Pond Boss Forums POND CONSTRUCTION Selecting a site WOTUS

Just posting a link for those not following the politics of pond regulation. This is intended to be informational, so please don't take it off the rails. Looks like more clarity could come later this year, so it may make sense for some to time their projects accordingly.

https://www.foodsafetynews.com/2023...-wotus-rule-by-major-private-landowners/

National Association that I belong to have been fighting the wording of this for many yrs, it sorta went away when Trump was in office but has resurfaced recently. people need to familiarize themselves with this rule, COE will be regulating a small ravine in your back yard with the same control they have over the Missouri River.

I was pretty involved in it long ago; but have lost track. Didn't SCOTUS make a ruling that was beneficial for private landowners? If so, are they now trying to bypass that like they are with the SCOTUS rulings on firearms?

I should have read the link first. Good info. Hope SCOTUS addresses it appropriately again the second time around.

Let's hope the second (actually 3rd) time is a charm at SCOTUS.


Consider

Fifth Amendment Rights of Persons
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I have seen property taken by eminent domain and seen them given what they determined was just compensation. The property owner had to sue to get actual market value.

A few years back the Supreme Court ruled that taking private property for a pharmaceutical company somehow fit the definition of public purpose, since it presumably increased property values & tax collections. Note shift from public "use" in Constitution to public "purpose."

I am not generally a fan of the conservative Scotus, but am hoping they restore my ability to restore native habitat and reduce the adverse effects of the agriculture that we all depend on without unsurmountable obstacles. My goal is to restore my land to optimum wildlife habitat and I find the current government policy to be an obstacle to achieving that goal. I understand that this is not the intent, but good intentions kill many people every day. We need smarter policy. Good science and good policy should not be a popularity contest. Be the change that you want! Sorry for the rant, but I am obviously frustrated. Please do not give up!!!

Ya gotta remember, that's one of the benefits of big government, they know way better how to manage our bizness then we do.
They are not happy that we the people have as much power as we do, they would just as soon have us all working for them full time and they do the managing.

I don't see much differences between our choices right now except which freedoms each wants to curtail and who they want to give crazy amounts of money to with too many zeros following the 1st number for me to count. Best we can hope for is to preserve voting by the people.

A recently published Chinese study found that irrigated areas tend to be cooler than non-irrigated. Not surprising given cooling impact of evaporation, but if we are supposed to be worried about climate warming, hard to understand opposition to pond construction. Ponds overall moderate temp extremes, cooler in summer heat waves and warmer in winter lows, plus slow erosion & increase biodiversity.

Ponds also can mitigate both flooding and droughts in waterways downstream by releasing water in a more uniform manner over time. Our local streams flood and then dry out due to quick release by agricultural field tiles. Ponds can catch and store this water for less dramatic extremes downstream. I would have no problem if the benefits from my land on others allowed everyone's tax dollars to pay the permitting and bureaucratic costs associated with evaluating projects, but under the current system, I cannot afford the government overhead for projects that would benefit the environment for everyone. Just one of the unintended effects of poorly constructed regulation.

Im not sure how much opposition they have to pond building, I think its mostly a control issue, they want to tell when you can and can't, plus have you pay them another or more fees for them to send to foreign countries that hate us.

I could rant for years, but just wanted folks to know where things stand.

Yes thanks to all - no ranting.

FYI, here's the Water Advocacy Coalition's summary (cut-n-paste) of the Dec 30th WOTUS "Final Rule".

