Hi all, I have a question for anyone out there that may have experienced this before.

I have an Individual Section 404 Permit in process, which was originally submitted over a year ago. The Corps responded, performed a site visit, began coordination with our USFWS office, sent out a Public Notice, received no comments from anyone, began discussion mitigation ratios, and then WHAMMO!!!!

They started questioning the applicant's Purpose and Need for the project and asking for a more detailed alternatives analysis. We had provided an SCS Watershed Plan and EIS that had been prepared for the watershed and defined 28 dam sites, one of was our preferred alternative for a new multi-purpose recreation and flood control reservoir. Since this time (about 6 months ago) we have submitted letter after letter after document after document, supporting our position that the preferred alternative is the least environmentally damaging practicable alternative (LEDPA) but the Corps has consistently and constantly asked for more justification, and has made their own determination about the needs and purpose of the project. They have asked for State agencies to provide justification for needs, and has advised us to analyze alternatives by doing delineations of the alternate sites. They have also consistently said that they are neither a proponent nor opponent of any project, but yet they keep asking us to go back and analyze other alternatives that are not practicable, or available to the applicant considering costs, technology or logistics, so they can determine a different LEDPA. They literally have asked us to delineate the alternative sites, so they can figure out what would have been the impacts at those sites, even though we don't have any idea what the design would have been at that level of detail, nor do we have access to the sites.

I'm interested to hear of others experiences with Corps Regulatory recently, as I am wondering if this recent experience of ours has something to do with a national trend on dams, if it might be an Omaha District first, a Northwest Division initiative or what. Our proposed project will be an environmental gem of a project; 160 acres of open water lake, swimming beach (first full contact lake in Nebraska in years), wildlife habitat enhancement, 20+ acres of Lacustrine fringe wetlands, hiking trails, flood control and yes, the dreaded E word, economic development! Not all of which are in the applicant's purpose and need, or even in their interest to create, but nonetheless, they will be benefits of the project.

Anyone else out there frustrated with outlandish requests for additional information, justification, elaborate searches for alterantives, and bascially turning the 404 process into a full blown NEPA process?

I am posting my correspondence just to let you know that you are not the only one having difficulties with the ACOE. I have sent countless letters and I usually receive a non responsive response or no response at all.

Randy Peterson



Dear Mr. ***ell:

How long do you think is a reasonable amount of time to respond to my request of 3/15/07?



Sincerely



Randy Peterson


--------------------------------------------------------------------------------

From: randy [mailto:randy@peterson-motorsports.com]
Sent: Thursday, March 15, 2007 12:45 PM
To: 'michael.s.***ell@usace.army.mil'
Cc: 'mark.f.sudol@hq02.usace.army.mil'
Subject: Jurisdictional Determination needed



Michael S. ***ell

Chief, Regulatory Branch

U.S. Army Corps of Engineers

1325 J Street, Room 1480

Sacramento, CA 95814



916-557-6605





March 15, 2007





Dear Mr. ***ell:



As per our telephone conversation this morning, I am requesting a jurisdictional determination for my property in West Valley City, Utah. Following an on-site visit and subsequent meeting with Corps personnel Shawn Zinszer and Hollis Jencks, new information has been forthcoming: 1.) There is not an actual creek on my property 2.) Water does not leave my property. Therefore, the bases for previous jurisdictional determinations do not apply. This property has no hydrologic connection to Waters of the United States. It is not necessary to wait for the forthcoming guidance from the “Rapanos” decision because previous rulings have already covered these jurisdictional issues.



Hollis Jencks verified that the natural slope of property my property is to the south – the opposite direction of the waters of the United States that it is alleged to be connected to. If the Corps chooses to continue to assert jurisdiction based on false information (an existing creek and a hydrologic connection to waters of the U.S.) then, as an engineering entity in charge of dams, bridges, levees, harbors, etc., it should be able to provide me with information illustrating exactly how water is traveling uphill and then overcoming the countless obstacles between it and waters of the United States (the Great Salt Lake).



