Corps Comments on Availability of Public Works Restoration Plan

This the email response received 14 October 2014 from Martha S. Chieply of the U.S. Army Corps of Engineers regulatory office in downtown Omaha, in regards to my comments regarding the availability of the wetland restoration plan proposed for the extent of wetlands filled — without a required permit — by the Omaha Public Works department.

"Below is an update regarding the violation that you reported near Carter Lake, Iowa, and a brief overview of our processes for investigating and resolving alleged violations, and then notifying the public of the outcome.

"The Nebraska Regulatory Office received your report of a Clean Water Act violation near Carter Lake on April 17, 2014. The Nebraska State Office confirmed that approximately .066 acres of wetlands had been impacted. An evaluation of the violation and determination of its outcome has not been finalized at this time, as we are working with the responsible party to resolve the violation.

"Typically, when coordinating with the responsible party, the Omaha District's state regulatory office initially will seek ways to restore the wetlands/waters of the United States that have been impacted. Depending on the severity of the violation, as well as the type of aquatic resource impacted, the Omaha District may seek assistance from resource agencies as we assess the requirements for suitable restoration or mitigation of the aquatic resource impacts, if necessary. The Commander of the Omaha District has discretionary authority to pursue violations and/or conduct more rigorous reviews, to include requesting public input, of activities where potential adverse effects on the aquatic environment are more than minimal or where there are other concerns in the public interest.

"The circumstances of every violation must be considered on a case by case basis. While it may be a relevant consideration as to whether or not the impacted property is publicly held, or if the unauthorized activities may have been conducted by a public entity, it does not necessitate public notification. There are instances where the impacts to wetlands/waters of the United States do occur on public lands. However, the protection of wetlands and regulated waters of the United States always are of public interest and value, wherever they are located. Public notification of violations and the public release of pre-decisional information typically is not made unless the potential adverse effects on the aquatic environment are more than minimal.

"Therefore, due to the ongoing coordination efforts and the facts of the case, we are not able to release the details surrounding the violation near Carter Lake at this time. Once our evaluation is finalized, interested persons may request information from the Omaha District, under the Freedom of Information Act."

Note: One acre equals 43,560 square feet, so 0.066 of an acre equals about 2874.96 square feet.

Corps Prevents Public Input on Wetland Plan

A wetland restoration plan being prepared the city of Omaha Public Works Department will not be available for public review, until the document is finalized.

The Army Corps of Engineers is requiring that this public agency be required to prepare the plan as the result of fill being placed in a very small extent of wetlands in association with a holding facility located at 13th and Locust Streets. The procedures of the ACE do not allow any public review, according to staff of this federal agency.

There are several reasons that the public should be allowed to review the restoration plan, prior to it being finalized. They include, but are not limited to:

1) the fill activity was originally reported by the public

2) the wetlands filled are "public waters" as designated by the Clean Water Act; and though the extent is very small, it still did occur and was not permitted

3) the fill activity occurred on public property

4) the fill was done by a city of Omaha agency

5) a restoration project will be paid for by public funds

6) this is the second instance of fill being placed or getting into a protected wetland, in association with Public Works in 2014

7) public input should be an essential aspect of any city of Omaha project

The office of the Mayor of Omaha has been asked to respond to these items (with the list delivered to the mayor's office and public works on October 6th), along with the Corps.

The restoration plan would be available once finalized, through a Freedom of Information Act request.

Corps to Consider Public Works Wetland Filling at Elmwood

The U.S. Army Corps of Engineers has been asked to investigate the possibility of illegal filling of wetlands at Shadow Lake, Elmwood Park.

The filling activity would involve the placement of numerous sandbags by the Omaha Public Works department within the water of the park pond and on the east pond bank of the berm.

Section 404 requires a permit to place material within waters of the United States without a permit. Placing sandbags within the pond, would involve such an activity.

Omaha Public Works apparently does not have such a permit, according to a Corps spokesman visited with later in the morning on July 1st.

Shadow Lake is considered a jurisdictional wetland because of its hydrologic connection via the brook west of Shadow Lake, which connects to Wood Creek, that flows through Elmwood Park. This eventually connects to the Missouri River, a well-known waterway where most all wetlands are jurisdictional.

