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Federal Court Rejects Challenge to CWA Permit Regulating Upland Ditches

Beveridge & Diamond, P.C., April 20, 2010

The U.S. District Court for the District of Columbia recently determined that upland manmade ditches may be subject to federal jurisdiction under the Clean Water Act (“CWA”).  In National Association of Home Builders v. U.S. Army Corp of Engineers, No. 07-972 (D.D.C. Mar. 30, 2010), the court rejected a challenge by the National Association of Homebuilders (“NAHB”) to the U.S. Army Corps of Engineers’ authority to issue nationwide permit 46 (“NWP 46”), which extends CWA jurisdiction to discharges of dredged or fill material into upland ditches.  The ruling marks a significant setback to development interests and could lead to changes in the Corps’ Section 404 permitting practices.  

The Corps issued NWP 46 in 2007 as a general permit to cover certain manmade, upland ditches that convey water to or divert it from CWA-jurisdictional waters.  The permit allows the Corps to determine on a case-by-case basis whether these ditches are subject to CWA jurisdiction and, therefore, whether a landowner must obtain a Section 404 permit before discharging dredged or fill material into them.  NAHB, which has long argued that the CWA does not reach any manmade ditches constructed in uplands, challenged the permit shortly after it took effect.

NAHB argued that the Corps violated the Administrative Procedure Act by issuing NWP 46 as a means to regulate upland ditches as “waters of the United States” and requiring permits for discharges to features over which it has no authority.  NAHB asserted that ditches are expressly included in the CWA’s definition of “point source,” but not in its definition of “waters of the United States.”  This nuance, NAHB reasoned, indicated that Congress intended ditches to be viewed as point sources that convey discharges to jurisdictional waters, but not as jurisdictional waters themselves.  The group further argued that ditches are not “relatively permanent, standing or continuously flowing” hydrologic features and, therefore, do not satisfy the test for CWA jurisdiction articulated in the U.S. Supreme Court’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).  See http://www.bdlaw.com/news-59.html.

The court rejected these arguments.  It said that NAHB did not meet the requirements for sustaining a facial challenge to NWP 46 – i.e., showing that “no set of circumstances exists under which the permit would be valid.”  On the contrary, the district court explained, the Supreme Court in Rapanos contemplated that ditches, such as those covered under the general permit, could be jurisdictional waters under the CWA even if the statute includes them in its definition of “point source.”  Thus, the district court held, while certain upland ditches may not qualify as waters of the United States under the CWA, it could not be said that these features are categorically beyond the Corps’ regulatory authority under the statute.  Accordingly, the court granted summary judgment to the Corps.

The most recent National Association of Home Builders decision adds another layer of uncertainty to the scope of CWA jurisdiction over non-navigable waters and wetlands.  In the wake of Rapanos, the Corps and the Environmental Protection Agency issued joint guidance, see http://www.bdlaw.com/news-438.html, stating that “ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water generally are not waters of the United States . . . .”  In light of the court’s ruling, this policy – and landowners’ associated permitting requirements under the Clean Water Act – now may be subject to further refinement.  As is all too often the case with the Section 404 program, confusion and uncertainty reign.

For more information about the impact of this decision, please contact Fred Wagner (fwagner@bdlaw.com, 202-789-6041) or Parker Moore (pmoore@bdlaw.com, 202-789-6028). 

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