This client retained Roe Ecological Services (“ROE”) to conduct a wetland delineation for the Carriage Hills Ponds No. 1 and No. 2 (“Carriage Hills Ponds”) in Estes Park, Colorado. The property is owned by the Town of Estes Park and is generally bounded on all sides by residential housing. The area surveyed was approximately 4.4 acres on the east side of the property. There are two naturally occurring ponds to the west up the drainage from the two Carriage Hills Ponds, which were not included in the survey effort.
The Carriage Hills Ponds are artificial ponds. The dam for Carriage Hills Pond No. 2 was severely damaged during the major flood event in September 2013. The purpose of this delineation was to determine the location of any jurisdictional wetlands that might be impacted by the proposed modification or repairs to the dams or other structures at the Carriage Hills Ponds.
The Clean Water Act of 1972 (33 U.S.C. § 1251 et seq.) regulates quality standards for surface waters in the United States. Generally, under Section 404 of the Clean Water Act, placing any fill material into “waters of the United States” requires a permit (known as a “404 permit”) from the United States Army Corp of Engineers (“Corps of Engineers”). Currently, “waters of the United States” include wetlands and intermittent streams for which the degradation or destruction thereof “could affect” interstate commerce. Because the Carriage Hills Ponds are connected to Lake Estes by way of Fish Creek, it is likely that any “wetland” contained therein would be considered as being under the jurisdiction of the Clean Water Act and the Corps of Engineers. To be considered a jurisdictional “wetland,” however, the site must possess three characteristics: 1) hydrophytic vegetation, 2) wetland hydrology, and 3) hydric soils.
Based on the delineation, the site was classified as containing four (4) separate potential “wetland” areas:
- The east-most wetland east of the Carriage Hills Pond No. 2 dam (“East Wetland”);
- The basin for Carriage Hills Pond No. 2 (“Basin Wetland”);
- The willows in the northwest corner of the basin for Carriage Hills Pond No. 2 (“Willows”); and
- The east edge of Carriage Hills Pond No. 1 and the area wrapping around the north and south sides approximately 45 feet (“Pond No. 1 Dam”).
Hydrophytic vegetation and wetland hydrology were present at the East Wetland and Basin Wetland. In addition, based on the multiple soil samples taken in these areas, there appeared to be gleying, stratification, some possible redox conditions, and depleated or mucky conditions. These characteristics suggest that these soils either are, or are on their way to becoming, hydric. Therefore, it is likely that these two areas constitute “wetlands” for purposes of the Clean Water Act.
Based on the lack of sufficient hydrophytic vegetation at the Willows and Pond No. 1 Dam, no wetland hydrology at the Pond No. 1 Dam, and the fact that the soils at these two locations are likely not hydric, however, the Willows and Pond No. 1 Dam should not be considered “wetlands” for purposes of the Clean Water Act. ROE suggests, however, that if there will be any impact to the Willows or Pond No. 1 Dam that might fall under the jurisdiction of the Clean Water Act, ROE recommended that the client assume these areas are jurisdictional wetlands and/or seek a determination directly from the Corp of Engineers.