So far, I cannot locate a definition of change of use.

I recently was contacted to perform a delineation on an operating sand mine. This sand mine is in the final stages of selling product and has begun the process of reclamation to comply with state permit requirements (mine has an active permit that requires reclamation). There is a nice cypress swamp/blue line stream adjacent to the site.

The client intends to turn this property into a residential development in the future. They submitted a preliminary subdivision plan to the town for comment and approval. As part of this process, the town submitted the plan to appropriate agencies for comment. The USACE has stated that submitting the plan to the town constitutes a change of use. As such, any "wetlands" that are in the borrow pit (created) should be avoided and USACE consulted prior to disturbance.

My view is that the mine is still operating under the state permit, it IS an operating mine, and we have not had a change of use, thus no USACE jurisdiction. USACE states that since a plan was submitted to the town, the site has had a change of use. I am assuming that had the client not submitted this plan to the town, these questions would have never come up since the pit has operated since 1974; however, we were not in a JD process yet and these days the client has so many hurdles to go through, the process must start SOMEwhere. All this while I am watching trucks being loaded with soil, so the pit IS active in my mind.

... have we had a change of use? Comments please.

Are you sure the corps said that the pit has already changed use? Clearly you are going to change use, so impacts to wetlands that occur now can certainly be inferred as intended to be in anticipation of the change in use. In other words, at this point, filling wetlands will be for the purpose of development, not for the purpose of sand mining.

On the other hand, it seems to me that if you can show that these impacts to wetlands are part of your reclamation plan within the mining permit, then the fill is not part of the development, but rather part of the mining.

Yes, the Corps has stated that we have had a change in use. But it has never been any secret that land use would change someday since mining will always end at some point. Other than letting the land remain fallow forever, use WILL change to something else.

The USACE does not care if the fill is for developement or mining (and rightly so). Impacts are impacts... but are they jurisdictional wetlands that have been created inside the pit? In an operating mine??

If jurisdictional wetlands are found in this pit, then sand pit operators had better rethink how they do business. This means that you had better not let any vegetation grow in the pit ever. I am not talking of naturalized areas such as I discussed in the sand mine/gravel pit post. Most pits will meet 2 of 3 real easy in some area of the mine: 1) hydrology and 2) hydric soils (gleying at the least). So after some time period, vegetation will establish. If you build it, they will come ...

Catch 22 - The State has indicated that if we do not complete the restoration plan, we will be in violation of the reclamation part of the mining permit. I do not feel that the client or myself are trying to evade any regulations. We were just kinda struck unware with this change of use. My thoughts are how DO you dig a hole in the ground without it becoming regulated? This is not evading regulation, it is a search for proper operational procedure to move forward in the future. Corps could not lend guideance on this, merely stating that if the 3 criteria are met on the day of the JD, then there are jurisdictional wetlands. This tells me to keep the pit vegetation free.

I think the consultants and the Corps duty is to foster good relationships with landowners. Invoking change of use at this point does not do that IMHO. We are driving people into a corner with this line of thinking it seems. Again, it was never any secret that use would change. My analogy, while it may be poor is this: when you dream at night, be careful who you tell in the morning because you may be held accountable for it!

I go back to the Change of Use. As long as you are working within your permitted mine reclamation plan, you are not changing use. If you are going beyond the reclamation plan, then the Corps can reasonably assume that you are preparing for development and therefore changing use. Can you fight the Corps with this logic?

As far as the ponds in gravel pits becoming wetlands, I have gotten almost as many answers as experts I have asked.

The client is working within the established restoration plan. I am not sure I understand what you mean when you say "going beyond the reclamation plan". The client is planning beyond the reclamation plan; however, all site work is being performed within the active pit, under the curent reclamation plan. The final outcome of this reclamation plan includes lakes being left in certain areas and remaining land being left above the 100 year flood elevation. The reclamation actions being performed on site at this point are to fulfill that plan. Wetland areas outside of the pit are recognized by the client as wetlands and are untouchable. No problem there.

As I understand, the mistake was submitting the proposed subdivision plan to the town. Does this go beyond the restoration plan since it includes no sitework but is the beginning step of changing use? Does this indicate change of use? I don't know, I am asking ... in my mind it does not.

I guess the client sees change of use after the mine is closed and the state certifies that reclamation is complete. Various agencies see this time scheduling of change of use differently I guess.
The Register if Deeds sees no change of use yet since the subdivision has not been platted with their office.
Zoning Department may not see change of use since the property has not been rezoned yet (I don't think).
Stormwater Permits not applied for yet.
Sediment/ Erosion Control Permits not applied for yet.
Sewer not approved by County Engineering yet (I don't think).
Subdivision layout has not been approved by the town yet.
Jurisdictional Determination not requested or approved by the USACE yet.
I am sure there are many other steps in the process that I have not noted that have not been undertaken or approved yet, so none of the above listed agencies have seen a change of use but the USACE.

