Johnny,

Isn't "evil" just a little harsh here?

Just asking,
Jason

Hi all -

Jurisdiction is a tremendously important matter, and I strongly support Johnny's opinions. Too many engineers and lawyers respond automatically in knee jerk fashion to the USACE threats by sending in an application for a permit. They do not know RHA or CWA, and instead, do not want to challenge jurisdiction.

This is an incredibly important issue for a landowner. There is already process in place to govern all inland waterways. The USACE is able to expand their jurisdiction because people fear the unknown, and the "experts" lack the skill, knowledge, experience and respect for land owner rights to stand up to their assertions.

I have been disappointed in the lack of professionalism in wetland scientists I have engaged in the past, specific to issues of jurisdiction.

Conceding to USACE jurisdiction where there is none negatively impacts the value of land, and the ability of a land owner to legally use private land.

Johnny, are you available to discuss a JD issue?

Rather than pouring out generalities that, I would guess are not based in fact, but rather based in your personal opinion, give us a real world incident that we can verify and discuss.

Just as a counterpoint to your vague non-specific gripe, there are plenty of cases where there was no filing of information to the COE to confirm or reject the presense of wetland, the client guessed wrong, and ended up with a heafty fine. Take the golf course in Telluride for example. See, real world examples will always trump vague dispersions.

There have, and always will be, events that go the other way, where the COE is found to be wrong. That is because it is difficult to interpret whether the waters of the US are affected by an action in some situations. If you have situation where you think the COE is wrong, then deal with it. Don't send out a message that consultants should just gamble with their clients fate.

Personally, I have nothing but great relationships with COE personnel. They have always been open to discussion and happy to explain what is going on. I don't presume that the difficult COE rep couldn't exist, but in over 33 years of dealing with this, and actually having done wetland deliniations BEFORE the manual came out, I haven't met a bad one yet. That includes the states of Colorado, Wyoming, Utah, Montana, Washington, South Dakota, Texas (where I did my first delineation), and Alaska.

My hope is that the law becomes much broader, because only an ostrich with its head in the sand could think that all isolated wetlands have no effect on the quality of water that we drink, and have no effect on water organisms that lead ultimately to the food we eat. But that would mean that the law and the regs would have to be more specific and common sense as well as more science based. For example, where do you thing ground water goes, to China?

You may resent just about any action by the government that restricts your freedom, but just let me give you two letters...BP.

Pat

Quick update folks.

I mailed in the response to the COE rep today about the sed. traps. I know it has be awhile since I first posted this issue, but if it had been up to me this letter would have been sent alot sooner. Anyway, when I hear something back I'll post again.

Man...going back and reading some of the posts is reminding me of all the great back and forth that happened. Definitely some knowledgable guys on here.

Also, another thing thinking about some of the comments that were posted. The traps were last cleaned out in June of 2008. So, approximately 1.5 years between then and the site visit with the COE and things can be considered naturalized. Wish I could get calls like that on my mitigation banks. Wetland plants and hydrology in 1.5 years and your done.

This message has been edited. Last edited by: Brandon Searcey,

Brandon,
Which arguments did you use?

Brandon,
Thanks so much for following up on this. I agree with Andrew and would love as much detail as you feel comfortable to give us. Here is your originally stated issues and COE approach. Can you give us at least a summary of your final response?

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?

Sure thing guys. Give me a little bit and I'll copy and past my complete argument.

Here it is.

Naturalization

The presence of cattails in a structure designed to hold water is not a compelling argument for naturalization. Cattails are very aggressive and can quickly populate a small area such as the sediment traps. The traps and associated diversion ditch were constructed in 1997 and 1998 as BMP structures for sediment removal from stormwater runoff during the construction of the SITE. According to our CLIENT, the two traps were cleaned out, regraded, and reseeded, in February and June or 2008 as part of a reconstruction project for the SITE. During this project repairs were also made to the inlet ditches.

It is clear in the pictures enclosed with this letter that the SITE is still active; therefore, the sediment traps are still in use and have not been abandoned. If they had been neglected or abandoned, one would expect woody vegetation to have become established.

Additionally, Photo #9 shows a soil sample taken from ST-1. The associated soil log for samples from ST-1 and ST-2 is also enclosed. As you can see the soils do not have color characteristics or redoximorphic features that would classify them as hydric.