During our conversation you suggested that if I do not agree with the jurisdictional determination then I should challenge it in court. Are you intentionally trying to mislead me? I am fully aware that neither a jurisdictional determination nor an administrative compliance order constitutes a “final agency action” - that which is required in order to file suit. Therefore, as I’m sure you are aware, filing a law suit would be futile. (Please see: Thomas D. Peterson, Saundra L. Peterson, Randal J. Peterson and Sheelagh Peterson v. United States Environmental Protection Agency and United States Army Corps of Engineers, and Col. Michel J. Walsh Commander U.S. Army Corps of Engineers – Civil Action 2:99CV 0374K.)



I look forward to your honest evaluation of the conditions on my property.



Sincerely,





Randy Peterson

22255 Arnold Drive

Sonoma, CA 95476

707-996-7764

707-996-2392 fax

Randy,
I am reminded of an old email 'forward' that has gone around countless times since I started working with wetlands about a "Mr and Mrs Beaver" not getting a permit for their "dam" on a waters of the US.

In total disregard for keeping this post serious, I'm posting the email because it is so "dam" funny. (Ok, so I removed the text of the email to shorten the post, but I'm sure you've all heard this one...if not, let me know and I'll forward it to you...)

Returning to seriousness, your letter is very concerning, because I fail to see why the Corps would have asserted jurisdiction to begin with.

(To follow up on my original post, I thought the letter clearly stated that the site was all upland. If you had a wetland there originally, I can see why they would TRY to take jurisdiction, but maybe I've missed something. Can you possibly provide an aerial or something?)

This message has been edited. Last edited by: Craig Mielke,

Craig:
While I find your letter about the beavers amusing, this process has cost me hundreds of hours and thousands of dollars. My wife and I have been through the administrative compliance
process where we demanded that the EPA follow through and take us to court. We appealed the Corps jurisdictional finding and during this process is where we learned that the Corps lying about a hydrological connection is not a valid basis for an appeal. Through all of this the thing I find most amazing is that anyone in the world can go to my property and see with their own eyes that this whole thing has been a fabrication by the Army Corp of Engineers and the EPA.



Randy Peterson
22255 Arnold Drive
Sonoma, CA 95476
707-996-8766
randy@trafficassist.com

Carol Rushin
Asst. Regional Administrator
EPA, Region 8
999 18th Street Suite 300
Denver, CO 80202-2466

October 31, 2001

RE: Administrative Compliance Order, Docket No CWA-8-2000-22

Dear Ms. Rushin:

Your October 16, 2001 “follow up” correspondence makes a perfect cap to the charade that the EPA has conducted in regard to my property since issuing its “Findings of Violation and Order for Compliance” in August of 2000.

This whole fiasco was initiated with the erroneous assumption that I had placed fill into wetlands. The so-called “fill” was present when I purchased the property and the “wetlands” categorization was initially based on the convenient purported observation of migratory birds on the property.

Subsequently when faced with the then pending U.S. Supreme Court decision in SWANCC v. Army Corps of Engineers, and realizing that the proffered, and always tenuous migratory bird theory, was dead, the EPA demonstrated its bureaucratic adroitness by fabricating a “hydrological connection” between my property and the Great Salt Lake to support the “wetlands” assertion. Despite my repeated verbal and written requests, the EPA was never able to precisely advise me of how this “hydrological connection” is made and in the guise of providing me a response provided instead only evasive fantasies. The purpose for this evasive conduct is perhaps understandable because it is certainly difficult, actually impossible, to demonstrate on a factual basis that which does not exist. What is actual fact is that John Brink of your office was on my property during the wettest time of the year and was unable to show me that any water flowed anywhere at all from my property, let alone all the way to the Great Salt Lake.

Evidently seeking to improve upon its other unsupported accusations in regard to my activities on my property the EPA went on to accuse me of building a roadway through the “wetlands” on the property. Certainly your “draft aerial photography analysis” would reveal some evidence of this roadway but your October 16th letter makes no mention of it. Did my “compliance” somehow make this roadway disappear? Where did it go? A mythical highway through imaginary wetlands?

This incredibly frustrating journey into the land of make believe continues with your October 16th correspondence wherein you state “…the majority of the fill material that triggered the issuance of the order has been removed” …through… “…work completed during the winter of 2001.” You cite this as evidence of my compliance with the Administrative Order. That is really incredible because no work whatsoever was done on the property during the winter of 2001 and it certainly would have been impossible to do so to comply with the Administrative Order in that the EPA has never identified the portion of my property which they have deemed jurisdictional “wetlands” nor what portion of those “wetlands” they imagine to have been filled. What I have struggled with so long is the EPA assertion of a violation in an unidentified area of unidentified “wetlands” so I suppose it is reasonable, from a bureaucratic point of view, that I now have imaginary compliance.