Preliminary Summary of 2022 WOTUS Final Rule
On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released the pre-publication version of a final rule revising the definition of “waters of the United States” (WOTUS) applicable to all Clean Water Act (CWA) programs. The final rule repeals the Navigable Waters Protection Rule (NWPR) and codifies a definition that the Agencies claim is “generally consistent with the pre-2015 regulatory regime.” Unlike the proposed rule, the Agencies no longer claim that they are merely re-codifying the definitions that they are currently implementing such that the rule would have “zero impact,” i.e., no new costs or benefits. Nonetheless, they insist that the final rule will have de minimis impacts compared to the status quo.
We are still reviewing the final rule and supporting materials, and we will follow up with a more detailed analysis in the coming days. In the meantime, the following summarizes the categories of jurisdictional waters and exclusions, as well as key definitions in the final rule.
Categories of Jurisdictional Waters
Under the final rule, the following waters are jurisdictional:
(1) Waters which are: (i) traditional navigable waters (TNWs), i.e., all waters currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) territorial seas; or (iii) interstate waters, including interstate wetlands.
(2) Impoundments of waters otherwise defined as WOTUS under this definition, other than impoundments of waters identified under paragraph (5).
(3) Tributaries of waters identified in (1) or (2) of this section that:
i. Are relatively permanent, standing or continuously flowing; or
ii. Either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (1).
• Tributary is not defined in the regulatory text, but the preamble clarifies that this category includes rivers, streams, lakes, ponds, and impoundments, regardless of their flow regime, that flow directly or indirectly through another water or waters to a TNW, territorial sea, or interstate water.
• Tributaries can be natural, modified, or constructed waters and thus, can include ditches and canals.
(4) Wetlands adjacent to:
i. Waters identified in (1); or
ii. Relatively permanent, standing, or continuously flowing bodies of water identified in (2) or (3)(i) and with a continuous surface connection to those waters;
iii. Waters identified in (2) or (3) when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (1).
• Adjacent is defined as “bordering, contiguous, or neighboring.” Wetlands separated from other WOTUS by man-made dikes or barriers, natural river berms, beach dunes, and the like are adjacent wetlands. Shallow subsurface hydrologic connections can establish adjacency.
• The preamble says that in a substantial number of cases, adjacent wetlands abut other WOTUS and that, on the whole, nationwide, adjacent wetlands are within a few hundred feet from other WOTUS. In arid areas, adjacent wetlands are likely to be much closer than a few hundred feet, but in larger floodplains and riparian areas where rainfall is higher, wetlands can be a few hundred feet away and still be “adjacent.”
(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (1) through (4) that:
i. Are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (1) or (3)(i) of this section; or
ii. That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (1).
• This is the former (a)(3) “other waters” category. As in the proposed rule, the preamble to the final rule again acknowledges that the agencies have not asserted jurisdiction over (a)(3) waters since 2003. And because this category was not discussed in the 2008 Rapanos Guidance, the application of the relatively permanent and significant nexus tests to this category represents a clear expansion of the pre-2015 regulatory regime.
• The preamble commits both EPA and Corps headquarters to review all draft AJDs for waters assessed under (a)(5) based on the significant nexus standard.

Relatively permanent standard
• The final rule does not define or quantify what constitutes “relatively permanent” flow. The preamble merely says relatively permanent includes features that have flowing or standing water year-round or continuously during certain times of the year.
• The Agencies are no longer using the term “seasonal” and appear to be backing away from the “typically three months” language in the 2008 Rapnanos Guidance. Moreover, the preamble could be interpreted to say that “relatively permanent” means flow for more than a short duration in direct response to precipitation, i.e., anything more than ephemeral flow. And the preamble suggests that multiple storm events in succession could be enough to create relatively permanent flow.
• The Agencies interpret “continuous surface connection” to be a physical connection requirement, which does not require a continuous surface water connection. Even linear features (e.g., pipes, swales, ditches) can satisfy the physical connection requirement regardless of how often they carry flow. The preamble does not make it clear whether jurisdiction is dependent on the length/distance of a linear physical connection between an adjacent wetland and a relatively permanent WOTUS.

