I have a sand and gravel pit that a client would like to partially fill in. It would result in 0.5 acres of wetland impacts and 3 acres of open water imapcts.

The sand pit has been inactive for about 7 seven years. The land was formerly a farm field, and roughly 20 years ago, it began as as small sand and gravel operation. There are railraod tracks between the pit and a nearby river. Over time, the sand pit was expanded and incorporated and already once re-located intermittent stream, as well as an ephemeral stream. The ephemeral stream was allowed to merely enter the pit, and the culvert under the railroad tracks was closed off. The intermittent stream was reloacted to enter the pit at a new location, however, the outlet (a bridge under an adjacent railroad track) was left in place.

Now, the Corps is trying to assert jurisdiction over the entire pit, using one of two arguments:

1) The pit represnts a surface water connection to a nearby river, with the connection being from the intermittent stream, into the pit, throught the old rr bridge, into another sand pit lake, and then through a culvert into the river.

-or-

2) The sand pit is 'adjacent' the river itself, merely because it is close enough.

They have not specificaly asserted that the line of adjacency is the 100-year FEMA floodplain, but I expect that is their rationale.

The kicker is that the elevation on the invert on the railroad bridge is higher than both the normal elevtaion of the sand pit and the downstream sand pit lake, making it nearly impossible for surface water flows to pass between the two. The water in the pit is mostly from groundwater, so it serves as a recharge area for runoff.

I can send images for clarification if needed.

One more thing, in the 65 FR 12860, March 9, 2000 Notice of Issuance of Nationwide Permits, the Corps recognizes that 10 years is a reasonable time frame for a sand pit to become abandonded. If the activities in this sand pit were to be considered 'on-going' active aggregate mining, would there be any jurisdiction at all?

Any ideas?

sand_pit.gif (1,019 Kb, 503 downloads)

Craig: Your scenario is absolutely fraught with difficulties. However, assuming your client wishes to avoid Corps jurisdiction and all that it involves, I believe your only hope is to argue that the pit and the two streams entering it are "isolated, intrastate, non-navigable waters." Remember, only "wetlands" can be jurisdictional based upon 328.3a7 "adjacency", ponds and creeks cannot. In other words, the term "Adjacent" found a 33 CFR 328.3a7 refers, by federal rule, only to wetlands. Ponds and creeks are only jurisdictional if they are found to be 328.3a5 "tributaries".

You suggest in your narrative that the Corps District has already made up its mind to regulate the pit and is now only searching for the best possible rationale' for doing so. In the context of an Appeal scenario, I believe it is your challenge to show that the pit in question is similar in nature to the SWANCC gravel pits.

In any case, your query opens up a fruitful field for speculation. Perhaps I will add more thoughts after ruminating on your story a bit more.

Jeff,
You are absolutely correct...this one is absolutely fraught with difficulties. In this case, the Corps actually has not given an official "jurisdictional Determination" yet. We are meeting next week to decide the fate of our illuistrious snd pit.

Your suggestion about 33CFR 328.3a7 is intrguing, as I had not thought about it that way before.

If I understand your logic, the wetlands (near the southeast corner of the pit in the picture) would then be jurisdictional if they can claim that they are adjacent to the nearby river, however, the sand pit (open water) and the streams (tributaries) could not be considered jurisdicitonal based on the adjaceny concept.

This would all still assume that I can successfully prove that the surface water connection between the sand pit and residential lake (opposite side of the tracks) does not function except in extreme cases. We have seen before where this district will take jurisdiction if it connects in a "two-year storm event" to make that surface water connection. We have successfully counter-proven this in other cases.

Craig, did the intermittent or ephemeral streams reach the river before the sand pit operations? Also, what is the difference between intermittent and ephemeral streams?

Craig: That's right, only a wetland can be "adjacent"; a pond, stream, creek, ditch or flooded gravel pit cannot. The Corps District may attempt to claim that the wetland area within the pit is adjacent to the river, but that's a bit of a stretch. From your photo it appears as though the wetland is at least 1000 linear feet (wild guess) west of the river, but is not influenced hydrologically by the river. Unless the District has some well-established adjacency policy based solely on proximity, a distance of 1000 LF hardly passes the smell test. It seems to me that the wetland is clearly adjacent (bordering, contiguous, neighboring) to either the flooded gravel pit or the remnant intermittent stream (or both). So, the question remains, is the gravel pit an a5 tributary to the river? If the pit, and by extension the remnant streams, are flowing tributaries of the river, then the wetland within the pit is jurisdictional by virtue of its adjacency to those tributaries. For now I will ignore the policy question of whether or not an active or abandoned quarry pit can be legitimately called a tributary.

