Ditch = wetland = US waters = confusion

14 Feb 2012

When is a ditch a regulated water of the United States? More importantly, when does a developer have to apply for a Clean Water Act permit to work in a dry upland ditch?

Some time ago, the Army Corps of Engineers issued a nationwide permit, NWP 46 which grants the Corps the right to make case-by-case determinations that an upland ditch is a “water of the United States” regulated under the Federal Clean Water Act (CWA).  The National Association of Home Builders (NAHB) recently challenged NWP 46 in the US Court of Appeals for the DC Circuit.  NAHB argued that the Corps went too far in defining ditches as navigable waters when the CWA defines them as point sources. The Court dodged the fight by holding that the NAHB did not have standing to sue.

This likely means that this fight will sit until the Corps cites someone for working in a ditch without a permit. This catch-22 is reminiscent of EPA’s no-pre-enforcement review position scorned publicly by the US Supreme Court.

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