This site is different in my mind since it is an active sand pit. If it were a site not under operation as a sand mine, then any wetlands anywhere on the site would be untouchable, no question.

Would we have a change of use if we went to county engineering to inquire about available capacity for sewer? What is the difference? You ask county engineering for capacity for say, 50, 3 bedroom homes. They say "Why do you want it" You say " because we are thinking about putting 50 lots here and need sewer capacity for those lots". Have we had a change of use at this point just for asking? Instead, we have drawn out the lots on paper and submitted it to the town. Is this a change of use?

Chip,
Do the original reclamation plans have topography? Does the plan show gentle upland slope where today there is a wetland hole? If so, in my opinion, filling that wetland is part of the mining activity.
I believe that the “change of use” is based on intent. If the intent of your wetland impact is sand extraction, then you are covered under the mining permit (read the fine print on that permit!). But if the intent of the wetland impact is development, then the wetland impact would not and should not be exempt. With your submission of a subdivision plan, you are signaling that you are going to be changing use, and the corps is rightly concerned that some filling is no longer strictly a mining activity.
An analogy might be farming (or forestry). A lot of wetland impact laws are exempt under farming, as long as the ditching, tiling, etc. are done for the production of crops, farmers can use the exemptions. If the farmer drains wetlands purely to increase the resale value of the property, that is not exempt regardless of whether of not they have put the land on the market or applied for subdivision approval.

Do the original reclamation plans have topography? No, too old and not required in mine permit at that time.

Does the plan show gentle upland slope where today there is a wetland hole? No, but it seems pretty apparent that the site should have been primarily (notice I said primarily) 15' - 25', non-hydric sand ridges. Site is mapped Urban on soils map, sand pit on USGS map, and I did not see the tract pre-mine days, so I cannot make any absolute statements about what used to be there. Lake areas inside pit change in every aerial (which would be normal, I think)

If so, in my opinion, filling that wetland is part of the mining activity. It has been stated to me that the mining permit does not exempt the tract from the Clean Water Act. Impacting a wetland, whatever term used (digging, filling, etc.) requires permit authorization. I agree with that statement, but we are leaving the "change of use" topic to whether or not we are impacting a wetland. Let's discuss that on the sand pit post, pls.

If the intent of your wetland impact is sand extraction, then you are covered under the mining permit I guess by being covered by the mine permit in an active mine, my thought is the same that PC'ed ag areas USED to be. That area is NOT included in my delineation activities since I can show that the area is covered under the mine permit (or used to be, show a NRCS map w/ PC'ed designation and you were through w/ that area). It doesn't matter to me what is on the "other side of the hill" as it is part of the mine.

Yes, I recognize forestry exemptions and see them applied in my district. As far as ag. goes, if I can interject a little humor here - if you state that land can still be drained, cleared and put into ag. production, I have some prime acreage for you down here that is really cheap All it needs is ditching on 300' spacing and clearing and you will have some bumper crops! Somehow I'm guessing my district will have else to say ... but I am thinking that you are talking about existing cleared fields with operating ditch networks which are exempt until ... change of use ...

So, back to where we started. The submission of the subdivision plan, which triggered agency comment, was a change of use... had we perfomed a task on the project that didn't require USACE comment (zoning, whatever), then the USACE would not have been "brought in". It is just a bummer to see the USACE call a change of use when the pit is still operating under the reclamation plan.

I was reading this thread and thought it needed a little bit more discussion. The term "change in use" is a tremendous asset to the government. In the case of a mining operation, the Corps' regulations from 1986 would have said that the pit would not be jurisdictional until the mining operation was abandoned. Some of you might say I am wrong, but it wasn't in 1986. In the Corps districts I know, abandonment would have occurred when they had completed whatever reclamation was required by their mining permits. However, in the past 20 + years, there has been a change in the federal regulatory philosophy. Actually, I would have expected the Corps to identify a discrete water conveyance or some other landscape feature to provide the necessary hydrologic connection to generate a regulatory handle. Many people have thought that "change is use" meant that a change would have to occur for that to arise. However, that term has been changing in the Corps for a few years with little or no fanfare. There is now an unwritten word in the beginning; "Proposed change in use". In some districts it is being used by the Corps to assert jurisdiction over active farm fields if the farm has been sold to a non-farming entity because there is a proposed change in use. This mechanism is also being used to assert jurisdiction over upland storm water management impoundments where there is a proposed change in use. There will be some that want to know the particulars of these actions. There will be some that say this is long overdue. And there will be some that say this should not be done. Whether you support this expanded federal involvement is not the important issue. More importantly, it is a demonstration that the Federal government, not necessarily just the Corps, but much of the government has slowly and surely moved toward an expansion of federal land use control. SWANNC and Rapanos represent the same concept.