The EPA’s determinations regarding the “status of my compliance” are a transparent disingenuous effort to cover up the indefensible conduct of the EPA. This is made patently obvious by your totally false assertion that your investigation was delayed by [my] lack of cooperation in responding to the EPA’s request for information…and… “forthrightly engaging on the jurisdictional issues [I] raised.” I must assume that a person in your position would not deliberately make such a false assertion and that you just did not have the file on this matter in front of you when writing the October 16th letter. A review of that file will reveal, at least to a third party, that I was continuously cooperative and forthright but was never treated to corresponding conduct by the EPA which itself created the delay and whose personnel seemed to feel that draconian threats excused them from plausible explanation. In fact since March of this year I have repeatedly requested that you turn the file over to an administrative law judge so that the benefit of third party opinion based on actual fact and evidence could be obtained. Knowing full well the weakness of your position and recognizing that your actions were indefensible you evaded this and chose instead to send me the fanciful letter of October 16th.

However, I do not want you to think that I do not appreciate your recent correspondence for in fact I do. Because now that I am clearly dealing with a fabricated “hydrological connection” creating imaginary wetlands to give birth to fantasy jurisdiction I see absolutely no problem in developing my actual tangible real property. I am not quite sure what use I should make of the mythical roadway, but if I cannot make up my mind I will consult the Army Corps of Engineers.

Sincerely,


Randy Peterson

Randy,
Correct me if I am wrong, but your situation is this:
You have a wetland on your property.
Some of this wetland was filled.
You say that the wetland is not jurisdictional, but the corps says that they do have jurisdiction.

These "horror stories" are not unusual. A permit may be delayed for numerous reasons and often the applicant does not know the real reason.

After the Rapanos decision in June 06, the Corps stopped issuing official jurisdictional determinations and asked permit applicants to wait almost one year until the Rapanos Guidance was issued. Now that the Guidance has been issued, the Corps is advising of more delays.

The new Rapanos Guidance includes approximately 20 separate documents. The complexity and volume of this Guidance should be enough to convince a reasonable person that considerable knowledge and experience is required to understand the Corps’ intricate regulatory procedures. It is not feasible for an ordinary citizen to negotiate the permit process without professional assistance. Hence the horror stories.

If every project that required a Corps permit was a horror story, then there would be very few new roads, subdivisions, infrastructure and commercial development in America. Obviously, many projects are proceeding despite the convoluted permit process. Successfully navigating the process is an insider's game for professionals who have the right contacts, financial resources, education, experience, and legal acumen. First time, self-performing permit applicants almost always get hurt.

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

Johnny,
I see that you edited your original post to remove the word "amatuer", and your estimates for permitting. I was going to enlighten you on the experience my company has with regards to the amatuer comment, and also inform other readers that they can get permits for MUCH cheaper than you estimated, but alas, the point is lost now.

Regardless, the point I was trying to make is that the Corps seems to be extending itself out on a limb, in my case, to search for other less environmentally damaging alternatives, when we have clearly presented that the preferred alternative is the only practicable alternative. We have tried on numerous occassions to meet with them to discuss this, and they even went so far as to accept a process of "funneling" the alternatives down to get to our preferred alternative, ony to go back and then question the NWI data that we used to screen alternatives. It's crazy. We are now to the point where they are requiring near full scale delineations on the alternative sites, none of which would provide the needed flood control, recreation etc that are clearly in the applicant's purpose and need (both of which they have questioned and bascially re-written to rule out the need for recreation). Anyway, if you have any additaional insight as to what the Corps may be trying gain by searching for alternatives, when they are supposed to be neither an opponent or proponent, I'm all ears.

[QUOTE]Anyone else out there frustrated with outlandish requests for additional information, justification, elaborate searches for alterantives, and bascially turning the 404 process into a full blown NEPA process?[/QUOTE]

Well, yea, every day it seems ... I thought that was just part of the process Don't get me wrong, I understand your frustration!