Construction of the Sediment Traps in Wetlands

Enclosed with this letter is a copy of the design plans for SITE Improvements that were created in March 1997. Both headwater wetlands that are adjacent to the sediment traps are shown in this document. It is my understanding that these wetlands were delineated by US prior to the improvements in this area in 1997. The design plans clearly show the location of the then proposed sediment traps located outside of the wetlands. A comparison between the 1997 design drawings and the October 19, 2009 wetland delineation map of these areas show nearly identical wetland areas. Again the delineations were conducted approximately 12 years apart and by different individuals.

During the 2009 wetland delineation a Field Data Station (FDS) was performed approximately 60 feet east of ST-1 documenting the upland and wetland boundary of that system. The upland FDS station (FDS B123 UPL) is located on the same elevation contour as the lowest side of ST-1. There is no indication in the contours from 1997 or 2009 that the contours in this area have changed outside of the SITE.

In summary, it is our professional opinion that the traps were not constructed in wetland areas and would not be jurisdictional per your reasoning above.

33 CFR PART 328 SECTION 328.3

According to the definition of waste treatment systems: “including treatment ponds or lagoons designed to meet the requirements of the Act (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.”

Section 402 of the CWA establishes the National Pollutant Discharge Elimination System program (NPDES) to regulate point source discharges of pollutants into waters of the United States. Virginia has assumed the right to administer the program as the Virginia Pollutant Discharge Elimination System (VPDES). The sediment traps in question are part of the SITE’S VPDES General Permit 9 VAC 25-151 (VAR 05) Best Management Practices. The Site Map included with the SITE’S VPDES permit application is enclosed with this letter. The sediment traps are shown as part of the best management practices on site. Since these traps were constructed and are maintained in order to meet the requirements of Section 402 of the CWA they are therefore not considered waters of the United States.


Well that's pretty much it. Please let me know what you think. I'm sure you guys could have worded it better than me, but I think it works. Can someone please explain to me how to reference to sections of the CWA. I've never really had to worry about it before.

Andrew, again thanks for pointing out the Section 328.3 language from the start of this thread. I guess it is still debatable if sed traps would be consided "waste treatment systems". But there purpose is to treat runoff as part of the VPDES/NPDES requirment.

Thanks again to everybody.

Thanks Brandon,
Please post their reply.
I guess you didn't really incorporate some of my suggestions, and that is certainly OK, but I suspect that you will end up getting a lot of disagreement from COE based on things I have mentioned, such as the soil does look hydric (even just based on visible sedimentation layers, and the fact that it came from an area with wetland vegetation kind of sets the deck up against you. If you didn't produce an adjacent upland soil for comparison, then you really don't have a leg to stand on just by stating it isn't hydric. I hope you did include a paired upland sample.

You also referred to the area as a waste treatment site, and based on previous descriptions, it seems to me that it actually isn't a waste treatment site and so your arguments using references to waste treatment regs are not relevant.

Good luck, but I don't think anything other than down-gradient connectivity is really an issue that would support calling the area non-jurisdictional, and I don't see where you addressed that. Perhaps you did, but not in the brief summary.

10-4 Pat. I'll definitly post the reply.

I know you thought the soils looked hydric, but I don't. We'll just have to agree to disagree on that. It's a moot point in my opinion anyway, but was just a silly excercise I had to go through because of the situation.

Here is our soil log description:

Sediment Trap #1
Bt1 0-6" 2.5Y 5/6 (90%) Light olive brown clay loam, somewhat friable, with 10YR 5/8 yellowish brown (5%) concentrations and 2.5Y 5/3 light olive brown (5%) depletions TG III

Bt2 6-16" 2.5Y 5/3 (90%) Light olive brown clay, somewhat firm, with 2.5Y 5/6 light olive brown (10%) concentrations TG IV

Note: Sampled on edge of sediment trap; inundated

Sediment Trap #2
A 0-2" 2.5Y 4/2 Dark grayish brown clay loam, somewhat friable TG III

Bt1 2-12" 10YR 5/8 (60%) Yellowish brown sandy clay, somewhat firm, with 2.5Y 5/3 light olive brown (25%) and 2.5Y 6/2 light brownish gray (15%) depletions TG IV

Note: Sampled on edge of sediment trap; inundated

This is not made up, but what we actually observed in the field (with Goggles off), from a clean face. Like I said I was shocked. I truly expected hydric soils and a thick organic surface. This is just evidence that the traps have been maintained.