Do "the ends justify the means"? As a society, do we want to go in this direction? We struck this sensitive nerve with SWANNC and Rapanos, and both times the bureaucracy has evolved to respond and continue. "Proposed change in use" is just another mechanism toward an expanded federal land use control. We keep asking and trying to figure out what Congress meant in 1972. What do you think our forefathers would have thought about this expanded federal land use control when they were writing the constitution?
Right now the Corps regulator spends most of his or her time deciding whether there is Corps jurisdiction. It seems obvious to me that the "permit" must have become a rubber stamp since there is not enough time left in the regulator's schedule to accomplish a meaningful assessment of a project. Right now we are going nowhere but in circles. Regulators have job security because the work load keeps increasing. Consultants and lawyers have become more important, for even the smallest of projects. Large construction or development companies simply pass the increaseed costs on to the buyers. And in the end, john q. public has been forgotten.

OH what a tangled web we've weaved with the regualtions we've decreed.

Chip, two glaring things pop to mind. First is the regulator who had made the call that the land use did change is probably going on the fact that a proposal has been submitted to some one and not the fact that the existing operation is still underway. Whatever the case may be, court rulings and current practices in “change of use” allow the Corps to regulate if the current use (mining) changes. Doesn’t matter if the current activity started before permits were needed. The bigger question is if the mine ever obtained a permit for any work that happened post CWA. IF so that may also play into the future regulation of the site. Second, it doesn’t matter a hill a beans if the reclamation plans call for wetland work or avoidance, if there is new work, you can bet they will need a permit. A NWP 27 may be all (easier typed that obtained these days) but a permit non the less. The change in use stems from (from my point of view) the original review that work received, be it the Corps or others that went thru the purpose and need and alternatives analyses. Authorization was granted based on that review and any change in use was not considered at the time and can be subject to a new review. Many times the public would obtain a permit to build a wally-world and associated infrastructure only to have the parking lot (where fill occurred) turn in to a hotel. This was not what was applied for nor what was reviewed and thus the work was non-compliant with the permit. As Edward Bonner mentioned this is putting the feds in the land use game where ordinances should be the only player. That said, regardless of what is going on now, Corps regulated or not, when you change the use of the land and wetland impacts are proposed, the door is open for the Corps to step in and regulate it,. Be that you fill the hole and build houses or flood the hole and open a bumper boat park.

Whatever you do with the mining pit, don't put anything in the pit that might float, lest you create a traditional navigable waterway. Cause if you do, even the Fifth Circuit in Mr. Stevens' backyard won't be able to stop the Corps.

Interesting point. Over the past few weeks I have looked at how often some Corps districts are making non-jd call. Despite the longer time to do so I have seen in some locations that SWANCC calls have doubled in one area it has tripled, guess that is simpler then the 7 page jd form.

Ed or others,

Please provide the RGL # or other formally adopted policy statement that includes the language "proposed change of use."

As someone who has designed and built a hundred or so mitigation and (voluntary) restoration projects in several Corps districts over the last 10 years, I have seen this pop up in verbal communication from time to time. Yet, never with any written follow-up.

Anything in writing on "proposed change of use?" From HQ or the District level?

Thanks

I'll have my man at watergate, and I'll call him "Deep Sooth", do some excavating and see what he can discharge for you. The answer you get, may initially look somewhat isolated, but if you look long enough and hard enough, I am sure you will find some significant connections below the surface. What you have to remember is there are a lot of variables here. The word "abandoned" is used in various sections of the regulations. For now lets use the number 2. You combine that with the number of Corps districts; for now lets use the number 38, and the number of EPA regions, for now lets use the number 10. That leaves you with 760 possible interpretations. And that assumes that every district or regional office only has 1 interpretation. And I didn't even mention the Justice Dept., Dept. of Interior, or USDA. This could take some time.

In the meantime, did you know that a properly supplied canoe can travel from the glaciers on Mount McKinley to the Pacific Ocean? Why do I ask this question? Well, the snow caves excavated on the side of Mount McKinley could require a Federal permit.

Point taken!

So, after about a decade in this field, I find myself asking a very entry-level question:

If a COE reviewer makes a call that is not based upon the 87 manual, supplemental guidance, NRCS field indicators (or similar), an RGL or Regional RGL, or formally adopted regional conditions or written regional interpretation, or legal (court!) precedent,

what then, is the regulatory justification for that call?