If the District does claim wetland adjacency to the river based on proximity, I would ask them to provide your client with a written copy of their proximity policy. Just how close is "neighboring" and is it applied consistently within the District? Furthermore, is the policy applied consistently among the several Districts operating within your State? Such inter-District inconsistencies can be remedied through the "Lead District" program (a story for another day). If the District balks at providing a copy of a written policy, claiming that they are simply relying on the traditional practice of the District, ask them for a copy of their District "Technical Survey Manual". This manual is the result of an extensive questionaire provided by each District to Corps Headquarters in Washington DC in April or May 2005. Corps HQ mandated that each District complete this questionaire in order to comply with a recommendation of a February 2004 GAO Report (post-SWANCC), which pointed out that the Districts lacked consistency in their jurisdictional determinations. The Survey Manual is intended to spell out in detail the jurisdictional practices of each individual District, especially as those practices relate to the concepts of "adjacency" and "tributary". It seems the existence of the District Manuals has been a rather closely guarded secret for the past year. I have only recently become aware of them, but have had no luck in acquiring copies, though I admit I haven't tried very hard. This is not a document they are likely to fork over quickly, you may need to FOIA the District, or get a little Congressional interest going. Good luck.

Andrew,
The most basic defintition of the difference between ephemeral and intermittent (as well as perennial) can be found in the definitions section of the issuance of Nationwide Permits (last published in the Federal Register on January 15, 2002). Ephemeral is only surface water, perennial is mostly groundwater, and intermittent is a little of both, but mostly surface water.

The question about whether or not they connected to the river previously is a little fuzzy at the momment. We are reviewing old aerial photos, because the USGS topo map doesn't do a god job indicating where things were at the time. Both panels at this location were photo-revised in 1984, and they indicate a lot of aggregate mining being done along the river on the other side of the tracks (as well as active sand bars etc...). Anyway, the question becomes, if they were connected, but are no longer connected, does that matter to the Corps? Or do they hold to the idea that they can pick any point in history and say that a certain area happened to be connected to some other area, so that is what they use! My feeling is that they should view the "current" conditions, or the most expected future conditions, for which this site would be that the pit is holding runoff from the intermittent and ephemeral streams, and very little, if any, makes it to the next lake, and into the nearby river.

I suppose some people have heard of the "two year storm event" logic? We had a corps project manager from this district tell us once that if an area can be connected to a waters of the United States in a two year storm event, then it is also jurisdictional.

I think our best bet at this point will be to argue on the basis that this pit is still active, and has been idle for 7 years, but not abandonded. The client could certainly get some more aggregate out of the pit, and then claim that the filling back in is all part of the reclamation process.

Any other thoughts?

I have not heard of the two year storm event guideline, but at least that guy is putting a quantifiable number on his jurisdiction. I have simply been told that the connection can be made during flooding events, which of course makes everything jurisdictional given Noah’s flood.

If this sand pit sells its aggregate to an out-of-state buyer, could that invoke the Interstate Commerce clause, thereby making the waters of the pit jurisdictional? The sand is not a product of the wetland, but it is part of the wetland.

Craig Mielke asked:

"...If the activities in this sand pit were to be considered 'on-going' active aggregate mining, would there be any jurisdiction at all..."

Dear Craig,

I have an aquaintance who works in the sand and gravel business and he told me that the Corps does not assert jurisdiction over active pits.

If a sand and gravel pit is under lease for mining operations, and occasionally sand and gravel is withdrawn, then the pit is active and the Corps does not have jurisdiction.

I believe that your mistake was asking the Corps for a legal opinion and allowing them to open a file on your project. Regardless of whether their opinion is legally correct, they have effectively asserted jurisdiction and you are left with no choice but to comply with the Corps.

Next time, ask a knowledgable attorney or consultant first. If jurisdiction is questionable and legally complicated, (as is the case with sand and gravel pits) then a land owner may exercise various legal options and protect their property without involving the Corps or violating the law.

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

Johnny,
First of all, I take exception to your comment about "asking a knowledgeable attorney or consultant first", as I am a consultant. You seem to imply that if the landowner contacted me first, then I would have directed him to start filling without contacting the Corps.

The fact is that on this property, the landower is the mining operator, and he called the Corps first, prior to contacting me. In his first conversation with the Corps, he indicated that "in the end" he would like to put houses around the sand pit lake (as is usually done with most sand and gravel pits in our area). This will likely not happen for at least ten years, and will require final reclamation of the pit to allow for easey access, sand beaches, etc...

That original comment is what has set the Corps in motion to regulate this pit. Their bent toward the "development" of the pit has clouded their perception of the situation.

In addition, I'm not sure if you viewed the image I included in my original post, but if it weren't for the possible surface water connection to the nearby river, I agree that there would not be an issue. The Corps is leaning toward asserting jurisdiction based on this surface water connection.

