APB agenda 082003 - Laserfiche WebLink

Browse Search

June 18, 2003 Land Use Law Report Page 99 Wetlands Roadside Ditch Within Jurisdiction Of Corps of Engineers A roadside ditch is within the U.S. Army Corps of Engineers' Clean Water Act (CWA) jurisdiction, where water flowing in it eventually reaches navi- gable waters, the 4th U.S. Circuit Court of Appeals has ruled (United States v. Deaton, No. Q2 -1442, June 12, 2003). Therefore, landowners' failure to obtain a permit from the Corps before digging a drainage ditch on their wetlands property violated the CWA, because the water from their ditch drained into the roadside ditch. James and . Rebecca Deaton own 12 a_ cres of land in Wicomico County on Maryland's'Eastern Shore. The parcel slopes toward a drainage ditch running beside a county road. Surface water from the property drains into the ditch, which then drains into a culvert under the road that connects to an- other ditch leading to Perdue Creek. Perdue Creek, in turn, flows into Beaverdam Creek, a tributary of the Wicomico River, a navigable branch of the Chesapeake Bay. Subdivision Had `Wet Feet' The Deatons bought the property in 1989, planning to develop it with a small residential sub- division. Because much of the land was poorly drained, they decided to dig an 1,100- foot -long ditch through the center of the property, without obtaining a CWA permit. In an earlier opinion, United States v. Deaton, 209 F.3d 331 (2000) the 4th Circuit held the piling of material dredged from the ditch along its banks (sidecasting) without a permit violated the CWA. The case was sent back to the trial court for further proceedings. Shortly thereafter, the U.S. Supreme Court de- cided Solid Waste Agency of Northern Cook County v. United States, 531 U.S. 159. In that decision, the high court ruled the U.S. Army Corps of Engineers (Corps) exceeded its statutory authority when it interpreted the CWA as covering isolated waters not hydrologically connected to navigable waters. In light of that decision, the Deatons moved for reconsideration of the CWA jurisdictional issue. The district court denied the motion, and issued an order directing the Deatons to fill in the ditch. The Deatons' principal argument on appeal was that the Corps had no authority over the roadside ditch and thus could not regulate their wetlands, the appeals court observed. Section 404 (a) of the CWA requires a permit for discharge of fill mate- rial into "navigable waters." The CWA defines navigable waters as "waters of the United States" and the Corps' jurisdictional regulations define waters of the United States as including traditional navigable waters, tributaries of covered waters, and wetlands adjacent to covered waters and their tributaries. The Corps thus claimed jurisdiction over the Deatons' property because it is adjacent to a roadside ditch that is a tributary of the Wicomico River. Congress' authority over the "channels of inter- state commerce" under the commerce clause of the U.S. Constitution is broad enough. to permit it to enact laws to prevent the use of navigable waters for injurious purposes, the court said. For example, Congress may bar the use of navigable waters to dump fill material. The power over navigable wa- ters also includes the authority to regulate nonnavi- gable waters when regulation is necessary to pro- tect navigable waters, the court continued. Any pollutant that degrades the quality of water in a tributary of navigable waters potentially could de- grade the quality of the navigable waters them- selves. If Congress has that power, it may delegate it to the Corps. Corps' Interpretation Reasonable The Deatons argued that even if the Corps' authority reaches nonnavigable tributaries, the roadside ditch is not a tributary at all, or alterna- tively is not a tributary of a navigable water. Dic- tionary definitions of "tributary" differ, the court noted. It may refer to the entire feeder system for a navigable water or only rivers or streams flowing into larger bodies of water, depending on which dictionary one consults. The existence of alternate definitions of a term, each making some sense under the regulation, indi- cates the regulation itself is open to interpretation. The Corps has consistently argued "tributaries" re- ferred to all tributaries. Because that long- standing interpretation has support in the dictionary and elsewhere, it is not plainly erroneous and is entitled to deference, the court said. To support the Corps' current interpretation of its jurisdiction, which differs from the interpreta- tion it adopted in 1974 shortly after the CWA was passed, the court need only conclude that the Corps' interpretation is sufficiently rational to pre- clude a court from substituting its judgment for that of the Corps, it said. The Corps argued that dis- charges into nonnavigable tributaries and adjacent wetlands have a substantial effect on the water quality of navigable waters. This nexus, in light of congressional concerns for protection of water © 2003 Business Publishers, Inc. All rights reserved. (Continued on page 100) q)