam permit from the DCR and possibly a construction in a floodway permit (in Indiana the cutoff for needing one is a drainage area smaller than 1 square mile). In Indiana floodway permits require mitigation of all trees removed on a 5:1 (depending on location) basis and a 5 year reporting period. A 404 permit will be required from the Army Corps. if wetlands or areas within the streambed are disturbed. And finally and erosion and sediment control permit (Rule 5 permit in Indiana) will likely be needed if it is not for agricultural use and disturbs and acre or more. I have never applied for these permits in Virginia, but in Indiana this is a job for an engineer. More permits might be needed, but these permits would be required in Indiana and are mandated by federal law (clean water act, navigable waterways act, and floodway act)and should apply in one form or another in Virginia.

Wow. First let me thank you guys for responding so quickly. And I appreciate any prayers thrown my way. This place makes me thankful to be able to call the US my home.

After reading your post I realize that the most difficult part of this endeavor will be navigating through the various paperwork. The VA DGIF does provide a lot of insight, and has some pretty sound recommendations for pond construction, and stocking. I did find that in Virginia there are exemptions from some of their Clean Water Act restrictions for Farm and Stock pond development as long as the pond dam doesn't exceed a certain size, and for impoundments also not exceeding a certain size. My intended pond fits within those specs, but I will still have to get the county permits and inspections for sediment control, and I will have to contact the Army Corps regardless. Fortunately VAMAZ has provided the name of our local USACE engineer. Guys, I really appreciate your input, and I am amazed at the amount of useful information on this site.

VAMAZ, I'm willing to bet that Albemarle county will be more of a pain than Greene when it comes to regulations and permits, but in general, can you give me a cost estimate for the various County, State, and Federal permits? And do you know of any Virginia Tree removal Mitigation requirements, as Indiana has pointed out?

VAMAZ, the creek that causes the issues is Preddy Creek which essentially runs parallel with HWY 29, and 20. I don't think the State has much concern about the mess that creek has become, because nearly every crossing becomes flooded over every spring. Do you know of anyone else in our area that has done anything along Preddy Creek?

I don't know anything about tree removal mitigation requirements. I removed lots of trees for my pond, but it's not in a designated floodplain and that may make a difference. I'm sure Preddy Creek is designated as a flood plain, though. Preddy Creek is a pretty good sized creek.

Tell you what... when I started the whole planning process, I got a brochure from the district Soil & Water Conservation office which laid out all agencies and departments that may need to be involved, phone numbers, etc. Albemarle is in a different district - the Thomas Jefferson Soil & Water District - but I would think they would be able to provide the same for you.

In my case I had no permit fees. I was exempt from needing the county sediment & erosion permit because it'll be used to irrigate Christmas trees and the Corp's regional permit that covered me is not something to be applied for.

I imagine if your planning on putting an impoundment on Preddy Creek you will run into more requirements. Let us know what you find out.

I had no idea about the Soil and Water districts...

I am not planning on impounding Preddy creek, but would make the the pond about 30 yards from and running parallel with the creek. Then I would dig a 4-5 foot ditch also running parallel with the creek but about 80 yards away, starting at the road and emptying back into a bend in the creek, with the pond between the creek and the ditch.

Currently when the spring floods come, the water overflows the creek bank on the far side of the road, across the road, and across the creek bottom to get back to the creek. But when it does this the majority of the creek bank on my side of the road is high enough to stay dry, leaving an island of dry ground between the creek and the natural path of the water, back to the bend in the creek. Problem is that the water flow across the ground is enough to wash debris, and food plots down and into the creek. When the water level drops enough to stay in the creek I am left with a pond about 100ft long by 40ft wide and about 1ft deep. If it would hold fish I might be happy, but it stays till about the end of September, providing a mosquito breeding ground the whole time.

If I were to dig the pond where the 'Mosquito Pond' lies naturally, I am afraid that it would get too much runoff from the hill that it butts against, then all the fish might get washed out every spring. So thats why I thought to make the pond in the area that has the higher ground, and provide a way to divert the water, from the floods, with a ditch.

What does everyone think? I've attached a photo of the creek bottom, in the photo gallery also. The change in the color of the trees denotes a significant change in elevation, and along that line is the path of the mosquito pond.

It is good that you want you pond on the high area. They would likely not let you disturd the "ephemeral wetland".

Hey, I invented a new word "disturd". I won't ask for suggestions on a definition!

Hello UpaTree, I'd contact a local attorney and inquire first. There are probably numerous attorney's qualified in state real estate laws. I'm afraid you will run into the same thing I have always ran into. Around here, you go trying to do things "legal" and seek legal advice from government employees, chances are you will only get opinion and not law.Just my opinion and experience.

