I'm currently working on a project where the COE rep is attempting to take jurisdiction over a couple of sediment basins. Seriously.....sediment basins.? First time ever for me. For me it is becoming personal. Not really that this rep is intentionally creating an issue because of me, but the fact that they (that person) would even consider taking jurisdiction over sediment basins. This basin is most certainly part of the the "active area" that it was created to serve.

Main arguments from the COE.

1. Basin is constructed in jurisdictional areas.
BS - according to my delineation as well as a delineation dating back 13 years (prior to sed. bas. creation), these basins are outside of said wetlands.

2. Naturalization
The basins have become naturalized.
Because the basins have cattails (what a surprise) and other wet. veg. they have become naturalized. The rep emailed me and said they have the 3 parameters for wetlands. I laughed when I saw that. Of course they do they are sediment basins. Some basins are constructed as shallow vegetated features in order to increase nutrient removal. Does this mean that every sediment basin should be cosidered as "wetland creation" eventually?

I must add that the soils at the edge of the basin are not hydric. We checked and they are very high chroma, very surprising, I do see some reduction, but by no means can they be classified as hydric. Definitely have veg and hydro, but not soils. Devils advocate - maybe Atypical?

So what does the community think?

Of course they discharge into the natural wetlands (as most basins do), but they are not constructed in wetlands. And natural wetland do no drain into them. Basins are constructed and drain uplands.

Do cattails and juncus = naturalization? Not in my opinion. Now show me some 20 foot willows and we'll talk.

I guess one of the main issues (not including the principle) with this project is trying to explain to the client that in order for me to argue the sed issue it will cost more money. It would probably be cheaper for the client to just acquiesce, but man I don't want to open up a pandora's box when it comes to this rep. In the illustrious words of Sebastian "Give dem an inch...and they'll swim all over you".

Thank you for reading. Suggestions and comments are encouraged. I'd like to know how to better approach this issue.

Have you had an on site face to face visit with the COE rep?

There has been a site visit with this rep to the site. She did not however look at one of the sediment basins. This rep, is either real slack or just trusts us, (I haven't quite figured that out yet) doesn't ever look at our sites very hard. She is kind of flakey though, so honestly I'm not surprised she is doing this. If it had been any other rep out of that office this would be a non-issue. I just hate the fact that I'm even having to go through this process over sediment basins. I've never had issues in the past with showing sediment basins on our map. I tend to do that just to show them as features, however after this I will no longer include them on my maps.

Is the sediment basin being actively used or could have activity in it soon?

It sounds like she made the decision based on vegetation alone or the presence of a direct surface connection to a wetland (**** Rapanose again). Be honest with her that you/your client does not understand her decision and have a list of specific questions about her decision. Also be prepared to gently offer alternatives to her interpretations that she may not have thought about.

Good Luck.

Dave. The basins are currently being used for their intended purpose. All ditching network coming from the active area are maintained. The only thing about the basins is the presence of cattails. I don't think "maintainence" of sed basins requires the removal of cattails.

Tommy. As I'm sure you're aware most sed basins that I know of discharge into waters/wetlands. At least around here. Usually they are constructed just outside of the the wetlands because of the lands natural drainage. My last conversation with the rep. indicated to me that her mind is made up. She told me to argue my case, but I just feel like she plans on holding the JD over my head till we give in. She is a perfect example of how the requlatory agencies are part of the problem. And unfortunately you only need one bad apple.

Brandon,
Look at the definition of Waters of the US:
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
http://www.epa.gov/wetlands/guidance/CWAwaters.html
A sedimentation pond is part of a water treatment system and therefore not a Water of the US.

Perfect Andrew. I'll certainly use this as part of my defense.

Much appreciated.

Regarding the Corps' assertion of jurisdiction over a sediment basin, Brandon said;

"...It would probably be cheaper for the client to just acquiesce..."

Dear Brandon:
The sediment basin should have been drained and maintained by mowing before conducting any wetlands evaluation. If a basin is not in use then it should be filled.

After a project becomes entangled in the permit process then it is no longer possible to effectively argue jurisdictional issues. Regulatory staff always win because they can delay the project until the land owner concedes and obeys.

If a sediment basin (or any other water) is not jurisdictional and the owner wants to rely on non-jurisdiction, then a good report should be prepared to document the jurisdictional status and the project may proceed without notification. If a question should arise during the execution of the project, then the owner can present this report to prove compliance with the law. At this point the agency may pursue enforcement action and such a decision would not be made by regulatory staff.

Under current policies, all CWA enforcement decisions are made by attorneys in Headquarters who carefully consider jurisdictional issues and avoid cases where there is a legitimate dispute over jurisdiction.