... had a project years ago where the USACE actually recommended relocating an established county airport to keep from having to fill +/- 2 acres of pine flat 404 wetlands. Some fill was related to FAA requirements, some was not ... eventually settled with needed fill for FAA requirements and dropped the rest.

Now I won't get into whether or not the fill was necessary, that is for another discussion, but RELOCATE AN AIRPORT! Come on guys! Dang, lets come to the table and talk shop on THIS planet. That is not a viable solution to the problem.

quote:

Originally posted by Andrew Geffert:
Randy,
Correct me if I am wrong, but your situation is this:
You have a wetland on your property.
Some of this wetland was filled.
You say that the wetland is not jurisdictional, but the corps says that they do have jurisdiction.

Andrew I will give you some background on our property. Our property is located in the desert where the average rain fall is approximately 8" and the yearly evaporation is approximately is approximately 60". The property has a depression in the middle where water collects in the winter before evaporating. The second part of your inquiry assumes that wetlands on our property were filled. I would like to invite you to our property so you can see for yourself that there is no fill, no road, etc. If one has never been the subject of an administrative compliance order, one might assume that USACE and EPA act with honesty and integrity and do not take these actions carelessly. The last part of your inquiry is correct that the USACE says they have have jurisdiction over our property. All we have asked is for the USACE to provide us the basis for their assertion. Randy Peterson

Randy, I apologize, but I got lost in your letter. Lots of angry frustration, but not very clear. If you don’t have a wetland or stream on your property, everything else you mention in your letter is a distraction from the fact that the Corps has no jurisdiction on your property.
The corps has apparently had an “expert” say that the site contains a wetland. You need a comparable expert to document otherwise. I suggest starting by getting a copy of corps determination.

This message has been edited. Last edited by: Andrew Geffert,

Craig, I am responding to your original post which addressed issues with an individual permit. I am a consultant, but have quite a different view of the permit process, especially when it involves NEPA.

The way I understand it, you are discussing a permit for a reservoir and then note that you have looked at many reservoir sites, yet there are still hoops to jump through. Unfortunately, the law is on the Corps/EPA side. That is because a reservoir is not a "water-dependent" activity. So it doesn't matter how many reservoir sites you look at, you still can not meet NEPA or 404(b)(1)guidelines because you fail at the first step.

What you need to do is define your project more clearly. A project whose purpose is to create a reservoir is likley to fail, or be challenged. A project that is looking to address flood control, provide late summer water supply, a municpal water source is more clearly defined. Then what you need to do is look at non water dependent alternatives. Let's say that your project purpose is to ensure a late seaon water supply for irrigation. Reservoir construction may be one way to supply this water, but water exchanges, canal lining, water conservation ground water pumping are also all ways to address water supplies. They may not be feasible, but they need to be considered as alternatives to wetland fill.

The idea that "flatwater habitat" is needed in the arid west is somewhat old school as the actual benefits achieved from such habitat are very minimal. Plus, you often have a problem in that you can not provide flatwater, flood control, water supply and everything else without a huge water right. And then the project mitigation and ET takes up more water than the project water rights, so that the project uses more water than it delivers.


Let's discuss further.

Randy, I agree with Andrew that we might need some other information to help you. From what I understand you were noticed with a CWA violation in 2001 that continues to be unresolved as of 2007. What you don't state is how or when a delination was conducted and what maps you have. You mention $1000's and the feds have some wetland violation so there has to be a map (or more than 1) detailing what is going on.

I have worked in West Valley City (and NO this is not a solicitation as I live in oregon now and do not go back to Utah)and understand some of the area conditions. I have also worked on violations in the SLC area and understand some of the issues and interactions. Let me tell you what I have learned:

1. Regardless of rainfall, West Valley City is full of wetlands.
2. The playas around SLC are highly valued.
3. Playa regulation has changed over time but the regulations at the time of the alleged violation are the ones that are used subsequently.
4. Each time a violation is noted, a copy goes to the EPA. The EPA then decides if it wants to get involved. Once the EPA gets involved, the Dept of Justice gets involved. That is where the COE then has little jursidiction except to carry out the EPA's will.