Hey Guys, Thanks for all the good advice. I've got plenty to work on between now and getting home.

I can't tell you how much I'd like to have a decent pond over here in AFG. The only pond we have here at Kandahar Air Field is known as the 'Poo Pond'... It's stocked full of Brown Trout and Crappie, with no limit on keepers!

I hope you all enjoy the fall. I should be back with more questions in a couple of months.

UpaTree:

I'd like to second thanking you for your service. When are you due back? In the meantime, if you keep asking questions, we'll keep answering them.

Could be "disturd" or "datturd", ya never know! But, if you were in a hotel pool and realized you never ordered off the menu, could be "disturd or datturd", ya never know

Yeah, it is getting cold up here. Expecting snow at any given moment

I was think that if it were a waste-water wetland it might need to be disturded... Cold here too. I am hoping the weather is good the first week of October. Bow season is almost here!!!

Hey Guys,

I should hopefully get back stateside around the first week in December. I'm pretty excited to see my family, and to get out in the woods a bit before deer season ends.
If I've learned anything over here, it's that we live in one heck of a country, and I can't wait to get back. I'm planning on buying a new John Deere 5065E with a loader and backhoe, of course I'm sure my wife will require some level of endentured servitude for that to happen. I've got some leave time coming to me, so by the end of January I hope to at least have a ditch to divert the spring floods.

I'll stay in touch, because I will definitely have more questions down the road, and this is the place to get the right answers.

Yall take Care!

I like that. "Indentured Servitude".

My wife lets me do just about anything I want to as long as I answer to "Hey Boy".

Hey UpaTree. I know you are not State side right now and thank you for your service, but I just happened to find this post so thought I'd chimie in.

I work as a consultant in VA as a wetland delineator and getting permits for wetland impacts for clients.

Your project as described does not qualify for an RP5 (regional permit 5) as suggested by an earlier poster. Since you are excavating your pond and not impounding the creek that permit will not work. It sounds like the 'mosquito pond" you want to excavate would be classified as a wetland though. If you are going to excavate (dig out with a back hoe), the Army Corps of Engineers does not have jurisdiction over that kind of work. They will not issue a permit for that. However, in Virginia the State Department of Environmental Quality does have jurisdiction over those wetlands so you will need to get a permit from them.

You will qualify for a WP1 - Virginia Water Protection Permit for Impacts Less than 1/2 acre, provided that your impacts stay below this. Keep in mind that if you impact over 1/10 of an acre you will be required to mitigate. I know it sounds crazy that they make you mitigate for building a pond out of a wetland (they are kind of the same thing), but they will because you are changing it from a forested wetland to and open water system. Different functions and values. However, in my experience you have to mitigate as if you built a parking lot and not a pond. This is up to the discretion of the Agency rep you are dealing with, so you may get by with less mitigation. Do your best though to keep it below a 1/10. In your area wetland credits are going between $55K - $65K per acre. And for impacting forested wetlands you have to mitigate at a 2:1 ratio.

Before you do anything have the wetlands and stream boundaries delineated and confirmed by the COE. You can hire a consultant like me, or request that the COE does the delineation. Alot of people get consultants to do this, because it speeds up the process. The COE will delineate wetlands, but it is low on their priorty list and happens when they can get to it. Vinny Pero is your COE guy as mentioned earlier. He is probably one of the best COE reps we have in the state and I've met most of them. Go over your ideas with him and he will give you good advice on how to proceed even if the project (only excavation and no placement of fill) is outside of his jurisdiction.

Just what we need. A guy who has risk his life serving the US comes home and has to pay $ 120,000 for a permit to build a 1 acre pond. Then he has to pay for the work to be done on top of that. That will price almost everyone out of pond construction.

I think they (gov.) don't want any privately owned ponds built.

I have been known to complain from time to time, regarding my area's apparent inability to move forward into the 21st century, and the backa$$words approach which accounts for how most things are accomplished around here.

However, after reading posts such as this one, perhaps I should take a moment to appreciate the benefits that living in an area so far behind the times has brought my family and I.

I know of two ponds constructed this year, just a few miles down the road, where the only paperwork involved was a building permit. $30.00 at the courthouse.

Maybe I don't need city water, cable TV, or DSL internet as bad as I initially thought.

UpaTree, Thanks for your service, I wish you Godspeed on returning home and starting on your pond.

ewest. I agree especially when we are talking about the impacts coming from a pond or lake construction. My personal opinion is that impoundments and ponds constructed on headwater streams can serve a vital role in downstream water quality. They trap sediment and nutrients and either stores it or releases it into the downstream waters more gradually. When these types of structures are built with a combination of vegetated forbays the nutrient reduction is even more. Also flood control.

