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Thread: Erosion Permits

  1. #1
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    Erosion Permits

    Anybody have any silver bullet for tackling the erosion permit issue with land managers?

    In my state we cannot disturb more then 5,000 square feet without an erosion control permit and plan, which is costly and time consuming, so we have to explain that we will only work 5,000 square feet at a time and remediate it before moving on to the next section (which is fine), but even this plan takes a little convincing... Currently waiting to hear if the 'engineers' accepted this or not.

    Anybody have any other input on how others have shown the land manager/local municipalities that erosion control permitting isn't necessary for trail building?

  2. #2
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    I dealt with this on a project one time. I was using an excavator so they were like no way you're disturbing less than 5K square feet before you remediate. So I took one of the primaries for the property out to another project and showed them - a three foot wide disturbance, opening a max of 500-1000 feet per day, cleaning up right behind it, and done before moving on with the excavator. He looked at me, as though he'd arrived at a conclusion all on his own, and as if I didn't know it, said to me, you never have 5K square feet of ground disturbed at once, we don't even need an erosion permit or plan. We don't even need to budget for fence. You're fine.

    See how handy Jedi mind tricks are?

  3. #3
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    Quote Originally Posted by TheDwayyo View Post
    Anybody have any silver bullet for tackling the erosion permit issue with land managers?
    What state? Are talking about an NPDES/SWPPP?

  4. #4
    Dirt Monkey
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    How much trail do you plan on building at one time? At 2' width, that's ~0.5 miles of trail; which is a significant amount if hand building. Sounds like this should only apply to larger projects (like building a parking lot).

  5. #5
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    We run into this often. We never have any luck showing that erosion control permitting is not needed. We are able to avoid having to install wattles or silt socks on the entire trail build by proving we are remediating our daily disturbance. We still have to wattle when working near blue streams, wetlands, and other areas as determined by the permit.

    Wish I had a silver bullet for you. If you find one, please pass along.

  6. #6
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    Quote Originally Posted by Cotharyus View Post
    I dealt with this on a project one time. I was using an excavator so they were like no way you're disturbing less than 5K square feet before you remediate. So I took one of the primaries for the property out to another project and showed them - a three foot wide disturbance, opening a max of 500-1000 feet per day, cleaning up right behind it, and done before moving on with the excavator. He looked at me, as though he'd arrived at a conclusion all on his own, and as if I didn't know it, said to me, you never have 5K square feet of ground disturbed at once, we don't even need an erosion permit or plan. We don't even need to budget for fence. You're fine.

    See how handy Jedi mind tricks are?
    Luckily so far we have just explained it, not had to show it, but it does seem like some land managers used to more traditional construction types have a hard time wrapping their heads around it. Glad to hear showing them in person was all it took.

    Quote Originally Posted by CycleKrieg View Post
    What state? Are talking about an NPDES/SWPPP?
    MD. Don't know what those abbreviations are so I'm guessing no.

    Quote Originally Posted by aero901 View Post
    How much trail do you plan on building at one time? At 2' width, that's ~0.5 miles of trail; which is a significant amount if hand building. Sounds like this should only apply to larger projects (like building a parking lot).
    Building nearly five miles of trail in this project, the majority of it being done by a contractor with a mini-ex.

    Quote Originally Posted by Bluegrassbiker View Post
    We run into this often. We never have any luck showing that erosion control permitting is not needed. We are able to avoid having to install wattles or silt socks on the entire trail build by proving we are remediating our daily disturbance. We still have to wattle when working near blue streams, wetlands, and other areas as determined by the permit.

    Wish I had a silver bullet for you. If you find one, please pass along.
    Cotharyus' post pretty much lays out our silver bullet. When I posted this I wasn't sure it was going to be accepted by the current project's land manager - but now it seems that it has. This has been fairly standard with trail projects in this area, though each new land manager takes a little 'education' to get on board.

    If you never have 5k square feet disturbed, you shouldn't need a permit.

  7. #7
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    Actually, it's very likely that it was a NPDES stormwater permit issue. State implementation varies across the country, and I don't know about Maryland. I'm glad that you found this resolution. I know some trail builders have had to comply with stormwater construction permitting, but (speaking as someone who works in the field) I think that's nonsense. Since stormwater runoff from forest roads can't be regulated under the Clean Water Act, it seems silly to regulate nonmotorized trail consruction.