With a noncompliance notice, the rules change from the regular delineation rules (such as they are) to DOJ rules. SWANCC and post 2001 rulings don't necessarily apply to you situation.

Please post back with some specifics on maps and dates etc, and I bet this group could help you alot. However, I personally would not recommend you go down the "it doesn't rain much" road, as numerous court cases have upheld the international value of the Great Salt Lake and all associate waters.

Regarding the case of Randy Peterson, J Leslie Gecy said:

"...From what I understand you were noticed with a CWA violation in 2001 that continues to be unresolved as of 2007..."

Recently, I heard a report from a reliable source that the Corps and EPA are curtailing prosecution of cases involving non-permitted discharges to Sec. 404 waters, that were committed prior to Rapanos.

Years ago, I worked on a project which was accused of a violation and referred to EPA for prosecution. After the SWANCC decision in 2001, the EPA stopped prosecution but never officially informed the project. As a result, the project manager continued to believe that the case was "unresolved" long after EPA stopped actively prosecuting the case.

In my observations and experience, there is less enforcement activity now than before the SWANCC decision in 2001. Apparently, the Rapanos decision may have placed additional limitations on enforcement.

It would be interesting to hear from others who are currently involved in Sec. 404 enforcement cases.

Everyone needs to remember that the government is always right and never makes a mistake. Under this premise there can be no horror stories. Others have used the term "benevolent despot" in a reference to the adminstrators of the Section 404 program. And for those of you who think you know the rules and how to play the game, beware, the regulators have "PROCESS" on their side.

The compliance order was resolved. Coincidentally it was “resolved” after we repeatedly demanded that our case be turned over to the Justice Department for prosecution as we felt that this would give us our “day in court”. We did absolutely nothing to the property or otherwise to resolve the issues which were to have brought the compliance order in the first place.

This brings us to our current dilemma: the USACE continues to assert jurisdiction over our property and we have no recourse. At first they claimed that migratory birds were the reason for jurisdiction. Then following SWANCC, they claimed the water on our property has a direct hydrologic connection to the Great Salt Lake. Today they admit that no water leaves our property. However, they have been completely unresponsive to our requests for them to provide us with a current reason for jurisdiction.

Thus we are in a bureaucratic limbo. We cannot challenge their assertion of jurisdiction because they fail to give us a reason for jurisdiction nor is there a “final agency action” (i.e. a compliance order) to challenge which is the only way to the courts. Meanwhile, West Valley City will not allow us to do anything with our property without clearance from the Corps

I previously posted a letter sent to Mark Sudol, Chief of the Regulatory Branch in Sacramento on March 15, 2007. As of today, he has yet to respond to the letter. The Corps has no incentive to resolve this matter and so it chooses to let years go by without doing so.

Randy

In the reading of the post it seems to be that you are expending a large amount of energy, time and most likely money in a argument of jurisdiction and if the Corps has authority to regulate the wetland on your property, an argument that not even the Courts can come up with an answer on what the Corps could and should regulate.

As said in the courts your recourse is just to get a permit… Yes this can be just as frustrating and time consuming as the Jurisdiction argument but out of 120 K permit applications per year the Corps only denied less the 0.05% of them. (usace.army.mil)

I will also add that direction of anger to the Washington DC level is futile no mater who in the Corps you may try and talk to. The “fun” part of the process your in is that the ultimate decision in your case or any others in the Corps district you reside in is with the Commander of that district. Regulation, be it as it may, has the decision power with the Col. That commands the district or his delegate, not his superior and not HQ in DC.

Options. Have a formal JD conducted by a consultant and submitted to the Corps.
If you do not agree with the determination, appeal. If the appeal officer (who can not over turn the JD) agrees with you the District is directed to reevaluate the JD IF you still disagree you can take it to court. As stated in other posts, the law is on the govn’t side and so is the process.

Randy,
As much as I'd also like to recommend using a consultant, it is not absolutely necessary for you to do so. What I would recommend would be is "starting over" with the Corps office you have been working with. The new guidance they have demands that they issue an Approved JD to those landowners requesting it. It is actually much better than before, as our office was saying that they were not in the business of "land speculating" for potential land buyers. And in this case, you as the landowner, have the right to know what your Jurisdictional status is. Send them a letter simply requesting that they issue an Approved Jurisidictional Determination. They have a process that they have to follow.