Even if those soils were a 10G6/1 or an A4 Hyrdrogen Sulfide soil, I would still argue that "naturalization" is not occuring. I mean jeez this is a structure desinged and constructed to hold water creating the perfect conditions for hyrdric soils.

You're missing the key point to the 328.3 argument in that the traps are "treatment ponds desinged to meet the requirements of the Act". Specifically Section 402 NPDES. What don't you understand about that? Sure I might not call the traps "waste" treatment systems". That brings to mind a drainfied IMO. I would say they are "treatment ponds" though. Do you disagree with that? I think the term "waste" when used in context of the CWA is anything that can be considered a pollutant to waters, which sediment is probably the biggest one.

I didn't address connectivity. As was discussed in the thread, that too is irrelevent to these traps being jurisdictional or not. If connectivity was all that was needed to bring traps and basins "treatment ponds" into jurisdiction then every single one would be jurisdictional. They all discharge, either through a pipe or spillway. Usually piped right to the edge of a wetland or water. They all have a connection.

We'll see how it goes. I really do appreciate your critique though.

Thanks for keeping us updated. Like you just said, there is a big differenct between sediment treatment and waste water treatment, that is why waste water treatment regs, or using the term waste water is not appropriate as far as I can tell for this site. Treatment, yes, waste water treatment, no.

I went back to the photo you provided in the beginning of the soil profile for trap 1, (the third section of these posts) and the colors I was coming up with were more like 10YR 7/ 1 to 3, or 10YR 8/ 1 to 3 so the photo may just be off. Secondarily, the soils seemed to be saturated. The fact that I think I see different deposition textures is also important.

There is no reason a permitted treatment pond couldn't be jurisdictional, if it is in a natural drainage, is connected to a natural drainage or wetland, and has the potential to impact WOUS.

The moral here is that if you don't want a treatment pond to become jurisdictional, it has to be in an upland and will dry out before wetland vegetation can be developed. If it does develop wetland vegetation, it must be a surface hydrology dead end with no surface connection to WOUS or other regulated wetlands.

The COE and not I will be the judge. This is like waiting for Christmas. Can't wait to find out what happens.

Thanks,
Pat

One more question though, did you have a paired upland sample for each of the wetland samples?

Hey Man I dig it the most.

Staying on 328.3. It doesn't read "waste water treatment", but "waste treatment". Anyway it is a man made structure built to prevent pollutants from directly entering into waters. Nuff said. Look if the COE can interpret the regs, why can't we? I don't even think I'm reaching that far with my interpretation.

The water you see on the sample was on the outside surface. The sample was taken in standing water, so when we extracted the sample it went through a column of water. The bottom of the traps are compacted clay (retaining layer). The sample, when broken open to get a clean face was dry. No vertical migration of water is occuring here. Water just sits on the surface.

I disagre, and so did the courts in the Marietta case that I linked. The treatment pond (constructed in a waters of the U.S.) was itself not jurisdictional (area of the pond). From the letter: “Since compensatory mitigation was provided to offset the wetland loss associated with construction of this pond, and the pond is regulated under Section 402 of the Clean Water Act, we have determined that the pond, up to its normal pool elevation, is not a water of the United States and is not subject to our jurisdiction pursuant to Section 404 of the Clean Water Act.”

This case is different in that the pond was constructed in a JD area. My traps were constructed in uplands. I wish I could let you see the delineation map for 1997 and my maps from 2009, but the boundaries of the wetlands are basically the same. The original design of the ponds has them clearly located outside of the wetland boudary. Overlaying the two maps has the ponds constructed where they were desinged.

"The moral here is that if you don't want a treatment pond to become jurisdictional, it has to be in an upland and will dry out before wetland vegetation can be developed. If it does develop wetland vegetation, it must be a surface hydrology dead end with no surface connection to WOUS or other regulated wetlands."