More land owners, consultants and attorneys are using this approach because the wetlands regulatory program has become hopelessly confused and dysfunctional.

This message has been edited. Last edited by: Johnny Stevens,

Johnny said:

quote:

The sediment basin should have been drained and maintained by mowing before conducting any wetlands evaluation. If a basin is not in use then it should be filled.

I disagree. First, the cattails are enhancing the functioning of the sediment basin and should not be mowed down. Second, even if they are mowed, then you are artificially changing the “wetland” pushing it into an atypical situation, which does not preclude the sediment basin from being a wetland. Third, it is rare that a sediment pond is not used. Even sediment ponds dug for construction will continue to function after build out and stabilization since there isn’t much incentive to re-direct water to bypass the basin.

It would be a waste of money to fill a sediment basin for fear of wetland jurisdiction when it is so clearly not regulated. Filling it would be completely legal, but wasteful. It is unfortunate that Brandon’s Corps regulator is making him waste time on this. Hopefully Brandon can pummel the regulator with this so she doesn’t make similar poor judgments.

"....so clearly not regulated."......Ha!....Fill it!

Johnny: Any good wetland scientist and regulator with half a brain would see that someone would be trying to pull a fastie by draining and then mowing the wetland just to avoid a regulator seeing what is present. What poor advice. The argument stands to whether the pond is used for water treatment and is not subject to Section 404 -- not whether wetland vegetation exists or advising to hide it by mowing.

Brandon: I would focus on the code that indicates that this pond is used for water treatment, maybe even do a little research and perhaps you can save your client the expense of filling the area and mowing cattails, not to mention egg on your face and theirs. Most wetland scientists know the benefits of cattails in detention basins from a water quality standpoint (generally poor from a biodiversity standpoint). I agree that the regulator apparently is using poor judgment based on the limited information we can comment about through this forum... Good luck with your argument and let us know how it turns out!

Dave said:

“...Any good wetland scientist and regulator with half a brain would see that someone would be trying to pull a fastie by draining and then mowing the wetland just to avoid a regulator seeing what is present. What poor advice...”

Dear Dave,
Allow me to clarify. There are many good reasons for a land owner to fear regulation and an old sediment basin full of wetlands vegetation is one of them, because this can significantly damage the value and commercial use of the property. Unfortunately, this is what happened on Brandon's project.

Sediment basins should be drained and mowed prior to conducting a wetlands evaluation (or notifying the agencies) because this is a normal maintenance procedure. As Andrew noted above, land owners, developers and contractors are legally permitted to back-fill sediment basins when construction stormwater permits are terminated at the end of a project. If this would have been done on Brandon’s project then we would not be having this discussion, and this project could have been under construction by now. Instead, we have a meaningless and wasteful regulatory dispute that seems to be contrived and arbitrary.

Back-filling a sediment pond, mowing, cleaning ditches, repairing culverts, and other such maintenance tasks are routinely performed on construction sites, farms, ranches and vacant land. Congress specifically exempted maintenance from regulation under Section 404(f) of the CWA because it did not intend to regulate wetlands that were created solely by neglected maintenance.

Thanks to everyone for responding. I have not, as of yet, submitted anything to the rep. I want to make my case as solid as possible. Don't want her to come back with any more BS.

I think I need to clarify and it is a mistake on my part, but these BMPs would be more accurately described as sediment traps and not basins. My apologies. Doesn't change the fact that they were constructed for E&S purposes. Basins tend to treat larger areas than traps. These traps are relatively small and shallow.

Johnny. I don't necessarily agree with your procedure for handling basins, but I understand where you are coming from (especially now). I do want to reiterate that these traps have not been neglected. I don't personally consider herbaceous vegetation as a sign of neglect. As many here have mentioned they are very important for nutrient uptake. Now larger woody stemmed stuff...sure. Also the site is still active that these traps are treating. By the research I've dug up these traps were probably constructed in 98-99.

It is a shame that landowners and facilities would have to resort to practices like you mention (especially outside of a normal maintenance routine) to avoid potential issues like I'm having to deal with. It does make me wonder if I would be in this situation if the traps had been cleaned out prior to the site visit.

Thanks again all and I should be submitting something this week. I'll keep you all posted on the response.

I totally agree with the idea of moving ahead without contacting the Corps. If it's clearly a sediment basin, and you could prove it after the fact, go ahead and start the work.

We had an identical situation (de-watering basin used to placed dredge material from a nearby lake, with permit received ten years ago to do so, and the area was determined to be upland prior to the basin being constructed), and we are now over TWO YEARS into the process because someone asked the Corps first. We are in the Omaha District in Nebraska.