All that aside, the Corps is aware of the project, and we have to come to some resolution with them. So, to bring you up to speed on what has happened since my last post however, we did meet with the Corps on-site last week. They are claiming jurisdiction (at least preliminarily, because they have not written anything down yet)Their main points were this:
1) The pit is jurisdictional because it is connected via surface water to the nearby lake and ultimately the nearby river
2) The fill material proposed to be placed in the pit will ultimately be used for houses, thereby making it a development
3) The fill material will result in over 0.5 acres of impact to wetlands and waters of the United States.

The landowner (and their attorney and consultant)'s position is that the pit is still active (last 'active' mining with a dredge was in 1991, and sand was taken out with a backhoe up to 1997), and that the fill material from the nearby railroad project is actually a mining operation itself, as there is over 70,000 tons of rock that they intend on crushing at this site and selling for local road projects. The overburden from the rock mining will be placed in the pit, as part of the sand pit reclamation plan. And, in actuality, the areas that will be filled with this material will not have houses on them in the future (due to access limitations and inability to get sewer and water service).

This rationale seem svery logical, however the lynch pin seems to be the definition of "active" mining operation. In talking to another representative of the same Corps district, he indicated that they usually use 5 years as a measure for determining abandonment. However, in 65 FR 12860, the discussion of comments on NWP 44 in the March 9, 2000 Issuance of Nationwide Permits, the Corps says that several commentors requested using a 15 year rule, as opposed to a 5 year rule. They go on to say that they have withdrawn the 5 year rule and state that 10 years is a commonly used time frame for determination of abandonment, but that District Engineers will determine this on a case by case basis.

As I said before, the landowner, is the mining operator, and is the manager of many many operations along the nearby river. Up until this project, he had operated under an assumption (based on a "gentlemen's agreement") with a previous Corps representative, that 7 years was in fact the limit for abandonment. If you do some quick math, you can see why he called the Corps on this pit. He has since recognized that if he were to assume that 7 years was the limit, this project probably could have commenced without much fanfare, and likely no involvement from the Corps.

So, the big question now is, can we reasonably prove that the operation is an "active" operation, and that the current project does not require any involvement from the Corps. The second, minor question is, if and when this pit is abandoned, will it be considered a waters of the United States, based on the possible surface water connection to the nearby lake and river?

We are working on both of these questions, to prepare a response to the Corps, before they make their jurisdictional determination.

Any further thoughts would be greatly appreciated.

Craig said:

"...The second, minor question is, if and when this pit is abandoned, will it be considered a waters of the United States, based on the possible surface water connection to the nearby lake and river?..."

Dear Craig,

It is my understanding that the issue of federal jursidiction over water bodies with only a tenuous connection to navigable waters, is the subject of the Rapanos and Carabelle cases that are currently pending before the U.S. Supreme Court. Accordingly, it may be prudent to wait until the Court issues its decision, and then perform the jurisdictional determination on your sand and gravel pits.

Currently, in the district of the Fifth Circuit Court of Appeals (Texas, Louisiana, and Mississippi), a "possible surface water connection" is not sufficient to establish jurisdiction. Instead, a water body such as an abandoned sand and gravel pit, must be adjacent to an open body of traditional navigable-in-fact waters to meet the test for federal Clean Water Act jurisdiction. Depending on how the Supreme Court rules, this may soon be the test for jurisdiction throughout America.

I'll be real honest, I have never met a sand pit adjacent to wetlands that I liked due to the fact that off site runoff is rampant and erosion control outside of the pit seem to be hard to find at times. The worst property I have reviewed in 15 years was a former DOT borrow pit.

But I have always viewed the inside of the operating pit as I used to view PC'ed agricultural areas (having no jurisdiction from the USACE). That said, if the pit has a blue line on USGS or stream as mapped on the soils map, the jurisdiction extends into the pit. I have had these areas claimed on other pits in the past so I can predict when that will happen.

I am pretty used to seeing water, lakes, ponds, etc in these pits. When you dig a hole in the ground, it is gonna have some water in it (at least in my neck of the woods). This "hole" and associated water are going to have wetland plants established at some point. Obviously, hydric soil conditions will exist due to the water (gleying at a minimum). So you have your 3 requirements … so far I haven’t seen many ditches even that didn’t “meet the requirements”

I can state that my district does not use a 5,7 or 10 year rule on the pit being active. If the pit is "naturalized", then it is jurisdictional. "Naturalized" is tough to pin down. When on other sites, I have had no problem with the term "naturalized" when there are 5" DBH trees (blackgum in this prior case) growing in the pit and these trees are in standing water. Seems naturalized to me ... but what about an area of Phragmites or cattails which can pop up pretty quick?

Without any blue lines, etc, in the pit, should I be worried about creating possible jurisdictional wetlands in the pit that would preclude further operation of the permitted mine?