  8. #8
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    Quote Originally Posted by TheDwayyo View Post
    MD. Don't know what those abbreviations are so I'm guessing no.
    Quote Originally Posted by evasive View Post
    Actually, it's very likely that it was a NPDES stormwater permit issue. Since stormwater runoff from forest roads can't be regulated under the Clean Water Act, it seems silly to regulate nonmotorized trail consruction.
    A NPDES permit is for construction or extraction activities. Not existing road ways. Each state's implementation is slightly different, so never assume you aren't required to do one, regardless of what the land manager tells you. Ask the appropriate agency in your state. Many states consider a total project impact, not the area being worked on. The total area de minimus us usually 1 acre.

    https://www.epa.gov/npdes/stormwater...ion-activities

    A SWPPP is the actual document that lays out how to actually prevent any discharges. Its a description of what steps you will be taking to keep the work area as stable and erosion free as possible.

    https://www.epa.gov/npdes/developing...ion-plan-swppp

    When working, use duff raking/replacement to spead up vegetation regrowth.

  9. #9
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    Quote Originally Posted by CycleKrieg View Post
    A NPDES permit is for construction or extraction activities. Not existing road ways. Each state's implementation is slightly different, so never assume you aren't required to do one, regardless of what the land manager tells you. Ask the appropriate agency in your state. Many states consider a total project impact, not the area being worked on. The total area de minimus us usually 1 acre.
    Whether or not forest roads (including construction) are subject to NPEDES permitting was the subject of a significant lawsuit earlier this decade. It ended at the Supreme Court. I was writing TMDLs at the time and we followed it closely. After that the 2014 farm bill revised the CWA and clearly specified the silviculture exemption. It explicitly excluded forest road construction from permit requirements. Hence my opinion that if forest roads arenít subject to NPDES requirements, it seems silly for non-motorized trails to be.

    https://www.govinfo.gov/content/pkg/...2016-15844.pdf

    Yes- most states have ďcommon plan of designĒ language or similar in their rules, so regardless of area disturbed at any one time, the total project area is what determines the permit requirements. But trail construction is different than what most people think of as construction. There isnít much that needs to be stabilized or revegetated- in many cases the disturbance is the finished surface and itís surrounded by hundreds of feet of vegetated buffer. Itís kind of stretching the law into an unwarranted activity and it can be an awkward fit. Iím certainly not a stormwater expert but I do administer a water quality permit program. Not NPDES, but a sister program modeled on it. I definitely agree that you should always call the regulator to see where you stand- my opinion doesnít influence whether your permitting authority determines that you need a permit. I take those calls almost daily.

  10. #10
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    Quote Originally Posted by evasive View Post
    Whether or not forest roads (including construction) are subject to NPEDES permitting was the subject of a significant lawsuit earlier this decade. It ended at the Supreme Court... I definitely agree that you should always call the regulator to see where you stand- my opinion doesnít influence whether your permitting authority determines that you need a permit. I take those calls almost daily.
    That was an interesting read. Am a reading it correctly that its just forest roads established for logging related activities?

    MN is requiring a SWPPP for any disturbance over an acre. That includes trails as any trail over 2 miles (4ft x 11,000ft = 44,000sq.ft.) would meet that requirement. I know that trails for ATVs and snowmobiles are required to do the same, as I'm filling out a SWPPP for an ATV trail at work. So I'm surprised forest roads wouldn't be included.

  11. #11
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    Quote Originally Posted by CycleKrieg View Post
    That was an interesting read. Am a reading it correctly that its just forest roads established for logging related activities?

    MN is requiring a SWPPP for any disturbance over an acre. That includes trails as any trail over 2 miles (4ft x 11,000ft = 44,000sq.ft.) would meet that requirement. I know that trails for ATVs and snowmobiles are required to do the same, as I'm filling out a SWPPP for an ATV trail at work. So I'm surprised forest roads wouldn't be included.
    I havenít done a deep dive into whether the roadís purpose has to be considered in order for the statutory exclusion to apply, but I think that would be very hard to implement.

