U.S. Appeals Court Rules Against Regulation of Roadside Ditches
In a decision that directly contradicts previous circuit court rulings, the U.S. Court of Appeals for the Fifth Circuit last week said that the federal government may not impose regulations over non-navigable waters.

NAHB has called on the Supreme Court to resolve the debate over Clean Water Act jurisdiction as other branches of the government have refused to issue policy language, guidance or rules on this issue.

“Landowners, home builders, developers and regulatory field officials have no coherent guideposts from the Bush Administration on the limits of federal regulation under the Clean Water Act,” said NAHB President Kent Conine. “It's time for the Supreme Court to step in and confirm that puddles and ditches are not navigable waters so that we are not needlessly increasing the area we have to regulate with finite budgetary resources.”

In U.S. v. Needham, the Fifth Circuit ruled that, “the Clean Water Act and the Oil Pollution Act are not so broad as to permit the federal government to impose regulations over ‘tributaries’ that are neither themselves navigable nor truly adjacent to navigable waters. Consequently, in this circuit the United States may not simply impose regulations over puddles, sewers, roadside ditches and the like.” 
 
 The court’s decision sided with the amicus brief filed by NAHB in this case.

The Fifth Circuit relied heavily on the 2001 decision by the Supreme Court, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, that Clean Water Act regulation does not extend to isolated wetlands.

But the Needham ruling directly contradicts other circuit court decisions, notably U.S. v. Deaton, in which the Fourth Circuit ruled in favor of virtually limitless jurisdiction, allowing a remote, shallow drainage ditch eight miles from the closest navigable water to be placed under federal regulation.

“What we learned from the Needham decision is that if the Deatons’ land were in Texas, their ditch would not have been regulated by the federal government,” said Conine. “Without action from the EPA, the Supreme Court is the only realistic forum that can resolve the question of jurisdiction and take landowners like the Deatons out of regulatory limbo, and we urge the justices to take the case.”

On December 15 the Environmental Protection Agency and the U.S. Army Corps of Engineers announced that they would not proceed with a rulemaking to revise the definition of "waters of the U.S." to reflect the Supreme Court's interpretation of the Clean Water Act.  Instead, they would prefer to allow important regulatory decisions to vary between Corps districts.  Rather than perform a formal rulemaking, the agencies will continue to allow Corps field staff the discretion to interpret local court decisions in making isolated wetland jurisdictional decisions. [ return to top ]