There is also the likelihood that any repair work at the lower west side of the berm would require earthwork, that would more than likely involve placement of a minimal amount of dirt within the flowing brook.

The following pictures were taken late morning on July 1, at the problem site.

The western portion of the berm, showing the gully due to the erosion and the spot where the water enters the ever-flowing brook. The pipe on the left side of the picture was put in place a few years ago to provide pond drainage.

View from the brook-side to the west.

The next three images show were sandbags were placed within the waters of Shadow Lake. On the south side is where the water has already bypassed this now useless barrier, and continues to flow improperly. Due to the advanced loss of integrity in the dam berm, some of the bags have already fallen into the large hole present.

View from the south.

The green plant in the picture is duckweed (Lemna species); this is the reason why the pond is such an attractive haven for the numerous Wood Ducks and Mallards now present

View from the north.

A view of the plastic fencing and cone placed upon the berm top. The northern section of this fencing was repositioned during my first Tuesday visit, because it was mostly fallen over and was providing a barrier less than two-feet in height, rather than its entire possible barrier capacity.

View to the south.

The sewer line which traverses the berm, showing the extensive erosion to the supportive earthwork due to the adjacent stream of water.

Apparently, some time Monday, the sand bags were put in place, along with additional fencing at the problem site. These items were not present mid-morning Monday, but were there mid-morning Tuesday, July 1.

Update: According to an email received from Public Works, this site was visited by department staff on July 2nd, and that the Army Corps of Engineers was contacted that afternoon. Temporary repairs were made on July 3rd when the sewer line was stabilized, and numerous additional sandbags were placed in the pond waters, to make certain that any drainage would occur through the pipe. As of July 7th, Public Works indicated no further work will occur at Shadow Lake until a site visit occurs with Public Works and Corps staff.

Update, July 14, 2014: "It appears that the City has done what they needed to do to avoid losing an existing sanitary sewer line and the pond. At this time, the ground is super-saturated and heavy equipment cannot access the site. The City is working on a permanent solution and will contact me when they have something to propose. For now, the sandbags are preventing berm failure due to the heavy erosion on the downstream side of the berm, which is quite severe. The work they have done qualifies for a Nationwide 3c, which is a non-reporting nationwide permit." - email response received from staff of the Corps of Engineers after the site visit

Regulatory Compliance Vexing for Saddle Creek CSO! Project

Compliance with federal regulations has been problematic for department of Public works officials in recent days. Different items of requiring immediate attention occurred within a day-or-two period for city of Omaha officials managing the Saddle Creek project along Center street.

It apparently started with an observation of a pair of red-tailed hawks at a nest just south of an area where tree clearing had occurred mid-week, according to people involved with the project.

There is a federal stipulation that nests of species associated with the Migratory Bird Treaty Act cannot be disturbed or destroyed.

Once a pair of hawks were noted, nearby a nest, the project site was shut down, according to details provided by city officials during a site visit on Friday afternoon, 29 March.

They thought that since the birds were "nesting" there could be no further disturbance. The project manager said calls were made to the Nebraska office of the Fish and Wildlife Service, but no one answered. So there was resolution to the situation. We "did not know what to do," he said. "Nobody knew what to follow."

So, project activity at the site was suspended.

This was Thursday.

On Friday morning a personal visit was made to the site on the east side of Westlawn Cemetery, henceforth designated as Westlawn Creek.

There were several typical birds, including an appreciated Brown Creeper, and misplaced Black-capped Chickadees. There were no Red-tailed Hawks seen in the immediate area or even the general vicinity.

Black-capped Chickadee on former habitat.

Abandoned Red-tailed Hawk nest.

What was most obvious was a lack of sediment curtains along earthen slopes adjacent to the flowing waters of the creek. Nothing was present to prevent erosional deposition from these slopes into the creek, especially perhaps during the rainfall expected during the pending night.

Early on Friday afternoon, a phone call was made to the Army Corps of Engineers, the federal agency which issued the 404 permit. The regulatory permit for this particular project, as provided by the Corps of Engineers, required that sediment curtains be suitably placed, according to an officials at the Wehrspan regulatory office, that described the particular conditions for this permit.