Significantly affect (significant nexus) standard
• The final rule defines “significantly affect” to mean “a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section,” the Agencies will assess the following functions and factors:
o Functions
 Contribution of flow
 Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants
 Retention and attenuation of floodwaters and runoff
 Modulation of temperature in waters identified in paragraph (a)(1) of this section
 Provision of habitat and food resources for aquatic species located in waters identified in paragraph (a)(1) of this section
o Factors
 The distance from a water identified in paragraph (a)(1) of this section
 Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow
 The size, density, or number of waters that have been determined to be similarly situated
 Landscape position and geomorphology
 Climatological variables such as temperature, rainfall, and snowpack
• The final rule does not define or shed much light on what constitutes “material influence.” The preamble says that significant nexus determinations should be supported by the factual record, relevant scientific data and information, and available tools and that the record, data and information, and tools must show, either quantitatively or qualitatively based on the five factors, that the water in question provides functions that materially influence the chemical, physical, or biological integrity of a paragraph (a)(1) water. But it remains to be seen whether, in practice, this “material influence” standard is any more rigorous than—or is simply identical to—the “more than speculative or insubstantial effects” standard in the proposal and the 2015 Rule. Notably, like the 2015 Rule, the preamble to the final rule clarifies that the significant nexus standard can be satisfied on the basis of just one of the five functions.
• The significant nexus test for tributaries and adjacent wetlands is broader than that in the 2008 Rapanos Guidance (i.e., tributary reach of the same order plus adjacent wetlands), but not as broad as the 2015 Rule or some of the possible tests outlined in the Proposed Rule. The final rule announces a new “tributary catchment” approach. Catchments are delineated from the downstream-most point of a tributary reach of interest and include the area uphill that drains to that point. For instance, if the reach in question is a third order stream, the significant nexus analysis would look at that entire reach plus all first and second order streams that ultimately flow into that reach plus all wetlands adjacent to all of those streams. While this marks an expansion compared to the status quo, it is not as broad as analyzing the combined effect of similarly situated waters within entire watersheds draining to the nearest (a)(1) water, which is the approach in the 2015 Rule and one of the options in the proposed rule.
• The plain text of the (a)(5) category in the final rule states that the agencies will analyze whether “other waters” meet the significant nexus standard by analyzing the aggregate effect of similarly situated “other waters” within a given region on an (a)(1) water. By contrast, the preamble suggests that the Agencies intend to analyze (a)(5) waters individually, rather than aggregating such waters. Of course, the text of the rule controls over the preamble. But that begs the question: if the Agencies aggregate (a)(5) waters for purposes of a significant nexus analysis, how they will interpret key terms such as “similarly situated” and “in the region” when conducting their analysis?
Exclusions
The final rule codifies many more exclusions than the proposed rule (and the 1986 regulations). Most of the exclusions resemble those in the 2015 Rule:
• Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
o The preamble clarifies that WTS constructed prior to the enactment of the CWA can still be excluded and that WTS are not limited to manmade bodies of water consistent with longstanding practice.
• Prior converted cropland designated by USDA. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. For CWA purposes, the final authority regarding CWA jurisdiction remains with EPA.
o The preamble implies, but does not clearly state, that lands remain excluded as PCC even if they change to a non-agricultural use so long as wetland characteristics do not return.
• Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water.
o Excluded ditches would not become jurisdictional solely by virtue of connecting to a downstream WOTUS or because wetland characteristics develop within the confines of the ditch.
• Artificially irrigated areas that would revert to dry land if the irrigation ceased.
• Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.
o The preamble says this exclusion applies only to lakes/ponds that satisfy the terms of the exclusion, so apparently other types of ponds (e.g., log cleaning ponds) would not qualify.
• Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons.
• Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States.
• Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

Kelly!!! Happy Birthday and it's good to see you back here!

Exactly- the company was Pfizer. They sued to get this landmark case through the supreme court that is quietly unwinding civil rights. Land ownership is a fundamental right, and the fascist decision ends that right and concerts it to simple majority-provided privilege.

We have always had the opportunity to get hosed in an “unfriendly or hostile” court (judge).

Thanks for posting this information. As is so often the case, all this will be subject to complex interpretation, bureaucracy, and judicial rulings.

Personally, I'd love for this to go to the current Supreme Court, which I strongly suspect will be more sympathetic to private property rights than some previous SC.

Even if the worst fears aren't realized about this power grab, it will serve to deter future landowners from creating ponds. A true shame.

It already has deterred me. While I am not generally a fan of the current SCOTUS, I also hope they visit this issue.