Craig Melke said:

Randy,

”...As much as I'd also like to recommend using a consultant, it is not absolutely necessary for you to do so. What I would recommend would be is "starting over" with the Corps office you have been working with. The new guidance they have demands that they issue an Approved JD to those landowners requesting it...”

It is my understanding that our friend Randy Peterson’s case involves an alleged violation and/or enforcement action. Under the new Regulatory Guidance Letter 07-01 (link below), the recent Rapanos Guidance procedures for performing an Approved JD, may not be used to address alleged violations or enforcement actions (I.B Applicability).

Before starting over with the Corps, consider the following:
The EPA and Corps have notified the public that the permit process would slow down after the Rapanos Guidance documents were issued on 6-5-07. Likewise, the new Rapanos Guidance procedures for performing Approved JD’s are unofficial and do not convey any binding legal requirements (or protection) on the Corps or the regulated public. I recommend starting over with a good Attorney.

http://www.usace.army.mil/cw/cecwo/reg/rgls/rgl07-01.pdf

There we go again, straight to litigation!

Johnny, Randy indicated that the compliance issue had been resolved. He stated that the Corps has historically used various reasons for asserting jurisdiction in the past, but have not put it down in writing, which is what he needs to get approval from WVC. Therefore, I suggested "starting over" and getting an AJD, because it forces the Corps to document it's position. I think that would work...

Randy, everyone here wants to help out. It's hard though, when we don't know the WHOLE project history and have any site specific details. Like J. Gecy asked, if we simply had an aerial, we could all determine if we're looking at the same thing. Until then, all of our recommendations will likely frustrate you, as we are probabaly suggesting things that you have already done.

The situation is similar to my project and J. Gecy's response earlier: my permit was for a dam and associated reservoir, which (s)he assumed was not for flood control, when in fact that IS the very purpose, along with water based recreation, and therefore very water dependent. Also, the comments about "flatwater habitat" in the arid west make no sense in this portion of Nebraska, nor do the other comments about water rights and ET. What I guess I'm saying is that there is obviously much more history on Randy's case, and mine as well, then is possible to convey in a forum like this.

I have an ex-Corps State Program Manager on staff with our company, and he continues to fail to see the reasoning behind the Corps' process on the project I originally described. Which is why I asked the question originally: why does the Corps (maybe just the Omaha District) feel that it can question an Applicant's purpose and need (when the project is clearly water dependent), dictate which alternatives can be considered (when they have already been eliminated from a feasibility standpoint years ago), search for additional alternatives (when non exist and they are supposed to be impartial), "lead on" an applicant into believing that they would receive a permit, and generally try to apply a full NEPA analysis for a project, 9 months after the public notice period came up with no public comments?

Regarding our alleged violator, Mr. Randy Peterson, Craig Mielke said:

“...I suggested "starting over" and getting an Approved JD, because it forces the Corps to document it's position. I think that would work...”

Merely requesting an Approved JD does not force the Corps to perform beyond the capabilities of its limited staff and resources. The Corps advised in its Rapanos Guidance documents that it does not have sufficient staff and resources to expediently perform Approved JDs and the public should expect delays in the permit process.

When I recommended starting over with an Attorney, I did not wish to imply that Mr. Peterson should go straight to litigation. Legal expertise is required for permitting because under the new Rapanos Guidance any decision regarding a particular water would be based on the applicable statute (CWA), regulations, and case law.

The magnitude, volume, complexity, scope, and fluidity of wetland laws, puts the permitting process well beyond the reach of ordinary citizens. It is risky to rely on legal advice from regulatory staff who often lack adequate legal training and experience to properly evaluate, interpret, and apply applicable case law on a case-by-case basis when conducting an Approved JD.

The failure to obtain good legal advice in a timely manner is the root cause of many horror stories. An Attorney may be able to utilize various legal arguments that could avoid and minimize the permit process, thereby avoiding the type of problems that plague Mr. Mielke’s project. For example, the stream that Mielke seeks to dam may not be jurisdictional depending on the federal Appeals Court Circuit in which the project is located. Likewise, an independent analysis of “relatively permanent” or “significant nexus” may alter the jurisdictional status. This is where a good Attorney could help.