At some level, is there written regulation that allows for reviewer discretion if it is not based on anything but the reviewer discretion itself?

This is an important question to me. I used to do a lot of mitigation work in prior borrow pits and quarry areas, fining ponds, etc; now I do voluntary restorations in PCC lands in several states. "proposed change of use" could become a major factor to how I operate!

First, you have to remember that new guidance does not solve any problems. It only adds more words to a discussion that already has too many words in it. The quintessential bureaucrat will pursue process proliferation because that is what government is all about. And if that quintessential bureaucrat has an unbridled curiosity or an environmental bias, you could be in for a very long process. Your client may end up winning in the end, but it will probably be their epitaph.

With respect to your PC lands, you must remember that prior converted croplands are delineated utilizing the NRCS criteria found in the FSA manual. Abandoned prior converted croplands are delineated utilizing the criteria in the Corps' wetland delineation manual. The thresholds of what is wet and what is not are DIFFERENT! If there is a proposed change in use for an agricultural field, it can be considered abandoned, even if the proposed change in use is 15 - 20 years away. In fact, a farmer that has an on-going agricultural operation, but has allowed a developer to exercise a purchase option on his farm may be construed as a proposed change in use. This is not an uncommon situation, and may not necessarily result in any land use changes for many years, if at all. If you use a little bit of imagination, you can see job security for regulators, environmental consultants, lawyers, and doctors.

Chip: The Corps has no authority to declare a "change in use" in the context of your example. On the other hand, had the Corps identified some "waters of the US" within the pit, then they would be in a position to make a finding of "abandonment" rather than a "change in use". The Corps' 1986 regulations at page 41217 states that such gravel pits are not jurisdictional unless: 1. the excavation operation is ABANDONED, and 2. the resulting body of water meets the definition of waters of the US (see 328.3a). So, the question is not whether or not a "change of use" has occurred, but whether or not the gravel excavation work has been "abandoned." The term abandoned is not defined in the regulation, so the reader is forced to turn to the dictionary definition: to give up, relinquish, to cease trying. Abandonment hardly describes the owner's simple submission to the town for preliminary subdivision approval.

It sounds like the Corps is instructing the property owner to conduct a wetland delineation within the pit prior to its reclamation. The Corps has absolutely no authority to require such a delineation. I see no provision in the Corps regulations for demanding such a delineation, outside of the permit application process.

Despite all of this, even if the pit was truly abandoned, the SWANCC decision makes it clear that the Corps still has no undisputed right to regulate any wetlands or water bodies which may be there. The SWANCC project site itself was an abandoned quarry pit, composed of ponds and wetlands, which the solid waste disposal authority intended to change to a waste disposal site (a clear change in use). The Supreme Court ruled in SWANCC, and re-affirmed in Rapanos, that the Corps has no authority over such sites, regardless of abandonment or a change of use.

You raise another fine point for discussion. I know the reference you make. However, the specific phrase you have identified is found in the Preamble of the 1986 regulations. The Corps has long ago delcared that the Preamble does not hold any weight for the Corps unless they still agree with it. For it is this same section in the "1986" Preamble that also states that non-tidal drainage ditches excavated on dry land are not waters of the United States.

Your last response makes some sense Ed. I think that's reasonable - once an entity outside the existing, permitted ag or extraction use has expressed a FORMAL legal "interest" in the site (life trust, subdivision plan, easement, right to acquire, tax shelter plan, development plan, etc), then I really do see how "proposed change of use" holds some water.

I know of several cases where quarry interactions with developers has been in the "gray area" - nothing in writing, just "suggestions" like "wouldn't it help the mining operation if you placed a double 48" culvert over there?"

If the "legal" standard for "proposed change" is valid, then at least those developers are forced down one of two paths: work informally with farmers/miners at a very high risk or loss/liability/project cancellation, or do everything on the up-and-up. It would close the loophole to approximately dump-truck size.

Land use, Land use, Land use. If we could all agree on prudent land use issues, all of our problems would go away. All of our current land use problems and controversy are being funneled into a navigable waters law. If you think that this is the best path to the solution, then clearly we should be able to re-freeze the arctic ice cap and produce a Hummer that everyone could afford and that would also get over 50 mpg.

Even if this were true, do the ends justify the means? Do you want the federal government regulating all of these things? My knowledge of the constitution and States' rights would say that this is possibly problematic. Further, do you want bureaucrats making the policy decisions or do you want it conducted in a public and/or legislative forum? And if we all drove Hummers, we would no longer need highways and bridges. This would save us money so we could balace the budget anf restore millions of acres. And by the way, I am running for President!!!!!