I think that is the ultimate goal, to increase control over the individuals rights. trying to infringe on them more and more every day.
While government agents can do whatever they want, here locally on the MO river, a couple years ago the conservation dept cut a channel across a sharp bend in the river to accommodate spawning for the Pallid Sturgeon, yet when an individual does a little work in the buffer zone of a small un-named creek they face huge fines. in another instance the MO dept of conservation literally dumped sever hundred truck loads of topsoil into the MO river to try to create some kind of spawning site for Sturgeon, which immediatle washed straight down the river, probably wound up in New Orleans. an fined a small local company 40,000.00 because where they piled some dirt, they think maybe at least a shovel full may or may not have washed into a little un-named creek in a huge rain event.

Guys, just a warning, if this turns political us mods will delete the whole thread in the blink of an eye. It's starting to kiss that fine line.

Update: House voted 227 to 198 to overturn WOTUS. Now this goes to Senate facing uncertain fate.

If you want to make your voice heard, pro or con, I suggest you contact your Senators. Also let the President know your thoughts.

Pretty odd how little news coverage this got?

I can think of two reasons. One, the details are complex. Two, the major news media is concentrated in urban areas, where this issue is least resonant.

I now see that Biden will veto, so this route to change the current WOTUS rule is only symbolic.

So, what happens if the Sup Court says the rule is an unconstitutional overreach?

No politics - just simple answer.

Here is something fairly recent. It's complicated: https://news.bloomberglaw.com/envir...ill-roll-on-even-as-high-court-weighs-in

and

https://www.mondaq.com/unitedstates...e-united-stateswhere-the-term-stands-now

Sometimes I'm reminded of children inflating and releasing balloons in a room; a few seconds of furious action and a little noise before the balloons drop to the floor having accomplished nothing beyond entertainment for the children.

WELCOME BACK DUDLEY!!! No posting since 2021 and very glad you are still visiting us once in a while.

You describe the situation in 'politics' very well. Another phrase that comes to mind is 'A tempest in a teapot' But in this case, I'm afraid it is not over. Fresh Water will become the most valuable resource as sea levels rise. Politicians will want to wrest control of it as they do of all the other valuable God given freedoms and created resources that are meant to be shared.

That dang Cajun Dudley showed up. There goes the dignity and decorum.
Welcome back Buddy

Been granted limited computer access but am closely monitored and censored and had to take a two month extension of my parole time for posting here, exposing myself to the possibility of 'undesirable influences'.

A man can accomplish a lot if he's not afraid to go back to prison.

Baby steps

Texas Preliminary Injunction

Today a federal judge ruled against WOTUS, invalidating it in 24 states. Details at https://dailycaller.com/2023/04/12/...Nuak3PZx9RJmbJceTsUSIMQRy9xXyZvZk8NukyUL

As a passionate advocate for our environment, I am glad to see this. Instead of interfering with landowners attempts to help purify water before it heads downstream, government should be looking to support efforts with both technical and financial assistance to make such efforts even more beneficial. Step up or step aside!

Whoo Hoo!! YES!!!

States that joined the lawsuit include: West Virginia, Georgia, Iowa, North Dakota, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wyoming.

I think the judge said that he's waiting for the SCOTUS opinion that is due to be made before June, this year.

Fingers and all other appendages are crossed then.

FYI - From U S Supreme Ct's new opinion. SACKETT v. EPA - Opinion of the Court

"In sum, we hold that the CWA extends to only those “wetlands with a continuous surface connection to bodies that
are ‘waters of the United States’ in their own right,” so that
they are “indistinguishable” from those waters. Rapanos,
547 U. S., at 742, 755 (plurality opinion) (emphasis deleted); see supra, at 22. This holding compels reversal here.
The wetlands on the Sacketts’ property are distinguishable
from any possibly covered waters. "

9-0 SLAM DUNK!

Thank goodness this ruling didn't require any of the justices to know what a woman is....

you made Matt smile

Great news for common sense! If what happens on a particular property has few or no ill effects beyond that property, then private property rights ought to prevail.

One of the critical elements of environmental law is the decision standard. Do we use impact or costs v. benefits? Is the natural environment assumed to be ideal and any impact negative, or do we assess the overall costs v benefits for human flourishing?

If the former, then virtually all human activities are suspect. If the latter, then it becomes a case by case analysis.