    For the reasons I mentioned above it seems silly to me to apply the law to trail construction, but I can see how a strict application would lead someone to require it.

    Agriculture has always been considered a nonpoint source under the CWA, so it probably wasnít a huge stretch to argue that silviculture is similar and should be too. Weyerhaeuser has more friends in congress than Trail Solutions. That sounds cynical, but I agree with the decision. Road sediment is handled well by BMPs and voluntary efforts, at least by the USFS in this Region. And Iíd say the big private timber company here does pretty well, too.

  12. #12
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    In MD, there's actually a new interpretation from DNR and some counties requiring LESS THAN 5000 lf of trail construction at a time for LOD <5000sqft for sediment and erosion control plan exemption (or rather, standard grading plan). You are right (evasive) that this is a stupid interpretation but our local mtn bike advocacy org has NOT decided to take it on.

    We regularly build more than 5000 lf of trail in one day with volunteer numbers regularly at or over 100 in MD.

    Stormwater inspectors from MDE (state regulator) or counties have no experience with anything like natural surface trail construction so they have no clue what they are looking at. With zero guidance, guidelines or inspection from our SCD, we reject any interference from any permitting agency as they were CLEARLY developed for major construction projects, not fully-buffered non-mechanical tiny, baby projects way out in the woods.

    I didn't know about the forest road exemption. I'll be using that one for sure. If they can exempt an entire road, a trail shouldn't matter at all. Good ammo.

    I got my Green Card for Sediment and Erosion Control - Responsible Personnel certification as well as a county Master Watershed Steward cert to help battle the regulations that really shouldn't apply to our projects. It has helped a lot.

    For your MD-specific project Dwayyo, you are asking for a common-sense interpretation of a regulatory issue that is not settled. No one wants to deal with MDE as they are TERRIBLE most of the time. It has been my experience that if the regulation doesn't SPECIFICALLY mention your activity, the erosion and sediment control (ESC) stuff shouldn't be applicable. You don't have stamped, signed engineering plans, your local Soil Conservation District has all kinds of farm-related exemptions. I want trail-building to be granted a Categorical Exemption (CE) in MD but that would be a tough fight.

    mk
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  13. #13
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    The best outcome would be a conversation with a manager whoís in a position to make a policy decision. Where laws and regulations arenít clear, agencies are guided by policy or by management decisions. If youíre able to have a conversation about it with a regulator, showing them a copy of Troy Parkerís Natural Surface Trails by Design might be helpful in explaining the concept.

    But... most likely youíll encounter someone who feels a disturbance is a disturbance, and the law says disturbance! And since from a regulatorís perspective a general permit NOI is a minimal burden, theyíre not likely to be that motivated to reevaluate.

  14. #14
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    So the final result here was that the land manager (City) stepped in to issue us a grading permit (at no cost) and will not require any further erosion permitting. This was directly because we wrote into the contract that no more than 5,000 square feet will be disturbed at one time. It's a good solution because it moves our project forward, but it would definitely be nice to see trail building more formally excluded from these issues.

    Definitely good info on forest roads too, that's good to know. The land in question has a network of roads that lose massive quantities of their surface to erosion each year only to have more dumped on top rather than fixing the drainage issues... If that isn't a concern then our trails certainly shouldn't be.

    Hey Mike!

  15. #15
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    Looks like this issue was resolved, sorry I couldn't chime in sooner. I work as an environmental engineer and spent about 5 years of my career working large construction projects across the us/Canada as a Certified Professional in Erosion and Sediment Control (CPESC)...by the sounds of it I'm glad to not have worked a project in Maryland, although Vermont was pretty strict as well.

    Most states operate under the federal program where 1 acre (43,000 sq. ft) is the permitting threshold. As far as practical implementation of staying under the 5000 ft rule, it should only apply for the condition of the job site at the end of the day...meaning you could have over 5000, but before rain is anticipated or the day ends, stabilize until you get to 5000.

    Easiest way is to first of all, be very diligent in what you disturb. Straw is the go to for stabilizing soil. Stay away from hay because there is the potential for the spread of invasive species. On steeper slopes you can use erosion matting/blanket. Permanent stabilization is best achieved through a mix of annual rye (comes up in like a week) mixed with some other native conservation seed mix.

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