This was the situation during another visit to the site on Friday afternoon. Public Works department men were present, including a sediment specialist. We walked the site and discussed the situation. He said the sediment curtains would be still be put in place during the day. It was about 3 p.m.

A project official indicated more than once, that sediment curtains would be yet put in place during the afternoon. When the Corps contacted a project official, the person said the same thing, according to an email subsequently received from the Corps of Engineers staff person responsible for this project.

During the afternoon visit, a couple of other Public Works guys arrived. The four of us did a similar sort of jaunt along the barren ground on the east side of Westlawn Creek. Particular attention was given to the hawk nest, south of the boundary of woodland clearing.

View of area cleared of trees, with them piled in background.

Perspective along Woodlawn Creek on Friday.

The land was barren, and there were no hawks, and very few other sorts of birds. Though a hawk, or two, had been seen near the nest a day or two earlier, as indicated by a photograph shown by someone from Public works, my prognosis was that the nest had been abandoned. No eggs had been laid, and there were certainly no young birds present. There was no need to delay, as indicated in another call of my perspective conveyed to Public Works. The northern portion of the site could have been worked, because there were significant visual barriers, which would limit the disturbance factor, for places at the southern portion of the project site.

Because of suspending work activities due to the potential of nesting activities associated with a protected species, the sediment curtains were not immediately put in place.

The sediment curtains were installed Friday evening, as an email notification was provided to the Corps of Engineers about 8:30 p.m.

Planning Underway for Missouri Backwaters Renovation

Planning is currently underway for two projects that will renovate backwater habitat along the Missouri River. One site is on the Nebraska-side of the river at Desoto National Wildlife Refuge. The other is at Wilson Island State Recreation Area.

Partners with the Army Corps of Engineers on these projects are the U.S. Fish and Wildlife Service and Iowa Department of Natural Resources.

About 25 people attended the first public scoping meeting — held at the refuge visitor center the evening of March 19 — where information on the project was explained, and officials were present to answer any questions, said David Crane, an environmental resources specialist with the Corps. There was an opportunity for attendees to provide any comments.

The Wilson Island site is associated with an existing backwater along the eastern boundary of the area. The Desoto Bend area is a relict backwater area.

There are numerous expected benefits, Crane said:

"The purpose of site-specific Missouri River Recovery Program Shallow Water Habitat (SWH) projects such as those at Wilson Island State Recreation Area and Desoto National Wildlife Refuge is to restore habitat for and population sustainability to federally endangered pallid sturgeon and to mitigate the loss of fish and wildlife habitat that occurred due to construction of the Missouri River Bank Stabilization and Navigation Project. SWH also provide nursery and refuge environments for young fish and foraging areas for other native fish, conditions in SWH environments are able to produce high amounts of macroinvertebrates and plankton which feed pallid sturgeon and other native fish and wildlife. As native wildlife communities are established in these restored environments recreational benefits are also derived by people who enjoy fishing, hunting, hiking, taking insect photographs, etc.

Final design for the two projects is still being evaluated, Crane said. Once a final plan is prepared, it will be available for public review.

"Final plans and specification are expected to be ready to be advertised by the end of August 2013, with construction beginning after the contract is awarded. Once construction begins the contractor will be given 12-24 months to complete the project. The anticipated construction cost of the different alternatives currently ranges between $3.0 million and $4.9 million, though these figures are based on order of magnitude estimates and final construction costs will be based on final project design which public and agency input can help shape."

The Corps of Engineers will pay all project costs, since it is a Missouri River Recovery Program habitat creation effort (shallow water habitat and emergent sandbar habitat).

Comments on the project may be mailed to U.S. Army Corp of Engineers, Omaha District, ATTN: CENWO-PM-AC (David Crane), 1616 Capitol Avenue, Omaha, NE 68102-4901; or via email to david.j.crane [@] usace.army.mil

"We are taking comments between now and about the end of May- the end of the public comment period depends on when the draft environmental assessment. A public notice will announce the timeframe of the assessment comment period, but comments are welcome before that announcement. If there is an optimal time it would probably be after the draft environmental assessment goes out - that way folks have some substantive content to comment on."

Images courtesy of the Army Corps of Engineers.