USACE Wetlands determination - drained lake ~1980s

[madcowscarnival]

On a project, I had a client ask my opinion or help on a issue he is having with the Army Corps, and his fill in a former lake bed. Briefly, a private lake was constructed in the ~40s for a small development around the perimeter (estimating, very few historical records). Nothing really happened with it, and in the mid 80's the dam was cut and the stream resumed its natural course (I would assume maintenance costs led to its demise). My client owns some of the tiny lots around the perimeter of this lake bed and had pushed some fill toward the back of the lot to make a yard area from ~80 ft deep to ~130 ft deep. I walked the area, it did not demonstrate any standing water or hydrophilic plants. It has fully developed trees ~60ft tall at the interior, under brush and fescue along the perimeter of the former lake bed.

How USACE got involved: politics. This is a small legal entity surrounded by a larger (still <10k population) municipality. Land Owner across the street (in the muni) does NOT like the less than ideally maintained lots in the private entity. That Owner called the regional USACE office, who fired off a letter regarding fill in a wetlands, and did state that this fill specifically was located in a wetlands. It is unknown whether or not a physical inspection was made. All legacy mapping still shows this being a lake.

Is there an agency that can be used to request an official determination of wetlands? NRCS or something similar through the USDA? Are there are regulations that could be used to say to the Army Corps: what process was used to demonstrate this as a wetlands?"

Is there any grandfathered in previously converted wetlands time period? Dam being cut ~85?

This is not a particularly huge issue to the Owner. The fill can easily be removed, but it makes the tiny lots even tinier. There isn't a big demand (these are basically campers or tiny houses as permanent homes). I don't have the expertise in this area (nor the inclination to work on the issue), but if I can offer some pointers or general direction for the Owner to take, I will do that.

EDIT TO ADD: the limit of the fill is ~550 lf from the stream location, ~6' elevation difference from the toe of the fill to the top of the bank (County contour data).

 

[GeoEnvGuy]

From what i gather in the story. It was likely undeveloped land prior to 1940, when it turned into a lake. Then it turned into a stream with a lot of wetlands in the 1980's. Then fill was pushed into part of the wetlands area in 1985. Today it looks like a developed lot with sustained trees.

So the USACE is stating that fill was put into the wetlands in and around 1985. This is probably true and there is no documentation to show this was approved or required approval at that time. What is also true is that the current habitat of birds and fish needs to be evaluated if changes are proposed. Any proposed changes to the habitat will likely require a environmental assessment or shoreline development permit.

 

[madcowscarnival]

Appreciate the response GeoEnvGuy. I'm just going to recommend he doesn't "fight" it and remove the fill as the USACE called out.

 

[GeoEnvGuy]

You should inform him that any work he was applying to do cosmetic work this would need to be approved by multiple agencies. If the USACE is telling him to do something he should get confirmation that he would not get into trouble from the other agencies. This is not a tactic to delay the work but to cover any liability from doing work in floodplains and wetlands.

 

[cvg]

Then it turned into a stream with a lot of wetlands

we don't know that there was "a lot of wetlands" or that "fill was put into the wetlands". a jurisdictional delineation would be needed to substantiate that. unfortunately, it may be expensive to fight this

 

[TerryScan]

The land owner should talk to a soil scientist or other environmental consultant who does wetland delineations. They usually are very familiar with the Corp regulators for the area and can advise whether it is worth pursuing. It may NOT be expensive to fight. It may be the cost of a delineation and jurisdictional determination that it is NOT wetlands.