We submitted a JD request, received their claim back that it was JD, sent in an appeal to Portland, received notice that the appeal had merit (the Corps JD was riddled with errors and bad judgment), had a site visit with the arbitrator, and have now gotten word back from them that the JD held. At this point, the only recourse is to take it to court.

Trust me, I wholeheartedly concur with the poster that said that once the Corps is involved, it's over. We used all the previously suggested statements in our Non-JD supporting Appeal about "waste treatment" and other similar findings, including the old permit that allowed the basin to be constructed in the first place. They simply ignored it all, and held to the "naturalization" concept.


I'm also now soured on the appeal process, as it was completely internal, and had no teeth to make the Corps themselves use better data in their final decision.

Unfortunately this project does involve wetlands and future impacts. If the traps were the only thing involved we would not have contacted the COE.

Craig, your experience is exactly what I fear will happen in my situation. The traps only total 0.11 acres so really not very big. It would only be about $4k-$5k to mitigate. If I had to fight it to the extent of going to court it could easily cost more then that, and still end up with the same call.

My disgust is that JD's are so PM dependent. I have actually had several very good experiences with the same State Office, but a different PM.

On several sediment basin calls, the "good" PM knew the regulations, understood that they were in fact sediment basins, and took decisive action herself. On the other hand, the "bad" PM couldn't figure out if this basin had been there forever or had been constructed in the past 5 years. She formed an opinion on site before having all the facts, and has since NEVER deviated from it. She's almost been trying to cover her own poor judgment to the extent that she's willing to put the Corps in such a feeble position of taking jurisdiction on this.

JD's shouldn't be subject to personal opinions...just the facts ma'am.

If the sediment basin was constructed as part of an approved sediment and erosion control plan, then a copy of this should be used in the field. Said plan should probably reference the prior wetlands line, and this should be brought to the table as well.

It sounds like the horse has left the barn on this one so far as agency review, but if the basin was constructed in an approved uplands area, then:
1) Fill should have been considered once the use as a basin was discontinued.
2) Proper site maintenance of your uplands is always imperative before agency visits! This is neither a fastie, underhanded, nor poor advise in my mind!
3) While nutrient uptake by wetland plants is well documented, this is a sediment basin from what you have stated. Whatever vegetation in the basin should not be there since the purpose of the basin is to collect sediment. Unless cattails are required by an approved plan (and this is not the case with any sediment basin I have seen). Again, the basin should have been maintained prior to agency review.
4) Conditions of the approved sediment and erosion control plan may have actually called for filling of the basin once uphill areas were stabilized - I would check this to make sure you are in compliance with the sed/erosion control permit.

Mowing prior approved upland areas or even approved 404 wetlands areas is not a violation of section 404, nor does it create an atypical situation.

I have never seen cattails that were even close to subdued in the first pass of cutting! DANGED THINGS! And I speak of my raingarden, thank you, installed in uplands, that grew cattails in the first year. I confused them with the Iris that I had planted and let them go a while- MISTAKE!. As I am near saltwater, I was confused as to where they came from - after riding around the neigborhood, I found a 1' x 5' patch of cattails in a drainage ditch that had matured, and wind drift carried seed 175 yards to my backyard (yes, I measured it, cause I was amazed!).

Cattails do not necessarily = wetlands, much less jurisdictional wetlands!

I have lost the photo, but I took a picture years ago of a 5 gallon bucket left unattended at a vacant strip mall. Located in the middle of a concrete jungle, the bucket filled with rainwater and then a full bucket of cattails had matured! Is this a wetlands indicator?!?

Brandon, I do not see an email address in your profile - pls. contact me at the email address listed in my profile.

If there are cattails there then the soils will inevitably show hydric characteristics, even over a short period of time, so just to cover that aspect, do a soil pit there and find out. If you have all the wetland characteristics, then determine if it is either connected to another wetland or water of the US. Form what you said, it IS connected via drainage to some other jurisdictional feature. At that point, it IS jurisdictional. The fact that it holds water long enough to create a cattail wetland means that it is a functional wetland, so just because it was created as a sed pond (not a waste treatment pond) does not preclude it from being a jurisdictional wetland. The waste treatment pond refered to previously means a very different thing from a sed pond. Perhaps the pond is now groundwater fed as well as surface water fed, but that doesn't make it non-jurisdictional. My guess is that the wetland is simply jurisdictional.

The real bottom line is this. Is this wetland connected, or not, to a downgradient water of the US? The description given above is a little vague and seems to imply it is. If there is a clear downgradient connection to a water of the US or a wetland that is connected to a water of the US, you don't have a leg to stand on.

Many sediment basin are dead end basins with nothing but upland around them, others are directly in a perennial or seasonal channel with an armored overflow back into the channel. What is the situatioh here?