Need some help. About a hundred years ago a reflecting pond was constructed within a perennial stream/riparian wetlands (jurisdictional) creating an impoundment and landscape feature. The pond has collected sediments and the owners would like to restore this reflecting pond to approximate post construction elevations. The plan is to excavate this pond’s accumulated sediments with the understanding that only incidental fallback will be occurring. To de-water this pond a homemade cofferdam will be installed that will consist of basically sheet metal. This cofferdam will be placed across the stream and within wetlands. Backed up flows will be pumped to restore downstream flows during this de-watering process. Post dredging activities, the sheet metal cofferdam will be removed. Do I need to submit a PCN for authorization under NWP33 if this sheet metal will not have any accompanying fill materials? Is this temporary sheet metal cofferdam a discharge of fill?

You have an interesting dilemma. If your project is located in up-state New York, your perennial stream may have cold-water fisheries resources that may conflict with an on-stream impoundment. However, this issue could be adequately addressed in your specific construction design.

Aside from the environmental pros and cons of your project, you have two separate regulatory issues with the Corps. While there may be some regulatory involvement with the State, most states, including New York, try to avoid problem permit issues and dump problem issues onto the Corps, which contributes to the SWANCC and Ropanos debacle.

If you can satisfy the Corps that the pond excavation itself is not defined as a discharge of dredged or fill material then that portion of your project is not regulated pursuant to Section 404. The second part is the sheet pile cofferdam. One of the many definitions of fill material that date back to to the 1980s is whether the structure itself would have the effect of a fill. If the Corps determines that the structure has the effect of a fill, then you would be conducting a regulated activity and NWP 33 could be used to authorize the sheet piling. NWP 33 would require a pre-construction notification to the Corps. If, on the other hand you can successfully argue that the sheet piling does not have the effect of a fill and is not regulated by the Corps, you would not be conducting any activity regulated by the Corps pursuant to Section 404. And if there is no Section 404 jurisdiction, there is no Section 401 water quality certification required by the State. So if the State wants to step in and regulate your activity they would have to do so pursuant to some State regulation, if one exists. (Gentlemen, start your engines.)

Another approach you might want to consider is utilizing NWP 3 to authorize the project. If the pond is old enough to pre-date the Section 404 phase-in dates, the existing pond would be grandfathered. You can find a reference for this in the Corps' regulations at 33 CFR 330.3. Then NWP 3, paragraph "a" can be utilized to authorize the repair, rehabilitation, or replacement of any previously authorized, curently servicable structure or fill. And under the terms of this NWP3, a PCN is not required unless there is a regional condition imposed on this NWP by the Corps.

And this is one of my "rubs" with the Section 404 program. We spend some much time arguing whether there is or is not jurisdiction over a particular project or site that we lose sight of the merits and/or impacts of a project. I hope others offer comments on this issue. You should also recognize that the guidance on jurisdiction is ambiguous and convoluted and every Corps district will interpret it for their comfort level. As such, there would be, at least, 38 differenet interpretations from the Corps on this project.

There are others that might advise you to make this call independently from the Corps that you are not conducting any regulated activity and start the work. However, there is a risk with this approach if the Corps discovers the on-going or completed work and initiates an enforcement action against you or your client. This type of interaction with the Corps could be even more lengthy and costly.

Good Luck!

Great analysis Edward. Thanks. This is an unregulated NYS stream. The reflecting pond has filled in over the years to the point where a stream has re-established within the pond disqualifying a NWP 3 due to stream channelization.

I like Ed Bonners approach: if it is not fill, it is not a regulated activity. However, be very clear and careful on what constitutes fill. Definition of fill also changes frequently. One spilled bucket of dredge material could trigger corps involvement mid project.

Ed said;

"...There are others that might advise you to make this call independently from the Corps that you are not conducting any regulated activity and start the work. However, there is a risk with this approach if the Corps discovers the on-going or completed work and initiates an enforcement action against you or your client..."

Dear Brother Ed,
You are correct to point out the risk factor because the Corps can be a very nasty problem when they take enforcement action. If there is a conflict between the US Supreme Cour and the Corps over legal definitions, then the Court should prevail because federal agencies are subject to the authority of the Court. Ordinary citizens should be able to rely on the authority of the Court.

Presently, there is a big discrepancy between the Supreme Court and the Corps' definition of adjacent wetlands which is addressed in Foot Note 29 of the Rapanos Guidance dated 12-2-08:

"...29 While all wetlands that meet the agencies’ definitions are considered adjacent wetlands, only those
adjacent wetlands that have a continuous surface connection because they directly abut the tributary (e.g.,
they are not separated by uplands, a berm, dike, or similar feature) are considered jurisdictional under the
plurality [Rapanos] standard..."

If one relies on the Rapanos standard then only wetlands which have a continuous surface water connection and directly abut the tributary are jurisdictional. However, the Corps may refuse to verify and confirm such a finding. Instead, the Corps may circumvent the Supreme Court and apply its own definitions, and assert jurisdiction over isolated wetlands that are separated by uplands, birms, and dykes. Arguing with the Corps over CWA jurisdiction and the U.S Supreme Court is very risky.

I believe that when there is a legitimate disagreement over CWA jurisdiction, which is based on the plain language of the U.S. Supreme Court, then the Corps should give the benefit of the doubt to the land owner, and not use its regulatory authority to threaten enforcement action or unreasonably delay a project.