In order to achieve this most ponds would have to be 10x the size that they are typically built. Especially if they don't ever discharge. What, are they supposed to just use evaporation to get rid of the water. Most are desinged to not even allow infiltration or very slow perk. That's crazy talk man.

No I did not do a paired soil sample with the uplands. What would be the point? 1. My soils were not hydric (I know, I know). 2. They are not natural i.e. they were placed there for the purpose of creating a restictive layer to hold the water. Comparing them to an adjacent upland soil would be pointless. I did reference an adjacent upland station that we performed for the delineation that was approximately 60 feet away from the trap on the same contour elevation as the trap. This was more to show that the naturally occuring wetlands did not go above this elevation (the pond was not constructed in wetlands).

Now back to billable work.

Pat.

I just checked with one of our engineers about basin/trap construction/design just to make sure I wasn't completely off base. He said that they are designed to have a continuous wet storage. The requirements may be different where you have experience, but in VA, WVA, MD, NC a wet storage volume is required.

They don't alway directly discharge in to wetlands or waters, but 9 times out of 10 they do because they are placed in the natural low spot on the site, which is probably close to any wetlands that may be on the site.

If continuous wet storage means that there is always water in the pond, then you have to ask where is that water coming from "continuously". You are either in a continuously flowing drainage, or you are in groundwater, or it just about never stops raining. Which of those or what other condition explains the continuous presense of water in the traps? I need to get back to work too, so I may not respond to comments until next week.

Great discussion.

Pat

Water is coming from the draingage area of the the basin. Never said the water was "continuously" flowing into the pond, it just is designed to continuously hold water based on assumptions of Q2 storm events I believe. Do they ever dry up during drought conditions...sure they do, but they are designed for normal rainfall + draingage area + drainage area conditions (i.e. impervious surface %, lawns, forest, etc).

Yeah. Me too. This is more fun though.

This is out of sequence, but I posted it to the wrong location.

Every sedimentation pond is (or should be) designed to handle a specific event, like a 2 to 10 year storm event, and every pond has (or should have) a specific retention time for that event. There should be an armored overflow for greater events than the design event. The specific retention time is based on removing a certain amount of the sediment since it is actually impossible to remove all of it, especially suspended clays (unless it is truly a dead end pond). It may be that some old sed ponds were 10x too small, not that the properly designed pond is 10x too big.

Yes indeed, evaporation, percolation, or a specifically sized drain/standpipe should allow the pond to dry out without creating a wetland. There are hundreds of those within about 10 miles of where I am sitting. Almost every commercial or residential development has them. Some of them do retain the water in natural drainages for aesthetic or regulatory reasons, and many of those are considered jurisdictional.

I doubt if the traps you are dealing with were specifically lined with clay, unless they were used for something like stock watering ponds. More likely the clay was deposited from runoff events.

If your ponds were constructed close to wetland but in uplands, but hit ground water, which seems likely to me, or became lined with clay and now retain water for long enough to develop wetland vegetation, and are now close enough to wetlands to have a surface connection with consistent flows or that may also have wetland vegetation, then most likely COE will take jurisdiction. Those could be the relevant details that COE is considering.

Pat

Pat:

Your synopsis of basin design and function is accurate from my limited knowledge, however you still seem to imply that these basin should all dry out in between the storm events they were designed for. I don't design them so therefore don't have alot of working knowledge about them. I just know what the engineer and I discussed. Basins/traps are designed to hold water. Basins that dry out and fill rapidly during the next Q2 storm event then discharge don't remove sediment as efficiently. If there is water in the trap prior to the new influx of water then it immediately slows velocity, thus allowing more sediment to settle out, prior to discharge. This is my understanding.

If the traps in question have ground water influence which causes them to hold/have more water than intended, it still does not automatically put them into the realm of 404. I do not believe this is the case based on an examination of the soils in the pond, but nevertheless it still should not matter.

If these traps were originially constructed in uplands, which according to all my research and knowledge they were, then it negates any groundwater influence they may have in regards to 404.

I don't know if these traps were lined with clay (pure assumption based on observation). In the good Ol' State of Virginy there is alot of clay so it could be naturally occuring in place. I've seen clay soils that do have a fluctuating ground water table or have been continously saturated for their entire existence (which these should be based on your theory), and these ain't them. Maybe this is a result of the recent (2008) maintenance? It really doesn't matter.