Believe me I work in this area of Clean Water Act 404 permitting, and some of the regulations don't have a lick of common sense to them. And unfortunately many of the regulators lack common sense as well even though there is alot of flexibility in what they can allow with over burdening the indivdual. I will say the COE rep that UpaTree will deal with is good. He regulates as the CWA was intended to be implemented.

For the record, the cost of mitigation is not a "fee" that goes to the government. Most Army Corps permits don't have any fee associated with them. The payment for mitigation is typically to a private wetland bank.

Also keep in mind that alot of states do not have a permit program for impacting wetlands, so what I've said is strictly related to Virginia. In those other states, you can legally excavate in a wetland to create a groundwater driven pond. This type of wetland impact was successfully challenge in the courts and the courts said that since it is not "discharging dredge material" into the wetland it is outside of the COE/EPA Clean Water Act juridiction. This was the Tulloch case. Also, if the wetland is truly isolated or the wetland and/or stream is determined to be non-jurisdictional (this can be time consuming), then you are free to do whatever you want to it.

wetlandguy I am a natural resources attorney. The CWA - section 404 is a pile of junk as it relates private lands not on large navigable rivers. We almost got rid of that with the last US Supreme Court case - Rapanos . Maybe we will succeed with a new Congress or the Court next time.

Sprkplug, be careful what you wish for! There were lax building codes in this county until a few years ago. Once they were put into effect, they went overboard. For instance: If you wanted to re-shingle your roof, you have to call for an inspection, pay the fee, whether you do a tear-off or not. There is only one inspector for the whole county. He quit after 6 mos. because he couldn't hire any help and he just 'bout went crazy.

There are some silly, stupid regulations in VA (and other states)!! A bit of common sense would go a long way.

You are absolutely correct, Scott. I've stated here before that I believe it's only a matter of time before we catch up with everyone else, or everyone else notices we're lagging behind and drags us along whether we want to go or not. The end result will probably be the same. There certainly are areas where a little governmental intervention can be beneficial, but as you said, common sense seems to be in short supply.

Personally, I believe now is the time to do any major, land altering modifications, in the hope of getting them "grandfathered" in, before any new regs make it difficult, or impossible.

Shoot, I can see my neighbor's new dam from my shop windows, and he never even bothered with the $30.00 building permit... and no one will ever say a thing. Rural life in a small county, I guess. Easier to beg forgiveness rather than ask permission? Perhaps there is more truth there than I previously thought.

So...do you sue fore or against natural resources . Again I agree with you on that. I think the CWA, especially 404, needs to be completely scraped and started over with. Take out all mention of the word navigable. That's just wording originally adopted from Section 10 River and Harbors Act. It seems to me that the problem the courts have is interperting the CWA as it is written to protect the waters of the U.S. (including all wetlands) that most everyone knows for a fact are important on several levels. That's why we had the Plurality decision and Signficant Nexus decision with Rapanos.

I'm all about private property rights, but I would think that many of the folks on here would understand the importance of clean water. If your neighbor dumps dirt, chemicals, etc into the stream feeding your pond and makes it useless, wouldn't you want to be able to have a legal means to defend your water? That's what the CWA is for ultimately, protecting everyones right to clean water. Like I said before though, what this forum is all about, in my opinion, should not be regulated like building a Wal-mart on wetlands. Sure some regulation is appropriate, because honestly I don't think you can trust anyone to do what is right everytime. But to make people mitigate for relatively small scale stuff like this goes too far in my opinion.

Anyway...this is UpaTree's post and I wasn't trying to hi-jack it, I just wanted to point out a couple of things for him to be aware of before he started construction. Namely the involvement of the Virginia DEQ.

I misread read UpaTree's post describing his idea. Sounds like you are avoiding the wetland area (mosquito pond). The high ground would probably be considered uplands because it is most likely part of the creeks levee system. In my experience these usually never have the wetland soils or hydrology because they are typically very sandy and highly permeable. The ditching may get into some wetlands, so in the least get someone to map the wetlands for you.

Something else all of you may want to consider is that you could be inadvertently creating an area that becomes regulated under the CWA. There are certain things that are supposed to be exempted like farm ponds, stock ponds, and sediment basin, but that doesn't mean the agencies see it that way. It's unfortunate, but it happens. One way to avoid this is have a paper trail that involves coordination with the agencies from the beginning. Getting something in writing (even through having to get a permit) that says this pond is a stock pond could come in handy if down the road you want to remove it or alter it in some way.

This is a great site. I hope my posts are seen as trying to be helpful.