If what you are saying is the case, then every single basin with juncus, biden, carex or cattails growing in or around the edges would be considered wetlands. Everyone would need a permit to maintain them. When is the last time you permitted a sediment basin/trap maintenance project? If that were true then developers of the those basins should be able to use them for offsets to any impacts that may occur during construction. Right? It doesn't happen that way. Believe me I've proposed that with basins intentionally planted with native species and shallow water table. It was shot down by both the State and Federal regulators. The reason stated was because the basin would require periodic maintenance to perform as designed. Now you're telling me that the same basin would be a JD wetland subject to permitting and mitigation!? It can't be both ways. It either is or it isn't.

OK Pat...stop joking, because you have to be playing devil's advocate at this point. I can't believe that someone with as much experience as you could sit there and say this and truly believe it. Even if you believe it could happen then I would expect you to be just as pissed about it as me. There is a line (I know I'm setting Johnny up for an apperance), but there is. Especially in the case that I'm describing. Traps/treatment ponds constructed in uplands, maintained, treating an active area, operating under Section 402 of the CWA, are not......I repeat.....are not SUBJECT TO SECTION 404 OF THE CLEAN WATER ACT.

Thanks for driving me crazy Pat. You're worse than the COE rep I'm dealing with. Hopefully this will prepare me for anything she may bring at me. Maybe I will get a paired upland soil sample just in case. That'll be my ace in the hole.

OK,
Just like in real estate where the 3 most important things are location, location, location, the 3 most important things about these ponds are:
Connectivity to WOUS downgradient.
Connectivity to WOUS downgradient.
Connectivity to WOUS downgradient.

I understand all your arguments and agree with a lot of it. But if you build a pond that holds water for whatever reason, and it has wetland vegetation, and it is connected to a WOUS via a surface channel. Then it is jurisdictional.

If there is no surface connection, then it isn't jurisdictional.

Depending on the characteristics of the connection you may or may not have an argument about jurisdiciton. You keep circling around that topic but can't seem to land on it.

Maybe this got covered in past comments, but answer these questions.

- Is there a scoured channel between the pond and WOUS or jurisdictional wetland?

- Is there a flow of 5 cfs, 50% of the time, connecting the pond to WOUS or jurisdicitional wetland? rough estimate is ok here.

- Is there a continuous (more or less) strip of wetland vegetation from the pond to a WOUS or a jurisdictional wetland?

If all of the answers to these questions are clearly NO, then non-jurisdictional. If there is even a hint of any of them being yes then that is probably why COE is taking jurisdiction, and you will need to argue against that, not all these other, what seems to me to be, extraneous arguments.

Definitely get that paired upland sample, and if you have any alpha-alpha solution, test that on the pond soils as well.

If your upland soils are much darker (lower value) than the pond soils, your pond soils may be wetland. If the alpha-alpha goes red (be sure to test on soil that hasn't touched your shovel), another bullet in the gun of COE.

In the future, unless it is something like a cattail (all obligate) wetland, you should always, always take an upland pair with a wetland sample.

Re: pond design - there are a thousand ways to design a pond, if you want to design it so it doesn't become a jursdictional wetland, follow my advice in many previous comments. Oh yes, and
pay attention to:
Connectivity to WOUS downgradient.
Connectivity to WOUS downgradient.
Connectivity to WOUS downgradient.

I know I could be totally wrong about all of this, but this is how I learn, real experience.

Don't let it drive you crazy, the more you deal with the details, the better you get at this stuff which can obviously be complicated.

Thanks for bringing this along this far, can't wait to see what COE response is. ;-)

Pat

Man, I just responded to your last email in detail, but when I hit submit my internet crapped out on me. I don't have it in me right now to retype everything.

I do want to address your last statment though.

Don't let it drive you crazy, the more you deal with the details, the better you get at this stuff which can obviously be complicated.

I get it, and I really appreciate our back and forth on this issue. What's driving me crazy is this is not a complicated issue. In fact it's very simple. Sediment/traps basins that are constructed in uplands (even with a connection to JD areas), servicing an active site, and more importantly built to meet 402 requirements, are not subject to 404 or 401 for that matter.